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train | 001-107077 | ENG | DEU | COMMITTEE | 2,011 | CASE OF KURCZVEIL v. GERMANY | 4 | Violation of Art. 6-1 | Angelika Nußberger;Ganna Yudkivska | 4. The applicant was born in 1946 and lives in Lübbenau. 5. On 27 August 2003 the Wood Professional Association (HBG HolzBerufsgenossenschaft) refused to recognise the applicant’s respiratory diseases as an occupational disease (Berufskrankheit). 6. On 26 September 2003 the applicant, represented by lawyer, filed an objection against the aforementioned decision. The objection was rejected on 23 December 2003. 7. On 14 January 2004 the applicant brought an action in the Cottbus Social Court. 8. On 11 March 2004 the respondent party submitted the statement of defence and the applicant’s files. 9. On 14 June 2004 the Social Court requested inter alia reports of 19 doctors the applicant had consulted prior to the proceedings as well as medical documentation regarding the applicant’s five prior stays in hospital. Three months later these documents had been obtained in their entirety and the Social Court submitted the documents to the parties. 10. On 8 November 2004 and on 13 January 2005 the Social Court asked the applicant to concretise the claim. On 7 February 2005 the applicant submitted that the aim of the action was to determine that he was suffering from an occupational disease. 11. On 2 May 2005 the Social Court decided to obtain a first expert opinion concerning 12 specific questions and named an expert (Mr W.M.). The applicant cancelled the first examination fixed for 29 June 2005 due to illness. On 10 August 2005 the expert examined the applicant. On 13 October 2005 the expert submitted his report of 19 pages, in which he found inter alia that a further expert opinion was necessary. 12. On 23 March 2006 the Social Court decided to obtain another expert opinion on different aspects of the 12 questions and named an expert (Ms P.H.). The expert indicated her willingness to render the expert opinion. 13. In April 2006 the applicant changed lawyer. 14. On 24 May 2006 the expert Ms P.H. informed the Social Court that the applicant should first be examined by another expert (Ms U.R.). On 4 July 2006 the applicant challenged the latter expert on grounds of bias. By letter of 7 July 2006 the Social Court rejected this challenge and informed the applicant that it considered the examination necessary. On 19 October 2006 the applicant informed the Social Court that he was willing to cooperate. 15. On 7 February 2007 the expert Ms U.R. submitted her report of 11 pages. On 29 March 2007 the Social Court submitted the files to the expert Ms P.H. in order for her to render the requested expert opinion. On 17 April 2007 Ms P.H. informed the Social Court that she was unable to give the expert opinion. 16. On 17 August 2007 the Social Court amended its decision of 23 March 2006 and named another expert (Mr D.A.). On 31 August 2007 Mr D.A. informed the Social Court that he was unable to give the expert opinion in a timely manner. 17. On 26 September 2007 the Social Court again amended its decision of 23 March 2006 and named another expert (Mr Sch.). On 10 October 2007 the Social Court was informed that Mr Sch. had retired. 18. On 10 October 2007 the Social Court again amended its decision of 23 March 2006 and named another expert (Mr V.Z.). On 5 December 2007 Mr V.Z. informed the Social Court that he was unable to give the expert opinion in a timely manner. 19. On 11 December 2007 the Social Court again amended its decision of 23 March 2006 and named another expert (Mr E.M.). On 29 January 2008 the latter informed the Social Court that he was unable to give the expert opinion. 20. On 12 November 2008 the Social Court made a new decision to obtain an expert opinion and named an expert (Mr H.L.). On 2 December 2008 the Social Court was informed that Mr H.L. had retired. 21. On 11 February 2009 the Social Court amended its decision of 12 November 2008 and named another expert (Mr C.S.). On 20 February 2009 Mr C.S. informed the Social Court that he was unable to give the expert opinion. 22. In February 2009 the applicant changed lawyer. In April 2009 the new lawyer withdrew from the case. In June 2009 one of the applicant’s previous lawyers reappointed herself. 23. On 28 May 2009 the Social Court again amended its decision of 12 November 2008 and named another expert (Mr H.S.). On 11 June 2008 the Social Court was informed that the expert had retired. 24. On 18 June 2009 the Social Court anew amended its decision of 12 November 2008 and named another expert (Mr H.E.). On 11 November 2009 the expert submitted his report of 13 pages. On 18 January 2010 the expert supplemented his report. 25. On 21 January 2010 the report was submitted to the parties in order to obtain their comments. 26. On 25 March 2010 the Social Court scheduled a hearing for 14 April 2010. 27. On 14 April 2010 the Social Court held an oral hearing and rejected the applicant’s claim. The written judgment was served on the applicant’s lawyer on 7 June 2010. 28. On 7 July 2010 the applicant appealed against the judgment. | 1 |
train | 001-79436 | ENG | TUR | CHAMBER | 2,007 | CASE OF CANPOLAT v. TURKEY | 4 | Violation of Art. 6-1 | David Thór Björgvinsson | 4. The applicant was born in 1950 and was detained in the Hilvan prison, in Şanlıurfa at the time of the application. 5. On 11 October 1997 following receipt of information that the applicant was in possession of narcotic substances, police officers from the Siverek Security Directorate arrested the applicant, his son and one of the applicant's employees, İ.Ş., in the applicant's house. During the search of the applicant's house and farm, a certain amount of cannabis was found. 6. On 12 October 1997 the suspects were brought before the Siverek Magistrates' Court who ordered their detention on remand. 7. On 14 October 1997, the Siverek Magistrates' Court sent the case file to the public prosecutor's office at the Diyarbakır State Security Court holding that the case concerned the prosecution of organised drug trafficking. 8. On 24 October 1997 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment against the applicant and the two other suspects. The public prosecutor charged them under Article 403 § 5 of the Criminal Code of being in possession of hashish with the aim of trafficking. İ.Ş. was also charged with the consummation of hashish. 9. On 26 May 1998 the Diyarbakır State Security Court convicted the applicant and İ.Ş. The applicant was sentenced to three years and four months' imprisonment. 10. On 5 October 1998 the Court of Cassation quashed the judgment of the first-instance court. 11. On 24 November 1998 the Diyarbakır State Security Court once again convicted the applicant and his co-accused and sentenced them to six years and three months' imprisonment. 12. On 15 April 1999 the Court of Cassation again quashed the firstinstance court's judgment, holding that the applicant's and his coaccused's defence rights had not been respect as they had not been informed about the date of the hearing. 13. On 15 June 1999 the Diyarbakır State Security Court convicted the applicant and his co-accused and sentenced them to six years and three months' imprisonment. It also ordered their release from detention having regard to the time that they had spent in prison. 14. On 20 April 2000 the Court of Cassation upheld the judgment of the first-instance court. 15. The description of the relevant domestic law at the material time can be found in the judgments of Ağaoğlu v. Turkey (no. 27310/95, §§ 30-32, 6 December 2005) and Canevi and Others v. Turkey (no. 40395/98, §§ 22 and 23, 10 November 2004). | 1 |
train | 001-83470 | ENG | GBR | CHAMBER | 2,007 | CASE OF BRECKNELL v. THE UNITED KINGDOM | 2 | Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Non-pecuniary damage - award | Josep Casadevall;Nicolas Bratza | 6. The applicant was born in 1933 and lives in Armagh. She is the widow of Trevor Brecknell. 7. On 19 December 1975, loyalist gunmen arrived at Donnelly’s Bar, Silverbridge, in County Armagh and fired a machine gun at persons outside the bar. Two men entered the bar. One sprayed the room with automatic gunfire and the other threw a bomb into the premises. Trevor Brecknell, Patrick Donnelly and Michael Donnelly (aged 14) were killed and six other people received serious injuries. The applicant was at the time in hospital following the birth of her daughter and was informed of her husband’s death by the hospital chaplain and her doctor. 8. The emergency services and the police were alerted to the incident within a short time. While the dead and injured were being removed from the scene, soldiers of the Royal Scots Regiment were stoned upon their arrival and had to withdraw. As a consequence of the hostile reception, police decided not to investigate the scene until first light. 9. On 20 December, detectives and scene of crime officers attended the scene. Items were taken for forensic examination, including 9mm spent cartridge cases. A number of persons who had been in the bar on the previous night were spoken to and later statements were taken from a substantial number of the customers who had been there during the incident. The Government believed that all had been spoken to but that some would only give detectives an oral account. 10. The bodies of the deceased were identified and post mortems held. 11. A claim of responsibility for the incident was subsequently made by the Red Hand Commandos, an illegal loyalist paramilitary organisation. 12. The Government stated that despite the efforts of the police it was not possible to identify any particular suspect. No one had witnessed the arrival of the gunmen on the night of the attack. While a Ford Cortina car had been seen moving away from the location after the attack no one was able to identify this vehicle as belonging to the gunmen or as being used by them as a getaway vehicle. Although conversations with customers in the bar had led to a photofit picture being compiled this did not lead to anyone being connected with the incident. The view of the investigating officer at the time was that extreme loyalist elements from the Portadown area were likely to be responsible. It was believed that some persons in this category were arrested and interviewed but without any positive outcome. A report was prepared for the Director of Public Prosecutions who, in the absence of any evidence linking individuals to the incident, did not direct any prosecution to be brought. 13. On 26 November 1976 an inquest was held into the deaths of the three deceased persons. 14. The applicant was first contacted by the police three days after the murder. The investigating officer of the Royal Ulster Constabulary (“RUC”) who returned her husband’s personal effects told the applicant that the police knew who was responsible for the attack but that they all had alibis that they were playing pool in Markethill at the time of the murder. There was no further contact by the RUC with the applicant concerning the case at this time. 15. The investigation into the attack on Donnelly’s Bar did not close and became active again in 1978, when a Catholic priest Father Hugh Murphy was abducted by loyalist paramilitaries intending to use him as a hostage vis-à-vis the IRA. The police arrested a reserve police constable William McCaughey, who, in the course of questioning, revealed his part in the abduction of the priest and in a variety of other loyalist paramilitary incidents. A number of other arrests followed, including that of a police officer John Weir who was named as having been involved in the murder of a shopkeeper called Strathearn in Ahoghill in April 1977: he was convicted for that murder in June 1980. The Government stated that both McCaughey and Weir refused to name the two loyalist paramilitaries also involved with them in the murder unless they received immunity from prosecution. The police and prosecuting authority took the decision prior to the trial not to enter into any process of bargaining with Weir and McCaughey. While both were approached by the police after their convictions to see if at that stage they would give evidence against the loyalist paramilitaries, each again refused to do so unless there was something in it for themselves. The Government stated that during the period in which Weir was detained he was interviewed on a large number of occasions. At no time did he implicate himself or others in any offence other than the Strathearn murder. 16. McCaughey, however, did name a RUC reserve officer Laurence McClure as being involved in a range of incidents including the attack on Donnelly’s Bar. 17. McClure was arrested along with a woman called Elizabeth or Liz Shields. After questioning, both admitted to driving three persons, McConnell, who was a member of the Ulster Defence Regiment and two other unknown persons on the night of the incident. While admitting to knowing that the three persons must have been engaged in illegal activity they claimed that they did not know the details and only after the event were able to relate the picking up of these persons to the incident at Donnelly’s Bar. McClure and Shields were charged with offences under section 5 of the Criminal Law Act (Northern Ireland) 1967 – failure to disclose information relating to an offence. McConnell had by this date been murdered by the IRA and it was not possible to identify the other two persons in the car. In April 1981 the DPP made a decision not to pursue the charges against McClure and Shields. This decision was based on the receipt of an opinion of senior prosecuting counsel and was based on a series of factors: the delay in bringing the case to trial, the disposal of charges against others accused of offences arising from the investigation into McCaughey’s revelations, the absence of a prospect of a custodial sentence and the impact of a judgment of Jones LJ cited in another case (R v Donnelly [1986] NI 54) which was viewed as eliminating any reasonable prospect of conviction as a legal defence was available to the accused on a charge of withholding information. 18. In or about January 1999 John Weir, who had been released from prison on licence in 1993, made a statement to a journalist alleging RUC and Ulster Defence Regiment (“UDR”) collusion with loyalist paramilitaries from the Portadown area in the mid-1970s. This statement was published in the Sunday Times newspaper in March 1999. It was obtained by the Patrick Finucane Centre, a human rights non-governmental organisation in Derry (hereinafter “the Centre”). A copy was provided by the Centre to Alan Brecknell, Trevor Brecknell’s son. 19. John Weir’s statement made detailed allegations about security force collusion with loyalist paramilitaries, including the allegation that he had been told by McClure, a former reserve constable in the RUC, that Mitchell’s farmhouse owned by another RUC officer was used as a base from which to carry out loyalist attacks, including the attack on Donnelly’s Bar in Silverbridge. Weir also alleged that Stuart Young, Sammy McCoo, Shilly Silcock [suspect T] and Robert McConnell (a part-time UDR member) were responsible for the attack and that the getaway car was provided by Laurence McClure and Elizabeth Shields. He alleged that after the attack the group re-assembled at Mitchell’s farmhouse. 20. The statement also made links between the attack on Donnelly’s Bar and other attacks allegedly carried out by members of the security forces, both RUC and UDR, and loyalist paramilitaries. This group used the farmhouse in Glennane owned by James Mitchell, a RUC reservist, as a base from which to carry out attacks on Catholics and nationalists. Other attacks allegedly included the murder of Colm McCartney and Sean Farmer at a bogus vehicle checkpoint in August 1975 (see application no. 34575/04): the murder of John and Brian Reavey and wounding of Anthony Reavey in their home on 4 January 1976 (see application no. 34640/04); the murder of Joseph, Barry and Declan O’Dowd and wounding of Barney O’Dowd in the latter’s home in January 1976 (see application no. 34622/04); and the attack on the Rock Bar in which Michael McGrath was seriously injured (see application no. 34651/04). Weir also linked these attacks to the Dublin and Monaghan bombings in which 33 people were killed in the Republic of Ireland. 21. On or about 10 June 1999, RTE, an Irish television channel, broadcast a television programme that contained allegations of security force involvement in a number of deaths, including that of Trevor Brecknell. Weir made allegations on that programme that members of the RUC and UDR were directly involved in the attack on Donnelly’s Bar. A BBC Spotlight programme produced a similar documentary dealing with these allegations. 22. These allegations attracted considerable attention on both sides of the Irish border and became the subject of police investigation in both jurisdictions. The Government stated that the police investigation in Northern Ireland was focussed on determining whether Weir’s allegations should be assessed as sufficiently credible to require a full investigation. They obtained from the journalist an edited transcript of the interview with Weir. While his whereabouts were unknown to the RUC, Weir met with senior Irish police officers at the Irish Embassy on 15 April 1999. A copy of his statement was provided by the Garda to the RUC, along with a further statement made by Weir to another journalist dated 3 February 1999. The police analysed the available materials and sought to identify the personalities to be interviewed. It became apparent that some had died and that others, living abroad, could not be traced. A series of seven interviews were conducted, under cautions, between July and December 2001, of those individuals central to Weir’s account who could be traced. No charges were preferred. The interviews followed the format of Weir’s allegations being put to the interviewee for his or her response. The predominant response was denial of any involvement and claims that Weir had been untruthful. No admissions were made by any interviewee. Interviews were also conducted with less central personalities and with police officers involved in interviewing Weir in 1978. The latter stated that Weir had not mentioned the matters now being alleged. 23. Meetings were held regularly with RUC counterparts in the Republic of Ireland. The RUC co-operated also with the judicial inquiry established in the Republic of Ireland into the Dublin and Monaghan bombings (see further below). Amongst matters about which the RUC team provided information to the inquiry was ballistics information which linked some of the weapons used to more than one incident. In February 2000 a substantial report was compiled by the RUC for the Garda dealing with Weir’s allegations. It profiled Weir and dealt inter alia with a description of the 1978 investigation into McCaughey, Weir and others. It concluded that the investigation would continue but that his credibility was in doubt. According to the Government, despite inquiries being conducted, Weir’s whereabouts could not be traced. This report was not disclosed as the investigation was continuing. An internal RUC report dated 27 February 2001 concluded that it would be necessary to interview Weir before any view could be finalised in respect of the credibility of his allegations: such interview was not possible as his whereabouts were not known. The report noted the absence of any previous mention of the allegations before 1999 and that much of what he said was hearsay and speculation. Inquiries made of the British Embassy in Nigeria (where he had a known address) and the criminal intelligence service and others failed to locate Weir. Contact was made with the Garda and the secretariat of the Inquiry into the Dublin and Monaghan bombings without positive result. 24. In November 2003, a further report was written for the Assistant Chief Constable (Crime Operations) in respect of Weir’s allegations. This also could not be disclosed due to the ongoing investigation but the Government have stated that this focussed directly on the attack on Donnelly’s Bar, noting that Weir had mentioned the names of six persons, three of whom were known to have played a role in the attack. It noted that it was difficult to advance inquiries without interviewing Weir and recommended that there should be an overall review of the file on the attack and that the case be examined by the Serious Crime Review Team (“SCRT”) so that it could be determined whether the investigation should be reopened. This recommendation was accepted. The SCRT was established in March 2004, with responsibilities including the review of all historical murders by way of case assessment for evidential and investigative opportunities. It carried out a preliminary case review culminating in a report dated 14 June 2005 by Detective Inspector Ramsay of the Police Service Northern Ireland (“PSNI”). His view was that the investigation if looked at alone could not be progressed but that in the context of linked cases might be worth further exploration. He suggested a referral of the case for further assessment. The Historical Enquiry Team (“HET”) director of Investigations, Detective Chief Superintendent James of the London Metropolitan Police Force, took over personal supervision of the investigation which progressed through the first three of five stages of the HET process (collection of all relevant material; assessment of the investigations to date; review of evidence, with intelligence and open and non-police sources, together with a meeting with the families of the victims of the attack). As a number of investigative opportunities were identified and to be followed up, the case was to continue to be processed by HET, which had been put in touch with Weir by the Centre. The Government submitted that if any evidence of police involvement in the murders was found, the Office of the Police Ombudsman for Northern Ireland would then become involved. For the latest information from the Government concerning the investigation, see their most recent observations, paragraph 64 below. 25. Meanwhile, in July 1999, Mr Donnelly, owner of the bar and father of one of the people killed in the attack, informed the applicant’s family that he had received a summons to appear in court many years earlier. After contact with the authorities by the applicant’s lawyers and the Centre, it appeared that in or about 1980 Laurence McClure, a RUC reservist and Elizabeth Shields, housekeeper at Mitchell’s farm, had been charged with withholding information in relation to the murders. McClure had been the person identified by Weir as the main source of his information about security force collusion. The applicant and her family had never been informed about these proceedings. 26. By letters dated 5 July and 10 November 1999, the Northern Ireland Office informed the Centre that the allegations made by Weir and shown on the RTE programme were under investigation by the RUC. 27. On 31 January 2000, the Centre was informed by Chief Superintendent Sillery, on behalf of the Chief Constable, that charges against two persons connected with the attack had been dropped. This followed a meeting on 22 January, when relatives of Trevor Brecknell and others killed at Donnelly’s Bar met with Chief Superintendent McCann of the RUC, who had been the investigating officer in that incident and also for the murders of the Reavey family. He advised the relatives and a member of the Centre that as a result of his investigations he believed that there had been collusion between the loyalist paramilitaries and members of the security forces (RUC and UDR) and that the gang that had carried out the attack included security force personnel. While he was sure of the identities of the gang members, one of whom he named as Sammy McCoo, a well-known loyalist extremist, he considered however that there had been insufficient evidence available to convict; he dismissed suggestions of any conspiracy or any policy to block from above and gave his view that the charges against McClure and Shields had been thrown out for lack of evidence. He commented that some of those involved were now dead and one was very old, in his seventies. 28. By letter dated 31 January 2001, the Northern Ireland Office informed the Centre that the police were not investigating the attacks on the bar and that the current police inquiry centred on establishing the veracity of the disclosures made by John Weir and whether or not any further investigation was justified. The family would be informed if a further investigation was found to be warranted. 29. On 18 February 2001, members of the Centre met with John Weir in Paris. He made links between the attack on Donnelly’s Bar and the other incidents above. He named Stuart Young, Sammy McCoo, Shilly Silcock and Robert McConnell (a part-time UDR member, allegedly working with the army and SAS) as carrying out the attack on the bar and considered that the security forces would have known about it. He mentioned that McConnell had been shot dead in a later incident. 30. During this period the Centre was in contact with the police (which had changed name from the RUC to the Police Service of Northern Ireland “PSNI”) seeking to have questions answered about the original investigations into the various incidents. On 19 December 2001, a meeting was held between members of the Centre and Detective Inspector Aiken. Questions were put by and on behalf of the families concerning the investigations into the incidents. A request was made by the Brecknell family to have access to the investigation file. 31. The applicant’s representatives made further requests for access to the police investigation file, on 29 May 2002 to the DPP and the Secretary of State and on 19 September 2002 to the PSNI. 32. On 28 October 2002, the PSNI wrote to the applicant’s solicitors: “(i) The investigation into the allegations made by John Weir has been advanced as far as possible at this stage – this investigation focussed on establishing the veracity of allegations made by John Weir and whether or not there is any justification for further investigation. (ii) There are a number of discrepancies contained within the allegations made by John Weir and he has not made himself available to PSNI detectives for further interview in an effort to clarify these discrepancies. He is presently living outside the jurisdiction. (iii) As a consequence of an investigation in 1978, former Reserve Constable Laurence McClure and civilian Sarah Elizabeth (Lily) Shields were interviewed and admitted that they had conveyed three other persons, including Robert McConnell (now deceased) from the area... about eight miles from Donnelly’s Licensed Premises to Mitchell’s farm. Neither person was able to identify the other two persons collected. The allegations made by Weir in relation to this incident are similar to the facts disclosed by McClure and Shields during interview and would have been in the public domain at the time of the court case. The names of Stuart Young, Sammy McCoo and Phillip Silcock have been given by Weir as also involved – these personalities would have been known to John Weir. (iv) Much of what John Weir alleged is based on hearsay allegedly having been told to him by other police officers, including the former Reserve Constables McClure and James Mitchell. Those persons have been re-interviewed and deny all Weir’s allegations, other than what they admitted during the 1978 investigation. As previously stated, there are a number of allegations made by John Weir which detectives would like to clarify with him but because he is outside the jurisdiction, this has not been possible to date.” 33. On 20 November 2002, a further meeting was held with Detective Chief Inspector Williamson attended by members of the Centre and the Brecknell family as well as relatives of victims of other incidents, in which questions were asked about the investigation and prosecution inter alia in the Brecknell case. 34. On 11 December 2002, the applicant’s solicitors requested the Secretary of State for Northern Ireland to conduct an Article 2-compliant investigation into the allegations made by John Weir, in particular submitting that it was not compatible with Article 2 that it was the PSNI that had conducted the investigation into the allegations implicating RUC officers. They also submitted that an investigation was required to be prompt, public and accessible, that the relatives be kept fully informed of the course of the investigation and involved to the fullest extent and that they should receive full disclosure of the documents relating to the investigation. 35. On 29 January 2003, the Centre requested on behalf of the families involved, ballistics information about the guns used in the various attacks. On 3 October 2003, the PSNI replied that such information was not given out as it could prejudice the trial of any person charged in the future but that if an individual family could show how they might be prejudiced by non-disclosure the Chief Constable would give the matter full consideration. 36. On 30 April 2003, the applicant’s solicitors wrote to the DPP requesting inter alia copies of the admissions made by Laurence McClure and Elizabeth Shields and an explanation as to why no prosecution had been brought. On 9 May 2003, the DPP stated that the fact that a custodial sentence was not likely was not the only factor in the decision not to prosecute, while on 12 May 2003, the DPP referred them to the PSNI regarding the statements and on 22 May 2003 refused to provide them. 37. In June and August 2004, the Centre had meetings with the Chief Constable of the PSNI, aimed at persuading him to recommence investigations in these cases and to discuss a way forward. No commitment was made, although the Chief Constable expressed the view that if an investigation was carried out it would be conducted from within the PSNI. 38. Repeated requests for information concerning the investigation and for access to the file met with the response that the matter was under consideration by the SCRT (letters of 14 December 2004 and 9 February 2005). 39. On or about 1 April 2003, the Brecknell family applied for permission to apply for judicial review inter alia for a declaration that there had been no adequate investigation into the death of the applicant’s husband as required by Article 2 of the Convention and requiring that the Secretary of State provide for an Article 2-compliant investigation. Leave was granted by the High Court on 30 April 2003. The proceedings were adjourned pending the outcome of another case 40. On 11 March 2004, the House of Lords held in the case of McKerr v. the Secretary of State for Northern Ireland that a complainant alleging a procedural breach of Article 2 could not bring a complaint under the Human Rights Act 1998 unless the death in question occurred on or after 2 October 2000, when that Act came into force. This overturned the decision of the Northern Ireland Court of Appeal on 10 January 2003 to the effect that the obligation to provide an effective investigation was a continuing one. 41. On 3 September 2004, following an application by the Secretary of State to set aside the grant of leave in the applicant’s case, the Brecknell family withdrew their application for judicial review. 42. Meanwhile in October 2003 the Report of the Independent Commission of Inquiry into the Dublin and Monaghan bombings (known as the Barron Report) was given to the Taoiseach of the Republic of Ireland. The report was made public on 10 December 2003. The Independent Commission had taken into account interviews by the Irish police with John Weir in 1999 (concerning allegations of offences in the Irish Republic), a memorandum of a meeting between an organisation known as the Justice for the Forgotten and John Weir in 1999, a transcript of audiotapes sent by Weir to Justice for the Forgotten in June 2000 and the inquiry’s own interview with John Weir on 15 and 16 February 2001. The Report listed sectarian attacks alleged to have a link with the “Glennane group” of known paramilitaries and members of the RUC and UDR, including the murder of the applicant’s husband. It noted: “John Weir’s allegations have been subject of inquiries by both the RUC and [the Irish police]. These inquiries have relied on shared information, for the most part obtained by the RUC. Despite this, the RUC and [the Irish police] have arrived at markedly different conclusions regarding his credibility as a witness.” 43. The Report referred to a report sent by the RUC on 14 February 2000 to the Garda team investigating Weir’s allegations (see also page 10). The RUC report concluded that as Weir was a convicted murderer his credibility had to be in doubt and that the results of research did not encourage any belief that he was now being genuine. The Independent Commission did not find the RUC’s reasons sufficient to dismiss Weir’s claims and it also noted a number of errors and discrepancies: for example, the RUC claimed that Lily Shields was dead whereas Garda enquiries revealed that she was still alive and the information given did not take into account Special Branch extracts, which indicated that James Mitchell knew ten named loyalists who came to the farm, of whom six appeared in Weir’s allegations. Nor had the RUC paid sufficient attention to the evidence which supported Weir’s allegations. The Garda officers, in contrast to the view formed by the RUC, found Weir “came across as an intelligent and discerning man who is a very convincing witness” and that he was “highly credible and had very comprehensive details about the crimes he purports to have knowledge of.” The Report concluded that : “... in relation to the attacks on Donnelly’s Bar (Silverbridge).... John Farmer and Colm McCartney, the Reavey family and the O’Dowd family, information was given by one or more of the interviewees which confirmed Weir’s account of who was responsible in each case.” 44. The Report mentioned that the Garda had, with the assistance of the RUC, interviewed Mitchell, McClure, Shields, McCaughey and others mentioned by Weir; they denied his allegations. While the Garda had doubts as to their credibility, no further evidence was forthcoming to implicate them in the incidents, beyond any statements already made in other proceedings. The Report also set out ballistics evidence provided by the RUC, indicating that there was a chain in gun use between the attacks on Donnelly’s Bar, the shooting of the Reavey family, the murder of Farmer and McCartney and the attack on the Rock Bar. 45. The Report stated that: “All this information leads strongly to the conclusion that there were one or more groups operating in Northern Ireland involving not only loyalist paramilitaries but also members of the RUC and of the UDR, and using weapons obtained from the central quartermaster to whom the guns were returned after use. ...” 46. The Independent Commission was also commissioned to investigate the bombing of Kay’s Tavern in Dundalk in the Republic of Ireland which was bombed on 19 December 1975, the same date as the gun and bomb attack on Donnelly’s Bar, Silverbridge, in which Trevor Brecknell was killed and which the Barron Report had found to be linked. 47. In July 2006 the Commission issued an interim report. It found a number of factors suggested that the two incidents were linked. Both attacks were claimed by the Red Hand Commandos. The evidence before it was not conclusive but suggested that the Dundalk bombing was carried out by a group of loyalist subversives associated with the Mid-Ulster Ulster Volunteer Force (“UVF”) with the assistance of UVF members from the Shankill Road area of Belfast. As regarded the RUC investigation, it noted that eight persons contacted by the Centre stated that they had not given statements to the RUC and that it seemed that no house-to-house inquiries had been made. According to the owner of the bar, however, the investigating officer did keep in touch with him as the investigation proceeded and he was satisfied that the officer was genuinely trying to identify and arrest those responsible. It was also noted that on 29 December 1975 the RUC made a public appeal for anyone with information about the Silverbridge attack to come forward, with particular reference to two cars that had been seen in the area at the time. The information about the cars had been forwarded to the Irish police. 48. The report considered the further inquiries which followed in 1978-81 and quoted parts of the statements given by McClure admitting involvement in an attack on the Rock Bar and concerning a possible role in the Silverbridge attack, when together with Lily Shields, he drove Robert O’Connell and two other men on that night. Part of the statement of Lily Shields was also quoted. The report also quoted extracts from police Daily Record Sheets which indicated that William McCaughey incriminated Sammy McCoo and [Suspect T] in the Silverbridge attack while James Mitchell stated that O’Connell and some ‘Portadown boys’, one of whom was named, as a guess, as McCoo, were involved. Noting the lack of information about what had happened on 28 June 1980 when the RUC had said that the charges against McClure and Shields were marked “no prosecution” and about the judgment of Jones LJ that was relied on (see page 8 above), it stated that “a perception persisted that the case against McClure and Shields was managed or dropped in order to reduce the culpability of the latter when he came to be sentenced for his role in the Rock Bar attack”. It also referred to a letter sent by the Centre to the Northern Ireland Office, assessing McClure’s admissions as going beyond failure to provide information to giving actual assistance to the perpetrators. It did not consider that correspondence from the Northern Ireland Office, which set out reasons for not pursuing more serious charges against the two accused and clarified that the DPP had been aware at the time of Jones LJ’s judgment, could be taken as a complete answer to the allegations of managing the matter to lessen McClure’s perceived culpability in the Rock Bar attack. 49. It was stated that before his trial for involvement in the attack on Donnelly’s Bar, on 30 June 1980, McClure had been sentenced to two years’ imprisonment, suspended for three years, for his involvement in the attack on the Rock Bar (possession of an explosive substance and firearms and ammunition with intent to endanger life). 50. On 14 April 2003, the applicant commenced proceedings against the DPP, challenging various aspects of his decision-making in connection with the decision not to proceed with the case against McClure and Shields, in particular seeking orders to quash any decisions not to prosecute, offer evidence or enter a nolle prosequi and to quash his refusal to provide full and comprehensive reasons for not continuing the prosecution and his refusal to make available copies of their admissions The applicant also challenged the failure of the DPP to exercise his statutory power under Article 6(3) of the Prosecution of Offences (Northern Ireland) Order 1972 to conduct further investigations into the death of Trevor Brecknell. 51. In an affidavit from a senior officer of the Public Prosecution Service dated 2 February 2006, it was stated that due to the considerable vintage of the prosecutions in question the full facts relating to the mechanism whereby the prosecutions were actually terminated could not be established. It was known that the opinion of senior prosecuting counsel was considered before a discontinuance direction of 8 April 1981 was made. The effective decision maker had been the then DPP Sir Barry Shaw who had retired some sixteen years before. The senior Assistant Director involved in the decision, and author of the discontinuance direction, had since died. 52. By decision dated 23 May 2006, the High Court judge rejected the applicant’s application. He found that correspondence with the Attorney General in April 2003 established that the Attorney General had not issued a nolle prosequi. It appeared that a decision was taken by the DPP not to offer evidence against the accused at trial, which practice at the time was called, misleadingly, a nolle prosequi. Noting that the offence occurred in 1975 and the charges dropped in 1981 and that it had been clear throughout 2002 when the family and the Centre had been in contact with the police that no further action on this matter would be taken, he commented that the passage of time until bringing the judicial review application in May 2003 was very considerable. However, if he was wrong on the question of delay, the application still failed on the merits. The application for disclosure of files failed on the procedural ground that it was brought against the DPP, not the Chief Constable who had control of the said files. The decision of the DPP not to use his statutory power to direct a police investigation was a matter of discretion and the decision could not be said to be irrational or unlawful in the circumstances. As regarded reasons, the DPP had departed from his practice and reasons had been given by his officer in affidavit. In any event, the extent of the reasoning was a matter for the DPP and the court could not make an order to require the decision maker to give sufficient reasons to justify the decision not to prosecute. In relation to the discontinuance of the prosecution, the judge noted that the reasons included delay in bringing the case to trial, the perceived unlikelihood of a custodial sentence and "crucially the impact of a judgment in another case which was judged to eliminate any reasonable prospect of a conviction" which was a reference to the decision of Jones LJ discussed in R v Donnelly [1986] NI 54. He considered that it was evident that the decision was taken at the highest level and not lightly. At this long remove, with the death and retirement of the principal actors, it was not possible to establish that the decision, which had a rational basis was Wednesbury irrational or unlawful. He emphasised that a legal challenge of this kind directly affected third parties, namely the two defendants against whom the prosecution was dropped, and that it would be intrinsically unfair to reach a decision adverse to their position without giving them an opportunity to be heard - neither had been given notice of the application – and such a decision might also, potentially, be in breach of their rights or of the presumption of innocence. He noted that the purported entry of a nolle prosequi by the prosecution was admitted to be wrong in principle and law, as only the Attorney General could do such. The court record and documentation tended to suggest that the court was told that there was a nolle prosequi. While it would have been open to the prosecution merely to tender no evidence, this could have led to the direction of an acquittal; it was less clear whether an acquittal should have followed as a matter of law. He declined to give declaratory relief as to the invalid nature of the purported nolle prosequi due to the universal acceptance that this had been inappropriate, the fact that this practice had ceased, the applicant’s delay and the absence of the accused as parties to the application. | 1 |
train | 001-86490 | ENG | GBR | GRANDCHAMBER | 2,008 | CASE OF N. v. THE UNITED KINGDOM | 1 | No violation of Art. 3 in the event of the applicant being removed to Uganda | Dean Spielmann;Françoise Tulkens;Giovanni Bonello;Ireneu Cabral Barreto;Ján Šikuta;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Kristaq Traja;Mark Villiger;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Stanislav Pavlovschi | 8. The applicant was born in Uganda in 1974. She currently lives in London. 9. The applicant entered the United Kingdom on 28 March 1998 under an assumed name. She was seriously ill and was admitted to hospital, where she was diagnosed as HIV-positive with “considerable immunosuppression and ... disseminated mycobacterium TB”. 10. On 31 March 1998 solicitors lodged an asylum application on her behalf, claiming that she had been ill-treated and raped by the National Resistance Movement in Uganda because of her association with the Lord’s Resistance Army, and asserting that she was in fear of her life and safety if she were returned. 11. In August 1998 the applicant developed a second Aids-defining illness, Kaposi’s sarcoma. Her CD4 count was down to 10 (that of a healthy person is over 500). After treatment with antiretroviral drugs and frequent monitoring, her condition began to stabilise so that by 2005, when the House of Lords examined the case, her CD4 count had risen to 414. 12. In March 2001 a consultant physician prepared an expert report, at the request of the applicant’s solicitor, which expressed the view that without continuing regular antiretroviral treatment to improve and maintain her CD4 count, and monitoring to ensure that the correct combination of drugs was used, the applicant’s life expectancy would be less than one year, due to the disseminated Kaposi’s sarcoma and the risk of infections. The medication she needed would be available in Uganda, but only at considerable expense and in limited supply in the applicant’s home town of Masaka. Moreover, the author of the report pointed out that in Uganda there was no provision for publicly funded blood monitoring, basic nursing care, social security, food or housing. 13. The Secretary of State refused the asylum claim on 28 March 2001 on grounds of credibility, and also because it was not accepted that the Ugandan authorities were interested in the applicant. The applicant’s Article 3 claim was also rejected, the Secretary of State noting that treatment of Aids in Uganda was comparable to that in any other African country, and that all the major antiretroviral drugs were available in Uganda at highly subsidised prices. 14. An adjudicator determined the applicant’s appeal on 10 July 2002. He dismissed the appeal against the asylum refusal, but allowed the appeal on Article 3 grounds by reference to the case of D. v. the United Kingdom (2 May 1997, Reports of Judgments and Decisions 1997-III). He found that the applicant’s case fell within the scope of the Asylum Directorate Instructions which provide that exceptional leave to remain in or enter the United Kingdom must be given: “... where there is credible medical evidence that return, due to the medical facilities in the country concerned, would reduce the applicant’s life expectancy and subject him to acute physical and mental suffering, in circumstances where the UK [United Kingdom] can be regarded as having assumed responsibility for his care. ...” 15. The Secretary of State appealed against the Article 3 finding, contending that all the Aids drugs available under the National Health Service in the United Kingdom could also be obtained locally, and most were also available at a reduced price through the United Nations’ funded projects and from bilateral Aids donor-funded programmes. The applicant’s return would not, therefore, be to a “complete absence of medical treatment”, and so would not subject her to “acute physical and mental suffering”. The Immigration Appeal Tribunal allowed the appeal on 29 November 2002. It found as follows: “Medical treatment is available in Uganda for the [applicant’s] condition even though the Tribunal accept that the level of medical provision in Uganda falls below that in the United Kingdom and will continue to lag behind the advance of continuing drug advances which inevitably first become available in highly developed countries. Nonetheless, extensive efforts are being made in Uganda to tackle the Aids situation – Aids-treating drugs are available, refined forms of drug are being supplied (albeit with time lags) and it would not be until the [applicant’s] specific and varying needs became known that her needs could be assessed and the then availability of appropriate treatment decided.” 16. Leave to appeal to the Court of Appeal was granted on 26 June 2003, and on 16 October 2003 the applicant’s appeal to the Court of Appeal was dismissed by a majority of two to one ([2003] EWCA Civ 1369). With reference to the case of D. v. the United Kingdom (cited above), Lord Justice Laws (with whom Lord Justice Dyson concurred) stated: “The contrast between the relative well-being accorded in a signatory State to a very sick person who, for a while, even a long while, is accommodated there, and the scarcities and hardships which (without any violation of international law) he would face if he were returned home, is to my mind – even if the contrast is very great – an extremely fragile basis upon which to erect a legal duty upon the State to confer or extend a right to remain in its territory, a duty unsupported by any decision or policy adopted by the democratic arm, executive or legislature, of the State’s government. The elaboration of immigration policy ... is a paradigm of the responsibility of elected government. One readily understands that such a responsibility may be qualified by a supervening legal obligation arising under the ECHR [the Convention] where the person in question claims to be protected from torture or other mistreatment in his home country in violation of the Article 3 standards, especially if it would be meted out to him at the hands of the State. But a claim to be protected from the harsh effects of a want of resources, albeit made harsher by its contrast with the facilities available in the host country, is to my mind something else altogether. ... I would hold that the application of Article 3 where the complaint in essence is of want of resources in the applicant’s home country (in contrast to what has been available in the country from which he is to be removed) is only justified where the humanitarian appeal of the case is so powerful that it could not in reason be resisted by the authorities of a civilised State. That does not, I acknowledge, amount to a sharp legal test ... an Article 3 case of this kind must be based on facts which are not only exceptional, but extreme; extreme, that is, judged in the context of cases all or many of which (like this one) demand one’s sympathy on pressing grounds ...” Lord Justice Carnwath, dissenting, was unable to say that the facts of the case were so clear that the only reasonable conclusion was that Article 3 did not apply. Given the stark contrast between the applicant’s position in the United Kingdom and the practical certainty of a dramatically reduced life expectancy if returned to Uganda with no effective family support, he would have remitted the case to the fact-finding body in the case, the Immigration Appeal Tribunal. 17. Leave to appeal to the House of Lords was granted, and on 5 May 2005 the House of Lords unanimously dismissed the applicant’s appeal ([2005] UKHL 31). Lord Nicholls of Birkenhead summarised the applicant’s prognosis as follows: “... In August 1998 [the applicant] developed a second Aids-defining illness, Kaposi’s sarcoma. The CD4 cell count of a normal healthy person is over 500. Hers was down to 10. As a result of modern drugs and skilled medical treatment over a lengthy period, including a prolonged course of systematic chemotherapy, the [applicant] is now much better. Her CD4 count has risen [from 10] to 414. Her condition is stable. Her doctors say that if she continues to have access to the drugs and medical facilities available in the United Kingdom she should remain well for ‘decades’. But without these drugs and facilities the prognosis is ‘appalling’: she will suffer ill health, discomfort, pain and death within a year or two. This is because the highly active antiretroviral medication she is currently receiving does not cure her disease. It does not restore her to her pre-disease state. The medication replicates the functions of her compromised immune system and protects her from the consequences of her immune deficiency while, and only while, she continues to receive it. The cruel reality is that if the [applicant] returns to Uganda her ability to obtain the necessary medication is problematic. So if she returns to Uganda and cannot obtain the medical assistance she needs to keep her illness under control, her position will be similar to having a life-support machine turned off.” Lord Hope of Craighead, with whom Lord Nicholls, Lord Brown of Eaton-under-Heywood and Lord Walker of Gestingthorpe agreed, referred in detail to the Court’s case-law (see paragraphs 32-41 below), and held as follows: “... that Strasbourg has adhered throughout to two basic principles. On the one hand, the fundamental nature of the Article 3 guarantees applies irrespective of the reprehensible conduct of the applicant. ... On the other hand, aliens who are subject to expulsion cannot claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance provided by the expelling State. For an exception to be made where expulsion is resisted on medical grounds the circumstances must be exceptional ... The question on which the Court has to concentrate is whether the present state of the applicant’s health is such that, on humanitarian grounds, he ought not to be expelled unless it can [be] shown that the medical and social facilities that he so obviously needs are actually available to him in the receiving State. The only cases where this test has been found to be satisfied are D. v. the United Kingdom ... and B.B. v. France ... [T]he Strasbourg Court has been at pains in its decisions to avoid any further extension of the exceptional category of case which D. v. the United Kingdom represents. It may be that the Court has not really faced up to the consequences of developments in medical techniques since the cases of D. v. the United Kingdom and B.B. v. France were decided. The position today is that HIV infections can be controlled effectively and indefinitely by the administration of retroviral drugs. In almost all cases where this treatment is being delivered successfully it will be found that at present the patient is in good health. But in almost all these cases stopping the treatment will lead in a very short time to a revival of all the symptoms from which the patient was originally suffering and to an early death. The antiretroviral treatment can be likened to a lifesupport machine. Although the effects of terminating the treatment are not so immediate, in the longer term they are just as fatal. It appears to be somewhat disingenuous for the Court to concentrate on the applicant’s state of health which, on a true analysis, is due entirely to the treatment whose continuation is so much at risk. But it cannot be said that the Court is unaware of the advances of medical science in this field. All the recent cases since S.C.C. v. Sweden have demonstrated this feature. The fact that the Court appears to have been unmoved by them is due, I think, to its adherence to the principle that aliens who are subject to expulsion cannot claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance provided by the expelling State. The way this principle was referred to and then applied in Amegnigan v. the Netherlands ... is, in my opinion, highly significant. What the Court is in effect saying it that the fact that the treatment may be beyond the reach of the applicant in the receiving State is not to be treated as an exceptional circumstance. It might be different if it could be said that it was not available there at all and that the applicant was exposed to an inevitable risk due to its complete absence. But that is increasingly unlikely to be the case in view of the amount of medical aid that is now reaching countries in the Third World, especially those in sub-Saharan Africa. For the circumstances to be, as it was put in Amegnigan v. the Netherlands, ‘very exceptional’ it would need to be shown that the applicant’s medical condition had reached such a critical stage that there were compelling humanitarian grounds for not removing him to a place which lacked the medical and social services which he would need to prevent acute suffering while he is dying. ... So long as [the applicant] continues to take the treatment she will remain healthy and she will have several decades of good health to look forward to. Her present condition cannot be said to be critical. She is fit to travel, and will remain fit if and so long as she can obtain the treatment that she needs when she returns to Uganda. The evidence is that the treatment that she needs is available there, albeit at considerable cost. She also still has relatives there, although her position is that none of them would be willing and able to accommodate and take care of her. In my opinion her case falls into the same category as S.C.C. v. Sweden, Arcila Henao v. the Netherlands, Ndangoya v. Sweden and Amegnigan v. the Netherlands, where the Court has consistently held that the test of exceptional circumstances has not been satisfied. In my opinion the Court’s jurisprudence leads inevitably to the conclusion that her removal to Uganda would not violate the guarantees of Article 3 of the Convention. ...” Lord Hope concluded by observing: “[Any extension of the principles in D. v. the United Kingdom] would have the effect of affording all those in the [applicant’s] condition a right of asylum in this country until such time as the standard of medical facilities available in their home countries for the treatment of HIV/Aids had reached that which is available in Europe. It would risk drawing into the United Kingdom large numbers of people already suffering from HIV in the hope that they too could remain here indefinitely so that they could take the benefit of the medical resources that are available in this country. This would result in a very great and no doubt unquantifiable commitment of resources which it is, to say the least, highly questionable the States Parties to the Convention would ever have agreed to. The better course, one might have thought, would be for States to continue to concentrate their efforts on the steps which are currently being taken, with the assistance of the drugs companies, to make the necessary medical care universally and freely available in the countries of the third world which are still suffering so much from the relentless scourge of HIV/Aids.” Baroness Hale of Richmond, agreeing that the appeal should be dismissed, reviewed the domestic and Convention authorities and phrased the test to be applied as follows: “... whether the applicant’s illness has reached such a critical stage (i.e. he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity. ... [The test] is not met on the facts of this case.” 18. According to information obtained by the Court of its own motion, HIV is normally treated by antiretroviral drugs. In the United Kingdom, in common with most developed countries, these drugs are provided in combination, a practice known as “highly active antiretroviral therapy” (HAART). The proper administration of antiretroviral drugs depends on regular monitoring of the patient, including blood tests, and the availability of medical personnel to adjust at frequent intervals the level and type of drugs taken. Such treatment is generally available free of charge on the National Health Service. 19. In Uganda, attempts have been made to reduce the country’s dependency on imported medication, including producing generic drugs locally. However, in common with most sub-Saharan African countries, the availability of antiretroviral drugs is hampered by limited financial resources and by shortcomings in the health-care infrastructure required to administer them effectively. As a result, according to research carried out by the World Health Organisation (WHO), approximately only half of those needing antiretroviral therapy in Uganda receive it (WHO, “Progress on Global Access to HIV Antiretroviral Therapy”, March 2006, pp. 9, 11 and 72). The Joint United Nations Programme on HIV/Aids (UNAIDS) and WHO in their 2007 country situation analysis on Uganda also cited major barriers to HIV prevention, treatment, care and support as including limited public investment, limited service coverage and lack of a policy framework. There are also significant disparities in the provision of drugs between urban and rural areas (WHO, “Summary Country Profile for HIV/Aids Treatment Scale-Up: Uganda”, December 2005). In addition, progress in providing medical care has been offset by the ever-increasing number of people requiring treatment (UNAIDS/WHO, “Aids Epidemic Update”, 2006, p. 18) and given the rapid population growth in Uganda, its stable HIV incidence rate means that an increasing number of people acquire HIV each year (UNAIDS/WHO, “Aids Epidemic Update”, December 2007, p. 17). | 0 |
train | 001-92343 | ENG | TUR | ADMISSIBILITY | 2,009 | SARAK v. TURKEY | 4 | Inadmissible | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | The applicant, Mr Ali Sarak, is a Turkish national who was born in 1981 and lives in Şanlıurfa. He was represented before the Court by Mr N. Çevirci, a lawyer practising in Şanlıurfa. In 2001 the applicant started his military service. After a few months, he was diagnosed with Hepatitis B and, as a result, he was discharged. On 11 December 2002 the applicant brought an action in the Military Administrative Court against the Ministry of Defence, requesting pecuniary and non-pecuniary compensation for having allegedly been infected with the Hepatitis B virus during his military service. Based on an expert report, which stated that the applicant could have been infected before starting his military service, on 1 December 2004 the Military Administrative Court dismissed the applicant’s case. | 0 |
train | 001-97604 | ENG | TUR | ADMISSIBILITY | 2,010 | ADIYAMAN v. TURKEY | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza | The applicant, Ms Kaside Adıyaman, is a Turkish national who was born in 1950 and lives in Mersin. She was represented before the Court by Mr H. Yılmaz, a lawyer practising in Mersin. The Turkish Government (“the Government”) were represented by their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. On 7 June 1993, at around 10.50 a.m., the applicant's husband, Eyüp Adıyaman and his friend, Muhterem Demir, were shot by unknown perpetrator(s) in the centre of Silvan, a district attached to Diyarbakır. The security forces, arriving shortly after the incident, transferred the applicant's husband and Mr Demir to a state hospital, where they died. On the same day the security forces drafted an incident report and drew up a sketch map. Twelve spent 9-mm cartridges were found at the scene and sent for ballistics examination. According to the incident report, when the police officers arrived at the scene of the incident, Mr Adıyaman and Mr Demir were lying on their backs in a pool of blood, surrounded by a crowd of about hundred to two hundred people. They were immediately transferred to the hospital. Afterwards the police officers collected evidence and tried to collect eyewitness statements. However, no one was able to testify as to what had happened, since they all claimed only to have heard gunshots. The report also mentions that Mr Adıyaman and Mr Demir were known to be PKK (Workers' Party of Kurdistan) sympathisers. On the same day, a post-mortem examination of Eyüp Adıyaman's body was carried out by two pathologists in the presence of the Silvan public prosecutor and Mr Fuat Adıyaman, the deceased's brother. According to the verbatim record, the deceased was forty-three years old, 175 cm tall and weighed eighty-five kilograms. He had black hair, brown eyes and a brown moustache. The record further described the deceased's clothing and personal items found on his person. Rigor mortis and post-mortem hypostasis had not yet set in. An external examination revealed the following injuries: a bullet entry wound 2 cm in front of the right ear lobe and a bullet exit wound on the left side of the head which had destroyed the left ear lobe. A bullet entry wound 2 cm below the right ear lobe and a bullet exit wound on the left occipital bone, which had broken the bone. Two further bullet entry wounds on the right side of the head were identified together with a single bullet exit wound from the left side of the head. A bullet entry wound on the right elbow and a bullet entry wound on the right arm were observed. The experts also noted a bullet entry wound on the front of the left shoulder, an exit wound on the left front shoulder 6 cm from the previous entry wound, and another bullet entry wound on the chest, on the left next to the sternum. The doctors concluded that the cause of death was haemorrhage and damage to the cerebral tissue as a result of wounds caused by firearms. They considered that there was no need to carry out a classical autopsy as the cause of death was clear from the findings of the external examination. The prosecutor agreed. Afterwards the body of the deceased was given to the family for burial and a bullet extracted from the body of the deceased retained as evidence. On the same day, the preliminary investigation into the killings was instigated by the Silvan public prosecutor. He requested the Silvan Security Headquarters to secure the presence of family members of the deceased in order to take statements from them. On an unspecified date the applicant moved to Mersin with her children because other family members had received death threats. Fearing for her safety the applicant neither pursued the investigation into the death of her husband nor lodged a civil or administrative action with the authorities, as she did not want her address to be known. On 10 June 1993 the Silvan Security Headquarters submitted an additional incident report to the Silvan prosecutor's office, which contained the same information as that of the first incident report. This report stated that it had been established that the deceased were active PKK sympathisers. On the same day, the police took witness statements from four people who either lived or worked in the street where the killing took place. Mrs L.E. claimed that she was not at home at the time of the incident. Mr H.S. submitted that his shop was closed on the day of the incident. Mrs A.T. and Mrs S.K. claimed to have heard gunshots but that they were not witnesses to the incident. In the meantime the Regional Criminal Police Laboratory conducted a ballistics examination of the twelve spent cartridges found at the scene. The report issued on 10 June 1993 stated that the cartridges examined were 9 mm parabellum cartridges of two different groups of foreign origin and that they were fired from two different guns. On 9 August 1993 the Silvan public prosecutor heard the applicant's brother-in-law and Mr Demir's father. They both submitted that they did not know who could have committed the killing and requested that those responsible be brought to justice. On 16 August 1993 the Silvan Security Headquarters informed the Silvan public prosecutor that the investigation into the killings was ongoing and that the perpetrators had not yet been identified. The Government submitted numerous items of similar correspondence of various dates between the prosecutor and the Security Directorate. On 25 July 1994 the Silvan public prosecutor relinquished jurisdiction over the case since he considered that the killing of the deceased, who were known to be active PKK sympathisers, by unknown perpetrators, fell within the jurisdiction of the public prosecutor at the Diyarbakır State Security Court. On 19 June 1995 the Silvan Security Headquarters informed the Silvan public prosecutor that three suspects arrested following an operation conducted against Hizbullah had claimed that Mr K.A. was responsible for the killing of the applicant's husband and Mr Demir and that the security forces were working to capture the suspect. On 13 March 1996 the prosecutor at the Diyarbakır State Security Court ordered the Silvan and Diyarbakır Security Headquarters and the Provincial Gendarmerie Command to coordinate their efforts in the search for the perpetrators. The prosecutor instructed that he be informed of any tipoffs, confessions or any other evidence regarding the incident as well as briefed on developments in the case every three months. The prosecutor also requested the collaboration of the Silvan public prosecutor in this respect. On 28 March 1996 the Silvan Security Headquarters informed the prosecutor that they were still searching for Mr K.A. In the meantime, on 7 May 1999, the applicant requested the public prosecutor's office at the Diyarbakır State Security Court to provide her with a copy of her husband's death certificate to be submitted to the Social Security authorities for the establishment of a pension. She personally received the relevant document on 11 May 1999. On 26 November 1999 the applicant lodged a petition with the Silvan public prosecutor's office and requested information as regards the developments in the investigation into the death of her husband. In this petition, the applicant also stated that in her view her husband had been killed either by the security forces or by militia acting in collusion with them On 30 November 1999 the Silvan public prosecutor informed the applicant that the case regarding the death of her husband had been transferred to the public prosecutor's office at the Diyarbakır State Security Court on 25 July 1994. On an unspecified date the applicant lodged a request with the Silvan public prosecutor's office for information as regards the developments in the investigation into the death of her husband. The applicant noted that the documents sent to her by the prosecutor's office concerned only the investigation conducted immediately after the death of her husband. She requested to know what additional steps had been undertaken by the prosecutor and whether any new evidence had been admitted to the case file. She repeated that in her view her husband had been killed either by the security forces or by militia acting in collusion with them. On 20 December 1999 Mr G.K., a public prosecutor at the Diyarbakır State Security Court, with reference to the applicant's request dated 26 November 1999, informed the applicant that the investigation into the killing of her husband and Mr Demir was ongoing and that the perpetrator(s) had not yet been found. On 7 January 2000 the Diyarbakır Security Headquarters informed the prosecutor that it had not been possible to identify the gun with which the 9 mm parabellum cartridges of foreign origin had been fired, as no information had been found linking them to any gun stored in the database. The Government submitted numerous items of correspondence of various dates in which various Security Headquarters regularly informed the prosecutor in charge of the case file about developments in the search for the alleged perpetrator of the killings. On 6 November 2000 public prosecutor at the Diyarbakır State Security Court filed a bill of indictment against Mr K.A accusing him of membership of an illegal armed organisation, namely Hizbullah, and of participating in armed activities on its behalf. On 29 August 2001 Mr K.A., who was carrying a false identity card, was arrested. On 7 September 2001 he was questioned by the police. On that date, Mr K.A. submitted that in the nineties Silvan was mixed ideologically, that he had joined a religious community in 1989 and that until 1994 there was no concept of Hizbullah. Mr K.A. maintained that until February 1992 when a fellow community member Mr H.B. was killed by the PKK their only activities were to gather and to discuss Islam. After this killing it became dangerous to move from one street to another and as a result street patrols were created. Mr K.A. claimed that a few months after that incident he became part of the military wing of the community, since it had become clear to the community that if they did not fight back they would be killed by the PKK. He gave details about the subsequent structure of the organisation of the community and the killings perpetrated by him and other members on various dates. Mr K.A. was later asked to comment on a number of documents found following an operation conducted in the house of the leader of the organisation on 17 January 2000 and police statements of fellow members. Mr K.A., when asked about his involvement in the killing of the applicant's husband, denied taking part in it. He further maintained that after 1995 his ties with the organisation had lessened. On the same date Mr K.A. was heard by a public prosecutor and a judge at a State Security Court, where he denied being part of the armed wing of Hizbullah and participating in any killings. Mr K.A. was subsequently remanded in custody. On 21 November 2000 and 19 September 2001 the public prosecutor at the Diyarbakır State Security Court filed additional bills of indictment against Mr K.A. and other suspects for, inter alia, participating in armed activities on behalf of Hizbullah. In respect of Mr K.A. these were the killing of Mr Ay on 31 May 1992, Mr Ayhan on 19 June 1992, Mr Budak on 1 October 1992 and Mr Cesur on 3 March 1993. He was also accused of participating in the attempted killing of Mr Ekinci and Mr Yuce on 23 October 1992. All these incidents took place in Silvan. On 6 October 2003 the Silvan Security Headquarters informed the Silvan public prosecutor that Mr K.A. had been arrested in 2001 following an operation conducted against Hizbullah and was currently in detention. On 17 May 2004 the prosecutor at the Diyarbakır State Security Court filed an additional bill of indictment against Mr K.A. for inter alia, participating in armed activities on behalf of Hizbullah. This time Mr K.A. was accused of killing the applicant's husband and Muhterem Demir. On 24 May 2004 the criminal proceedings against Mr K.A. regarding the killing of the applicant's husband and of Muhterem Demir commenced before the Diyarbakır Security Court (no. 2004/160). The applicant and Muhterem Demir's wife were written down as plaintiffs (müşteki) and the court ordered that their statements be heard. In the next hearing held on 10 June 2004 Mr K.A. was heard by the Second Division of the Diyarbakır State Security Court. He denied all the charges against him. In particular, he submitted that he did not kill the applicant's husband and Mr Demir. He also stated that Mr M.A. and Mr I.B. had been tried and acquitted as regards the same incident. The court decided to join the case related to the applicant's husband's killing to another case pending before it (no. 2000/115). Throughout the criminal proceedings a number of related cases pending before various courts and concerning Mr K.A. and other suspects and their activities on behalf of Hizbullah were joined to case no. 2000/15. On 16 July 2004 Mrs Demir, wife of Mr Muhterem Demir, was heard by the court, which was acting on rogatory letters, and she maintained that she had not witnessed the events and had no knowledge of the incident. In the course of the trial, the first-instance court heard witnesses and the accused and collected documents from various authorities. It also appears that the court tried unsuccessfully several times to locate the applicant in order to obtain her testimony via rogatory letters. Throughout this time Mr K.A. denied all accusations, submitted that he had been ill-treated during police custody and claimed his innocence. On 3 July 2008 the Diyarbakır Assize Court, in a 224-page reasoned judgment, delivered its verdict in the trial in respect of seven of the accused. Having regard to the evidence in the case file, the court found it established that Mr K.A. was member of an illegal armed organisation, namely Hizbullah, and that he had participated in a number of armed activities on its behalf, including the killing of the applicant's husband on 7 June 1993, and sentenced him to life imprisonment. It transpires from the reasoned judgment of the Diyarbakır Assize Court that proceedings before its Sixth Division concerning another suspect, who had originally been arrested in the operation conducted in1995 and was currently being tried in absentia for taking part in the applicant's husband's killing, were pending. The case against Mr K.A. is pending before the Court of Cassation. A description of the relevant domestic law at the material time can be found in Sabuktekin v. Turkey, no. 27243/95, §§ 60-68, ECHR 2002II (extracts). | 0 |
train | 001-101910 | ENG | LVA | ADMISSIBILITY | 2,010 | LIEPAJNIEKS v. LATVIA | 3 | Inadmissible | Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra | 1. The applicant, Mr Fricis Liepājnieks, is a Latvian national who was born in 1927 and lives in Rīga. He was represented before the Court by Ms D. Rone, a lawyer practising in Rīga. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine. 2. The creation of the Republic of Latvia was proclaimed on 18 November 1918. Different types of property rights were recognised, including the ownership of residential buildings. 3. A large-scale entry of the Soviet army into Latvia took place in June 1940. After the lawful government of the country was overthrown and Soviet rule was imposed by force (see, mutatis mutandis, Kolk and Kislyiy v. Estonia (dec.), nos. 23052/04 and 24018/04, ECHR 2006I), the nationalisation of property began. Property was expropriated without any compensation (see paragraph 35 below). 4. The building located at 129 Ģertrūdes street was amongst the buildings nationalised. From 1969 the applicant lived in an apartment located in that building on the basis of a lease agreement concluded on 19 April 1969 (“the 1969 lease”) with the Housing Department of the Moscow District of Rīga City (Rīgas pilsētas Maskavas rajona namu pārvalde). The agreement was a pre-typed standard text, not indicating the amount of rent payable. It entitled the applicant and his family members to rent the apartment for an indefinite period of time. Under Soviet law the amount of rent payable was not set by the parties to the lease but by the State’s administrative authorities. By a decision of 12 January 1995, the building located at 129 Ģertrūdes street was returned to its former owner. The applicant continued to live in the apartment located in that building until 4 August 2008, when he moved out. 5. On 4 May 1990 the Supreme Council, the legislative assembly elected on 18 March in the same year, adopted the Declaration on the Restoration of Independence of the Republic of Latvia. On 21 August 1991 the Supreme Council passed the Constitutional Law on the Statehood of the Republic of Latvia, proclaiming full independence with immediate effect (see Kononov v. Latvia [GC], no. 36376/04, §§ 27-28, 17 May 2010). 6. On 30 October 1991 the Supreme Council adopted the Law on Denationalisation of Real Estate, whereby the decrees on nationalisation issued after 1940 were declared null and void. The nationalised buildings were to be returned to their former owners or their heirs. The former lease agreements concluded with tenants in those buildings under Soviet law continued to be binding in their entirety until 1994, and from then on only in so far as the term of lease was concerned. The amount of rent payable was determined by the State. During the first seven years after restoration of their property rights, owners could not evict tenants without allocating them another place of residence. After that period eviction could take place in accordance with the Law on Residential Tenancies. On the same date – 30 October 1991 – the Supreme Council passed the Law on the Return of Real Estate to the Legitimate Owners. 7. On 30 October 1991 the Decision on Entry into Force of these two laws (“the Supreme Council’s Decision”) was enacted. It required the Council of Ministers to draft a law on compensation and submit it to the Supreme Council by 1 December 1991, and to draft and stipulate regulations for credit arrangements for tenants. In 1992 the Supreme Council and its respective committees examined a draft law “On Restitution of Property and Compensation”, but that law was never enacted. The draft did not include any reference to tenants’ right to receive compensation. On 5 November 1992 the Economic Committee of the Supreme Council (Augstākās padomes Ekonomikas komisija) rejected the draft because it was necessary to specify its sphere of application. It also had to be aligned with the provisions of the Law on Privatisation Certificates and the Civil Law. The Ministry of Economic Reforms was instructed to improve the draft within two weeks and re-submit it to the Supreme Council. It appears that this task was never completed. It should be noted, however, that on 1 June 2006 six members of the Latvian Parliament (Saeima) submitted for examination a draft law on compensation for tenants. On 12 October 2006 that draft was accepted at first reading in one of the last sessions of the Parliament before the expiry of its term. The draft law was never reviewed at second and third reading and was therefore never passed. 8. Another part of the property reform in the 1990s was the privatisation of State and municipally owned property. Those who resided in such buildings took this opportunity to acquire property rights over apartments located in them through privatisation. 9. In accordance with the Law on Residential Tenancies, enacted on 16 February 1993, the amount of rent payable by tenants in denationalised buildings or those returned to their former owners was to be established on the basis of a written agreement, but could not exceed the maximum amount determined by the State. That law was amended on several occasions. On 8 March 2006 the Constitutional Court declared the statutory rent limits unconstitutional and declared them void as of 1 January 2007. 10. From 1 January 2007 onwards owners were entitled to increase rent by serving notice on their tenants of their intention to do so. Tenants could challenge it by lodging a claim with the civil courts. The courts would then decide whether the amount of rent was warranted and adequate; owners were accordingly required to justify the amount requested. Evictions could not take place without a court order, and tenants were entitled to receive advance notice, and to the opportunity to be heard, before being evicted. 11. On 4 August 2008 the applicant moved out of the apartment allegedly because he could not afford to pay the rent. He did not initiate proceedings in the civil courts over the amount of the rent. Nor was he subject to eviction proceedings. According to the information provided by the Government, since 4 August 2008 the applicant is residing in another dwelling, namely, a house entered into the Land Register as his spouse’s property in part (50%) (1/2 domājamās daļas). The applicant did not contest this. 12. On 11 August 2006 the applicant lodged a civil claim with the Rīga Regional Court (Rīgas Apgabaltiesa) against the State represented by the Cabinet of Ministers (Ministru kabinets) and against the Rīga City Council (Rīgas dome). He requested the court to compel the Cabinet of Ministers to comply with the Supreme Council’s Decision in his case and to allocate him an equivalent apartment or grant compensation to acquire such an apartment in the amount of Latvian lati (LVL) 31,500 (approximately EUR 45,000). 13. On 14 August 2006 the regional court dismissed the applicant’s claim without examining it on its merits. The court found that the applicant had lodged his complaint against the State represented by the Cabinet of Ministers and against the Rīga City Council and, in substance, had requested that an action of executive power (action or omission of a public authority) be subjected to judiciary control. According to the court, such claims fell within the jurisdiction of the first-instance administrative district court; there was no dispute over a civil right. The applicant submitted an ancillary complaint against that decision. 14. On 16 October 2006 the Civil Chamber of the Supreme Court (Augstākās tiesas Civillietu tiesu palāta) quashed the decision of the regional court and issued a new ruling. The applicant’s claim was rejected on the ground that it was not subject to examination by a court. The court held, inter alia: “... [the applicant] in fact requests the allocation of an apartment but such issues are to be resolved in local municipalities – in the present case the Rīga City Council, in accordance with the Law on State and Municipal Assistance Concerning Apartment Issues... [The applicant’s] claim would be subject to examination by an administrative court if the Rīga City Council were to adopt a decision unfavourable to him, in which case there would be grounds for appeal against the decision under the provisions of the Law of Administrative Procedure. Thus, administrative proceedings should be initiated before the administrative body concerned, whose decision can be appealed against [in a court] in accordance with the provisions of the Law of Administrative Procedure”. The applicant submitted an ancillary complaint against that decision. 15. On 8 December 2006 the Senate of the Supreme Court (Augstākās tiesas Senāts) upheld the decision of its Civil Chamber. The court stated that: “The allocation of a place of residence and alternative claims for compensation do not fall within the competence of a court.... In his claim, [the applicant] has linked his considerations with the Supreme Council’s Decision of 30 October 1991. But he has not taken into account that the legal provision [contained therein] does not provide for the existence, change or termination of a substantive legal relationship between the applicant, on the one hand, and the Cabinet of Ministers [or] the Rīga City Council [on the other hand]... [The applicant’s] claim relates to issues falling outside the competence of the judiciary”. 16. On 16 January 2007 the applicant lodged a claim with the Administrative District Court (Administratīvā rajona tiesa) against the State represented by the Cabinet of Ministers and against the Rīga City Council. He submitted that the Cabinet of Ministers and the Rīga City Council were responsible for the fact that the apartment he was renting had been handed over to another person and that his right to lease had been breached; he had suffered non-pecuniary and pecuniary damage. He requested the court to compel the Cabinet of Ministers and the Rīga City Council to comply with the Supreme Council’s Decision and other legislative enactments and grant him compensation in the amount of LVL 31,500 to acquire an apartment of the same standard and LVL 50,000 for non-pecuniary damage. He also complained that the binding regulations of the Rīga City Council under which eligibility for registration to receive offers of lets of apartments owned by the municipality depended on monthly income were discriminatory. 17. The applicant’s claim was examined in the district court, the regional court and the Supreme Court, which adopted a final decision on 8 June 2007. The Administrative Department of the Senate of the Supreme Court (Augstākās tiesas Senāta Administratīvo lietu departaments) examined separately each branch of the applicant’s claim. 18. First of all, the Senate considered whether the applicant had a right to claim compensation for an apartment of the same standard under domestic law. The Senate established that a draft law on compensation referred to in section 4, paragraph 2 of the Supreme Council’s Decision had not been enacted, and that consideration therefore had to be given to whether tenants’ right to compensation derived from the Laws on the Return of Real Estate to the Legitimate Owners and on Denationalisation of Real Estate in the Republic of Latvia. The first of those laws did not provide for such compensation rights, but for social rights to retain the right to lease (section 12), to statutory rent limits (section13) and to have another apartment allocated in the event of eviction (sections 15 – 17). Under the second law only former owners or their legal heirs, not tenants, were entitled to compensation. The Senate concluded that the applicant did not have a subjective right to compensation in order to acquire an apartment of the same standard on the basis of the above-mentioned laws. 19. The Senate then proceeded to examine whether such a right to compensation could be derived from the Law on Administrative Procedure, since under section 92 of that law every person has a right to request adequate compensation for pecuniary or non-pecuniary damage suffered as a result of an administrative act (administratīvais akts) or action of a public authority (faktiskā rīcība). The Senate considered whether the elements of an action of a public authority were found in the relevant actions or omissions of the State authorities (whether the person had a right to such act and whether, by such act, his or her subjective rights or interests might have been affected). 20. Since the applicant did not have a right under domestic law to privatise the apartment in the denationalised building, he could not request the authorities to ensure such rights or to ensure that they were protected during the process of denationalisation of the building where his rented apartment was located. Therefore, the denationalisation of the building was not an action of a public authority in so far as the applicant was concerned (within the meaning of the Law of Administrative Procedure) and was not subject to administrative proceedings. 21. Taking into account that the drafting and enactment of laws was the prerogative of the State’s legislative power, the alleged omission of the Cabinet of Ministers to draft a law on compensation was not an action of a public authority (within the meaning of the Law of Administrative Procedure) and, thus, was not subject to administrative proceedings. 22. As to the applicant’s running a risk of having to pay higher rent and losing his home, the Senate noted that the applicant was dissatisfied with the implementation of the State’s policy, which is not an action of a public authority and therefore cannot be reviewed in administrative proceedings. 23. Finally, as concerns the allegedly discriminatory regulations of the Rīga City Council, the Senate considered that examination of such a claim fell within the competence of the Constitutional Court. 24. Accordingly, the Senate dismissed the claim as inadmissible on the grounds that it was not subject to administrative proceedings and that the applicant did not have a right of claim. 25. The Law on Denationalisation of Real Estate (likums “Par namīpašumu denacionalizāciju Latvijas Republikā”) was adopted on 30 October 1991 and took effect on 1 January 1992 (see paragraph 29 below). In its relevant part it provided as follows: “To repeal the following: The Decree on Nationalisation of Large Buildings issued by the Presidium of the Supreme Council of the Latvian SSR on 28 October 1940 and all legislative enactments issued under that decree; ... All decrees issued by the Presidium of the Supreme Council of the Latvian SSR on nationalisation of buildings owned by individual natural persons.” “Lease or rental agreements concluded by the previous manager shall be binding on the owners of denationalised buildings. Amendments to lease or rental agreements shall be made only with the approval of the municipal authorities and under a procedure prescribed by law.” “Rent in denationalised buildings or apartments shall not exceed the amount established by the Council of Ministers.” “Eviction from denationalised buildings shall take place only under the Latvian Apartment Code, but for the first seven years after restoration of property rights, in cases when the owner requests eviction under section 147 or section 149, paragraph 1, only if an equivalent place of residence is offered [to the tenants].” 26. On 16 January 1994 amendments to the Law on Denationalisation of Real Estate entered into force, whereby section 15 was amended to refer to the relevant provisions of the newly adopted Law on Residential Tenancies: section 29, parts 4 and 5. On 7 April 1994 another set of amendments to the law entered into force (“the 1994 amendments”). The relevant provisions, following those amendments, read as follows: “The term of lease or rent concluded by the previous manager shall be binding on the owners of denationalised buildings unless otherwise provided in this law.” “The amount of rent [determined] without their consent for tenants who had concluded agreements with previous managers of denationalised buildings shall not exceed the amount established by the Cabinet of Ministers.” 27. The Law on the Return of Real Estate to the Legitimate Owners (likums “Par namīpašumu atdošanu likumīgajiem īpašniekiem”) was passed on 30 October 1991 and took effect on 20 November 1991. In its relevant part it provided as follows: “The property rights of the former owners or their legal heirs, irrespective of their current nationality, of buildings arbitrarily taken over by the State or legal entities in the 1940s to 1980s, without compensation and with complete disregard for their ownership rights, shall hereby be restored.” “Monetary disputes between the former manager and the owner shall be resolved under the Latvian Civil Code.” “Lease or rental agreements concluded by the previous manager shall be binding on the owners of returned buildings. Amendments to lease or rental agreements shall be made only with the approval of the municipal authorities and under a procedure prescribed by law.” “Rent in returned buildings or apartments shall not exceed the amount established by the Council of Ministers.” “Eviction from returned buildings shall take place only under the Latvian Apartment Code, but for the first seven years after restoration of property rights, in cases when the owner requests eviction under section 147 or section 149, paragraph 1, only if an equivalent place of residence is offered [to the tenants].” 28. On 16 January 1994 amendments to the Law on the Return of Real Estate to the Legitimate Owners entered into force, whereby section 15 was amended to refer to the relevant provisions of the newly adopted Law on Residential Tenancies: section 29, parts 4 and 5. On 7 April 1994 another set of amendments to the law entered into force (“the 1994 amendments”). The relevant provisions of the Law on the Return of Real Estate to the Legitimate Owners then read as follows: “The term of lease or rent concluded by the previous manager shall be binding on the owners of returned buildings unless otherwise provided in this law.” “The amount of rent [determined] without their consent for tenants who had concluded agreements with previous managers of returned buildings shall not exceed the amount established by the Cabinet of Ministers.” 29. On 30 October 1991 the Supreme Council adopted the Decision on Entry into Force of the Laws on the Return of Real Estate to the Legitimate Owners and on Denationalisation of Real Estate (Lēmums “Par Latvijas Republikas likumu “Par namīpašumu atdošanu likumīgajiem īpašniekiem” un “Par namīpašumu denacionalizāciju Latvijas Republikā” spēkā stāšanās kārtību”): “The Supreme Council of the Republic of Latvia decides: 1. [that] Until the buildings are returned to their legitimate owners it shall be prohibited to sell [or change the ownership in any other way], reconstruct, rebuild and demolish these buildings as well as to have new tenants located in the residential and non-residential premises which have become available. This prohibition shall enter into and remain in force from the date of this decision until the expiry of the statute of limitations for submitting a claim or an application. 2. [to] Stipulate that the seven-year period during which, after restoration of property rights, tenants cannot be evicted without having been allocated an equivalent residence, as prescribed by the Laws on the Return of Real Estate to the Legitimate Owners and on Denationalisation of Real Estate in the Republic of Latvia, applies also in cases when a judgment on a tenant’s eviction pursuant to sections 147 and 149 of the Latvian Apartment Code has not yet been enforced on the date of this decision. This article does not apply when tenants have been placed in a building after a previous owner has submitted a claim to have his property rights restored. In such cases the time-limit shall be one year from the date of restoration of property rights. 3. [to] Stipulate that the Law on Denationalisation of Real Estate in the Republic of Latvia shall enter into effect on 1 January 1992. 4. [to] Obligate the Council of Ministers: 1) to submit to the Supreme Council a draft law on amendments to existing legislation with regard to the enactment of the Laws on the Return of Real Estate to the Legitimate Owners and on Denationalisation in the Republic of Latvia by 1 January 1992; 2) to draft and submit to the Supreme Council a draft Law on Compensation by 1 December 1991; 3) to draft and adopt the Regulations on Denationalisation in the Republic of Latvia and [a model] denationalisation certificate by 10 December 1991; 4) to amend the government’s legislative acts on apportionment and change of residential property with regard to the entry into effect of the Laws on the Return of Real Estate to the Legitimate Owners and on Denationalisation in the Republic of Latvia by 10 December 1991; 5) to draft and stipulate simplified regulations on credit arrangements for tenants residing in denationalised buildings or houses that have been returned to their legitimate owners if those tenants were registered to receive an equivalent residence because of the denationalisation of that property and have expressed the wish to build an individual house for residential purposes; 6) to harmonise the government’s decisions on the material rights of oppressed and deported nationals with the Laws on the Return of Real Estate to the Legitimate Owners and on Denationalisation in the Republic of Latvia by 1 December 1991. 5. [to] Obligate parish, city and district authorities: 1) to identify the buildings taken from previous owners in their territory; 2) to provide the legitimate owners who have obtained a residency permit in Latvia in connection with the denationalisation or return of the buildings to them, with land to build individual houses for residential purposes; 3) in dealing with questions of allocation of equivalent residential property or land to tenants residing in denationalised buildings, primarily to ensure that previous owners residing in their territory can return to their properties; 4) to promote exchanges of apartments between owners of denationalised buildings and houses that have been returned to their legitimate owners [on the one hand] and tenants of such buildings [on the other hand], if as a result of such an exchange the owner takes up residence in his building. 6. [to obligate] The Ministry of Finance to draft and submit to the Presidium of the Supreme Council by 10 December 1991 a draft enactment on methods of compensation for denationalised buildings and calculation of the buildings’ value. 7. [to] Obligate the Legislation Committee of the Supreme Council to submit the part of Latvian Civil Law concerning inheritance for consideration, and amendments and additions to the parts of the civil code on property law and obligations law for the third reading, by 30 November 1991.” 30. On 16 February 1993 the Law on Residential Tenancies was adopted (Likums “Par dzīvojamo telpu īri”); it entered into force on 1 April 1993. Over time, it has been amended on several occasions. The relevant provisions were spelled out in the Constitutional Court’s judgment of 8 March 2006 (see paragraph 35 below). 31. For the present purposes the 2001 and 2004 amendments to that law are of importance. They were adopted on 5 July 2001 and 20 December 2004 and took effect on 1 January 2002 and 1 January 2005 respectively. With the 2001 amendments the transitional provisions stipulated the maximum amount of rent payable per square metre (the statutory rent limits) if the owners of denationalised or returned buildings could not reach an agreement with their tenants. The amount was fixed at 0.24 Latvian lati (LVL) in 2002, LVL 0.36 in 2003 and LVL 0.48 in 2004. With the 2004 amendments the statutory rent limits were set for three more years – LVL 0.60 in 2005, LVL 0.72 in 2006 and LVL 0.84 in 2007. These statutory rent limits were abrogated by the Constitutional Court with effect on 1 January 2007. 32. Following the 2001 amendments, the sections relating to dispute resolution in the event of eviction read as follows: “The landlord may terminate the lease and evict a tenant together with family members and other persons without allocating them another place of residence in the following situations: 1) if the tenant does not pay rent for more than three months while continuing to have the use of the residence in accordance with the lease agreement and relevant legal provisions, ... Before bringing an action in court, the landlord shall give the tenant at least one month’s notice of termination of the lease. ...” “Disputes arising from residential tenancy relations shall be adjudicated in a court.” 33. With the 2004 amendments, a new Article was introduced in the transitional provisions: “14. The Cabinet of Ministers shall develop by 1 March 2005 and implement by 1 July 2005 a State and local government support programme and compensation mechanism for tenants renting residential accommodation in a denationalised residential building or one which has been returned to a legal owner and who have been using such accommodation up to the time of restoration of the property rights to the previous owners or their heirs.” 34. The relevant provisions of this law have been quoted elsewhere (see Grišankova and Grišankovs v. Latvia (dec.), no. 36117/02, ECHR 2003II (extracts)). 35. In case no. 2005-16-1 the Constitutional Court examined individual constitutional complaints lodged by the owners of denationalised buildings. They complained that the 2004 amendments in so far as they related to the statutory rent limits were unconstitutional. In its judgment of 8 March 2006 the court declared that provision unconstitutional and null and void as of 1 January 2007. The judgment, in its relevant part, reads as follows: “1. In 1940, after the establishment of Soviet occupation, the nationalisation of private property began in Latvia. To implement it, on October 28 the Presidium of the Latvian SSR Supreme Council passed a Decree “On Nationalisation of Large Buildings’’. Under that Decree those buildings, the “total useful area” of which exceeded 220 square metres in Riga and other major cities of Latvia and 170 square metres in smaller towns, were nationalised. In addition, all those buildings in which State institutions were located, as well as houses whose owners did not reside in Latvia and buildings having historical or artistic value were nationalised. Over the following decades the Soviet power continued divesting owners of their properties. ... On 30 October 1991 the Republic of Latvia Supreme Council adopted the Law “On the Denationalisation of Buildings in the Republic of Latvia”, by which the above Decree and the normative acts issued in accordance with it were declared null and void. On the same day the Law “On the Return of Real Estate to the Legitimate Owners” was passed. Its Section 1 stipulates that “The property rights of the former owners or their legal heirs, irrespective of their current nationality, of buildings arbitrarily taken over by the State or legal entities in the 1940s to 1980s, without compensation and with complete disregard for their ownership rights, shall hereby be restored”. In the ensuing years, on the basis of the above laws, buildings were denationalised and returned to their legal owners. Many of those properties still had tenants living in them who had concluded rental contracts prior to the restoration of property rights. ... 2. ... Section 11, paragraph 1 of the Law on Residential Tenancies [enacted in 1993] provided that “rent shall be determined on the basis of an agreement between the parties, but it shall not exceed the maximum amount established by the government”. In their turn the 1997 amendments stipulated that “rent shall be determined on the basis of a written agreement between the parties, except in the cases specified in the second, third and fourth paragraphs of this section”. Section 11, paragraph 4 provided: “In denationalised buildings and buildings that have been returned under the Law on the Return of Real Estate to the Legitimate Owners, in respect of tenants who were renting the apartments at the time of the denationalisation (or return to owners) the rent shall be determined on the basis of a written agreement and in accordance with the Cabinet Regulations on the procedure for calculating rent. On 1 January 2002 amendments to the Law on Residential Tenancy took effect, incorporating the provision on statutory rent limits in denationalised or returned buildings into the Transitional Provisions of that Law. Article 4 of the Provisions provides that if the tenant was resident in the building before its restoration to the rightful owner, the rent shall be determined by agreement between the parties. If no agreement is reached, then the rent shall be determined by the owner, but it shall not exceed LVL 0.24 per square metre of rented area a month in 2002, LVL 0.36 in 2003 and LVL 0.48 in 2004. ... 4. On 20 December 2004 amendments to the Law on Residential Tenancies were adopted. They took effect on 1 January 2005... 5.1. The Parliament, in its reply, stressed that the contested provision had been enacted in order to balance the interests of the owners of denationalised apartment buildings, the State, the municipalities and the tenants of such buildings with respect to the statutory rent limits. Referring to the judgment of the European Court of Human Rights in the case of ... (Hutten-Czapska v. Poland [2005] ECHR 119), the Parliament indicates that the imposition of restrictions in respect of rent has a legitimate aim – to secure the social protection of indigent tenants having regard to the continuing lack of residential accommodation and the existing concern at demands for unjustifiably high rent. Furthermore, this legitimate aim has to be examined in a broader context since the housing problem creates infringements of other human rights, such as social security and children’s rights. ... 6.5. According to Professor K. Torgāns, even if the impugned provisions had not been adopted, the owners of the apartments would not be free to fix any rent they wished as section 13 of the Law on Residential Tenancies establishes agreement between the tenant and the owner as a general principle, as well as the settling of disputes in court. ... 7.1. [the Parliament’s representative] stated that neither the State nor the municipalities possessed sufficient financial means to offer tenants residing in denationalised buildings or buildings returned to their legitimate owners adequate compensation... . 8. Denationalisation and return of buildings to the owners after the restoration of Latvia’s independence was carried out in the context of the property reform, which also regulated legal relations between the owners of the buildings and persons who had used apartments in the denationalised or returned buildings prior to the restoration of ownership rights (henceforth – “pre-reform tenants”). When analysing issues connected with one part of the property reform – land reform – the Constitutional Court has established that “Latvia is not responsible for violations of human rights, including nationalisation of property, perpetrated by the occupying power. The Republic of Latvia has no possibility and no duty to fully compensate all losses inflicted on persons by the occupying power” (Judgment of the Constitutional Court in case no. 2002-12-01, 25 March 2003). Simultaneously the Constitutional Court ruled that “When restoring the legal system of independent Latvia, the legislator had a duty to take measures to restore fairness and redress the losses inflicted by the previous regime, by observing the principles of the rule of law. At the same time the legislator, when choosing the means for the land reform, had to strike a fair balance between the conflicting interests of various members of society” (ibid.). The legislator must also observe the principles of rule of law when implementing other aspects of the property reform, including denationalising and returning buildings to their rightful owners. ... 10. Article 105 of the Constitution (Satversme) provides: “Everyone has the right to own property. Property shall not be used against the public interest. Property rights may be restricted only in accordance with the law”. In conformity with Article 89 of the Constitution “the State shall recognise and protect fundamental human rights in accordance with this Constitution, the law and international agreements binding upon Latvia”. ... 11.1. In accordance with the former wording of Article 4 of the Transitional Provisions, after 1 January 2005 the rent for an apartment shall be determined by written agreement between the tenant and the owner, and shall include a portion of the building’s management expenses ... but if no agreement has been reached, it shall be determined by the owner. In their turn, the 2004 amendments... not only set the statutory rent limits for 2005, 2006 and 2007 but also stipulate that in cases where rent is not determined by a written agreement between the parties, the owner shall determine it (including a portion of the building’s management expenses proportional to the area rented, and profit). ... 11.2. ... K. Torgāns points out that section 13 of the Law on Residential Tenancies provides for a written agreement between the tenant and the owner and the settlement of disputes in court as a general rule. If the statutory rent limits had not been extended until 2007, the number of disputes to be reviewed in the courts would have increased and the outcome would depend on the assessment of the reasons and financial justification for the rent increase. ... 11.3. During the hearing the applicants expressed their view that if the legislator had not adopted the 2004 amendments, they would have been able to agree on a reasonable rent, and if no agreement with the tenant could be reached, the dispute would have had to be reviewed in court. ... 15.3. ... As has been found before, courts of general jurisdiction could review the reasonableness of the rents charged by landlords. The Parliament’s submission that the 2004 amendments are necessary to avert large-scale evictions of tenants is not substantiated. Even if they had not been adopted the relevant provisions of section 13 of the Laws on Residential Properties, the Denationalisation of Real Estate and the Return of Real Estate to the Legitimate Owners, as well as Cabinet Regulation no. 45 (2002) on methods for the calculation of the management expenses included in the rent for residential space would be binding on the owner. Even though there have been attempts to charge unreasonably high rent, there is no basis for concern as the owner alone cannot fix the rent without the tenant’s agreement. ... 17.2. ... The lease agreements had been drawn up with the tenants in the days when the rent was determined administratively and not by agreement between the parties... 17.3. ... Thus the legislator considered the fixing of rents by an administrative procedure as a temporary or transitional measure characteristic of property reform. In the above circumstances the State took on responsibility for regulating relations between owners and tenants by setting statutory rent limits. The duty of the State when setting those limits was to strike a fair balance between the rights of the owners and the tenants while duly observing the principles of the rule of law and the fundamental rights enshrined in the Constitution. 17.4. At the beginning of the property reform the legislator had placed several restrictions on landlords which followed on from the commitments made by the former managers of the buildings. At the same time the law gave reason to believe that these restrictions would eventually be lifted. ... The law provided for a seven-year period during which evicting tenants without allocating them another place of residence was prohibited. Owners could legitimately expect that the imposed administrative restrictions, which were necessary at the beginning of the reform, would in due time be abolished in a reasonable way. ... Owners could legitimately expect that the State would, in due course, propose a reasonable solution to the problem. 17.5. ... Neither at the beginning of the property reform, nor during it, did the law anticipate that the tenants would have a special status different from that of [ordinary] tenants once the property reform process had been completed. Initially they were guaranteed the right to lease on the same terms as any other tenants. When the legislature decided to liberalise rents in respect of other tenants, it was made clear that the status of pre-reform tenants regarding rental agreements was temporary. ... Thus, during the property reform pre-reform tenants could not legitimately expect that after the end of the reform process they would continue to have a special status different from other tenants and be able to live in the same apartment forever, paying a considerably lower rent than other persons living in comparable buildings. 17.6. Pre-reform tenants could, however, legitimately expect that the State would protect their rights and, within reasonable limits, provide a gradual transition from rent determined by the authorities to owner-and-tenant relations that would satisfy the interests of both the pre-reform tenants and their landlords. It has to be acknowledged that until 2005 no significant measures were taken to provide support for tenants. ... That the State for many years was not interested in normalising the relationships between the owners of denationalised or returned buildings and their tenants is shown not only by the fact that no financial means were allocated for the implementation of measures during the transitional period but also by the lack of information on the scope of the problem. ... The measures that were undertaken prior to 1 January 2005 were evidently not sufficient to protect the rights of pre-reform tenants. ... Thus the State, by its inaction, has infringed the pre-reform tenants’ right to legal certainty, namely the certainty that they will be able to solve their housing issues in the long term either by concluding reasonable agreements with the owners of the denationalised or returned buildings or by finding another permanent solution. ... However, the said inaction did not provide pre-reform tenants with legal certainty in respect of any specific rights the protection of which would have the effect of restricting the fundamental rights of owners as stated in Article 105 of the Constitution....” 36. The instrument of ratification of the Convention and its Protocols deposited by the Government on 27 June 1997 contains the following reservation: “In accordance with Article 64 [now Article 57] of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, the Republic of Latvia declares that the provisions of Article 1 of the First Protocol shall not apply to the laws on property reform which regulate the restoration or compensation to the former owners or their legal heirs of property nationalised, confiscated, collectivised or otherwise unlawfully expropriated during the period of Soviet annexation; and privatisation of collectivised agricultural enterprises, collective fisheries and of State and local self-government owned property. The reservation concerns the Law On Land Reform in the Republic of Latvia Rural Regions (published in Zinotajs [The Bulletin] 1990, No. 49; 1991, No. 41; 1992, No. 6/7; 1992, No. 11/12; 1993, No. 18/19; Latvijas Vestnesis [The Latvian Herald] 1994, No. 137), Law On Privatisation of Agricultural Enterprises and Collective Fisheries (Zinotajs 1991, No. 31; 1992, No. 40/41; 1993, No. 5/6; Latvijas Vestnesis 1995, No. 90; 1996, No. 177), Law On Land Reform in the Republic of Latvia Cities (Zinotajs 1991, No. 49/50; Latvijas Vestnesis 1994, No. 47; 1994, No. 145; 1995, No. 169; 1997, No. 126/127), Law On Land Privatisation in Rural Regions (Zinotajs 1992, No. 32; 1993, No. 18/19; Latvijas Vestnesis 1993, No. 130; 1994, No. 148; 1995, No. 162; 1996, No. 111; 1996, No. 225), Law On Privatisation of Property in Agroservice Enterprises (Zinotajs 1993, No. 14), Law On Privatisation Certificates (Latvijas Vestnesis 1995, No. 52), Law On the Privatisation of Objects of State and Municipal Property (Latvijas Vestnesis 1994, No. 27; 1994, No. 77; 1996, No. 192; 1997, No. 16/17/18/19/20/21), Law On Privatisation of Co-operative Apartments (Zinotajs 1991, No. 51; Latvijas Vestnesis 1995, No. 135), Law On the Privatisation of State and Local Self-Government Apartment Houses (Latvijas Vestnesis 1995, No. 103; 1996, No. 149; 1996, No. 223), Law On Denationalisation of Real Estate in the Republic of Latvia (1991, No. 46; Latvijas Vestnesis 1994, No. 42; 1994, No. 90; 1995, No. 137; 1996, No. 219/220), Law On the Return of Real Estate to the Legitimate Owners (Zinotajs 1991, No. 46; Latvijas Vestnesis 1994, No. 42; 1996, No. 97) and their wording being in force at the moment the Law On Ratification entered into force.” | 0 |
train | 001-85561 | ENG | HUN | CHAMBER | 2,008 | CASE OF GŐGÖS v. HUNGARY | 4 | Violation of Article 6 - Right to a fair trial | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | 4. The applicant was born in 1948 and lives in Slovenské Darmoty, Slovakia. 5. On 15 June 1992 some of his relatives brought an action against the applicant seeking termination of their common ownership of a house. The applicant brought counterclaims which he subsequently modified several times. 6. In the course of the first-instance proceedings, the applicant challenged, in vain, the Budapest II/III District Court for bias, arguing that the President of the court – who was not sitting on the bench hearing the case – and the plaintiffs’ lawyer were sisters-in-law. 7. At the hearings on 20 October 1992 and 14 March 1996 Judge E., who was in charge of the case, instructed the plaintiffs to complete their action in a comprehensive form. Subsequently, the case was assigned to Judge H. 8. After having held several hearings and obtained the opinions of three experts, on 3 May 1999 the District Court ordered the auction of the property at issue and determined the parties’ respective shares of the sale price. 9. The applicant appealed to the Budapest Regional Court. In the course of the second-instance proceedings, his two further motions for bias – submitted against the Regional Court’s bench hearing the case – were unsuccessful. 10. After having obtained a further expert opinion, on 12 December 2000 the Regional Court upheld in essence the District Court’s judgment. It finally set the minimum price for the house in question at 27 million Hungarian forints (HUF). 11. On 25 February 2002 execution was ordered. The house in question was auctioned for HUF 41.8 million on 25 April 2002. 12. On 26 November 2003 the Supreme Court dismissed the applicant’s petition for review. The decision was served on the applicant in February 2004. | 1 |
train | 001-81922 | ENG | AUT | CHAMBER | 2,007 | CASE OF SCHUTTE v. AUSTRIA | 3 | Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 4. The applicant was born in 1963 and lives in Ostermiething. 5. In the early hours of 5 October 1997 the applicant drove a car through a village. Police officers required him to stop by giving a sign with a red light. The applicant disregarded their sign and drove on, obliging the police officers to step aside. 6. On 21 November 1997 the Ried im Innkreis Public Prosecutor's Office charged the applicant with resisting the exercise of official authority (Widerstand gegen die Staatsgewalt) under Article 269 § 1 of the Criminal Code (Strafgesetzbuch) in that he had prevented the police officers from carrying out a traffic control by driving towards them with his vehicle, thus threatening them with bodily harm. 7. On 12 December 1997 the Ried im Innkreis Regional Court (Landesgericht), having held a trial, acquitted the applicant of the above charge. As neither party appealed, the judgment became final. 8. By letter of 29 January 1998 the Braunau District Administrative Authority (Bezirkshauptmannschaft) charged the applicant with failure to comply with a request to stop for the purpose of a traffic control contrary to Section 97 § 5 of the Road Traffic Act (Straßenverkehrsordnung). 9. The applicant submitted his defence on 4 February 1998, asserting in particular that the conduct of proceedings for the said traffic offence violated Article 4 of Protocol No. 7, given that he had been acquitted of the offence of resisting the exercise of official authority in respect of the same act. 10. On 11 March 1998 the District Administrative Authority issued a penal order (Straferkenntnis) against the applicant finding him guilty of the offence under Section 97 § 5 in conjunction with Section 99 § 3 (a) of the Road Traffic Act, and imposed a fine of 4,000 Austrian schillings on him (approximately 290 euros) with 6 days' imprisonment in default. Furthermore, it ordered the applicant to pay a contribution to the costs of the proceedings. 11. Upon the applicant's appeal, the Upper Austria Independent Administrative Panel (Unabhängiger Verwaltungssenat) held a hearing on 17 September 1998 at which it heard the applicant and the three police officers concerned. 12. By decision of 15 December 1998 the Independent Administrative Panel dismissed the applicant's appeal. It noted that the applicant admitted to having disregarded the police officers' request to stop. It dismissed his argument that his conviction under the Road Traffic Act violated the ne bis in idem principle. The offence under Section 97 § 5 of the Road Traffic Act concerned a simple omission, namely the failure to comply with a request to stop for the purpose of a traffic control whereas Article 269 § 1 of the Criminal Code required the use of dangerous threat or force. It followed from the court file and from the police officers' statements that the applicant had been acquitted of resisting the exercise of official authority, as it had not been shown that he had driven towards the police officers and thus threatened them with bodily harm. In sum, the two offences were distinct and the applicant's acquittal under Article 269 § 1 of the Criminal Code did not hinder his conviction under Section 97 § 5 of the Road Traffic Act. 13. On 8 February 1999 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). The Independent Administrative Panel submitted observations in reply on 24 March 1999. 14. On 19 June 2000 the Constitutional Court dismissed the applicant's complaint as being unfounded. Referring to the Court's judgment in the case of Oliveira v. Switzerland (30 July 1998, Reports of Judgments and Decisions 1998V), it found that the present case concerned an example of a single act constituting more than one offence (Idealkonkurrenz) which was in itself not contrary to Article 4 of Protocol No. 7. Further, it confirmed the Independent Administrative Panel's view that the offences at issue differed in their constituent elements. 15. Upon the applicant's request the Constitutional Court referred the case to the Administrative Court (Verwaltungsgerichtshof) by decision of 17 August 2000. 16. The latter requested the applicant to supplement his complaint on 2 October 2000. The applicant complied with that request on 8 November 2000. He reiterated his complaint about a violation of the ne bis in idem principle and requested the Administrative Court to hold a hearing. On 11 April 2002 the Administrative Court requested the Independent Administrative Panel to submit observations. The latter did so on 23 May 2002. 17. On 20 December 2002 the Administrative Court refused to deal with the applicant's complaint pursuant to Section 33a of the Administrative Court Act (Verwaltungsgerichtshofgesetz) as the fine imposed did not exceed 726 euros and the case did not raise an important legal issue. 18. The decision was served on the applicant's counsel on 31 January 2003. 19. Article 269 § 1 of the Criminal Code (Strafgesetzbuch) provides as follows: “Anyone who hinders the authorities in the performance of an official act through the use of force or the threat of force, or who hinders an official in the performance of his or her duties through the use of force or dangerous threat, shall be liable to a prison sentence of up to three years...” 20. Section 97 § 5 of the Road Traffic Act (Strassenverkehrsordnung) reads as follows: “Traffic officers may, by the use of clearly visible or audible signs, request a driver to stop for the purposes of carrying out checks on the driver or the vehicle, for the accomplishment of other official acts relating to the driver or a passenger or for the purposes of road traffic analysis (such as a traffic count). The driver of the vehicle must comply with the request.” Section 99 § 3 (a) in the version in force at the material time provided for a fine of up to 10,000 Austrian schillings with up to two weeks' imprisonment in default. | 1 |
train | 001-57435 | ENG | BEL | CHAMBER | 1,975 | CASE OF NATIONAL UNION OF BELGIAN POLICE v. BELGIUM | 2 | No violation of Art. 11;No violation of Art. 14+11 | null | 11. The facts of the case may be summarised as follows: 12. The applicant, the National Union of Belgian Police, has its headquarters at Brussels-Schaerbeek. The union descends from the Belgian Police Federation founded in 1922 and changed its name in 1930; in 1939 it was constituted in the form of a non-profit-making association within the meaning of the Act of 27 June 1921. Associations of this kind have capacity in civil law. 13. The applicant union is open to all members of the municipal police, including rural policemen, regardless of rank, but members of the two State police forces, the criminal police attached to the prosecuting authorities (police judiciaire près les parquets) and the gendarmerie, may not at present belong to it. It numbers police superintendents and deputy superintendents amongst its members. The list of the applicant union’s members deposited on 21 July 1971, in accordance with law, contained the names of 99 persons; this was not the whole of its membership but only the "active members", that is to say, those "who are delegated by the sections to represent them at the general meeting" and are alone entitled to vote (Article 5 of the applicant union’s articles of association annexed to the Moniteur belge of 8 July 1960). The applicant union claims to have had 7,226 paid-up members in 1961 and that their numbers fell to 6,162 in 1971, 6,011 in 1972, 5,896 in 1973 and 5,748 in 1974. It is alleged by the applicant union that this steep decline of some 20% was due specially to the trade union consultation policy contested in the present case. The Government does not dispute the fact of the decline but does not attribute it to the cause put forward by the applicant. There being about 12,000 men serving in the municipal police – whose establishment provides for 13,722 -, at the end of 1974 the applicant union represented almost half of the members of the force. 14. The municipal police, whose members are classified as municipal officials, is entrusted both with functions of an administrative and crime-deterrent character, as well as with criminal-police functions. In carrying out its administrative and crime-deterrent duties, the municipal police is directly subject to the municipal authorities and placed under the orders of the burgomasters; on the other hand, in the exercise of its criminal-police functions, it is subject solely to the authority of the State and more especially the judicial authorities (autorités judiciaires). The two State police forces are distinct from the municipal police. The gendarmerie, itself also vested with both administrative police duties (maintenance of order) and criminal-police duties, can in addition discharge military duties in certain circumstances and is organised on military lines. The criminal police attached to the prosecuting authorities (la police judiciaire près les parquets) has, for its part, exclusively criminal-police (de police judiciaire) duties. The municipal police force amounts to some 13% of municipal staff and less than 10% of all municipal and provincial staff. At the end of 1974, municipal staff totalled 88,809 officials to which number were added the staff of municipal social welfare boards (28,999), inter-communal associations (12,156) and provinces (14,260). The gendarmerie and criminal police numbered respectively 13,392 and 827 members as of 30 June 1970. 15. Under Article 3 of its articles of association, the aim of the applicant union is "any activity directly or indirectly relating to the study, protection, development, improvement and progress of any matter concerning the rights and occupational interests of the Belgian police, particularly by means of trade union action." 16. Freedom of association is recognised in Belgium by Article 20 of the Constitution and is guaranteed in all fields by the Act of 24 May 1921. Furthermore, Belgium is a party to International Labour Organisation Conventions no. 87 concerning Freedom of Association and Protection of the Right to Organise (Act of 13 July 1951) and no. 98 concerning the Application of the Principles of the Right to Organise and to Bargain Collectively (Act of 20 November 1953). These various provisions safeguard, inter alia, the right freely to form trade unions, the right to join or not to join them, the right of trade union members freely to elect trade union representatives and the right of trade unions freely to organise their administration. While therefore in Belgian law freedom is the rule for trade unions in matters of founding, organising, recruitment and propaganda, the same is not true of consultation of trade unions by public authorities acting as employers. In order to avoid having to negotiate with an ever increasing number of parties, the public authorities have in fact fixed certain criteria for selection based on the idea of representativeness of trade unions. They have also introduced this principle in several Acts dealing with relations between employees and employers in the private sector, for example the Act of 17 July 1957 on the Health and Safety of Workers and the Hygiene of Places of Work and Working Conditions, the Act of 29 May 1962 setting up a National Labour Council and the Act of 5 December 1968 on Collective Labour Agreements and Joint Committees. 17. Apart from a Decree of 26 September 1946 referred to below (paragraph 19), the first regulation on trade union consultation in the public sector dates back to a Royal Decree of 20 June 1955 applicable to State officials exclusively. The Royal Decree confines consultation to organisations having a seat on a "trade union advisory committee" set up within each ministerial department and a seat in a "general trade union advisory committee" operating under the aegis of the Prime Minister. These committees are consulted on all proposals concerning the status of State officials, organisation of services and work, safety, health and improvement of places of work. The representative character of these trade unions is assessed at two levels, first at the level of the different ministerial departments and secondly at the level of the State administration as a whole. The sole criterion for representativeness is the number of members, determined by elections held in principle every four years. In fact, the last trade union elections were held in 1959. The elections due to be held in 1963 were postponed sine die at the request of the large trade union federations, which had obtained a low percentage of votes in 1959. In the case of the criminal police attached to the prosecuting authorities, the Government has reserved the benefit of consultation for the organisations which are confined to members of this force (Royal Decree of 21 February 1956); the Government states that in fact these organisations are in turn affiliated to the three large Belgian trade union federations. As regards the gendarmerie, Section 16 para. 2 of the Act of 14 January 1975 provides that members of the gendarmerie may join only occupational associations composed solely of gendarmes. The National Staff Union of the gendarmerie has been recognised as the sole organisation representing members of the corps. 18. There are no general regulations governing relations of municipal and provincial authorities with trade unions. The municipal authorities are free to set up trade union consultation if they so wish. Some of them, such as the towns of Antwerp, Charleroi, Mons and Verviers, have done so and set up commitees - generally organised like those which operate at national level - on which sit delegates of certain representative trade union organisations. Otherwise there is no organised consultation but trade unions may, as everywhere else in the country, lodge claims or make representations on behalf of a member without any condition of representativeness. 19. The position proves to be very different as regards relations between the Ministry of the Interior, which is the supervisory authority, and the staff of municipalities and provinces. After a first attempt (a Bill of 1957) had failed, trade union consultation was introduced at this level by an Act of 27 July 1961. Prior to that there had been no statutory provisions. A Decree issued by the Regent on 26 September 1946 had set up a trade union consultative committee at the Ministry of the Interior. On this committee there were, amongst others, delegates of the Union of National Associations of Civil Servants and Municipal Officials, including the secretary general of the applicant union; but the Government states that the commitee was of little importance and soon ceased to meet. 20. Section 9 of the Act of 27 July 1961 reads as follows: "The general arrangements to be made by the King ... shall be decreed after consulting representatives of those organisations that best represent the staff of the provinces and municipalities ... The forms of such consultation shall be determined by the King." Under the same section the representative organisations are to be consulted on the following subjects: staffing, recruitment and promotion conditions for municipal staff, pecuniary status and salary scales for the staff of provinces and municipalities, general rules governing certain allowances and bonuses, rules governing the adjustment of pay scales and pecuniary status in line with the changes which have occurred since 1 January 1960 in the pecuniary status of staff of the ministries, conditions for appointment to the posts of police superintendent and deputy superintendent and criteria for up-grading. 21. Consultation is important on two counts. First, the Government is bound to ask for the opinion of the representative organisations and, secondly, in the course of consultation it informs the representative organisations of its proposals in order that they may make known their opinions before any decision is reached. The consultation machinery is set in motion for the preparation of every rule-making instrument - Bill, Royal Decree, ministerial decree or circular - which relates to the matters listed above. Royal Decrees and ministerial circulars have been formulated in this way, usually concerning the entire staff of provinces and municipalities, but several of them containing measures peculiar to the municipal police and some valid only for that force. 22. If an organisation is not recognised as representative, it is barred from the consultation procedure but may nonetheless, inter alia, submit claims to the supervisory authority, ask to be heard by it, refer cases to it and make representations on behalf of its members. 23. The modalities of consultation of trade unions recognised as representative were first fixed by a Royal Decree of 23 October 1961. This Decree set up a trade union consultation committee attached to the Ministry of the Interior, on which the only trade union delegates were the representatives of the four large trade union federations listed in the following paragraph (Article 2). The applicant union applied to the Conseil d’Etat for a declaration of annulment of the Decree. However, on the day of the hearing, 15 October 1964, the Moniteur belge published a Royal Decree of 12 October 1964 withdrawing the provision which was being challenged. The case was then removed from the list of the Conseil d’Etat. 24. A Royal Decree of 2 August 1966 re-organised the trade union consultation in question. While the consultation committee remained, its membership was radically changed in respect of both the number and appointment of representatives. The representatives were no longer to be appointed by specified trade unions but by "the organisations most representative of the staff of the provinces and municipalities". Article 2 para. 2 specified what was to be understood by "most representative": "Those organisations which are open to all staff of the provinces and municipalities and which protect such staff’s occupational interests shall be deemed to be the organisations most representative thereof. Each such organisation shall make itself known by sending to the Minister of the Interior by registered post, within forty days of publication of this Decree in the Moniteur belge, a copy of its articles of association and a list of its officers. The Minister of the Interior shall verify whether it complies with the conditions required and shall notify it of his decision." Four trade unions, of which the first two have since merged, were recognised as meeting these criteria: the Liberal Union of Civil Servants; the Liberal Public Services Union (a member of the Affiliated Belgian Trade Unions); the Affiliated Public Services Unions, Provincial and Municipal Sector (a member of the Belgian General Federation of Labour); and the Affiliated Christian Public Services Unions, Provincial and Municipal Sector (a member of the Christian Trade Unions). It is difficult to specify the number of persons affiliated in these various organisations. Some of the applicant union’s members are also affiliated to one or other of the large federations. The Government says that two of these federations have 1,500 policemen as members. At least two of the trade union organisations recognised as representative have technical committees for the municipal police, which, as occasion arises, deal with problems particular to this force. 25. On 22 September 1966, the applicant union asked the Minister of the Interior to consider it as one of the most representative organisations of staff of provinces and municipalities for the purposes of the implementation of the above-mentioned Royal Decree. By letter of 14 February 1967 the Minister replied as follows: "From the documents you have submitted it does not appear that your organisation fulfils the required conditions, namely that it should be open to all the staff of the provinces and municipalities and protect such staff’s occupational interests". 26. Prior to that, on 25 October 1966, the applicant union had applied to the Conseil d’Etat for a declaration of annulment of the Royal Decree of 2 August 1966, alleging that Section 9 of the Act of 27 July 1961 had been contravened. The applicant contended that Section 9, which was drafted in very wide terms, implied that the organisations grouping officials by category and without regard for their opinions should, subject to their being the most representative organisations, be consulted on an equal footing with the organisations in which officials joined together according to their political feelings and without distinction as to their occupations. In the applicant’s view, the preparatory work to Section 9 showed that consultation should extend to every representative organisation which protected the occupational interests of staff governed by particular staff regulations. Claiming that three quarters of the men in the municipal police belonged to it and that the force had its own regulations and constituted a corps within the personnel of the municipalities; the applicant thus maintained that it was representative in a twofold way, the number of its members as compared with the number of municipal policemen and the special character of their functions. In the submission of the applicant, the King had acted ultra vires in stipulating that the condition "representative" must be confined to organisations open to the whole of provincial and municipal staff. The applicant union did not refer to Articles 11 and 14 (art. 11, art. 14) of the Convention nor to Article 20 of the Belgian Constitution. It submitted, however, albeit in a subsidiary way, that Article 2 para. 2 of the Royal Decree violated the principle of trade union freedom in that it made it "obligatory" for police officers to join "political" trade unions. 27. The Minister of the Interior submitted in reply that Section 9 para. 1 of the Act of 27 July 1961 provided explicitly for consultation of the organisations most representative of the staff of the provinces and municipalities. The Minister added that the Conseil d’Etat, in its opinion no. L 94 38/2, had taken the view that there was no objection to considering as the most representative organisations those which "included staff members of all categories". The Minister inferred from this that the application was ill-founded. 28. The Conseil d’Etat dismissed the application on 6 November 1969. It held that "while the criterion of number advanced by the applicant was acceptable when applied to workers in the private sector or even to civil servants and officials in large government departments belonging to the same hierarchical structure and subject to the same regulations, it cannot be accepted in the present case since the officers concerned belong to widely different categories which have no link between them, some being governed by separate regulations". It further considered "that this diversity of categories and regulations has the effect of making the consultation of organisations representing staff much more difficult; that, in each category, the persons concerned will tend to claim as many advantages as possible for themselves without paying any heed to the implications of measures on which they are consulted for the position of the other staff members, whereas the authority has to take such implications into account; that the consultation of the organisations by the Government cannot in most cases serve any useful purpose unless it concerns organisations which comprise staff belonging to all categories and which therefore have to strike some balance in their claims in order to protect the interests of all their members". It found "that in considering the organisations representing the occupational interests of all staff of the provinces and municipalities to be the organisations most representative of such staff, the Decree being challenged is not contrary to the intention of the statute"; "that the applicant is in error in still maintaining that the contested provision is contrary to the principle of trade union freedom by making it obligatory for police officers to join political trade unions; that in fact the contested provision does not oblige police officers to join any trade union nor any particular trade union." The judgment ended with the conclusion "that in the organisation of public services the King may confine the consultation of occupational organisations to whichever organisations are the most representative of the staff as a whole, which procedure has repeatedly been given statutory confirmation" (translated from Recueil des arrêts et avis du Conseil d’Etat, 1969, pp. 941-942). 29. In the meantime a Royal Decree of 20 August 1969 had abolished the committee provided for in the Decree of 2 August 1966, but preserved consultation of the most representative organisations as provided in Article 2 para. 2 of the 1966 Decree; since then, such consultation takes place in writing. 30. An Act of 19 December 1974 re-organised the relations between public authorities and trade unions of officials in the service of those authorities. Section I of this Act provides that the system which the Act establishes may be made applicable by the King – with certain exceptions one of which concerns the "members of the armed forces" - not only to the staff "of the administration and other government departments", particularly of the "services which assist the judicial authorities (pouvoir judiciaire)", but also to the staff of the provinces and municipalities including the municipal police. The Act establishes a procedure of negotiation (Chapter II) and a procedure of consultation (Chapter III). For negotiation, the Act provides that the King shall establish three "general committees" namely, "the Committee for the National Public Services", "the Committee for Provincial and Local Public Services", and "the Joint Committee for all Public Services" (Section 3), as well as "special committees" among which will be committees competent for "questions relating to the staff" of provincial or municipal services (Section 4). The King shall determine "the composition and operation" of these committees (Section 5) on which only "representative ... organisations" shall sit from the trade union side (Section 6). Section 7 defines in detail the criteria of representativeness for each of the three general committees, Section 8 for the special committees. Consultation shall take place within "consultation committees" set up by the King for "services and groups of services comprising not less than twenty-five officials" (Section 10). Section 12 provides that "the trade union organisations represented on a special negotiating committee shall be entitled to appoint delegates to sit on the consultation committees set up within the competence of that committee". There will be negotiations on "the basic regulations" concerning "staff administration matters", "pecuniary status", "pension schemes", "relations with trade union organisations", and "the organisation of the social services"; on "regulations, internal measures, or directives, of a general nature relating to the subsequent fixing of staff structures, to working hours or to the organisation of work"; lastly, on Bills concerning any of these various matters (Section 2). There will be consultation for "decisions determining the staff structure of the services covered by the consultation committee in question", "regulations which the King has not specified as basic regulations", etc. (Section 11). In its observations of 18 February 1975, the applicant union expressed the opinion that the present case would "probably become pointless" "if the Act of 19 December 1974 became applicable to municipal officials". At hearings of 8 and 9 May 1975, the Government stressed that the application of the 1974 Act to provincial and municipal staff would not be an easy matter and would require more time. The Government consider that it may in any case be inferred from the text and the preparatory work of the Act that even when it becomes applicable to such staff it will not change the trade union status in a way favourable to category-based unions. In its view, the applicant union will not be entitled to sit on a general or special negotiating committee. The applicant accordingly now feels that "it is doubtful wether the new law will give just satisfaction to the union" and has so informed the Court through the Commission. 31. In its application lodged with the Commission on 5 March 1970, the National Union of Belgian Police alleged violation of Articles 11 and 14 of the Convention in conjunction with Article 17 (art. 17+11, art. 17+14), in that the Belgian authorities refused to recognise it as a representative organisation, thus debarring it from the consultation provided for by the Act of 27 July 1961. The union also claimed damages which it provisionally assessed at 100,000 Belgian francs. The Commission declared the application admissible by a final decision of 8 February 1972, after having rejected on 28 May 1971 certain of the preliminary objections made by the respondent Government. During the examination of the merits the applicant union confined itself to relying on Article 11 (art. 11), both on its own and in conjunction with Article 14 (art. 14+11). 32. In its report of 27 May 1974, the Commission expressed the opinion: - unanimously, that the State, whether acting as "legislator" or "employer", assumes obligations within the scope of Article 11 para. 1 (art. 11-1) of the Convention; - by eight votes to five, that the right to consultation and, more generally, freedom to bargain collectively are important and even essential elements of trade union action falling within the scope of Article 11 para. 1 (art. 11-1); - by eight votes to five, that this right to consultation is not however unlimited, the limit being, in the case of the applicant union, the existence of an objective criterion for representativeness; - unanimously, that the regulations at issue on trade union consultation in Belgium do not constitute a breach of Article 11 para. 1 (art. 11-1) of the Convention; - unanimously, that the difference in treatment introduced by Belgian legislation between different categories of unions is justified in the (art. 14+11) of the Convention taken together. The report contains a separate concurring opinion to which four other members of the Commission subscribed. 33. The Government made the following final submissions at the oral hearing on 8 May 1975 in the afternoon: "May it please the Court: - in the first place, Article 11 (art. 11) does not apply in the present case and there is therefore no reason to consider whether there has been violation of Article 14, taken in conjunction with Article 11 (art. 14+11); - alternatively, there has been violation neither of Article 11, (art. 11), nor of Article 14 in conjunction with Article 11 (art. 14+11)." | 0 |
train | 001-77576 | ENG | UKR | CHAMBER | 2,006 | CASE OF KOVAL v. UKRAINE | 2 | Preliminary objections dismissed (Article 35-3-a - Ratione materiae;Ratione temporis);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Criminal charge;Fair hearing;Adversarial trial;Equality of arms);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | Christos Rozakis | 8. The applicant was born on 28 April 1951 and currently resides in Kyiv. 9. On 29 November 1997 the General Prosecution Service (“the GPS”) detained the applicant on suspicion of forgery committed by a public official (державним службовцем). 10. On 30 November 1997 the head of a department of the GPS (“the Head of Department”) ordered that the applicant should be placed in custody since there was a risk that he might abscond and obstruct the investigation of the case. 11. On 2 December 1997 the Head of Department ordered the applicant's detention pending trial and his transfer to the Zhytomyr Regional Investigative Isolation Unit (SIZO – Слідчий Ізолятор Житомирської області). 12. On 29 June 1998 the GPS decided to release the applicant on bail as it was impossible to provide him with the necessary medical treatment in detention. The applicant was released. 13. On 20 October 1998 the GPS, having allegedly found new evidence of the applicant's involvement in unlawful currency transactions and abuses of power, initiated a criminal investigation into the allegations. 14. Furthermore, the GPS decided on that date that the applicant should be taken into custody on the ground that he was obstructing the investigation of criminal acts. New charges concerning other serious offences were brought against him. The GPS also ordered his transfer to the Security Service Investigative Isolation Unit (“the SIZO SBU” – Слідчий Ізолятор Служби Безпеки України). On the same date the applicant was placed in the SIZO. 15. On 27 November 1998 the Pechersky District Court of Kyiv quashed the GPS's decision of 20 October 1998 and changed the preventive measure to an undertaking by the applicant not to abscond. The applicant was released. 16. On 30 November 1998 the Deputy Prosecutor General lodged an application for supervisory review (протест) of the decision of the Pechersky District Court, seeking to have it quashed on the grounds that it was not justified by the evidence in the case file and contravened the relevant legislation. 17. The Kyiv City Court allowed the Deputy Prosecutor General's application and quashed on 30 November 1998 the decision of 27 November 1998. On the same date the GPS ordered the applicant's detention pending trial. As a result, the applicant was immediately arrested and transferred to the SIZO SBU. 18. On 3 August 1999 the Kyiv City Court decided not to release the applicant from detention, but to transfer him from the SIZO SBU to the Kyiv Regional Investigative Isolation Unit no. 13 (“SIZO no. 13”) owing to the need to provide him with specific medical assistance which could not be provided in the SIZO SBU. The applicant was detained in SIZO no. 13 from 3 August 1999 to 6 June 2000. 19. On 6 June 2000 the applicant was transferred to Mensk Penitentiary. Apparently, he started serving his sentence on 8 June 2000, the date of his arrival at Mensk Penitentiary, where he started receiving inpatient treatment in the medical unit. 20. On 23 and 26 June 1998 the applicant's wife, Ms Larysa M. Koval, deposited the sum of 500,000 Ukrainian hryvnyas (UAH) in a GPS deposit account as bail with a view to the applicant's subsequent release. 21. On 29 June 1998 the Deputy Head of the GPS Department for Investigation of Serious Offences decided to release the applicant on bail as it was impossible to provide him with the necessary medical treatment in detention. That decision was approved by the Deputy Prosecutor General. As a result of the decision the applicant was prohibited from leaving the territory of Ukraine. On the same date Ms Koval signed a declaration attesting that she had been informed about the bail conditions and the possibility of the sum being confiscated. The same document was signed by the applicant. 22. On 9 September 1998 the applicant, allegedly by chance, met one of the witnesses, Mr O. Bogomolov, at Kyiv Central Railway Station. During the meeting he apparently asked Mr O. Bogomolov to tell the investigation that the payment for the flat which the applicant had acquired from him had been made not in foreign currency, but in Ukrainian hryvnyas. 23. On 12 October 1998 an investigator from the GPS received information from Mr O. Bogomolov to the effect that the applicant had met him on 9 September 1998 and had tried to influence his statement. This was later confirmed by the witness's wife (Ms Tyshchenko), who informed the prosecution that the applicant had threatened to initiate criminal proceedings against her and Mr Bogomolov for unlawful currency transactions. The investigator made a tape recording of the interview and produced a verbatim record of it and the witness statements by Ms Tyshchenko. 24. On 20 October 1998 the GPS initiated a criminal investigation into the alleged unlawful currency transactions and abuses of power. On the same date the Deputy Prosecutor General ordered that the applicant should be taken into custody on the grounds that he was obstructing the investigation of criminal acts, had breached the obligations entered into at the time of his release from detention and was charged with serious offences. He also stated that new charges concerning other serious offences had been brought against the applicant. 25. On 4 November 1998 the applicant's lawyers appealed to the Pechersky District Court against the decision to detain the applicant, alleging that it was unlawful and referring to the substantial deterioration of his state of health. They stated that the findings of his previous medical examination had been confirmed on 2 November 1998. 26. On 27 November 1998 the Pechersky District Court quashed the GPS's order of 20 October 1998 following the applicant's appeal. On the same date the GPS changed the preventive measure to an undertaking by the applicant not to abscond. In particular, the court held: “... On 20 October 1998 criminal proceedings were instituted against Mr V.G. Koval on suspicion of his involvement in offences referred to in Article 165 § 2 and Article 80 § 2 of the Criminal Code and on the same date the applicant was charged with offences under Article 80 § 2, Article 165 § 1 and Article 172 of the Criminal Code and questioned as an accused on the basis of the aforementioned provisions. On 20 October the investigator decided that Mr V.G. Koval should be held in detention. As can be seen from the investigator's decision, the grounds for detaining V.G. Koval were that he was charged with serious offences and that the preventive measure chosen took into account the gravity of these offences, and also that while at liberty he interfered with the establishment of the truth in a criminal case and seriously breached his obligations as to appropriate conduct. ... The representative of the General Prosecution Service, in the court's view, has not provided any corroborating evidence that Mr V.G. Koval has evaded requests to appear before an investigator or has tried to interfere with the investigation in the case. There is no evidence of the aforementioned facts in the case file... The General Prosecution Service's reference to the fact that Mr V.G. Koval encouraged the witnesses Ms L.D. Tyshchenko and Mr O.I. Bogomolov to change their witness statements in the part that related to the sale of a flat in foreign currency ... cannot be considered by the court to have had any influence on the investigation, as Mr V.G. Koval had met the aforementioned persons by chance and did not insist on their changing their statements; his recommendations that they tell the investigator in the case that the payments had been made in national currency, as can be seen from the verbatim records of the interviews of the aforementioned persons, were of a consultative nature. The court has not obtained any other corroborating evidence that Mr V.G. Koval influenced the course of the investigation or interfered with the establishment of the truth in the case, or that he violated other obligations he had entered into with regard to appropriate conduct... Also, the court considers that Mr V.G. Koval's state of health was not taken into account when the issue of the applicable preventive measure was being decided upon... ... on the basis of the foregoing, and in accordance with Article 236-4 of the Code of Criminal Procedure of Ukraine, the court DECIDES ... to quash the detention order issued by the Deputy Prosecutor General on 30 October 1998 ...” 27. On 30 November 1998 the Deputy Prosecutor General lodged an application for supervisory review (протест) of the decision of the Pechersky District Court, seeking to have it quashed on the grounds that it was not justified by the evidence in the file and contravened the relevant legislation. 28. On the same date the Presidium of the Kyiv City Court allowed the Deputy Prosecutor General's application and quashed the decision. On the same date the GPS ordered the applicant's detention pending trial. As a result, the applicant was immediately arrested and transferred to the SIZO SBU. In particular, the Kyiv City Court held: “... it can be seen from the witness statement by Mr O.I. Bogomolov that in the period when Mr Koval was released on bail (September 1998) Mr Koval met Mr Bogomolov and asked him to change his witness statements about the currency which he had used to pay for the flat he had acquired, a fact which could have influenced considerations as to the elements of the offence provided for in Article 80 § 2 of the Criminal Code of Ukraine. Taking into account the foregoing, and Mr Koval's attempt to influence the course of the investigation in the case and the fact that he was charged with serious offences, on 20 October 1998 the measure applied to Mr Koval was changed to detention. [The court accordingly] DECIDES... To quash the decision of 27 November 1998 by the judge of the Pechersky District Court of Kyiv to declare null and void the warrant issued by the Deputy Prosecutor General for the arrest of Mr V.G. Koval.” 29. Further complaints by the applicant lodged with the President of the Supreme Court with a view to initiating supervisory-review proceedings against the Kyiv City Court's decision were dismissed on 13 January 1999 as being unsubstantiated. 30. On 19 January 1999 the GPS investigator refused to institute criminal proceedings against the applicant for attempting to influence witnesses as his actions did not correspond to the corpus delicti envisaged in Article 180 of the Criminal Code. The tape recording of Mr Bogomolov's witness statements was destroyed on 3 March 1999 on the ground that it was no longer necessary because the criminal proceedings against Mr Bogomolov had ended. That decision was based on Articles 81 and 131 of the Code of Criminal Procedure. 31. On 27 May, 1 June and 4 June 1999 the applicant, his wife and his lawyers lodged unsuccessful complaints with the Kyiv City Court, seeking to have the preventive measure changed to an undertaking by the applicant not to abscond, and also to have him medically examined. Hearings took place on 14 June, 15, 20, 27 and 29 July and 3 August 1999. 32. On 27 December 1999 the Kyiv City Court sentenced the applicant to five years and six months' imprisonment and ordered the confiscation of his personal property. The court also deprived the applicant of the right to occupy official positions for three years and stripped him of the rank of Ambassador Extraordinary and Plenipotentiary, second class, following his conviction for unlawful currency transactions (Article 80-2 of the 1960 Criminal Code of Ukraine – “the CCU”), abuse of power (Article 165-1 of the CCU), and forgery committed by a public official (Article 172 of the CCU). In the course of the proceedings the applicant requested leave to question particular witnesses who, he maintained, could prove his innocence. This request was refused by the Kyiv City Court, which based its findings of guilt on other corroborating evidence. 33. The Kyiv City Court also ordered the forfeiture of the applicant's bail, a sum of UAH 500,000. In particular, it held: “... when questioned as an accused Mr O.I. Bogomolov explained that he had changed his witness statement after his conversation with Mr V.G. Koval, who had recommended that, if he did not wish to be held criminally liable, he should say that the agreement had been concluded in hryvnyas and not in United States dollars. ... A witness, Ms Tyshchenko, has explained that Mr O.I. Bogomolov changed his witness statements after a meeting with Mr V.G. Koval, who said that his lawyers would seek to institute criminal proceedings against Mr O.I. Bogomolov under Article 80 § 2 of the Criminal Code. ... As can be seen from the case file, on 29 June 1998 it was decided that V.G. Koval should be released on payment of UAH 500,000 bail. The sum mentioned above was deposited by ... Ms L.M. Koval in the account of the General Prosecution Service. Mr V.G. Koval had been informed about his obligations and the consequences of his possible failure to comply with them, and Ms L.M. Koval as surety had been informed about the offences that Mr V.G. Koval was charged with and also that in the event of failure to comply with his obligations bail would be forfeited in favour of the State. One of the obligations of Mr V.G. Koval related to appropriate conduct. In a decision of 20 October 1998 the preventive measure of release on bail applied to Mr V.G. Koval was amended to detention. This was because he had seriously breached his obligations relating to appropriate conduct, had coerced witness into making false statements with regard to offences committed by him, and had interfered with the establishment of the truth in the case. In accordance with Article 154-1 of the Code of Criminal Procedure, if a suspect, accused and/or defendant breaches his or her obligations, bail shall be forfeited in favour of the State. The fact that Mr V.G. Koval infringed his obligations with regard to appropriate conduct by coercing the witness Mr O.I. Bogomolov into making false statements is proved by the aforementioned witness statements of Mr O.I. Bogomolov and Ms L.D. Tyshchenko, as the Presidium of the Kyiv City Court found in its decision of 30 November 1998. In such circumstances the court considers it necessary for the bail deposited by Ms L.M. Koval in the amount of UAH 500,000 to be forfeited in favour of the State. On the basis of the foregoing, and having regard to Articles 323 and 324 of the Code of Criminal Procedure, the court ORDERS ... the forfeiture in favour of the State of the sum of bail in the amount of UAH 500,000 currently being held in the deposit account of the General Prosecution Service of Ukraine.” 34. On 4 January 2000 the applicant appealed to the Supreme Court, seeking to have the Kyiv City Court's judgment of 27 December 1999 quashed and the proceedings in the case terminated. He and his lawyers claimed that the Kyiv City Court had unfairly assessed the evidence in the case, having based its finding on evidence that did not prove his guilt and having failed to establish the objective truth in the case. 35. On 27 April 2000 the Supreme Court partly allowed the applicant's appeal and varied the judgment of 27 December 1999. In particular, it reclassified the offence of unlawful currency transactions and sentenced him to five years' and six months' imprisonment for aiding and abetting unlawful currency transactions. It also held that the applicant should be regarded as having been sentenced for forgery committed by a public official, as provided in the Criminal Code of 12 January 1983. It upheld the remainder of the judgment. The Supreme Court held in particular: “... As can be seen from the case file, Mr Koval was released on bail on 29 June 1998 for a sum of UAH 500,000. The aforementioned sum was deposited by Mr Koval's wife Ms L.M. Koval on 23 and 26 June 1998 in the account of the General Prosecution Service. Mr Koval was informed about his bail obligations and the consequences of his failure to comply with them, and Ms L.M. Koval was informed about the offences that Mr Koval had been charged with, and about the possible forfeiture of the bail in the event of his failure to comply with these obligations. One of the obligations imposed on Mr Koval related to appropriate conduct. In accordance with the decision of 20 October 1998 by the investigator from the General Prosecution Service, the preventive measure of bail chosen in respect of Mr Koval was changed to detention. One of the reasons for this [change] was that he had seriously breached his obligations regarding appropriate conduct, and in particular that he had coerced witness into making false statements, thus interfering with the establishment of the truth in the case. In accordance with Article 154-1 of the Code of Criminal Procedure, if a suspect, accused or defendant infringes his obligations, bail is forfeited in favour of the State. The fact that Mr Koval breached his bail obligations concerning appropriate conduct by coercing Mr Bogomolov into giving false evidence has been proved by the witness statements of Mr Bogomolov and Ms Tyshchenko, as the Presidium of the Kyiv City Court found in its decision of 30 November 1998. Accordingly, the investigative bodies changed the preventive measure applied to the applicant on lawful grounds. The submissions to the effect that that decision was unlawful and that the decision of the Presidium of the City Court was unsubstantiated are invalid as it can be seen from the case file that Mr Koval had tried to influence witnesses to give false evidence. The reference to the investigator's decision to refuse, on the basis of paragraph 2 of Article 6 and Article 130 of the Code of Criminal Procedure, to institute criminal proceedings against Mr Koval under Article 180 of the Criminal Code of Ukraine is not substantiated as the refusal to institute criminal proceedings was based on allegations of coercing Mr Bogomolov and Ms Tyshchenko into giving false witness statements. At the same time, the decision in question mentions that Mr Koval attempted to coerce witnesses into giving false statements. The submissions in the appeal to the effect that Ms L.M. Koval was not examined by the court as a surety, in breach of the law, is unsubstantiated, since in accordance with Article 154-1, paragraph 6, of the Code of Criminal Procedure, the non-appearance of a surety in court without good reasons does not constitute an obstacle to reviewing the issue of the forfeiture of bail ... As can been seen from the case file, neither the defendant nor his lawyers requested Ms L.M. Koval, as surety, to produce witness statements before the court. Under these circumstances there are no grounds for holding that there has been a violation of the law on account of the decision to confiscate bail [in favour of the State]. [The court accordingly] RULES [that] ... Mr Koval shall be regarded as having been sentenced for the offences provided for in paragraph 6 of Article 19, Article 80 § 2, Article 165 § 1, Article 165 § 2, Article 172 § 1 and Article 172 of the Criminal Code of 12 January 1983 to five years and six months' imprisonment ... in addition, all of his personal property shall be confiscated, he shall be disqualified from occupying posts relating to managerial functions in government bodies for a period of three years and shall be stripped of the rank of Ambassador Extraordinary and Plenipotentiary, second class.” 36. On 6 and 18 July 2000 the applicant and his lawyers lodged complaints with the President of the Supreme Court, seeking to institute supervisory proceedings in the case and to have the above-mentioned decisions quashed. On 6 December 2000 the Deputy President of the Supreme Court of Ukraine dismissed these complaints as being unsubstantiated. 37. The applicant and his lawyers lodged further complaints against the above-mentioned decisions with the President of the Supreme Court. On the basis of these complaints, on 5 February 2001 the Deputy President of the Supreme Court applied to the Plenary Supreme Court for supervisory review, seeking to have the decisions quashed, the applicant's offence reclassified and the case remitted for fresh consideration as regards the forfeiture of his bail. 38. On 6 April 2001 the Plenary Supreme Court, with 85 judges sitting, partly allowed its Deputy President's application. It decided to vary the judgment of the Kyiv City Court of 27 December 1999 and the ruling of the Supreme Court of 27 April 2000. It also held that one of the offences committed by the applicant should be reclassified from abuse of power with serious consequences to abuse of power with no serious consequences. It further decided to sentence the applicant to four years' imprisonment and to prohibit him from occupying government positions for two years. It ruled that the penalty stripping him of the rank of Ambassador Extraordinary and Plenipotentiary, second class, should be expunged from the decisions. It also upheld the decision on the forfeiture of his bail, finding that the applicant's complaints were unsubstantiated and seeing no procedural infringements of the law on criminal procedure in this matter. 39. The applicant underwent a medical examination on 11 March 1998 at the Forensic Medical Examination Bureau of the Zhytomyr Regional Council's Department of Health Protection (“the Zhytomyr Forensic Bureau”). The expert opinion that assessed the applicant's health between 18 February and 3 March 1998 found that his diseases included first-degree myocardial cardiosclerosis (міокардичний кардіосклероз першого ступеню), extensive spinal osteochondrosis (поширений спинний остеохондроз), chronic duodenitis (хронічний дуоденіт), chronic parenchymatitis of the prostate (хронічний паренхіматозний простатіт), internal and external haemorrhoids (внутрішньо-зовнішній геморрой) and the residual effects of a small cerebral haemorrhage in the basin of the right middle cerebral artery with left-hand side pyramidal deficiency and general vasomotor neurosis (залишкові явища малого інсульту в басейні правої середньо-мозкової артерії з лівосторонньою пірамідальною недостатністю на фоні вегето-судинної дистонії). It concluded that the applicant could be held in custody in the Zhytomyr SIZO and was fit to take part in the investigation. He could be provided with urgent medical assistance if necessary. 40. On 19 May 1998 the Kyiv City Forensic Medical Examination Bureau (“the Kyiv Forensic Bureau”) conducted a second examination of the applicant. The examination revealed that the applicant was suffering from second-degree hypertension, the residual effects of a stroke, a benign tumour of the occipital part of the head and extensive spinal osteochondrosis. 41. On 24 and 27 October 1998 the applicant was examined by a doctor from the SIZO SBU. The SIZO SBU medical unit examined blood samples taken from him. 42. On 11, 19 and 22 November 1998 and 12 and 19 November 1998 the applicant was examined by the Ambulance Service and doctors from the SIZO SBU respectively, as he complained about heartache. The Ambulance Service confirmed that the applicant was suffering from critical second-degree idiopathic hypertension (гіпертонічна хвороба другого ступеню), second-degree cardiosclerosis (міокардичний кардіосклероз першого ступеню) and ischaemic heart disease (ішемічна хвороба серця). 43. On 30 November 1998 the applicant was hospitalised with acute hypertension. 44. From December 1998 until June 1999 the applicant unsuccessfully lodged a number of complaints with the GPS, the Supreme Court and the SIZO SBU seeking his release from custody on account of his poor state of health. 45. The Government provided no evidence of the applicant's treatment or the medical assistance provided to him from 22 November 1998 to 13 March 1999. Between 10 October 1998 and 19 July 1999 the applicant was visited ten times by doctors from the SIZO SBU. These included two visits by a dentist and a surgeon. On 5 and 12 March 1998 the applicant refused to take cognisance of an indictment and the case file because of his poor health. On 13 (twice), 15, 17 and 18 March, 5 and 22 April, 27 May, 1, 2, 4, 5, 9 and 16 June and 8, 9, 11, 13, 16 (twice) and 18 July 1999 the applicant was examined by doctors from the Ambulance Service and from the SIZO SBU. 46. On 27 May, 1 June and 4 June 1999 the applicant, his wife and his lawyers lodged complaints with the Kyiv City Court, seeking to have the applicant medically examined. Hearings took place on 14 June, 15, 20, 27 and 29 July and 3 August 1999. 47. During the hearing on the merits of the criminal charges brought against the applicant on 14 June 1999 the Kyiv City Court decided to order his medical examination. 48. Between 30 June and 1 July 1999 the applicant's state of health was examined in the SIZO SBU and the outpatient department of Kyiv Central Hospital. 49. On 7 July 1999 the court requested the SIZO SBU to inform it whether it was possible to provide the applicant with the necessary inpatient medical treatment for the diseases from which he was suffering. 50. On 14 July 1999 the Deputy Chairman of the State Security Service replied that it was impossible to provide such treatment. In particular, he mentioned that the only medical staff of the SIZO SBU were a physician and a paramedic, who provided medical assistance in urgent cases. 51. From 16 June to 2 July 1999 a medical examination by a commission of the Kyiv Forensic Bureau composed of six doctors, set up on the basis of a decision of 14 June 1999 by the Kyiv City Court, concluded that the applicant was not suffering from any life-threatening disease, and that he should be given in-hospital medical treatment should it transpire that he could not be treated adequately during his detention. In particular, the medical examination revealed that the applicant was suffering from critical second-degree idiopathic hypertension (гіпертонічна хвороба другого ступеню), a second-degree circulatory brain disorder (дисциркуляторна енцефалопатія другого ступеню), the residual effects of a small cerebral haemorrhage, asthenovegetative syndrome (астено-вегетативний синдром), a duodenal papillary ulcer (виразкова хвороба дванадцятиперстної кишки), gastritis (гастрит), erosive bulbitis (ерозивний бульбит), hypokinetic dyskinesia of the large bowel (гіпокінетична дискінезія товстої кишки), spastic colitis (спастичний коліт), internal and external haemorrhoids (зовнішньо-внутрішній геморой), fibrolipoma of the tenth left rib (фіброліпома десятого міжреб'я зліва), seborrhoeic dermatitis (себорейний дерматит) and retinal angiopathy with impairment of visual acuity (ангіопатія сітчатки із зниженням гостроти зору). 52. On 22 July 1999 the governor of SIZO no. 13 informed the Kyiv City Court that the applicant could not be provided with the necessary medical treatment at the SIZO's medical unit owing to the lack of necessary medical staff and equipment. 53. On 3 August 1999 the Kyiv City Court, having examined the results of the medical examination conducted between 16 June and 2 July 1999 and the evidence produced before it by the parties, decided to transfer the applicant from the SIZO SBU to SIZO no. 13 on account of his need for medical assistance. In the course of the hearing, the prosecution submitted a different document issued by SIZO no. 13, signed by its deputy governor on 29 July 1999, stating that the applicant could be provided with the necessary medical treatment and that it would be possible to use an external doctor's assistance for that purpose. It also took into account a similar response of 2 August 1999 from the Head of the Department for Enforcement of Sentences. The court also ordered SIZO no. 13 to inform it about the applicant's state of health and about his ability to participate in hearings. In a separate decision the court refused to change the applicable preventive measure. 54. From 8 June 2000, when he was transferred from pre-trial detention to serve his sentence in Mensk Penitentiary, the applicant received inpatient treatment in the penitentiary's medical unit. 55. The applicant claimed that the cells of SIZO no. 13 had been infested with pests. An elevated, open toilet had been situated not far from the table, opposite the door of the 12-square-metre cell inhabited by eight inmates. There had been no privacy in the cell and everybody had smoked. The conditions in the medical unit, where the applicant had stayed from 3 August 1999 until 6 June 2000, had been practically the same as in the other cells. The cells had been overcrowded, with 10-12 persons in a space of 14 square metres. Sick detainees who were transferred under guard from other penitentiary institutions or detention facilities, some of them suffering from tuberculosis and venereal diseases, had been held with other detainees in the same detention facilities, thus creating a risk of infection. 56. As to the detention conditions in the SIZO SBU, the applicant stated that they were much better, but that the cell had been equipped in such a way that a detainee constantly felt humiliated. The toilet had been situated in the middle of the cell, on an elevated concrete base, absolutely open. It had been placed so as to be seen not only by the cellmates, but also by the prison guards. Almost half of the prison guards were women. There was no water in the cell. Cold water was supplied only upon the request of a detainee for a short period of time. 57. The applicant maintained, referring to the 1999 Report of the State Accounting Chamber “on the results of inspecting the budgetary allocations for the maintenance of the State Department for the Enforcement of Sentences and its facilities and institutions”, that the detention conditions were of a poor standard because the State budget had allocated only UAH 2.9 million to the penitentiary system, which amounted to an average of UAH 13 per detainee a year, or UAH 1 per month. In 2000 that sum had been reduced to UAH 11 a year, that is, UAH 0.90 a month. In 1999 the State budget had provided only 25.4% of the sum requested for prisoners' nutrition requirements, and in 2000 this sum had been reduced to 14.5%, which had resulted in the allocation of UAH 0.38 a day per person for food. The applicant alleged that, at the time of his incarceration, the Kyiv Regional Investigative Isolation Unit no. 1 (SIZO no. 13) had received only UAH 0.08 per day per detainee for expenditure from the State budget and that it accordingly had not been possible to treat the applicant for a disease such as his ulcer whilst in detention. 58. The Government contended the applicant's factual submissions as to the conditions in which he had been detained, however, provided no particularities to support their comments on the actual detention conditions in SIZO SBU and SIZO no. 13. 59. The relevant provisions of the Criminal Code read as follows: “It shall be an offence punishable by up to 4 years' imprisonment or by compulsory labour in a penitentiary for a term of up to 2 years to interfere with the appearance of a witness... before a court or the bodies responsible for the preliminary investigation or inquiry; to exert unlawful pressure on a witness in order to force him or her to refuse to testify or produce evidence, or to give false evidence under threat of murder, violence, destruction of the witness's property or that of his or her close relatives, or disclosure of information defaming the witness; to bribe a witness, ... with the same purpose; or to threaten to carry out the above-mentioned actions in revenge for evidence produced previously.” 60. The relevant provisions of the Code of Criminal Procedure read as follows: “Preventive measures shall be imposed on a suspect, accused, defendant or convicted person in order to prevent him or her from attempting to abscond from an inquiry, investigation or the court, to obstruct the establishment of the truth in a criminal case or to pursue criminal activities, and in order to ensure the enforcement of procedural decisions. Preventive measures shall be imposed where there are sufficient grounds to believe that the suspect, accused, defendant or convicted person will attempt to abscond from investigation and the court, or if he or she fails to comply with procedural decisions, or obstructs the establishment of the truth in the case or pursues criminal activities. If there are insufficient grounds for the imposition of preventive measures, the suspect, accused or convicted person shall sign a written statement undertaking to appear upon notification by the inquirer, investigator, prosecutor or the court, and shall also undertake to notify them of any change in his place of residence. If a preventive measure is applicable to a suspect, he or she shall be charged within ten days from the time of imposition of the measure. In the event that the indictment is not issued within that time, the preventive measure shall be annulled.” “The preventive measures are as follows: (1) a written undertaking not to abscond; (2) a personal surety; (3) a surety provided by a public organisation or labour collective; (3-1) bail; (4) remand in custody; (5) supervision by the command of a military unit. As a temporary preventive measure, a suspect may be detained on the grounds and pursuant to the procedure provided for by Articles 106, 115 and 165-2 of this Code.” “In resolving the issue of imposing a preventive measure, in addition to the circumstances specified in Article 148 of this Code, such circumstances as the gravity of the alleged offence, the person's age, state of health, family and financial status, type of employment, place of residence and any other circumstances relating to the person shall be taken into consideration.” “Bail consists in the deposit, by the suspect, accused, defendant or any other natural or legal persons, of money or other assets with the body responsible for the preliminary investigation or with a court for the purpose of ensuring the proper conduct of the person with respect to whom the preventive measure has been applied, his or her fulfilment of the undertaking not to leave his or her place of permanent or temporary residence without the permission of the investigator or the court, and his or her appearance upon a summons before the investigative body or the court. 's tax-exempt minimum income with regard to a person who is accused of committing a serious crime punishable by deprivation of liberty for a term of more than 10 years; 500 times the citizen's tax-exempt minimum income with regard to a person accused of committing another serious crime or a person with a previous conviction; and 50 times the citizen's tax-exempt minimum income with regard to any other persons. In all cases the amount of bail shall not be less than the amount of the civil claim, substantiated by sufficient evidence. On the payment of bail, the suspect, accused or defendant shall be apprised of his or her obligations and the consequences of their non-fulfilment, and the person who stands surety shall be apprised of the offence of which the person in respect of whom bail is applied is suspected or accused, and informed that, in the event that this person fails to fulfil these obligations, the bail will be forfeited in favour of the State. Before the case has been referred to the court, a preventive measure in the form of bail may be imposed on a person who is held in custody only with the permission of the prosecutor who authorised the detention and, after the case has been referred to the court, such a measure may be imposed only by the court. The person who stands surety may refuse to perform the obligations entered into prior to the emergence of the circumstances requiring the forfeiture of the bail in favour of the State. In this case he or she shall ensure the appearance of the suspect, accused or defendant before the investigative body or the court with a view to having the preventive measure imposed on him or her replaced by a different one. Bail shall be returned only after a new preventive measure has been chosen. In the event that a suspect, accused or defendant breaches his or her obligations, bail shall be forfeited in favour of the State. The issue of forfeiture of bail to the State shall be determined by the court at a hearing during the consideration of the case or in separate proceedings. The surety shall be summoned to the court in order to give explanations. Failure of that person to appear before the court for a hearing without good reason shall not obstruct the examination of the issue of the forfeiture of bail in favour of the State. The issue of returning the bail to the surety shall be resolved by the court during the trial of the case. Bail deposited by the suspect, accused or defendant may be withheld by the court for the purpose of executing the judgment in the form of compensation for damage.” (As amended by Article 154-1, in accordance with the Law of 20 November 1996, р. N 530/96-ВР) “With regard to the application, annulment or modification of a preventive measure, the investigative body, investigator, prosecutor or judge shall make an order, and the court shall give a ruling.” “At the stage of the pre-trial investigation, a non-custodial preventive measure shall be selected by the investigative body, investigator or prosecutor. In the event that the investigative body or investigator considers that there are grounds for selecting a custodial preventive measure, with the prosecutor's consent he shall lodge an application with the court. The prosecutor is entitled to lodge an application to the same effect. In determining this issue, the prosecutor shall be obliged to familiarise himself with all the material evidence in the case that would justify placing the person in custody, and to verify that the evidence was received in a lawful manner and is sufficient for charging the person. The application shall be considered within seventy-two hours of the time at which the suspect or accused is detained. In the event that the application concerns the detention of a person who is currently not deprived of his liberty, the judge shall be entitled, by means of an order, to give permission for the suspect to be detained and brought before the court under guard. Detention in such cases may not exceed seventy-two hours; and in the event that the person is outside the locality where the court is situated, it may not exceed forty-eight hours from the moment at which the detainee is brought within the locality. Upon receiving the application, the judge shall examine the material in the criminal case file submitted by the investigative bodies or investigator. A prosecutor shall question the suspect or accused and, if necessary, shall hear evidence from the person who is the subject of the proceedings, shall obtain the opinion of the previous prosecutor or defence counsel, if the latter appeared before the court, and shall make an order: (1) refusing to select the preventive measure if there are no grounds for doing so; (2) selecting a preventive measure in the form of taking of a suspect or accused into custody. The court shall be entitled to select for the suspect or accused a non-custodial preventive measure if the investigator or prosecutor refuses to select a custodial preventive measure for him or her. The judge's order may be appealed against to the court of appeal by the prosecutor, suspect, accused or his or her defence counsel or legal representative, within three days from the date on which it was made. The lodging of an appeal shall not suspend the execution of the judge's order.” 61. The relevant extracts from the Resolution of the Plenary Supreme Court read as follows: “... 12. In accordance with paragraph 6 of Article 154-1 of the Code of Criminal Procedure, a breach by the suspect, accused or convicted person of his or her bail obligations shall lead to the forfeiture of the bail. [Forfeiture] shall be decided upon at the trial stage of the proceedings (substantiated by the judgment, and, before its delivery, by an order or ruling of the court), or in the course of separate judicial proceedings.” 62. The relevant extracts from the reports are cited in the judgment of Nevmerzhitsky v. Ukraine (no. 54825/00, §§ 60-61 and 66, ECHR 2005II). | 1 |
train | 001-102381 | ENG | POL | CHAMBER | 2,010 | CASE OF GAJEWSKI v. POLAND | 3 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Vincent A. De Gaetano | 5. The applicant was born in 1958 and lives in Rudnik. 6. On 6 July 1995 the Zamość District Court declared the company “Wojewódzkie Przedsiębiorstwo Przemysłu Mięsnego” insolvent and appointed the applicant (a practising lawyer) as an insolvency trustee. Judge M.B was appointed as an insolvency judge. 7. On 9 August 2000, the court discharged M.B. from his position and appointed M.S as the new insolvency judge. 8. On 6 September 2000 the applicant asked the insolvency judge to determine the amount of his remuneration. 9. At the hearing held on 9 October 2000 the question of payment of the applicant's expenses was examined. The hearing was adjourned since the court decided to wait for an opinion from an expert accountant. 10. On 11 September 2001 the applicant asked to be granted an advance payment on his remuneration. The insolvency judge – M.S. – submitted that the applicant had already been granted an advance payment of 6,000 Polish zlotys (PLN) and he had already obtained PLN 8,650. In addition, he had obtained, for his alleged expenses, a total of PLN 45,668.32. 11. At the hearing held on 5 October 2001 the Zamość District Court sitting as a panel composed of three judges, including judge M.S., granted the applicant an advance payment of PLN 6,000. 12. On 8 April 2002 the applicant applied to the District Court in Zamość and requested the sum of PLN 577,292 as payment for his eight years of trustee duties. 13. M.S., the insolvency judge, in her submissions to the court (przedstawienie), asked it to grant the applicant remuneration in a lower amount, namely PLN 317,989. She submitted that the applicant had been responsible for a lengthy and expensive liquidation proceedings. She also requested the offsetting of the sum of PLN 200,600 that had already been paid to the applicant in the form of advance payments. 14. At the hearing held on 28 September 2004 the court heard evidence from the applicant. On 30 September 2004 the Zamość District Court at a session held in camera granted the applicant's request in part, and awarded him 317,989. The sum of PLN 266,318.82 already paid to the applicant was offset from the amount. The bench that gave this decision was composed of three professional judges including both M.B and M.S. 15. On 18 October 2004 the applicant appealed against this decision. He disagreed with the court's decision in general terms. He further argued that the proceedings had been invalid since the insolvency judge, M.S., had acted both as a claimant and as a member of the court, which called into question the court's impartiality. 16. On 5 January 2005 the Lublin Regional Court at a session held in camera dismissed the applicant's appeal. The court considered that the first-instance court had correctly calculated the trustee's remuneration, in particular because the applicant was responsible for delays in the proceedings. It referred to the fact that the applicant was heard at the hearing held on 28 September 2004 and he was able to present his arguments. In the court's opinion, judge M.S. was entitled to sit on the bench of the commercial court deciding on the applicant's remuneration, given that the Insolvency Act did not provide for any limitations in this respect. 17. The applicant filed a cassation appeal with the Supreme Court. 18. On 3 March 2005 the Lublin Regional Court rejected his cassation appeal as inadmissible in law. 19. On 16 March 2005 the applicant appealed against this decision. On 14 September 2005 the Supreme Court dismissed his appeal confirming that a second-instance court's decision on trustee's remuneration could not be the subject of an appeal. 20. Meanwhile, on 10 February 2005 the applicant asked to be paid further partial remuneration in the amount of PLN 66,945 for the period between 7 June 2003 and 6 February 2005. 21. On 20 December 2005 the Zamość District Court held a hearing in that case. The panel of judges was composed of three professional judges, including judge M.S. The applicant challenged judge M.S. In reply, on 24 March 2006 the Lublin Regional Court ordered judge M.S. to withdraw from the panel. The court noted that the insolvency judge, who had already made her submission regarding the applicant's remuneration, would have pre-conceived notions about the issues in the case. 22. On 27 April 2006 the Zamość District Court granted the applicant partial remuneration in the amount of PLN 22,000. 23. On 9 October 2007 the Zamość District Court declared the liquidation procedure to be terminated. 24. The Ordinance of the President of the Republic of Poland of 24 October 1934, the Insolvency Act, as applicable at the material time, set out the rules governing insolvency proceedings. 25. Under section 8 of the Insolvency Act, proceedings relating to an insolvency petition were to be instituted before the District Commercial Court, sitting as a bench of three professional judges, in whose jurisdiction the insolvent debtor had its registered office. 26. Under section 67 § 4 the insolvency judge was not to be on the bench of the court that heard a complaint against a decision given by that judge. | 1 |
train | 001-94310 | ENG | RUS | ADMISSIBILITY | 2,009 | BOGATYREV v. RUSSIA | 4 | Inadmissible | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | The applicant, Mr Anatoliy Gavrilovich Bogatyrev, is a Russian national who was born in 1960 and lives in Novosibirsk-95, the Novosibirsk Region. The respondent Government were represented by Ms V. Milinchuk, the former Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is a retired military serviceman. By a final and binding judgment of 27 September 2001 the Military Section of the Supreme Court of the Russian Federation allowed the applicant’s challenge of his dismissal from military service and ordered the military unit to reinstate him in his previous position as of 15 September 1999 until the delivery of the housing certificate. The court also awarded him all the allowances due over the period of his dismissal without listing them. In 2002 the applicant applied on several occasions for the writs of execution to the Garrison Military Court No. 61 of the Novosibirsk-95 (“the Garrison Court”) and the Supreme Court, but to no avail. On 4 April 2002 the applicant was reinstated in his previous position. He had not received an officer’s identity document. In July-August 2002 he started to receive his salary, was provided with the housing certificate and granted annual leave for 2001-2002. On 16 December 2002 he received arrears for the period from 15 September 1999 to 20 June 2002 and was dismissed from the military service. On 29 January 2003 the Garrison Court issued the writs of execution in respect of the judgment. It appears that in the meantime the respondent military unit submitted to the court documents evidencing payment of the allowances. On 16 April 2003 the Garrison Court revoked the writs from the bailiffs, since the judgment had been executed in full. On 5 February 2003 the Military Court of the 3rd Circuit in the final instance rejected the applicant’s claim for damages resulting from the failure to issue him with an officer’s identity document as unsubstantiated. Under Article 205 § 2 of the Code of the Civil Procedure of the RSFSR (1964), in force at the material time, a court which delivered a judgment could, upon request by the parties to the case or of its own initiative, issue an additional decision, in case where the amount awarded had not been specified in the initial judgment. Under Article 206 of the Code, a court which delivered a judgment could, upon request by the parties to the case or the bailiff, issue clarifications of the judgment, without changing its substance. Similar provisions are contained in Articles 201 and 202 of the Code of the Civil Procedure of the Russian Federation (in force as of 1 February 2003). | 0 |
train | 001-117874 | ENG | POL | CHAMBER | 2,013 | CASE OF OLSZEWSKI v. POLAND | 3 | Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva | 5. The applicant was born in 1958 and lives in Gostynin. 6. On 22 April 2003 the applicant complained to the Court of procedural shortcomings and the unfavourable outcome of criminal proceedings. 7. On 28 July 1999 he had been acquitted of robbery by the Gostynin District Court (Sąd Rejonowy). 8. On 21 December 1999 the Płock Regional Court (Sąd Okręgowy) partly quashed the judgment and remitted the case to the lower court. 9. On 20 May 2002 the Gostynin District Court convicted the applicant of robbery and sentenced him to six years’ imprisonment. 10. On 2 December 2002 the Płock Regional Court upheld that judgment but reduced the applicant’s sentence to five years’ imprisonment. The judgment, together with the court’s reasoned opinion, was served on the applicant on 16 March 2003. 11. On 24 March 2003 the applicant’s legal-aid lawyer informed the Płock Regional Court that he had not found any grounds to lodge a cassation appeal in the applicant’s case. On 7 April 2003 the court conveyed that information to the applicant and its refusal to appoint another lawyer. 12. On 9 April 2004 the Ombudsman refused to lodge an extraordinary cassation appeal in the applicant’s case, because he had not found any grounds to do so. 13. On 15 March 2005 the applicant made an application to the Supreme Court for the proceedings to be reopened. 14. On 20 June 2005 the Gostynin District Court appointed a legal-aid lawyer to represent the applicant in the proceedings for the reopening of his case. On 8 August 2005 the lawyer prepared and lodged a proper application to reopen the proceedings. He argued that new facts and evidence had come to light since the applicant had been convicted, namely that two of the witnesses for the prosecution had admitted that they had given false statements. 15. On 16 September 2005 the Warsaw Court of Appeal (Sąd Apelacyjny) decided to exempt the applicant from court fees. 16. On 30 September 2005 the Warsaw Court of Appeal refused to reopen the proceedings on the grounds that the witnesses in question had not been convicted of perjury in connection with the main proceedings against the applicant, and that the arguments raised by the applicant’s lawyer were therefore invalid. 17. No appeal was available under the applicable domestic law. 18. On 31 May 2007 the applicant complained to the Court of overcrowding and inadequate medical care and detention conditions in Płock Prison. 19. The applicant was detained in Płock Prison on three separate occasions: (1) from 30 December 1998 to 14 July 1999; (2) from 8 August 2003 until 4 June 2007; and (3) from 9 January until 6 February 2008. Between his first and second periods of detention the applicant was released into the community, and between his second and third periods of detention there, he was detained in the Gdańsk Remand Centre hospital. He was released into the community on 6 February 2008. 20. The applicant submitted that throughout his detention in Płock Prison he had been detained in overcrowded cells. He did not indicate the size of the cells in which he had been placed or the number of inmates he had had to share them with. 21. He did submit to the Court, however, copies of official memoranda revealing that every three to four months or so, the governor of Płock Prison would report to the relevant penitentiary judge along the following lines: “...owing to the overcrowding of [the prison’s] quarters, I have been forced to place prisoners in cells with less than 3 sq. m of living space for each person. This situation affects all cells ...” 22. The official statistics published by the Prison Service (Służba Więzienna) show that during the applicant’s second period of detention, overcrowding (the degree by which the number of prisoners exceeds the maximum allowed capacity of a particular detention facility, which, in turn, is calculated on the basis of the standard of 3 m² of cell space per prisoner provided for in Polish law) at Płock Prison ranged between 19% and 29% in the relevant part of 2003, 22% and 33% in 2004, 22% and 34% in 2005, 25% and 36% in 2006, 29% and 34.5% in the relevant part of 2007, and had been nearly 30% in January 2008 and over 33 % in February of the same year. 23. The Government acknowledged that during the relevant period, namely between 2003 and January 2008, the overall maximum capacity of Płock Prison had been exceeded by on average 32%. 24. The Government also submitted that between 8 August 2003 and 4 June 2007 the applicant had been detained in eight cells, measuring between 6 and 25 sq. m. They submitted that no records existed to show how many prisoners had shared those cells with the applicant. In consequence, it could not be established whether or not the applicant’s cells had been overcrowded. 25. As regards the final period of the applicant’s detention, the Government submitted that between 9 January and 6 February 2008, he had been placed in cell no. 304, which measured nearly 25 sq. m. For a total of nine days he had shared that cell with ten fellow inmates (2.2 sq. m per person). During the remaining nineteen days, he had shared it with eleven inmates (2 sq. m per person). 26. It appears that all cells were clean, well-lit and ventilated. 27. The Government stressed that the applicant had not been confined to his cells all day long. He had been allowed an hour of outdoor exercise per day, an hour in the prison recreation room (świetlica) every other day and two weekly visits to the library. Moreover, the applicant could, if he had wished to do so, have attended education and leisure courses or taken up employment offered by the prison. 28. The applicant, in principle, did not contest the above submissions. As regards his employment opportunities, however, he provided the Court with copies of several letters from the prison administration and the prison authorities, which stated that his job opportunities were objectively limited owing to his disability and the fact that the rate of unemployment among prisoners was very high (see paragraph 39 below). 29. Lastly, the applicant submitted that for two years, from 27 October 2004 until 4 June 2007, he had shared a cell (no. 304, wing III) with an inmate who suffered from schizophrenia and had a history of violence. 30. The Government argued that during his detention in Płock Prison the applicant had not shared his cell with any prisoner suffering from schizophrenia. They also pointed out that the applicant had never made any complaints to that effect to the prison authorities. 31. In his application to the Court of 31 May 2007, the applicant also complained that he had been provided with inadequate medical care by the prison healthcare system during his detention in Płock Prison. 32. The applicant suffered from ulcers, varicose veins, atherosclerosis (hardening of the arteries), osteoarthritis, chronic bronchitis, asthma and a spinal hernia. His conditions were confirmed by numerous hospital records and medical certificates, issued by, among others, a public hospital in Gostyniń on 16 May 2003, Płock Prison medical centre (Zakład Opieki Zdrowotnej) on 30 January 2007, and the Gdańsk Remand Centre hospital on 31 July and 8 February 2007. He used an orthopaedic prosthesis and was in overall poor health. 33. The applicant submitted two hospital discharge reports issued shortly before his detention in 2003. The documents revealed that the applicant had been treated for spondylarthritis (an inflammatory spinal rheumatic disease) and chronic bronchitis and that when he was discharged he had been in a good state of health. The reports also recommended that the applicant should continue taking certain medication and should do physiotherapy exercises at home. 34. The applicant was certified on 14 February 2007 as having a minor disability (umiarkowany stopień niepełnosprawności) and on 31 May 2010 as having a significant disability (znaczny stopień niepełnosprawności). 35. The applicant asserted that he had not received adequate medical care during his imprisonment. In particular, he submitted that he had not been allowed to have specialist orthopaedic treatment and that on several occasions he had been refused painkillers. 36. The Government submitted that the applicant had been provided with regular and adequate care and treatment which had complied with recommended medical practice. He had been examined by general practitioners and various specialists on 259 occasions. More precisely, during his second and third periods of detention in Płock Prison, the applicant had been examined by specialists in internal medicine (147 times) and physiotherapy (twenty-two times), a pulmonologist (forty times), a dentist (eleven times), a radiologist (nine times), a psychiatrist (ten times), a neurologist (fourteen times), a dermatologist (three times), a laryngologist (twice), an ophthalmologist (three times) and by a vascular surgeon once. 37. From 4 June 2007 to 9 January 2008 the applicant was detained in Gdańsk Remand Centre. He was initially placed in a cell in the general wing because of building works in the hospital wing. On 8 August 2007 he was transferred to the hospital wing. The medical certificates issued in the hospital revealed that throughout the whole period in question, the applicant had received hospital treatment for his spinal arthritis and hernia, as well as for chronic bronchitis. 38. The applicant lodged numerous complaints with the penitentiary prison authorities concerning his allegedly inadequate medical care and other aspects of his detention but to no avail. The applicant did not lodge any complaints about overcrowding at that stage. 39. By letter of 2 June 2005, an officer authorised by the Director of the Łódź Regional Inspectorate of the Prison Service (Okręgowy Inspektorat Służby Więziennej) informed the applicant that a complaint he had lodged concerning his unemployment in Płock Prison had been rejected as illfounded. It was emphasised that the applicant’s job opportunities were objectively limited owing to the nature of his disability and the fact that the rate of unemployment among prisoners was very high. 40. By letters of 19 April, 7 May, 9 July and 8 October 2007 the Directors of the Łódź and Gdańsk Regional Inspectorates of the Prison Service informed the applicant that his complaints of inadequate medical treatment in prison had been rejected as ill-founded. It was established that the applicant had received sufficient medical treatment, having been examined by specialists and prescribed medication. It was also noted that in order to provide him with better medical care, on 4 June 2007 the applicant had been transferred to the hospital at Gdańsk Remand Centre. 41. By letter of 6 August 2007 the Director of the Łódź Regional Prison Service informed the applicant that, as he had claimed, the Płock Prison medical centre had failed to undertake all the necessary measures in order to supply him with prosthetics. No further information can be derived from this document. The applicant did not make any submissions regarding this aspect of his medical conditions and healthcare. 42. The applicant also sought temporary leave from prison on account of his poor health; however, on 27 August 2007 the Gdańsk Regional Court refused to grant the necessary licence. 43. On 14 November 2007 the Gdańsk Court of Appeal upheld that decision. The domestic courts considered that adequate medical care and treatment could be provided to the applicant by the prison system. Reference was made to the medical certificates of 12 July and 8 November 2007 which stated that there was no requirement for the applicant to undergo spinal surgery. The courts concluded that the applicant’s multiple and serious health conditions did not make it impossible for him to continue serving his prison sentence. 44. In March 2007 the applicant brought a civil action against the State Treasury for compensation in the amount of 150,000 Polish zlotys (PLN) (approximately 36,000 euros (EUR)) for non-pecuniary damage, which he had allegedly suffered owing to overcrowding and inadequate conditions of detention and medical care in Płock Prison. He also asked to be exempted from paying court fees, on the basis that he was unemployed and had no financial resources. 45. On an unspecified date the Płock Regional Court ordered that the applicant pay court fees in the amount of PLN 7,500 (approximately EUR 2,000). 46. The court later decided to grant the applicant a partial exemption from the fees and ordered that he pay the remaining fee of PLN 1,500 (approximately EUR 420). 47. It would appear that the applicant lodged an interlocutory appeal seeking a full exemption from the court fees. 48. On 30 March 2007 the Płock Regional Court returned the applicant’s interlocutory appeal because it had not been lodged in compliance with the relevant procedural requirements namely the applicant had failed to give full details of his appeal and to submit the necessary supporting documents. On 5 July 2007 the same court rejected a further interlocutory appeal by the applicant because such a remedy had not been available to him under the applicable domestic law. 49. It appears that the applicant sent a further request for an exemption from court fees. On 13 July 2007 the Płock Regional Court invited him to submit a statement of his financial means in support of his request. 50. It appears that the full fee exemption was eventually granted. 51. On 25 June 2009 the Płock Regional Court obtained a medical expert report, which concluded that the applicant’s medical condition, more specifically the atherosclerosis of his legs, spinal hernia, osteoarthritis, chronic bronchitis and joint deformation, did not have any connection and did not directly result from his incarceration and the conditions of his detention in Płock Prison. It was also considered that the cause of the applicant’s multiple health disorders was unknown but they undoubtedly dated back to a time prior to his detention. 52. In addition, the expert made the following findings about the applicant’s health and treatment in Płock Prison: the applicant’s atherosclerosis dated back to 1995 or earlier; he was a smoker and had begun treatment for chronic bronchitis in 1997; he had developed spinal problems in 1998; and he received medication for stomach ulcers. The report also concluded that the medical treatment during his detention could be regarded as effective as his chronic illnesses were not getting any worse. 53. On 5 August 2009 the Płock Regional Court dismissed the applicant’s claim on its merits (no. IC 586/07). A copy of the judgment was served on the applicant on 12 December 2009. 54. On 20 January 2010 the applicant informed the Regional Court that he wished to appeal against the first-instance judgment and asked the court to provide him with its reasoned opinion for the decision. 55. On 8 February 2010 the Płock Regional Court rejected the applicant’s appeal as it was lodged out of time. On 8 April 2010 the same court rejected the applicant’s interlocutory appeal against that decision. 56. On 31 May 2007 the applicant also complained to the Court of procedural shortcomings and the unfavourable outcome of divorce proceedings to which he was party. 57. On 5 January 2006 the Płock Regional Court ruled in the applicant’s divorce proceedings. 58. On 24 March 2006 the Płock Regional Court dismissed an appeal by the applicant for non-compliance with procedural requirements, inter alia, his failure to specify the exact nature of his appeal, namely whether he wished to have the first-instance court’s judgment amended or quashed entirely, and his failure to pay the required court fee in the amount of PLN 50 (approximately EUR 13). 59. On 22 September 2006 the Warsaw Court of Appeal dismissed an interlocutory appeal by the applicant against that decision. 60. On 31 May 2007 the applicant also complained to the Court of procedural shortcomings and the unfavourable outcome of social security proceedings he had brought. 61. The applicant failed to submit all the documents relating to the proceedings which were the subject of that part of the application. As a result, it is impossible for the Court to establish exactly what happened. 62. On an unspecified date the applicant instituted social security proceedings for an assessment of his level of disability and his pension. 63. It appears that on 19 June 2006 the Warsaw District Court decided to dismiss the applicant’s claim for non-compliance with procedural requirements, namely a failure by the applicant to pay a basic court fee (opłata podstawowa) in the amount of PLN 30 (approximately EUR 8). It appears that the applicant later lodged a number of interlocutory appeals, some of which were out of time. Eventually, the case was struck out on the grounds that the applicant had failed to comply with several procedural requirements, namely to pay the required basic court fee and lodge his appeals within the prescribed time-limit. 64. On 31 May 2010 the applicant was certified as being significantly disabled. 65. A detailed description of the relevant domestic law and practice, concerning general rules governing conditions of detention in Poland and domestic remedies available to detainees alleging that the conditions of their detention were inadequate, is set out in the Court’s pilot judgments in Orchowski v. Poland (no. 17885/04, §§ 75-85, 22 October 2009) and Norbert Sikorski v. Poland (no. 17599/05, §§ 4588, 22 October 2009). More recent developments are described in the Court’s decision in the case of Łatak v. Poland ((dec.), no. 52070/08, §§ 25-54, 12 October 2010). 66. The provisions pertaining to medical care in detention facilities are set out in the Court’s judgment in the case of Sławomir Musiał v. Poland (no. 28300/06, §§ 48-61, 20 January 2009). | 1 |
train | 001-69672 | ENG | TUR | CHAMBER | 2,005 | CASE OF OKYAY AND OTHERS v. TURKEY | 1 | Violation of Art. 6-1;Non-pecuniary damage - financial award | null | 9. The case concerns the national authorities' failure to implement the domestic courts' order to shut down three thermal power plants which pollute the environment in the province of Muğla, in south-west Turkey. 10. The applicants are all lawyers who live and practise in İzmir, a city which is approximately 250 kilometres from the site of the power plants. Relying on Article 56 of the Constitution and section 3(a) of the Environment Act (see paragraphs 46 and 47 below), the applicants argued that it was their constitutional right to live in a healthy and balanced environment, and their duty to ensure the protection of the environment and to prevent environmental pollution. 11. The Yatağan, Yeniköy and Gökova thermal power plants have been operated for many years by the Ministry of Energy and Natural Resources and the public utility company Türkiye Elektrik Kurumu (“TEAŞ”) in Muğla, in the Aegean region of Turkey. In the course of their operation, the poor-quality coal used by the plants to produce energy has caused pollution and harmed the region's biological diversity. 12. By petitions of 16 April 1993, 28 April 1993 and 11 February 1994, the applicants called on the Ministries of Health, of the Environment and of Energy and Natural Resources, TEAŞ and the Muğla provincial governor to take action to halt the operation of the Gökova, Yatağan and Yeniköy thermal power plants. They claimed that these three power plants had failed to obtain the requisite licences and that their operation constituted a danger to public health and to the environment. 13. The above-mentioned administrative authorities did not reply to the applicants' request, which, under section 10(2) of the Administrative Procedure Act (Law no. 2577), amounted to a refusal. 14. On 16 July 1993, 18 July 1993 and 18 May 1994 the applicants brought three separate actions in the Aydın Administrative Court concerning the Gökova, Yatağan and Yeniköy power plants respectively, against the Ministries of Health, of Energy and Natural Resources and of the Environment, TEAŞ and the Muğla provincial governor's office. They requested that the administrative decision refusing to halt the power plants' operation be set aside. The applicants further asked the court to order an interim measure to suspend the activities of these power plants on the ground that they were causing irreparable harm to nature and to public health. As to their legal capacity to bring the proceedings in question, the applicants relied on Article 56 of the Constitution and sections 3 and 30 of the Environment Act (see paragraphs 46, 47 and 50 below). 15. The Aydın Administrative Court appointed a panel of experts, composed of three university professors who were experts in forestry, the environment and chemistry respectively, with a view to determining the effects of the three power plants' operation on the environment. 16. On 16 February 1996 the experts submitted their reports to the court. They concluded that the plants emitted considerable amounts of nitrogen dioxide and sulphur dioxide and were not equipped with the mandatory chimney filters. They found that the power plants constituted a danger to a zone measuring 25-30 kilometres in diameter. Accordingly, they recommended that the Gökova power plant be immediately shut down, that one unit in each of the Yeniköy and Yatağan power plants should cease to operate and that desulphurisation units should be installed in them. 17. On 20 June 1996 the Aydın Administrative Court issued an interlocutory injunction for suspension of the power plants' operation. It found that TEAŞ had been operating the plants since 1994 under the guise of “test operations”, without having obtained the requisite permits for construction, gas emissions and the discharge of waste water. On the basis of the experts' findings, the court noted that the plants had already caused pollution that was harmful to human health and the environment and that their continued operation could cause irreparable harm to the public. Consequently, it ruled that the administrative authorities' decision refusing to halt the plants' operation had been unlawful. 18. On 29 August 1996 the Regional Administrative Court in Aydın, an appellate body responsible for examining decisions given by a single judge in the administrative courts, dismissed the defendant authorities' appeal against the injunction of 20 June 1996. 19. The applicants alleged before the Administrative Court that the continued operation of the Gökova power plant would lead to environmental disaster. In particular, it would reduce the number of marine fish species, harm forests and agricultural areas and would have an adverse impact on tourism on account of the risk of hazardous emissions. In this connection, they claimed that the authorities had failed to prepare an environmental impact report and to obtain the necessary operating permits. 20. In its submissions to the Administrative Court, the Ministry of Energy and Natural Resources disputed the applicants' legal capacity to bring the action in question, alleging that they did not have a legal interest to bring such an action as required by section 5(2) of the Administrative Procedure Act (see paragraph 55 below). It further claimed, inter alia, that there was no requirement to obtain an environmental impact report and that the authorities had already applied for the requisite permits. It also noted that the authorities were taking the necessary steps to install a new flue gas desulphurisation system. 21. In addition to those submissions from the Ministry of Energy and Natural Resources, the Ministries of Health and of the Environment, TEAŞ and the Muğla provincial governor's office claimed that the case ought to be dismissed because the necessary equipment would be installed in the plant to prevent pollution. 22. On 30 December 1996 the Aydın Administrative Court set aside the defendant authorities' decision to refuse to halt the operation of the Gökova power plant. In its decision, the court first dismissed the objection concerning the applicants' alleged lack of a legal interest to bring an action to halt the plant's operation. Referring to section 2 of the Administrative Procedure Act, the court noted that there was no requirement to claim a violation of a personal interest in cases concerning the protection of the environment or the historical and cultural heritage, or which were closely related to issues of public interest (see paragraph 53 below). It further found that the thermal power plant was being operated as a “test operation” and did not have the requisite permits. In this connection, the court found, inter alia: “... Furthermore, in order to determine whether the thermal power plant caused damage to the environment, a survey of the area was conducted by three experts, namely Professor M. Doğan Kantarcı, Professor Ayşen Müzzinoğlu and Professor İlker Kayadeniz. The [aforementioned experts'] report, on which this judgment is based, noted that the Kemerköy (Gökova) thermal power plant consisted of three units, each capable of generating 210 megawatts of electricity. The plant uses poor-quality lignite coal to generate energy. It has no equipment for filtering sulphur dioxide and nitrogen oxide gases discharged through its chimneys ... Each of the three units of the Kemerköy thermal power plant uses 1.4 million tonnes of coal. It is not possible to decrease air pollution by reducing the capacity of a thermal power plant which uses poor-quality coal. It appears that 110.5 million tonnes of coal are stocked on the thermal power plant's premises. Given that the annual amount of coal to be used by the three units is around 4.2 million tonnes, the thermal power plant would need to operate for twenty-six years to use up all the coal. If even one unit of the Kemerköy power plant were to operate, this would have a detrimental effect on the environment. The gas emitted from the chimneys disperses over an area measuring approximately 2,350 kilometres in diameter ... Should three units of the Kemerköy and two units of the Yeniköy thermal power plants be operated, the Datça and Betçe zones of the Reşadiye peninsula would be adversely affected by sulphur dioxide. The delivery of coal to the power plant by ship would also cause marine pollution. [It follows] that the operation of the Kemerköy power plant has a harmful effect not only on the areas in the vicinity but also on distant areas. [Accordingly], in order to remove the sulphur dioxide from the gas discharged through the chimneys, desulphurisation units must be installed. This would remove 95% of the sulphur dioxide. Our country's electrical energy needs can never be disregarded. However, the electricity plants in operation, or to be constructed, must meet the requirements of the above-mentioned regulations, so that the public interest is respected. The public interest cannot be said to have been respected if irreparable harm is caused to the environment merely in order to generate electricity. It appears that the requisite measures were not taken prior to the plant's construction and the start of operations. Despite the possibility of minimising the adverse environmental effects of the power plants, which represent a long-term State investment, it is obvious that the necessary steps were not taken or that little was done from the planning stage to the point of commencing operations. The financial cost of installing a flue gas desulphurisation system must not be a deterrent. Discussion of the financial cost of the benefit that would accrue to the population from the measures to be taken by the administration is incompatible with the aim of a social State ...” 23. Given that the thermal power plant had caused environmental pollution, that no preventive measure had been taken and that the requisite permits for construction, operation, gas emission and the discharge of waste water had not been obtained, the court concluded that the refusal of the applicants' request to halt the plant's operation had been unlawful. 24. The applicants contended before the Administrative Court that the operation of the Yeniköy power plant without the requisite permits and installations would lead to environmental disaster. They therefore asked the court to set aside the administrative authorities' decision to refuse to halt the plant's operation. 25. The Ministry of Energy and Natural Resources claimed that the power plant had received the requisite construction permit and that TEAŞ was taking the necessary steps to install flue gas desulphurisation equipment. However, it denied that the power plant was polluting the environment and claimed that closure of the plant would give rise to energy shortages in the Aegean region. 26. The Ministry of Health submitted that the plaintiffs did not have a legal interest to bring such an action as required by section 5(2) of the Administrative Procedure Act (see paragraph 55 below). It contended, inter alia, that the relevant authorities were taking the necessary steps to prevent the plant from polluting the environment. 27. The Ministry of the Environment maintained that it did not have authority to issue an operating permit for power plants but was nonetheless required to submit its opinion on such permits. It noted that it had already sent an opinion to the Ministry of Health and to TEAŞ. In its view, no environmental impact report was required in respect of the power plant, since it had been constructed prior to the enactment of the Environment Act. 28. For its part, TEAŞ asserted that the plaintiffs did not have a legal interest in the action and that the case should therefore be dismissed. It alleged, inter alia, that the power plant had received the requisite permits from the authorities and that it had been equipped with electronic chimney filters. The company further claimed that there was no alternative energy supply, and that the power plant's closure would result in energy shortages in the region. 29. On 30 December 1996 the Aydın Administrative Court delivered a judgment similar to that in the case of the Gökova thermal power plant, and set aside the administrative authorities' decision to refuse to close the Yeniköy thermal power plant. Relying on the experts' report, the court noted that the Yeniköy plant did not have the necessary operating permits and that it had already polluted the environment. It therefore found that the administrative authorities' decision had been unlawful. 30. The applicants argued before the Administrative Court that the Yatağan power plant had been in operation since 1982 and that the damage it caused to the environment had been observed since 1985. They contended that the defendant authorities had failed to obtain the requisite permits for the power plant's operation. They therefore asked the court to set aside the administrative authorities' decision to refuse to close the plant. 31. As they had done in the cases of the Gökova and Yeniköy plants, the defendant administrative authorities challenged the applicants' legal interest to bring an action in the Administrative Court for the purpose of shutting down the Yatağan plant. They denied that the plant polluted the environment and claimed that the necessary permits would be obtained and that flue gas desulphurisation equipment would be installed. The administrative authorities also pointed out that there would be a significant energy shortage in the region if the plant's operation were to be halted. They asked the court to dismiss the action. 32. On 30 December 1996 the Aydın Administrative Court dismissed the defendants' objection concerning the applicants' alleged lack of legal interest and set aside the administrative decision to continue the plant's operation without obtaining the requisite permits. Referring to the experts' report, the court reasoned that the plant was polluting the environment and therefore concluded that the administrative decision to refuse to halt the plant's operation had been unlawful. 33. By decisions of 3 and 6 June 1998, the Supreme Administrative Court upheld the above-mentioned three judgments of the Aydın Administrative Court. 34. On 26 April 1999 the Supreme Administrative Court rejected the defendant authorities' requests for rectification. 35. By virtue of section 28 of the Administrative Procedure Act and of Article 138 § 4 of the Constitution, the administrative authorities are obliged to comply with court decisions and to enforce them within thirty days following service of the decision (see paragraphs 57 and 58 below). 36. By a decision of 3 September 1996, the Council of Ministers, composed of the Prime Minister and other cabinet ministers, decided that the three thermal power plants should continue to operate, despite the administrative courts' judgments. The Council of Ministers reasoned that closure of the plants would give rise to energy shortages and loss of employment and would thus affect the region's income from tourism. Taking the view that the necessary measures were being taken by the authorities with a view to preventing the plants from polluting the environment, the Council of Ministers decided that the plants' operation should not be halted. 37. In letters of 6 and 14 September 1996, the applicants asked the defendant administrative authorities to enforce the judgments of the Aydın Administrative Court. 38. On 11 November 1996 the applicants filed criminal complaints with the offices of the Ankara Chief Public Prosecutor and of the public prosecutors in the jurisdictions in which the plants were situated. They asked the prosecutors to institute criminal proceedings against the members of the Council of Ministers and other relevant administrative authorities for failure to execute the court decisions. 39. In a letter of 20 November 1996, the Ministry of Energy and Natural Resources informed the applicants that the operation of the three thermal power plants would not be halted. It was noted that the power plants were responsible for 7% of the country's total electricity production and that their contribution to the economy was estimated at around five hundred billion Turkish liras. The Ministry further argued that 4,079 people would lose their jobs and the region's tourist sector would be adversely affected if these plants were to cease to operate. It was further claimed that contracts had already been signed for the installation of new flue gas desulphurisation systems and that the necessary measures were therefore being taken to protect the environment and public health. 40. On 27 November 1996 the Ankara Chief Public Prosecutor issued a decision not to prosecute the Prime Minister and other ministers, having regard to Article 100 of the Constitution which stipulated that the prosecution of these authorities would require a parliamentary investigation. 41. On 25 December 1996 the Yatağan Chief Public Prosecutor issued a decision not to prosecute the director of the Yatağan thermal power plant, given that the Aydın Administrative Court's judgment had not been served on him, and that TEAŞ's directors were not responsible for taking action to comply with the court's judgment. 42. On 12 March 1997 the Milas Chief Public Prosecutor issued a decision not to prosecute the directors of the Yeniköy and Gökova thermal power plants. The Chief Public Prosecutor stated that the directors of the power plants were merely implementing the Council of Ministers' decision of 3 September 1996 and that there were no grounds for considering that they were deliberately refusing to comply with the administrative courts' judgments. 43. The applicants submitted a copy of nine judgments given by the Yatağan Magistrates' Court in civil matters (sulh hukuk mahkemesi). In these cases, brought against TEAŞ, the plaintiffs, who were farmers living in the vicinity of the Yatağan thermal power plant, alleged that the quality and quantity of their olive and tobacco production had been adversely affected by the poisonous gas and ash emitted by the power plant and that they had therefore suffered pecuniary damage (Files nos. 1998/80, 1998/81, 1999/68, 2000/225, 2000/226, 2000/499, 2001/72, 2001/73, 2001/76; and decisions nos. 1998/108, 1998/113, 1999/339, 2000/164, 2000/183, 2001/59, 2001/75, 2001/78, 2001/79). 44. The Yatağan Magistrates' Court acceded to the plaintiffs' claims and awarded each of them compensation. Relying on expert reports on the plaintiffs' land, the court found that the hazardous gas emitted by the power plant had caused considerable damage to cultivation in the region, in that olive trees and tobacco plants suffered from incomplete leaf growth and were unable to produce a sufficient yield. 45. The Court of Cassation upheld all nine judgments of the Yatağan Magistrates' Court. 46. Article 56 of the Constitution provides: “Everyone has the right to live in a healthy, balanced environment. It shall be the duty of the State and the citizens to improve and preserve the environment and to prevent environmental pollution. ... The State shall perform this task by utilising and supervising health and social welfare institutions in both the public and private sectors. ...” 47. Section 3 of the Environment Act (Law no. 2872), published in the Official Gazette on 11 August 1983, reads: “The general principles governing environmental protection and the prevention of environmental pollution shall be as follows: (a) Protecting the environment and preventing environmental pollution are the duty of individuals and legal entities as well as of all citizens, and they are required to comply with the measures to be taken and the principles laid down in reference to these matters. ...” 48. Section 10 provides: “Establishments and concerns which propose to carry out activities which might cause environmental problems shall draw up an environmental impact report. This report shall concern, inter alia, the measures proposed to reduce the detrimental effects of waste materials and the necessary precautions to this end. The types of project for which such a report shall be required, its content and the principles governing its approval by the relevant authorities shall be determined by regulations.” 49. Section 28 reads: “Whether or not negligence has occurred, a person who pollutes and harms the environment shall be responsible for the damage resulting from that pollution or the deterioration of the environment. This liability is without prejudice to any liability which may arise under general provisions.” 50. Section 30 provides: “Individuals and legal entities that suffer damage from or have information regarding an activity which pollutes or harms the environment may request that the activity be stopped by applying to the administrative authorities.” 51. In June 1992 the United Nations Conference on Environment and Development, meeting in Rio de Janeiro (Brazil), adopted a declaration (“the Rio Declaration on Environment and Development”, A/CONF.151/26 (vol. I)) intended to advance the concept of States' rights and responsibilities with regard to the environment. “Principle 10” of this Declaration provides: “Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.” 52. On 27 June 2003 the Parliamentary Assembly of the Council of Europe adopted Recommendation 1614 (2003) on environment and human rights. The relevant part of this recommendation states: “9. The Assembly recommends that the Governments of member States: i. ensure appropriate protection of the life, health, family and private life, physical integrity and private property of persons in accordance with Articles 2, 3 and 8 of the European Convention on Human Rights and by Article 1 of its Additional Protocol, by also taking particular account of the need for environmental protection; ii. recognise a human right to a healthy, viable and decent environment which includes the objective obligation for States to protect the environment, in national laws, preferably at constitutional level; iii. safeguard the individual procedural rights to access to information, public participation in decision making and access to justice in environmental matters set out in the Aarhus Convention; ...” 53. Section 2 of the Administrative Procedure Act (Law no. 2577) provides that anyone whose personal interests have been violated as a result of an unlawful administrative act can bring an action for annulment of that act. An administrative court suit can also be brought on account of a violation of a personal right by an administrative act or action. 54. In its judgment of 2 February 1990 (File no. 1989/430, decision no. 1990/18), the Supreme Administrative Court distinguished a personal interest from a personal right: “... the violation of an interest does not have the same meaning as the violation of a right. It indicates a relation which is serious and reasonable. The interest violated does not necessarily need to be of an economic or pecuniary nature. ...” 55. Section 5(2) of Law no. 2577 reads: “The filing of an action by a common petition by more than one person requires a common right or interest on the part of the plaintiffs and similarity in respect of the facts and legal reasons.” 56. Section 10(2) of Law no. 2577 provides: “[If the administrative authorities] do not respond [to a petition] within sixty days [after its receipt], the request shall be considered to have been rejected.” 57. Article 138 § 4 of the Constitution provides: “The bodies of executive and legislative power and the authorities must comply with court decisions; they cannot in any circumstances modify court decisions or defer enforcement thereof.” 58. The relevant parts of section 28 of Law no. 2577 read: “(1) The authorities shall be obliged to adopt a decision without delay or to take action in accordance with the decisions on the merits or a request for a stay of execution issued by the Supreme Administrative Court, the ordinary or regional administrative courts or the courts dealing with tax disputes. Under no circumstances may the time taken to act exceed thirty days following service of the decision on the authorities. ... (3) Where the authorities do not adopt a decision or do not act in accordance with a decision by the Supreme Administrative Court, the ordinary or regional administrative courts or the tax courts, a claim for compensation for pecuniary or non-pecuniary damage may be brought before the Supreme Administrative Court and the relevant courts against the authorities. (4) In the event of deliberate failure on the part of civil servants to enforce judicial decisions within the thirty days [following the decision], compensation proceedings may be brought both against the authorities and against the civil servant who refuses to enforce the decision in question.” 59. Section 52(4) of Law no. 2577 provides: “The setting aside of a judgment gives rise ipso facto to a stay of execution of the decision.” | 1 |
train | 001-102235 | ENG | RUS | CHAMBER | 2,010 | CASE OF TAYMUSKHANOVY v. RUSSIA | 3 | Preliminary objection joined to merits and dismissed (non-exhaustion of domesic remedies);Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violation of Art. 3 (substantive aspect);No violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 13+2;Pecuniary damage and non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | 5. The first applicant was born in 1956. The second and third applicants were born in 2001 and 2003, respectively. They live in the village of Prigorodnoe, the Groznenskiy District, in the Chechen Republic. 6. The first applicant is the mother of Mr Ruslan Taymuskhanov, born in 1981. Ruslan Taymuskhanov is the father of the second and third applicants. 7. On the morning of 30 December 2002 the first applicant, Ruslan Taymuskhanov and Mr Z., a police officer, were driving home in a UAZ SUV vehicle. At some point they passed by the village of Starye Atagi, where the special task force units of the Chechen Republic and the Russian federal troops had been carrying out a special “sweeping” operation. 8. At the military checkpoint near Starye Atagi federal servicemen stopped the UAZ SUV car. Some of the servicemen were wearing masks and camouflage uniforms; they all spoke Russian. The servicemen ordered the first applicant, Ruslan Taymuskhanov and Mr Z. to get out of the car, searched them and tied Ruslan Taymuskhanov and Mr Z.'s arms behind their backs. 9. The servicemen put the first applicant, Ruslan Taymuskhanov and Mr Z. in a UAZ minivan. The first applicant noticed that its registration number contained the digits “655”. The minivan drove off in the direction of Grozny. It was followed by a Gazel vehicle. While the minivan was moving, one of the servicemen made a phone call. The first applicant overheard the words “woman, woman”. Shortly afterwards the servicemen pushed her out of the minivan. 10. The first applicant lost consciousness as a result of the fall. Some passers-by discovered her lying by the side of the road and took her home. Four or five hours later the first applicant recovered her senses. 11. At some point Mr Z. was thrown out of the UAZ minivan. 12. The first applicant has not seen her son since. 13. At about 11 a.m. on 30 December 2002 in the vicinity of the village of Starye Atagi unidentified armed persons wearing camouflage uniforms abducted Ruslan Taymuskhanov and took him away to an unknown destination. 14. At some point Mr D., Mr Z.'s uncle, suggested that the first applicant contact Mr G., the head of the special task force unit who had been in charge of the special “sweeping” operation of 30 December 2002 in Starye Atagi. Mr G. promised to release Ruslan Taymuskhanov, but then left for a business trip; at some point he died. Later Mr G.'s deputy denied that Ruslan Taymuskhanov had been arrested. 15. On 31 March 2003 the prosecutor's office of the Groznenskiy District (“the district prosecutor's office”) instituted an investigation in case no. 42061 into the kidnapping of Ruslan Taymuskhanov. 16. On 21 April 2003 the first applicant complained about her son's abduction to the prosecutor's office of the Chechen Republic and the military prosecutor's office of the United Group Alignment (“the UGA prosecutor's office”). 17. On 24 April 2003 the prosecutor's office of the Chechen Republic forwarded the first applicant's complaint to the district prosecutor's office. 18. On 30 April 2003 the UGA prosecutor's office forwarded the first applicant's complaint to the prosecutor's office of Grozny. 19. On 30 November 2003 the district prosecutor's office suspended the investigation in case no. 42061 for failure to identify those responsible. 20. On 5 March 2004 the district prosecutor's office issued a report stating the following. At about 11 a.m. on 30 December 2002 in the area of Starye Atagi unidentified masked persons in camouflage uniforms armed with machine guns had arrested Ruslan Taymuskhanov and taken him away to an unknown destination. The whereabouts of the missing person had not been established. On 31 March 2003 the district prosecutor's office had opened an investigation into the kidnapping in case no. 42061. Ruslan Taymuskhanov's wife had been granted victim status. 21. On 10 June 2005 the prosecutor's office of the Chechen Republic forwarded a letter from the first applicant to the district prosecutor's office and requested an update on progress in the investigation. 22. On 18 June 2005 the district prosecutor's office informed the first applicant that an investigation into Ruslan Taymuskhanov's kidnapping had been opened under the number 42061 and that measures were being taken to establish her son's whereabouts. 23. On 8 September 2005 the first applicant wrote to the district prosecutor's office describing the circumstances of her son's abduction and asking for the incident to be investigated. 24. On 15 September 2005 the Groznenskiy District Court, on the first applicant's request, declared Ruslan Taymuskhanov missing. 25. On 3 October 2005 the first applicant was informed that her son had not been held in any of the penitentiary facilities of the Rostov Region. 26. On 20 October 2005 the prosecutor's office of the Chechen Republic informed the first applicant that the investigation was pending with the district prosecutor's office. 27. On 24 October 2005 and 25 February 2006 the prosecutor's office of the Chechen Republic forwarded the first applicant's complaints to the district prosecutor's office. 28. On 3 March 2006 the district prosecutor's office informed the first applicant that the investigation in case no. 42061 into her son's kidnapping had been commenced on 31 March 2003 and had then been suspended on an unspecified date. However, measures were being taken to find Ruslan Taymuskhanov and his kidnappers. 29. On 10 July 2006 the first applicant requested the district prosecutor's office to grant her victim status, to provide her with copies of the decisions on the institution and suspension of the investigation, to allow her access to the case file and to keep her updated on any progress in the proceedings. 30. On 8 September 2006 the SRJI requested an update on case no. 42061 from the district prosecutor's office. 31. It is not clear whether the investigation in case no. 42061 has been completed to date. 32. On 21 March 2003 the district prosecutor's office received a complaint from the first applicant about the disappearance of her son. 33. Between 24 and 31 March 2003 requests were sent to the heads of law-enforcement units to establish whether any special operations had been carried out in Starye Atagi on 30 December 2002 and whether Ruslan Taymuskhanov had been arrested or involved in the activities of illegal armed groups. 34. On 31 March 2003 the district prosecutor's office instituted criminal proceedings in case no. 42061 under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). 35. On 15 April 2003 the first applicant was granted victim status and questioned. 36. On 22 April 2003 the prosecutor's office of the Chechen Republic received a statement from the first applicant concerning her conversation with Mr G. 37. On 28 April 2003 the district prosecutor's office ordered the police to establish Mr Z.'s whereabouts and to identify the owners of the UAZ minivan and Gazel vehicle. 38. On 27 May 2003 the Ministry of the Interior of the Chechen Republic received instructions to carry out an internal inquiry into the kidnapping of Ruslan Taymuskhanov and the head of the Groznenskiy district department of the Federal Security Service (“FSB”) was ordered to establish the identities of the kidnappers and witnesses to the crime. The replies, received on unspecified dates, indicated that there was no information concerning the first applicant's son's whereabouts and that no witnesses had been found. 39. On 31 May 2003 the investigation in case no. 42061 was suspended for failure to identify those responsible. 40. On 29 August 2003 the district prosecutor's office quashed the decision of 31 May 2003 and resumed the investigation. 41. On 10 September 2003 the Ministry of the Interior of the Chechen Republic was ordered to establish the identity of Mr Z. and to carry out an internal inquiry into Mr Z.'s arrest. 42. The district prosecutor's office asked whether a UAZ minivan with registration number “566” had been owned by the Ministry of the Interior of the Chechen Republic. The reply received was negative. 43. On 20 and 21 September 2003 the district prosecutor's office requested the heads of the task force unit of the Ministry of the Interior of the Chechen Republic and of the Groznenskiy district department of the FSB to establish whether Ruslan Taymuskhanov had been arrested or involved in the activities of illegal armed groups. The replies received indicated that the first applicant's son had not been arrested and there was no information on his involvement in illegal armed groups. 44. On 22 September 2003 the first applicant was again questioned as a victim. 45. On 6 and 17 October 2003 the district prosecutor's office requested several law-enforcement agencies to submit information on the whereabouts of Ruslan Taymuskhanov and Mr Z. and to establish whether servicemen of the task force unit of the Ministry of the Interior of the Chechen Republic had been involved in the applicants' relative's kidnapping. It followed from the replies received that no such involvement had been established. 46. On 30 October 2003 the investigation in case no. 42061 was suspended for failure to identify those responsible. 47. On 1 October 2005 the district prosecutor's office quashed the decision of 30 October 2003 and resumed the investigation. 48. On 11 October 2005 Ms D., the wife of Ruslan Taymuskhanov and the mother of the second and third applicants, was granted victim status and questioned. 49. On 12 October 2005 Mr V.G., the head of the local authority of Starye Atagi, was questioned as a witness. He submitted that in December 2002, before New Year's Eve, a special operation had been carried out by the task force unit of the Chechen Republic in his village for some ten or twelve days. Several villagers had been arrested but none of them had disappeared. Mr V.G. vaguely recollected that two men had been kidnapped near Starye Atagi on 30 December 2002 but in his opinion servicemen of the task force unit had not been involved in the kidnapping. 50. Two police officers were questioned as witnesses in October 2005. They stated that a special operation had been carried out in Starye Atagi in December 2002 by the task force unit and that they had heard about Ruslan Taymuskhanov's kidnapping but had not known anything about it. 51. On 16 and 17 October 2005 the first applicant and Ms D. were questioned again. They did not provide any new information. 52. Between 3 and 17 October 2005 the district prosecutor's office sent requests to a number of law-enforcement agencies to provide information on whether Ruslan Taymuskhanov had been arrested, whether any special operations had been carried out in Starye Atagi at the material time and whether any unidentified dead bodies resembling Ruslan Taymuskhanov had been discovered, and to establish the whereabouts of Mr Z. and a certain Mr D. It followed from the replies received that no criminal proceedings had been instituted against Ruslan Taymuskhanov, that he had not been arrested by the task force unit or detained in a penitentiary institution; Mr Z. had been killed in autumn 2004; Mr D. lived in Moscow. 53. On 25 October 2005 Mr M., a police officer responsible for the applicants' home village of Prigorodnoe, was questioned as a witness and stated that Ruslan Taymuskhanov had been a member of an illegal armed group. 54. Five more people were questioned as witnesses in October 2005. They did not report any new information. 55. On 28 October 2005 the district prosecutor's office ordered the police to check if Ruslan Taymuskhanov had had any connections with illegal armed groups. 56. On 1 November 2005 the district prosecutor's office ordered the Groznenskiy district department of the FSB to check if Ruslan Taymuskhanov had had any contact with any of the leaders of illegal armed groups. It followed from the reply received that since 2002 Ruslan Taymuskhanov had been a member of an illegal armed group. 57. On 3 November 2005 the investigation was again suspended. 58. On 24 August 2006 the first applicant requested the district prosecutor's office to grant her victim status. 59. On 2 September 2006 the first applicant was informed that she had been granted victim status on 15 April 2003. 60. On 5 March 2009 the Groznenksiy inter-district investigating unit of the investigating department of the Investigating Committee of the Russian Prosecutor's Office for the Chechen Republic (“the investigating unit”) quashed the decision of 3 November 2005 and notified the first applicant accordingly. 61. On 11 March 2009 the investigating unit ordered the police to establish Mr D.'s place of residence and the circumstances surrounding the death of Mr Z., as well as to take steps to establish the whereabouts of Ruslan Taymuskhanov and find witnesses to his kidnapping. 62. On 11 March 2009 the investigating unit requested the traffic police to establish whether registration numbers “566” or “655” had belonged to law-enforcement agencies. According to the replies received, one vehicle with registration number “566” and three vehicles with registration numbers “655” belonged to various branches of the Ministry of the Interior of the Chechen Republic. The types of those vehicles were not specified. 63. On 11 March 2009 the investigating unit asked the Ministry of the Interior of the Chechen Republic if on 30 December 2002 they had had a UAZ minivan with registration numbers “566” or “655”. The reply was negative. 64. On 25 March 2009 the investigating unit requested information concerning the death of Mr Z. It turned out that his dead body had been found on 2 January 2005 and that an investigation into the murder was pending. 65. On 4 April 2009 the investigating unit suspended the investigation. 66. On 14 May 2009 the district prosecutor's office pointed out that the investigation in case no. 42061 had been flawed because the following investigative steps had not been taken: Mr D., who had allegedly negotiated Ruslan Taymuskhanov's release with the task force unit, had not been questioned, Mr Z.'s car had not been found and documents concerning his death had not been included in the case file. 67. On 20 May 2009 the investigation in case no. 42061 was resumed. 68. On 3 June 2009 Mr D. was questioned as a witness. He stated that on 1 January 2003 he had been told that his nephew, Mr Z., had been kidnapped. On 3 January 2003 he had found out that Mr Z. had been released. The first applicant had asked Mr D. to help find her son. Mr D. had talked to the head of the task force unit who had said that his subordinates had not arrested Ruslan Taymuskhanov. 69. Despite specific requests by the Court the Government did not disclose most of the materials from the investigation file in case no. 42061. They submitted copies of the decisions to open, suspend and re-open the investigation, records of witnesses' interviews and several replies by the authorities to the applicant and explained that they had provided the “main case-file materials”. 70. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007). | 1 |
train | 001-67913 | ENG | NLD | ADMISSIBILITY | 2,004 | VAN THUIL v. THE NETHERLANDS | 4 | Inadmissible | David Thór Björgvinsson | The applicant, Gijsbert Bertus van Thuil, is a Netherlands national who was born in 1952 and, at the time of the introduction of the application, was detained in a remand centre in Hoogeveen. He is represented before the Court by Mr S.T. van Berge Henegouwen, a lawyer practising in Maastricht. On 21 November 2001, the applicant was arrested and placed in police custody (inverzekeringstelling) for a maximum of three days on suspicion of involvement in the exportation of synthetic drugs. At the time of his arrest, 1,500 US Dollars was found on him. The search of the premises where he was arrested resulted in the finding of, inter alia, a plastic bag with eight pills with a horse-like logo, a pill with a euro logo, an order for dried flowers, a Netherlands passport in the applicant's name, a Belgian passport in the name of a Mr X. containing an identity photograph of the applicant, two papers with telephone numbers and two address books. When heard on 21 November 2001 in connection with his placement in police custody, the applicant stated that he knew that he did not have to answer any questions, that he understood that he had been arrested in connection with trafficking in and/or exporting hard drugs, and that he wished to be represented by a lawyer. When heard by the police on 22 November 2001, the applicant stated, inter alia, that he had been convicted and sentenced to five years' imprisonment in the past for drug offences, that he knew nothing about drugs, that he had obtained the Belgian passport from a man from Limburg and that the particulars therein had been made up, and that the pills found, which looked like XTC pills, might have been left behind by one of his acquaintances who had visited him. He further stated that he did not know anything about the transport of more than 1,000,000 XTC pills which had been seized in Germany on 20 November 2001. After he had been confronted with photographs taken under surveillance, the applicant stated that he only recognised someone whom he knew as John, an acquaintance who visited him sometimes. He did not know the other persons in the photographs shown to him. On 23 November 2001, the applicant was heard by the investigating judge (rechter-commissaris) of the Amsterdam Regional Court (arrondissementsrechtbank) on the public prosecutor's request to place the applicant in detention on remand (inbewaringstelling) on suspicion of his involvement in the exportation of an estimated quantity of 1,600,000 XTC pills, membership in a criminal organisation involved in drugs offences, and the possession of a Belgian passport he knew to be forged. The public prosecutor's request was accompanied by the written record of the provisional findings in the criminal investigation (voorgeleidingsproces-verbaal). This written record ran to 298 pages and consisted of a full account of the criminal investigation (relaas van onderzoek) and the relevant appendices, including the written records of the arrest of the applicant and two co-suspects, their subsequent questioning by the police, six searches, the notifications of seizures, the finding – on 11 November 2001 on a drugs courier – of four bags containing 3,718 kg. pills tested positive for XTC, a report dated 22 November 2001 from the German authorities stating that the substance found in seized cardboard boxes had tested positive for XTC, the summaries of 36 conversations intercepted on tapped telephones used by co-suspects, a written record on a surveillance operation conducted on 10 November 2001 and on the authenticity verification of the two passports found in the search when the applicant was arrested. These written records were made available to the applicant. According to the written record of the investigation, in September 2001 the Amsterdam-Amstelland Regional Criminal Intelligence Unit (Regionale Criminele Inlichtingen Eenheid) had received information about several persons involved in XTC trafficking. On this basis, as of 28 September 2001, an investigation was made into a group of persons involved in the commission of drug offences under the direction of one of these persons, Mr E. This investigation disclosed, inter alia, that the applicant was apparently involved in exporting XTC. In the course of the investigation, the authorities had intercepted telephone conversations, conducted surveillance operations and intercepted various XTC shipments. Two drug couriers had been arrested on 10 November 2001 in the United Kingdom upon their arrival on a flight from Amsterdam; one drug courier had been arrested on 11 November 2001 in the Netherlands and, on 20 November 2001, a shipment of about 1,600,000 XTC pills – packed in cardboard boxes hidden between boxes of dried flowers and transported in a truck driven by a Netherlands driver, Mr B. – had been intercepted by the German authorities when the driver was unloading the XTC in Lübeck (Germany). The truck driver had apparently transported these boxes on the instructions of the applicant, who in turn had acted under instructions from Mr E. who would have bought the XTC from the applicant. In the course of surveillance carried out, the applicant had often been seen in the company of Mr B. When heard by the investigating judge on 23 November 2001, the applicant submitted that the suspicions against him were based on unsubstantiated conclusions drawn by the investigating authorities and therefore could not be taken into account in assessing the question whether there were serious suspicions (ernstige bezwaren) against him. He contended that the written record of the provisional findings in the criminal investigation had not been accompanied by documents containing the facts and/or circumstances from which these conclusions had been drawn by the investigating authorities (e.g. the surveillance records, or the record of the intercepted communications and/or statements taken in the course of the investigation). On the same day, the investigating judge ordered the applicant's detention on remand for a period of ten days. Noting the applicant's suspected involvement in the exportation of an estimated quantity of 1,600,000 XTC pills, his membership in a criminal organisation and his possession of a forged Belgian passport, the investigating judge considered that there were grave suspicions against the applicant. The judge found that there was a serious risk of the applicant absconding and that there were important reasons of public safety (gewichtige redenen van maatschappelijke veiligheid) which required his immediate detention: the offence of which he was suspected could attract a 12-year prison sentence; the legal order had been seriously shaken by that offence; there was a serious risk that the applicant would commit a further offence whereby the health of persons might be endangered, and the applicant, in view of statements made and/or drugs found, was apparently involved in extensive drug trafficking. By letter of 27 November 2001, the applicant's lawyer informed the public prosecutor that it appeared from the copies of the written records (processenverbaal) with which he had been provided that, in the course of the investigation, several so-called special investigative powers (bijzondere opsporingsbevoegdheden) had been deployed. He requested the public prosecutor to provide him with all the written records and orders relating to the exercise of these powers. On 29 November 2001, the applicant was heard by the Amsterdam Regional Court on the public prosecutor's request for his further detention on remand (gevangenhouding). At this hearing, the applicant requested the Regional Court to lift his pre-trial detention, arguing that the investigating judge had unjustly assessed the seriousness of the suspicions against him on the basis of conclusions drawn by the police, whereas the facts and/or circumstances (e.g. the surveillance records or the intercepted communications and/or statements taken in the course of the investigation), on which these police conclusions were based, were not included in the case file. On the same day, the Amsterdam Regional Court ordered the applicant's further detention on remand for a period of thirty days. It considered, after having heard the prosecutor and the applicant, that the suspicion and grounds which had led to the applicant's detention on remand were still pertinent. By letter of 1 December 2001, the Amsterdam public prosecutor dealing with the applicant's case informed the latter's lawyer that he would shortly transmit copies of all written records and orders issued in the applicant's case. However, owing to the prosecution's workload, this could not be done immediately. The public prosecutor added that no documents would be withheld, as the interests of the investigation did not require that. On 24 December 2001, acting on a request by the public prosecutor, the Amsterdam Regional Court prolonged the applicant's further detention on remand by thirty days. After having heard the prosecutor and the applicant, it considered that the suspicion and grounds which had led to the applicant's further detention on remand were still pertinent. On 27 December 2001, the applicant filed an appeal against the decision of 24 December 2001 with the Amsterdam Court of Appeal (gerechtshof). On 11 January 2002, the public prosecutor transmitted to the applicant's lawyer copies of the requests, authorisations and orders in respect of the investigative powers that had been used in the applicant's case. These documents were accompanied by various written records containing the findings of the investigation authorities in support of their requests for authorisation to use special investigative powers. On 22 January 2002, acting on a request by the public prosecutor and having noted that the applicant had indicated in writing that he did not wish to be heard on that request, the Amsterdam Regional Court prolonged the applicant's detention on remand for a further period of thirty days, considering that the suspicion and grounds which had led to the applicant's further detention on remand were still pertinent. On 6 February 2002, having noted the impugned decision of 24 December 2001 and the documents relating to the applicant's pre-trial detention, and after having heard the parties, the Court of Appeal rejected the applicant's appeal and upheld the decision of 24 December 2001. As regards the applicant's request – made orally at the hearing – to lift his pre-trial detention on the same grounds as those he had raised before the Regional Court on 29 November 2001, the Court of Appeal considered that the serious reasons of public safety referred to in the order for the applicant's further detention on remand, and which continued to require his detention, outweighed the applicant's interests in being released and, consequently, rejected the request. On an unspecified date at the end of February 2002 and after having received copies of the written records containing the results of the special investigative powers that had been used in the criminal investigation, the applicant's lawyer requested that several witnesses be heard. At the time of the introduction of the application, first-instance trial proceedings against the applicant had started. No further information about these trial proceedings has been submitted. Pursuant to Article 152 of the Code of Criminal Procedure (Wetboek van Strafvordering – the “CCP”), officials with powers of investigation into offences must record as soon as possible in writing (procesverbaal) the investigated punishable fact or what they have done or found in the investigation. Article 133 of the CCP defines pre-trial detention (voorlopige hechtenis) as a deprivation of liberty pursuant to an order for detention on remand (inbewaringstelling), a warrant for the taking into pre-trial detention (gevangenneming), or an order for further detention on remand (gevangenhouding). The statutory rules governing pre-trial detention are set out in Articles 63 to 88 of the CCP. An order for pre-trial detention can only be issued against persons suspected of an offence attracting a punishment of four years or more, or of a number of other specified criminal acts (Article 67 § 1 of the CCP). Pursuant to Article 67 § 3 of the CCP, pre-trial detention can only be applied when it appears from the facts or circumstances that there are serious suspicions against the suspect (“wanneer uit feiten of omstandigheden blijkt van ernstige bezwaren tegen de verdachte”). Orders for pre-trial detention are immediately enforceable (Article 73 § 1 of the CCP). A (deputy) public prosecutor is competent to order the arrest of a person suspected of having committed a criminal offence, in respect of which detention on remand may be ordered (Article 54 of the CCP). A (deputy) public prosecutor can further order a person's subsequent detention in police custody (inverzekeringstelling), after having seen and heard that person (Article 57 of the CCP). An order for detention in police custody can only be issued in respect of offences for which detention on remand may be ordered. A custody order is valid for a maximum of three days and may only be prolonged for a further maximum period of three days (Article 58 of the CCP). No appeal lies against a police custody order. Article 59a of the CCP requires that no later than three days and fifteen hours after the arrest, the suspect must be brought before an investigating judge in order to be heard. On that occasion the suspect may request the investigating judge to order his or her release (Article 59a § 4 of the CCP). Where the investigating judge finds the police custody order unlawful, the suspect's immediate release must be ordered (Article 59a § 5 of the CCP). In order to prolong the detention of a suspect, the public prosecutor can request the investigating judge to issue an order for detention on remand under Article 63 of the CCP. A remand order given by the investigating judge is valid for a maximum period of ten days (Article 64 § 1 of the CCP). Although no direct appeal lies against a remand order, a person whose detention on remand has been ordered can, in accordance with Article 69 § 1 of the CCP, apply to the Regional Court for a lifting order (opheffing voorlopige hechtenis). Under Article 87 § 2 of the CCP, an appeal against a rejection by the Regional Court of a first request to lift the detention on remand may be lodged with the Court of Appeal. Upon a request by the public prosecutor, the Regional Court can, after having heard the suspect, order the prolongation (gevangenhouding) of the original remand order of the investigating judge (Article 65 of the CCP). The Regional Court's order for further detention on remand is valid for a maximum period of thirty days (Article 66 of the CCP). An appeal against an order for further detention on remand lies to the Court of Appeal who is to determine such an appeal as soon as possible (Article 71 of the CCP). According to Article 30 § 2 of the CCP, the investigating judge or the public prosecutor can, if the interests of the investigation so require, withhold certain case file documents from the suspect. In that case, the suspect will be informed in writing that the documents available to him or her are incomplete. If documents are withheld from a suspect, the latter can file an objection (bezwaar), within fourteen days after the notification of the decision, to the court to which the public prosecutor or investigating judge is attached, which court must determine the matter as soon as possible (Article 32 of the CCP). Pursuant to Article 33 of the CCP, a suspect must be given access to all documents in the case file as soon as the decision to close the preliminary judicial investigation has become final or, where there has been no preliminary judicial investigation, as soon as the decision to pursue the prosecution or the indictment has been served on the suspect. | 0 |
train | 001-102811 | ENG | DEU | CHAMBER | 2,011 | CASE OF KÜBLER v. GERMANY | 3 | Preliminary objections joined to merits and dismissed (non-exhaustion of domestic remedies, victim);Remainder inadmissible;No violation of Art. 6-1;Violation of Art. 6-1;Just satisfaction reserved | Bertram Schmitt;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste | 6. The applicant was born in 1960 and lives in Stuttgart. 7. The applicant has been practising as a lawyer since 1989. In November 2001 the applicant applied for one of the six posts of advocate notary (Anwaltsnotar) officially advertised by the Baden-Württemberg Ministry of Justice (hereafter: “the Ministry of Justice”) enabling qualified lawyers to practise simultaneously as a solicitor and as a notary in the Stuttgart court circuit. 8. On 18 March 2002 the Ministry of Justice informed the applicant that it intended to appoint six other lawyers as advocate notaries. The applicant's subsequent request to compel the Ministry of Justice to review its decision was dismissed by the Stuttgart Court of Appeal. 9. On 31 March 2003 the Federal Court of Justice rejected the applicant's appeal. 10. On 3 April 2003 the applicant informed the Ministry of Justice that he intended to lodge a constitutional complaint with and apply for interim legal protection to the Federal Constitutional Court. He requested the Ministry of Justice to await the outcome of the proceedings before the Federal Constitutional Court before appointing the advocate notaries. 11. On 7 April 2003 the Ministry of Justice informed the applicant it would no longer wait to make the appointments. 12. On 9 April 2003 the applicant lodged a constitutional complaint and requested the Federal Constitutional Court to grant him interim legal protection, arguing that there was a danger that the Ministry of Justice would appoint the advocate notaries and thus create irreparable damage to him. 13. On 10 April 2003 the Federal Constitutional Court granted the applicant interim legal protection and ordered the Ministry of Justice to keep one post of advocate notary free until the statutory time-limit for the submission of the grounds for the applicant's constitutional complaint had elapsed. On the same day the Federal Constitutional Court sent its decision by fax to the Ministry of Justice. 14. Nonetheless, on 10 April 2003 the Ministry of Justice appointed five notaries. On the following day it appointed the sixth notary. 15. On 29 April 2003 the Ministry of Justice informed the Federal Constitutional Court that it had received the court's interim injunction on 10 April 2003, but that this had been submitted to the competent head of division in the Ministry only on 14 April 2003. However, it also announced that it would advertise a further post as advocate notary as of 30 June 2003. 16. On 14 May 2003 the applicant submitted the reasons for his constitutional complaint to the Federal Constitutional Court, which extended its interim injunction on 3 June 2003, 19 November 2003 and 4 May 2004, until such time as it had issued its final decision on the applicant's constitutional complaint. 17. On 8 October 2004 the Federal Constitutional Court found for the applicant. First, it held that the applicant's constitutional complaint had not become inadmissible following the appointment of the six notaries by the Ministry of Justice. In particular, the applicant had an interest in a declaration that the application procedure had been unconstitutional and in a fresh examination of his application or, if that was impossible, in being granted compensation. The right to an effective remedy under Article 19 § 4 of the German Basic Law permitted the continuation of the proceedings before the Federal Constitutional Court, since the Ministry of Justice had failed to abide by its interim injunction. 18. On the merits, the Federal Constitutional Court found that the recruitment procedure as practised by the Ministry of Justice had violated the applicant's freedom of profession as guaranteed by Article 12 of the Basic Law and the principle of equal access to public office as provided for by Article 33 § 2 of the Basic Law (see “Relevant domestic law” below), mainly because it had not taken sufficient account of the relevant professional experience of the candidates. The Federal Constitutional Court remitted the case to the Court of Appeal for fresh consideration, as “it was not excluded that [the applicant], who had obtained better results in the second state exam and had more relevant professional experience than the candidate who, on account of his seniority, was appointed as sixth advocate notary in the recruitment procedure, could succeed in the initial proceedings if his application was reassessed.” 19. On 7 April 2005 the Stuttgart Court of Appeal quashed the decision of the Ministry of Justice of 18 March 2002 and compelled it to reassess the application, taking into account the findings of the Federal Constitutional Court. 20. On 28 November 2005 the Federal Court of Justice quashed the Court of Appeal's decision. It found that the applicant had lacked an interest in a decision compelling the Ministry of Justice to appoint him as an advocate notary or to reassess his application, as the Ministry had already allocated the six notary posts to other applicants. Thus the principle of stability of office (Grundsatz der Ämterstabilität – see “Relevant domestic law” below) prohibited the annulment of one of the six appointments. Furthermore, it was impossible to allocate the applicant the next available notary post or to create a new post for him as this would infringe the rights of other potential candidates and be in violation of section 4 of the Federal Notaries Act (Bundesnotarordnung - see “Relevant domestic law” below). The court held that its findings complied with the Federal Constitutional Court's decision of 8 October 2004, which had not specified the manner in which the applicant should obtain redress. It was thus possible that the applicant could be granted redress in official liability proceedings rather than having his application re-examined. 21. On 29 March 2006 the Federal Constitutional Court refused to admit the applicant's constitutional complaint. It found that the applicant could not attain more with the second constitutional complaint than he had already obtained in its decision of 8 October 2004. In that decision the Federal Constitutional Court had not specified the manner in which the lower courts were to grant the applicant legal protection. It had referred to two options, namely the reassessment of the applicant's application by the Ministry of Justice or compensation for damage. It was thus still open to the applicant to request damages in official liability proceedings. 22. On 27 November 2003 the Stuttgart Court of Appeal dismissed the applicant's request to annul the appointment of the sixth advocate notary. It found that even if this appointment had been unlawful, it could not be annulled. In particular, the applicant had not submitted any reason allowing for the revocation of an appointment of a notary under the relevant provisions of the Federal Notaries Act. 23. On 10 August 2004 the Federal Court of Justice rejected the applicant's appeal as the principle of stability of office did not allow for revoking the appointment of notaries. Equally, it was not possible to create a special post as an advocate notary for the applicant. 24. On 26 October 2004 the Federal Constitutional Court declared the applicant's constitutional complaint inadmissible, as its decision of 8 October 2004 had already given him the possibility to have the lawfulness of the recruitment procedure reviewed by the lower courts. He therefore lacked standing for this constitutional complaint. 25. In 2006 the applicant instituted official liability proceedings against the Land Baden-Württemberg before the Stuttgart Regional Court, on the ground that the Ministry of Justice had appointed the sixth advocate notary in spite of the Federal Constitutional Court's interim injunction in his favour. 26. On 22 February 2008 the Stuttgart Regional Court dismissed the applicant's action. It found that, irrespective of the possibility that the Ministry of Justice could have breached its official duty when disregarding the Federal Constitutional Court's interim injunction, there had been no causal connection between the applicant's damage and the alleged breach of duty. Had the Ministry of Justice complied with the interim injunction, it would have halted the recruitment procedure, refrained from appointing the advocate notaries and started a fresh recruitment procedure for the six posts. During such a procedure it would have assessed the new applications in accordance with the Federal Constitutional Court's decision of 8 October 2004. However, it remained totally unclear whether the applicant could have succeeded in such a fresh procedure with a new field of candidates. 27. On 25 April 2008 the applicant appealed that decision before the Stuttgart Court of Appeal. 28. On 21 January 2009 the Stuttgart Court of Appeal requested the Land of Baden-Württemberg to submit a written statement on whether a fresh recruitment procedure would have led to the applicant being selected for one of the six notary posts. On 22 July 2009 the Land submitted its written opinion, alleging that the applicant under no conceivable circumstances would have ranked among the six top candidates. In July 2010, the proceedings were still pending before the Stuttgart Court of Appeal. 29. By e-mail dated 23 July 2010 the presiding judge of the Stuttgart Court of Appeal informed the applicant's counsel that he was obliged to postpone the hearing originally scheduled for 17 November 2010 to the second half of February 2011. This was due to the fact that the senate had to hear other, more urgent cases, which had to be prepared by the same rapporteur judge. Even taking into account the length of the instant proceedings, the presiding judge considered the applicant's case to be less urgent for the following reasons: If the applicant should obtain compensation, he would be awarded interests at a rate which exceeded the interest rates which could be obtained elsewhere. If he should lose his action, some additional months would not matter. 30. Article 12 § 1 of the Basic Law provides that all Germans have the right to freely choose their profession, their place of work, and their place of training. 31. Under Article 33 § 2 of the Basic Law every German is equally eligible for any public office according to his or her aptitude, qualifications and professional achievements. 32. Article 33 § 5 of the Basic Law provides that the law governing public service is to be regulated with due regard to the traditional principles of the professional civil service. One of the latter is the principle of stability of office, according to which appointments to public office are not to be revoked or annulled following legal remedies instituted by unsuccessful candidates. 33. Some Länder, like Baden-Württemberg, provide for the possibility for qualified lawyers to be appointed as so-called “advocate notaries” (Anwaltsnotare) enabling them to exercise the profession as notary alongside their activity as solicitors. Advocate notaries (like single profession notaries) are “independent holders of a public office” who are appointed by the competent judicial authority. Once officially appointed, notaries do not receive a salary from the state, but charge fees (fixed by law) to the parties. As a rule, notaries do not enjoy the status of civil servants. 34. The Federal Notaries Act lays down the access requirements, the rights and obligations of notaries and their organisation and functions. It is complemented by respective orders of the Länder. 35. Section 4 of the Federal Notaries Act provides that the number of appointments of notaries is to be restricted to what is necessary to ensure the sound administration of justice. In particular, the number of notaries must correspond to the need of individuals to be provided with notarial services, and a balanced age structure must be ensured in the profession of notary. In Baden-Württemberg the Ministry of Justice has responsibility for and discretion in deciding on this need (Organisationsermessen) and therefore in fixing the number of advocate notaries. In so doing it takes account of the average number of notarisations taking place within the areas of the various district courts. Once the Ministry of Justice has decided to create a new notary post, it publishes – in compliance with section 6 (b) of the Federal Notaries Act – a vacancy notice for the Court of Appeal district (Oberlandesgerichtsbezirk) in which such a need has been identified. 36. According to section 111 of the Federal Notaries Act, disputes surrounding the appointment and selection of notaries are adjudicated by the civil Court of Appeal (Oberlandesgericht) and in the second instance by the Federal Court of Justice. Since 1 September 2009, the proceedings are governed by the Administrative Courts Act (Verwaltungsgerichtsordnung, see section 111b of the Federal Notaries Act). 37. Pursuant to Article 34 of the Basic Law, taken in conjunction with Article 839 of the Civil Code, the State or a public body is liable to pay compensation to an individual for any damage arising from an intentional or negligent breach of official duties committed by its officials. No such obligation to afford redress arises where the injured party has wilfully or negligently omitted to avoid the damage by means of another legal remedy. | 1 |
train | 001-61127 | ENG | ROU | CHAMBER | 2,003 | CASE OF CUMPANA AND MAZARE v. ROMANIA | 3 | No violation of Art. 10 | null | 9. The applicants, Constantin Cumpănă and Radu Mazăre, were born in 1951 and 1968 respectively and live in Constanţa. 10. On 12 April 1994 the applicants published an article in the Telegraf (“T.”) newspaper, of which the second applicant was the editor, with the headline “Former Deputy Mayor Dan Miron [D.M.] and serving judge Revi Moga [R.M.] responsible for series of offences in Vinalex scam”. The article questioned the legality of a contract which Constanţa City Council had awarded a company, Vinalex, to perform the service of towing away illegally parked vehicles, and expressed the following opinions: “In a decision (no. 33) of 30 June 1992 Constanţa City Council awarded a commercial company, S.C. C.B.N. SRL, a contract for impounding illegally parked vehicles or trailers... It was the task of the city council’s specialist departments to lay down the practical arrangements for implementing the decision. That did not happen. Six months after adopting decision no. 33, the city council, knowingly breaching Law no. 69/1991, illegally concluded a partnership contract ... with S.C. Vinalex SRL, a completely different company from the one initially given the contract. It is worth noting, however, that the relevant contract was signed by the deputy mayor, D.M., on behalf of the mayor, ..., and by a certain Moga on behalf of the legal expert M.T. By what miracle did S.C. Vinalex enter into a partnership with the city council when, in decision no. 33 of 30 June 1992, the council had awarded C.B.N. SRL a straightforward contract to provide services? Significantly, there is no evidence that C.B.N. agreed to abandon the task of towing away illegally parked vehicles! ... The crook D.M. (the former deputy mayor, now a lawyer) authorised Vinalex’s irresponsible employees to record any parking offences – in other words, to ridicule citizens and their property. What form did the fraud take? Sections 89 and 29 of Law no. 69/91 provide that no partnership contract with a commercial company may be signed without a prior decision by the local council, adopted by a two-thirds majority of the total number of councillors. Before a contract is signed, it must be referred to all the local council’s specialist departments for their opinion. ... The contract with Vinalex was negotiated and signed illegally, as the signatories based it on the decision [of 30 June 1992], which, as has already been shown, referred to a different company without envisaging any other partnership. Given that the city council had already signed four other contracts before that one, the signatories cannot claim ignorance of the law, but only an intentional breach of it! And because any intentional breach of the law pursues an end in itself – generally that of securing material advantages – it is clear that in this case the former deputy mayor, a lawyer by profession, received backhanders from the partner company and either bribed his subordinates, including R.M., or forced them to break the law. The Constanţa Audit Court has detected this blatant fraud, which generated huge profits for the briber (S.C. Vinalex)... The offending company [S.C. Vinalex] has never shown that it has adequate facilities for impounding illegally parked vehicles. This has caused large numbers of privately owned vehicles to be damaged and has implicitly given rise to thousands of complaints to that effect. Furthermore, the alleged partnership contract was valid for one year, until 16 December 1993. From that date [S.C. Vinalex] has no longer had any right to interfere with citizens’ private property! It has nevertheless carried on towing vehicles away and illegally collecting money... It is incomprehensible how the police could have provided it with assistance for the past four months. Let us briefly consider the conduct of the council’s former legal expert, R.M., who is now a judge. Either she was ignorant of our country’s legislation when she signed the partnership contract, in which case it is hard to understand how she can subsequently have been appointed as a judge (administering justice on the basis of laws she does not know), or she accepted bribes and may continue to do so in future! It is not surprising that the same judge should be under investigation by the Audit Court for a further unlawful act, again committed while she was at the city council (as we reported at the relevant time). It seems laughable that the court’s president did not take any action against her on the ground that the sum involved was not ... high enough. Apparently becoming aware of the danger that the matter might be uncovered, the city council’s coordination department ... notified S.C. Vinalex in writing of the possibility of the contract being terminated for the following reason: ... ‘You have not supplied any documents showing that you have purchased the platform-type equipment necessary for carrying out the activity properly’ (as stipulated in clause 3 of the contract). ... In the same letter the city council informed S.C. Vinalex: ‘As you have not proved that you have the appropriate equipment, we would assess your contribution to the partnership at up to the sum of your company’s capital, that is 110,000 lei. Your share in the partnership’s net income will have to be recalculated in relation to the parties’ contributions.’ Facts are facts, and the documents in our possession ‘speak’ for themselves of the illegal Vinalex scam.” 11. The article was accompanied by a photograph of a police car on the scene as an illegally parked vehicle was being towed away, photocopies of extracts from the partnership contract and from Constanţa City Council’s decision of 30 June 1992, and certain provisions of Law no. 69/91, concerning the responsibilities and powers of mayors, prefects and city and county councils. 12. The article was also accompanied by a cartoon showing a man and a woman arm in arm, carrying a bag marked “Vinalex” which was full of banknotes. The two characters were depicted as saying to each other: “Hey, Revi [R.M.], you’ve done a good job there! When I was deputy mayor we made quite a bit, enough to go to America...” “Dănuţule [D.M.], if you become a lawyer, I’ll become a judge and we’ll have enough to travel round the world...” 13. On an unspecified date after the article had been published, R.M. instituted proceedings against the applicants in the Constanţa Court of First Instance for insult and defamation, offences under Articles 205 and 206 of the Criminal Code respectively. She complained, in particular, about the cartoon accompanying the article, arguing that it had led readers to believe that she had had intimate relations with D.M. She pointed out that both she and the former deputy mayor were married to other people. 14. At a hearing on 13 May 1994 the court adjourned the case as the applicants were not present and, scheduling a further hearing for 27 May 1994, directed that that they should be brought before the court on that date. 15. On 27 May 1994 the second applicant stated at the public hearing that, as editor, he assumed full responsibility for what had been published in the newspaper. He submitted that cartoons were frequently used in the press as a medium for criticism and that he had not intended to damage the complainant’s reputation. In reply to a question from the court he admitted having learned that, by order of the mayor of Constanţa, Vinalex had been authorised to tow away illegally parked cars. He stated, however, that he had not thought it necessary to publish that information. Lastly, he stressed that he did not intend to reach a settlement with the injured party and that he was prepared to publish an article on her behalf if she could prove that what he had published was untrue. 16. On 10 June 1994 the applicants applied to have the case transferred to a court in another county. They also requested an adjournment of the proceedings, arguing that because the complainant was a judge it was impossible for them to find a member of the Constanţa Bar who would agree to represent them. 17. On an unspecified date the Constanţa Bar, in reply to a question from the court, attested that the applicants had not met with a refusal on the part of each of its members and that, in any event, the matter had not been referred to its executive. 18. On 15 June and 1 July 1994 the court adjourned the case as the applicants were not present. 19. In an interlocutory decision of 21 July 1994 the Supreme Court of Justice ordered the referral of the case to the Lehliu-Gară Court of First Instance. 20. On 15 November 1994 the case was entered on that court’s list of cases for hearing. Public hearings were held on 21 December 1994 and on 25 January, 27 February, 20 March, 17 April and 17 May 1995. 21. On 21 December 1994 and 25 January 1995 the applicants did not attend the hearings, although they had been duly summoned. The court summoned them to appear at the hearings of 25 January and 27 February 1995. The applicants did not comply with the summonses. 22. At the hearings on 27 February and 20 March 1995, representatives of the T. newspaper applied on behalf of the applicants, who were not present, to have the proceedings adjourned. The court allowed the application. 23. On 20 March 1995 a member of the Bucharest Bar, N.V., agreed to represent the applicants. 24. At the hearing on 17 April 1995 in the morning N.V. asked the court to consider the case after 11.30 a.m. The court granted his request. However, when it sat to examine the case at 12 noon and, subsequently, at 2.30 p.m. it noted that neither the applicants nor their counsel were present in the courtroom. It accordingly adjourned the case until 17 May 1995. 25. At the hearing on 17 May 1995 the court reserved judgment, after noting that neither the applicants – despite their having been duly summoned – nor their counsel had appeared. In a judgment delivered that day the court found the applicants guilty of insult and defamation, offences under Articles 205 and 206 respectively of the Criminal Code. It sentenced them to seven months’ imprisonment and prohibited them from working as journalists for one year after completing their sentences, a security measure provided for in Article 115 § 1 of the Criminal Code. It also ordered them to pay R.M. an award of 25,000,000 lei for non-pecuniary damage. 26. Attaching decisive weight to R.M.’s position as a member of the judiciary, the court considered that the acts of which the applicants were accused posed a danger to society, not because of their practical consequence – distortion of the truth – but because of their psycho-social effects, namely misinformation of the public, creation of a false scale of values and the psychological trauma suffered by the injured party. The court considered that in publishing the article in issue, the applicants had not pursued a legitimate aim and had acted in bad faith, since the facts they had reported did not correspond to the truth. 27. On an unspecified date the applicants appealed against that judgment, without stating any grounds for their appeal. 28. At a hearing on 2 November 1995 the Călăraşi County Court reserved judgment, having noted that the case was ready for decision and that the applicants, who had been duly summoned, had not appeared in court or given any grounds for their appeal. 29. The applicants state that for reasons beyond their control they arrived late on 2 November 1995, by which time the hearing had already ended. They submit that on the morning of the hearing the level of the Danube had fallen and that the ferry, the only means of travelling to the town where the court was sitting, had been delayed. 30. In a decision of 2 November 1995 the court, after examining all the aspects of the criminal case against the applicants, as required by Article 3856 of the Code of Criminal Procedure (CCP), upheld the first-instance judgment, finding it to have been correct. That decision, sent to the archives on 23 November 1995, was final and binding and no ordinary appeal lay against it. 31. The applicants did not serve their custodial sentence, since immediately after the decision had been delivered, the Procurator-General suspended its execution for eleven months, on the basis of Article 412 of the CCP, by which he was empowered to order a stay of execution before applying to have a decision quashed. 32. On 10 April 1996 the Procurator-General applied to the Supreme Court of Justice to have the decisions of 17 May 1995 and 2 November 1995 quashed. He submitted the following arguments. (a) The courts’ legal classification of the facts had been incorrect. He pointed out in that connection that in the cartoon the applicants had simply highlighted their allegations of corruption on the part of the city council officials. He accordingly submitted that the facts in issue did not constitute the actus reus of insult as defined in Article 205 of the Criminal Code. (b) The amount which the applicants had been ordered to pay in damages had been extremely high and had not been objectively justified. (c) The requirements of Article 115 § 1 of the Criminal Code, by which the courts could prohibit persons who had committed an offence from practising a particular profession on account of incompetence, lack of training or any other ground making them unfit to practise the profession, were not satisfied in the applicants’ case. He pointed out in that connection that there was no unequivocal proof that the applicants were incompetent or would pose a potential danger by continuing to work as journalists. 33. In a final judgment of 9 July 1996 the Supreme Court of Justice dismissed the Procurator-General’s application as being manifestly ill-founded. After examining the evidence before it, the Supreme Court (a) considered that in publishing the impugned article in T., the applicants had made an allegation about the injured party which, if true, would have rendered her criminally liable, and that the offence of defamation as defined in Article 206 of the Criminal Code had therefore been made out; (b) held that the cartoon accompanying the article, in which the injured party was depicted in the company of a man carrying a bag of money, had been such as to disparage the complainant’s honour and reputation and had therefore constituted the actus reus of insult as defined in Article 205 of the Criminal Code, and accordingly concluded that the lower courts had been correct in their classification of the acts carried out by the applicants; (c) considered that the high amount which the applicants had been ordered to pay in damages had been justified by the fact that their article had been published in a mass-circulation newspaper, thereby seriously offending the honour and dignity of the injured party; and (d) held, lastly, that it was not possible to review the alleged unlawfulness of the temporary prohibition on practising the profession of journalist in the context of an application to have a decision quashed. 34. In a letter of 30 September 1996 the Procurator-General at the Supreme Court of Justice informed the applicants that he had extended the stay of execution of their sentence until 27 November 1996. 35. On 22 November 1996 the President of Romania granted the applicants a pardon in respect of their custodial sentence. 36. In a letter received by the Court on 19 January 2000 the second applicant informed the Court that he was still working as editor of T., the position he had occupied when lodging his application. It appears from the copy submitted to the Court of the first applicant’s employment record (cartea de muncă) that, following the Călăraşi County Court’s decision of 2 November 1995: (a) he continued to work for T. as editor of the “Events” section until 1 February 1996, when he was transferred for administrative reasons to the C. company, occupying the same position and receiving the same salary as before; (b) he left that post on 14 April 1997 on account of staff cutbacks by his employer, a ground for dismissal provided for in Article 130 (a) of the Labour Code as in force at the material time; and (c) he was not gainfully employed until 7 February 2000, when he was recruited on a permanent contract by the A. company as deputy editor. 37. The relevant provisions are worded as follows: “Anyone who disparages the reputation or honour of another through words, gestures or any other means ... shall be liable to imprisonment for between one month and two years or to a fine.” “Anyone who makes any statement or allegation in public concerning a particular person which, if true, would render that person liable to a criminal, administrative or disciplinary penalty or expose them to public opprobrium, shall be liable to imprisonment for between three months and three years or to a fine.” 38. The Government state, as a matter of legislative policy, that the Romanian parliament is currently studying recent proposals for legislative reform aimed at abolishing imprisonment for the offences of insult and defamation as defined in Article 205 and 206 of the Criminal Code. “Anyone who has committed an [unlawful] act through incompetence, lack of training or for any other reasons rendering him or her unfit to perform certain duties or to practise a certain profession or occupation may be prohibited from performing those duties or practising that profession or occupation. Such a measure may be revoked on request after one year if the grounds on which it was imposed are no longer valid.” “A pardon shall have no effect on security measures and educational measures.” “The Procurator-General may, of his own motion or on an application by the Minister of Justice, apply to the Supreme Court of Justice for any final decision to be quashed.” “An application to have a final conviction ... quashed may be made in the following cases: I. ... 4. where the penalties imposed did not fall within the limits prescribed by law; ... 7. where the offence was incorrectly classified in law...” “Before applying to have a decision quashed, the Procurator-General may order a stay of its execution.” | 0 |
train | 001-75238 | ENG | SVN | CHAMBER | 2,006 | CASE OF HRIBAR v. SLOVENIA | 4 | Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | David Thór Björgvinsson;John Hedigan | 5. The applicant was born in 1950 and lives in Prebold. 6. On 24 June 1995 the applicant was injured in a car accident. The perpetrator of the accident had taken out insurance with the insurance company ZT. 7. On 25 August 1997 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 9,561,000 tolars (approximately 40,000 euros) for the injuries sustained. Between 6 February 1998 and 14 April 1999 the applicant made four requests that a date be set for a hearing. Between 24 June 1999 and 7 November 2000 he lodged four preliminary written submissions and/or adduced evidence. Of the three hearings held between 18 June 1999 and 29 March 2001 none was adjourned at the request of the applicant. During the proceedings the court appointed a medical expert. The court also sought an additional opinion from the appointed expert. At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 27 June 2001. 8. On 5 July 2001 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). ZT cross-appealed. On 30 January 2003 the court dismissed the ZT’s appeal, allowed in part the applicant’s appeal, and increased the amount of the costs and expenses awarded. The judgment was served on the applicant on 6 March 2003. 9. On 28 March 2003 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče). On 13 May 2004 the court rejected the appeal. The judgment was served on the applicant on 3 June 2004. | 1 |
train | 001-61096 | ENG | ITA | CHAMBER | 2,003 | CASE OF MOTTOLA v. ITALY | 4 | Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 7. The applicant was born in 1932 and lives in Benevento. 8. He is the owner of a flat in Benevento, which he had let to N.C. 9. In a writ served on the tenant on 27 April 1994, the applicant informed the tenant of his intention to terminate the lease and summoned the tenant to appear before the Benevento Magistrate. 10. By a decision of 25 May 1994, which was made enforceable on the same day, the Benevento Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 November 1996. 11. On 30 November 1996, the applicant served notice on the tenant requiring him to vacate the premises. 12. On 10 February 1997, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 25 February 1997. 13. Between 25 February 1997 and 9 November 1998, the bailiff made nine attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession. 14. Pursuant to Section 6 of Law no. 431/98, the tenant asked the Benevento District Court to set a new date for the enforcement of the order for possession. The date was set for 25 April 2000 and then for 30 September 2000. 15. On 12 October 2000, the applicant served notice on the tenant requiring him to vacate the premises. 16. On 4 November 2000, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 27 November 2000. 17. Between 27 November 2000 and 26 April 2001, the bailiff made four attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance. 18. A new attempt of the bailiff to enforce the order for possession was set for 21 June 2001. 19. On 8 August 2001, the applicant recovered possession of the flat. 20. 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 | 001-61764 | ENG | TUR | CHAMBER | 2,004 | CASE OF KOCAK AND OTHERS v. TURKEY | 4 | Violation of P1-1;Not necessary to examine Art. 14+P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings | Georg Ress | 4. The applicants were born in 1943 and 1939 respectively and live in Istanbul. 5. On 6 September 1993 the General Directorate of National Roads and Highways expropriated plots of land belonging to the applicants in Istanbul. A committee of experts assessed the value of the plots of land belonging to the applicants and compensation was paid to them when the expropriation took place. 6. On 4 February 1994, following the applicants’ request for increased compensation, the Kartal First Instance Court awarded them additional compensation of 48,410,250,000 Turkish liras (TRL) plus interest at the statutory rate of 30% per annum, namely the rate applicable at the date of the court’s decision. The date, 6 September 1993 was fixed by the domestic court for the running of the statutory rate of interest. The parties appealed. 7. On 12 May 1994 the Court of Cassation quashed the decision of the first instance court. On 2 November 1994 the first instance court re-examined the case and amended the amount of the additional compensation to TRL 45,692,700,000. The decision became final since none of the parties appealed. On 29 December 1997 the administration paid the applicants TRL 95,426,696,000 as the additional compensation together with interest. The interest on the additional compensation was calculated at the statutory rate applicable between the date of the decision of the first instance court in favour of the applicant and 31 December 1997. 8. Between 1993 and 1999 the rate of inflation averaged 81.7% per annum. 9. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, pp. 2674-76, §§ 17-25). | 0 |
train | 001-91576 | ENG | DEU | CHAMBER | 2,009 | CASE OF COLAK AND TSAKIRIDIS v. GERMANY | 3 | No violation of Art. 2-1;No violation of Art. 8;No violation of Art. 6-1 | Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 7. The first applicant (“the applicant”) was born in 1968 and lives in Wiesbaden. 8. In December 1992 the applicant’s companion found out that he was suffering from lymph gland cancer and Aids. He informed the applicant about the cancer but concealed his Aids infection. 9. On 21 January 1993 he informed their family physician about his diseases but forbade him to disclose to anybody that he had developed Aids. When the applicant consulted the physician on 29 January 1993 he did not mention to her that her companion was suffering from Aids. On 22 December 1994 the applicant’s companion died. During a further consultation in March 1995 the physician informed the applicant that her companion had died from Aids. 10. In April 1995 a blood test established that the applicant was HIV-positive. Since 1995 the applicant has been following antiretroviral treatment. She is not suffering from full-blown Aids. 11. Subsequently, the applicant sued her physician for damages before the Wiesbaden Regional Court (Landgericht). She submitted that the physician had failed to inform her that her companion was suffering from Aids and had thus prevented her from protecting herself against infection. 12. On 28 April 1998 the court-appointed expert, having examined the case file and a number of laboratory results, submitted his expert opinion. The expert considered that it was probable that the applicant had contracted the virus before 29 January 1993. The laboratory results dating from April 1995, combined with general statistical data, only allowed a rough estimate of the time of infection. The expert further considered that it was not general medical practice in early 1993 to treat early HIV infections with antiretroviral drugs. During the oral hearing before the Regional Court the expert expressed the view that an infection before January 1993 was very likely. 13. On 24 February 1999 the Wiesbaden Regional Court, which was in possession of the physician’s medical records on the first applicant and on her late partner, rejected the action. That court considered that the physician had not been obliged to disclose her companion’s infection to the applicant. Having regard to his duty of confidence towards the applicant’s companion, he would only have been under such an obligation if this could be regarded as the only possibility of preventing the applicant’s infection. This had not been the case, as the physician had consistently advised the applicant’s companion to take the necessary steps to prevent infection and could reasonably believe that the latter would follow his advice. Under these circumstances, the Regional Court did not find it necessary to determine whether there was a causal connection between the applicant’s contracting HIV and the physician’s alleged failure to inform her about her companion’s infection. 14. On 5 October 1999 the Frankfurt Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal. Contrary to the Regional Court’s opinion, the Court of Appeal considered that the physician had misconceived his duty of care owed towards the applicant in his position as family physician and overestimated his duty of confidence owed towards her companion. As laid down in section 34 of the Criminal Code (see Relevant domestic law below) a physician’s duty of confidence owed towards a patient had to be restricted or even given up if a superior value was at stake. By not informing the applicant about the fatal threat to her health, he had committed an error in treatment. The court considered, however, that the physician had not disregarded medical standards in a blindfold way, but had only overestimated his duty of confidence while balancing the different interests. It followed that his behaviour could not be qualified as a gross error in treatment which, according to the established case-law of the Federal Court of Justice, would have entailed a reversal of the burden of proof as to the causality of the error in treatment and the first applicant’s HIV-positive status. Referring to the written opinion submitted by the court-appointed expert in the first-instance proceedings, the Court of Appeal considered that the applicant had not been able to prove that she had contracted the virus after January 1993, when the physician himself had been informed that her companion was HIV-positive. According to the expert’s opinion, it was more likely that she had already become HIV-positive before January 1993. The Court of Appeal further considered that there was no doubt about the expert’s high competence. The expert opinion was well reasoned and took into account relevant scientific publications. Under these circumstances, the Court of Appeal did not find it necessary to hear further expert opinion as requested by the applicant. The Court of Appeal further considered that medical treatment such as was available in 1993 would not have improved the first applicant’s physical condition, even if she had been informed of her HIV status by that time. 15. On 4 April 2000 the Federal Court of Justice (Bundesgerichtshof) dismissed the applicant’s appeal on points of law for lack of prospect of success. 16. On 14 November 2000 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a panel of three judges, refused to admit the applicant’s constitutional complaint. 17. In August 2002, in the course of separate criminal investigations against the physician, another medical expert submitted his opinion on the applicant’s HIV-positive status to the Wiesbaden Public Prosecutor. While not concurring with the first expert’s opinion that it was very likely that she had contracted the virus before January 1993, the expert considered that a date prior to January 1993 could not be excluded. In April 2003 the Public Prosecutor discontinued criminal investigations on the ground that it could not be excluded beyond reasonable doubt that the applicant had contracted the virus before January 1993. Appeals by the applicant were to no avail. 18. On 14 September 2007 the applicant requested the physician to hand her the complete medical files. On 5 October 2007 the physician informed her that he had destroyed the medical files after expiry of the time-limit for storage. 19. Section 823 of the Civil Code provides inter alia: “A person who, wilfully or negligently, unlawfully injures another person’s life, body, health (...) is bound to compensate him for any damage arising therefrom.” Section 847 as in force at the material time provides inter alia: “In the case of injury to the body or health (...) the injured party may also demand fair compensation in money for moral prejudice.” 20. A patient requesting damages from a physician under section 823 of the Civil Code generally carries the burden of proof for the requisite causal connection between the physician’s negligence and the damage to his health. According to the established German case-law, in case of gross error in treatment the burden of proof is reversed to the physician. A gross error in treatment is generally assumed if the physician clearly breaches well-established medical rules or assured medical knowledge, and has committed an error which does not appear to be comprehensible from an objective point of view, as a physician must absolutely not commit such an error (see Federal Court of Justice, 26 November 1991, no. VI ZR 389/90, and 4 October 1994, no. VI ZR 205/963). The existence of a gross error has been accepted in cases where a physician had not discovered a serious disease (meningitis) in spite of unambiguous symptoms (see Stuttgart Court of Appeal, 31 October 1996, no. 14 U 52/95, or Oldenburg Court of Appeal, 20 February 1996, no. 5 U 146/95) or had failed to order undoubtedly necessary medical examinations or treatments (Federal Court of Justice, 29 March 1988, no. VI ZR 185/87) or to inform the patient about the necessity to undergo further medical examinations (Federal Court of Justice, 25 April 1989, no. VI ZR 175/88). 21. Section 229 of the Criminal Code provides: “Whoever negligently causes bodily injury to another person shall be punished with imprisonment for not more than three years or a fine.” Section 203 provides inter alia: “Whoever, without authorisation, discloses the secret of another, in particular, a secret which belongs to the realm of personal privacy (...) which was confided to, or otherwise made known to him in his capacity as a physician (...) shall be punished with imprisonment for not more than a year or with a fine.” Section 34 provides as follows: “Whoever, faced with an imminent danger to life, limb, freedom, honour, property, or another legal interest which cannot otherwise be averted, commits an act to avert the danger from himself or another, does not act unlawfully, if, upon weighing the conflicting interests, in particular the affected legal interests and the degree of danger threatening them, the protected interest substantially outweighs the one interfered with. This shall apply, however, only to the extent that the act is a proportionate means to avert the danger.” If the Public Prosecutor refuses to prefer criminal charges against an alleged offender, the aggrieved party may, pursuant to section 172 of the Code of Criminal Procedure, lodge a request for a court decision. | 0 |
train | 001-60172 | ENG | AUT | CHAMBER | 2,002 | CASE OF UNABHANGIGE INITIATIVE INFORMATIONSVIELFALT v. AUSTRIA | 1 | Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 9. The applicant is a registered association (Verein) in Vienna and the publisher of a periodical called TATblatt. In the 9 December 1992 issue of TATblatt, the following leaflet was published: “Querformat, a (new) wall-newspaper against the trend towards the right wing ...” “Racism has a name and address The FPÖ [Austrian Freedom Party] and its party officials are certainly interested in your opinion! So, let's call them and tell them what we think of them and their policy. Or let's send them small gifts in response to their racist agitation. We have gathered a small selection of Vienna FPÖ officials, FPÖ offices and of course Jörg Haider in order to facilitate a little the unbureaucratic exchange of opinions. They will surely enjoy your phone calls, letters and parcels: ...” The above text was followed by a list of addresses and telephone numbers of members and offices of the Austrian Freedom Party (FPÖ). 10. Between 25 January and 1 February 1993 an opinion poll (Volksbegehren) under the heading “Austria first” (“Österreich zuerst”) took place which had been initiated by the FPÖ several months before. The opinion poll, on the issue of immigration, consisted of twelve proposals, partly to amend legislation and partly to change administrative practices. It proposed, inter alia, the following: – to amend the Federal Constitution by a provision stating that Austria was not a country of immigration; – to stop immigration until a satisfactory solution to illegal immigration was found; – to oblige all foreign workers to carry an identity card at their place of work, showing that they had a valid work permit; – to increase the police force and create a separate border police; – to limit the percentage of pupils whose mother tongue was not German to 30 % and, if the percentage were higher, to create separate classes for foreigners; – to deny foreigners the right to vote; and – to require the immediate expulsion of and residence prohibition on foreign offenders. 11. On 11 February 1993 Mr Jörg Haider, leader of the FPÖ and at that time a member of Parliament, brought civil proceedings for an injunction under Article 1330 of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch) against the applicant before the Vienna Commercial Court (Handelsgericht). He requested that the applicant be prohibited from repeating the statement according to which he had incited people to “racist agitation” (“rassistische Hetze”) and any similar statements. He further requested that the applicant be prohibited from inviting people to “send small gifts in response to their racist agitation”, together with the publication of the names, telephone numbers and addresses of members of the plaintiff's political party. 12. The applicant submitted that it had never identified itself with the leaflet at issue and had merely published it out of journalistic interest and in order to inform the public. Moreover, the words “racist agitation” were not a statement of fact but a value judgment, and were meant as a critical comment of the opinion poll “Austria first” which the plaintiff had initiated and which was directed against “immigration without control”. 13. On 14 April 1994 the Vienna Commercial Court granted the injunction. It found that the impugned statement about “racist agitation” was not a value judgment, but a statement of fact. Such a statement contained a reproach of a criminal offence, namely “incitement to hatred” (Verhetzung) under Article 283 of the Austrian Criminal Code (Strafgesetzbuch), and not only damaged the plaintiff's reputation (Rufschädigung) but also amounted to an insult (Ehrenbeleidigung). In order to avoid the injunction, the applicant therefore needed to prove the truth of its statement. However, it had failed to do so. Even accepting that the plaintiff was, more or less, a right-wing politician, there was no evidence that he had attempted to incite hatred (verhetzen) against aliens or had attacked their human dignity. 14. As regards the invitation to “send small gifts”, the court observed that a part of the applicant's readership was, for political reasons, prepared to use violence and anarchistic methods. In this respect the court noted that in the 9 December 1992 issue of TATblatt a letter to the editor had been published which read as follows: “... we organised in the night of 29 to 30 November our first action against Haider's referendum and have smashed several windows of the FPÖ headquarters in Salzburg. This was only the beginning. ...” 15. According to another letter to the editor published in the 20 January 1993 issue of TATblatt, an FPÖ party office in Vienna had been “visited”, the words “racism stinks” had been sprayed on the walls, windows smashed and butter acid thrown into the office. The Commercial Court then quoted further letters of this kind which had appeared in various issues of TATblatt. The court found that against this background the invitation to “send small gifts” constituted an attack on the plaintiff's personality rights (Persönlichkeitsrechte) which had to be respected. Accordingly, the court granted the injunction in this respect also. 16. On 29 August 1994 the applicant appealed against the injunction. 17. On 26 January 1995 the Vienna Court of Appeal (Oberlandesgericht) dismissed the appeal. It confirmed the Commercial Court's view that the statement according to which the plaintiff had incited people to “racist agitation” was a statement of fact which the applicant had failed to prove. In this respect the court found as follows: “But since – as we have already outlined in dealing with the complaint concerning the facts – the meaning of the term 'racist agitation' could be established on the basis of general experience, and since the defendant has failed to submit any concrete allegations to the effect that the plaintiff had shown conduct corresponding to what is generally known as 'racism' and 'agitation', the court of first instance – without there being a mistake of law – rightly concluded that the defendant was unable to prove the truth of its allegations. ...” 18. As regards the applicant's argument that this statement was covered by its right to freedom of expression, the Court of Appeal found that the interests of the applicant and the plaintiff had to be balanced against each other. However, the applicant's statement could not be justified by referring to freedom of expression, because the statement went beyond the limits of acceptable criticism by reproaching the plaintiff with a criminal offence. Moreover, the impugned statement was untrue and therefore not protected by Article 10 of the Convention. The Court of Appeal confirmed the decision of the Commercial Court in respect of both statements. 19. On 13 March 1995 the applicant introduced an extraordinary appeal on points of law (außerordentliche Revision) against the Court of Appeal's decision in so far as it concerned the prohibition to repeat the statement that the plaintiff had incited people to “racist agitation”. 20. On 6 April 1995 the Supreme Court (Oberster Gerichtshof) declared the extraordinary appeal inadmissible as it found that the qualification of the statement at issue as a statement of fact was in accordance with its previous case-law. 21. Article 1330 of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch) provides as follows: “1. Everyone who has suffered material damage or loss of profit because of an insult may claim compensation. 2. The same applies if anyone disseminates statements of fact which jeopardise another person's credit, gain or livelihood and if the untruth of the statement was known or must have been known to him. In such a case the retraction of the statement and the publication thereof may also be requested ...” | 1 |
train | 001-114277 | ENG | LVA | GRANDCHAMBER | 2,012 | CASE OF VISTIŅŠ AND PEREPJOLKINS v. LATVIA | 2 | Preliminary objection dismissed (Article 35-3-b - No significant disadvantage);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);Just satisfaction reserved | Alvina Gyulumyan;András Sajó;André Potocki;Angelika Nußberger;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabeth Steiner;Françoise Tulkens;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Julia Laffranque;Karel Jungwiert;Kristina Pardalos;Lech Garlicki;Linos-Alexandre Sicilianos;Luis López Guerra;Nicolas Bratza;Nona Tsotsoria;Peer Lorenzen | 10. By contracts signed in 1994, in respect of donations inter vivos, the applicants became the owners of five plots of land on the island of Kundziņsala. This island, situated close to the mouth of the Daugava River, is part of the city of Riga, to which it is connected by a road bridge and a railway line. It mainly consists of port facilities, with a small residential area in its southern part. 11. The first applicant acquired a plot of land of 17,998 sq. m under a contract of donation with Mrs P. dated 21 April 1994. The transfer of title was entered in the land register by the Land Registry Division of the city of Riga (Rīgas pilsētas Zemesgrāmatu nodaļa) on 26 July 1994. The second applicant became the owner of: (a) a plot of land measuring 11,000 sq. m, under a contract of donation with Mrs J. dated 21 April 1994 (entered in the land register on the same day); (b) a plot of land measuring 7,150 sq. m, under a contract of donation with Mr O. dated 21 April 1994 (entered in the land register on the same day); (c) a plot of land measuring 10,970 sq. m, under a contract of donation with the same Mr O. dated 12 September 1994 (entered in the land register on the next day, 13 September 1994); and (d) a plot of land measuring 18,620 sq. m, under a contract of donation with Mrs D. dated 28 June 1994 (entered in the land register on the same day). 12. The clauses of the contracts in question were practically identical. The contract entered into by the first applicant stipulated that the second applicant was acting as the donor’s representative. Similarly, it was stated in the first three contracts entered into by the second applicant (see points (a), (b) and (c) of the previous paragraph) that the first applicant was acting on behalf of the donors. 13. The donors were all the heirs of the legitimate owners of the land in question, which had been expropriated by the Soviet Union after 1940. They had recovered ownership in the context of the “denationalisation” process in the early 1990s. According to the applicants’ explanations, which were not contested by the Government, the donations had been made in return for certain personal services that the applicants had rendered to the donors. Mrs D. had thus given her land to the second applicant by way of remuneration for having helped her to complete the formalities to obtain restitution of her nineteen properties located throughout Latvia. Mrs J. had apparently been a longstanding friend of the second applicant, whilst the donor of the other two plots, Mr O., had given them to him as a token of gratitude because he had covered the cost of expensive heart surgery. As to the first applicant, he had become the owner of his land in return for undisclosed services rendered. 14. Each of the above-mentioned contracts stipulated that the value of the plots of land in question was fixed at 500 Latvian lati (LVL; about 705 euros (EUR)), except for the plot of 10,970 sq. m, which was valued at LVL 1,000 (about EUR 1,410). The parties agreed that the said value was not the cadastral value of the land in question (that is to say, the reference value for the calculation of land tax), but an indicative sum solely for the purposes of calculating the registration tax, which at the time represented 10% of the property’s value. Indeed, according to the applicants’ explanations, which have not been challenged by the Government, cadastral values did not exist at the relevant time and the sole basis of calculation for the tax was the property’s sale price, in accordance with the applicable law (see paragraph 64 below). 15. In addition, the applicants paid LVL 0.25 in notary’s tax. However, they were not obliged to pay income tax in respect of the transactions, as gifts between individuals were not liable for such tax. Furthermore, in accordance with the law applicable at the time (see paragraph 63 below), they were exempted from the payment of land tax (zemes nodoklis) for a period of six months following the acquisition, that is to say, until the end of 1994. 16. The parties disagreed as to the actual value of the plots of land in question at the time of their expropriation. The Government explained that the use of the land had begun during the Soviet era, in 1980, at the time of the construction of the port infrastructure – storage containers and open-air freight platforms – which can be found there today. In their submission, those port facilities are outside the general property market, with the result that an estimation of their possible market value would be impossible and devoid of purpose. 17. In the applicants’ submission, the five plots of land contained no infrastructure except for concrete blocks. They explained that the latter enabled the land to be used for the storage of shipping containers, but that no other equipment such as railway lines, cranes or warehouses had been installed there. Inventory records of three of the plots of land, to which the applicants referred, indicate that the value of these concrete blocks is LVL 5.28 per square metre. 18. According to the statistical information supplied by the Government, and accepted as accurate by the applicants, 89% of specialised container traffic in and out of Latvia by sea in 1996 passed through the part of the island where the land at issue is located. Nor have the applicants disputed the fact that the first decisions concerning the port area of Kundziņsala were taken during the constitutional transition period, between 1990 and 1991, by the Supreme Council of the Republic of Latvia (the then legislative assembly). In 1992 the authorities initiated proceedings for the purpose of fixing the port’s boundaries and determining the infrastructure to be transferred from the former Soviet Union to the independent Latvian State. 19. On 15 August 1995 the Latvian Cabinet adopted Regulation no. 278 fixing the perimeter of the Port of Riga (Noteikumi par Rīgas ostas robežu noteikšanu). In accordance with that Regulation, all the plots of land owned by the applicants were included within the port’s perimeter. That inclusion was confirmed by the Free Commercial Port of Riga Act (Rīgas tirdzniecības brīvostas likums), enacted on 6 November 1996. Under that Act, all the privately owned land situated within the port’s boundaries became subject to a servitude for the benefit of the public corporation responsible for the port’s management. In return, the corporation was to pay the owners annual compensation of not more than 5% of the cadastral value of the plots of land in question. 20. In January 1996 the applicants requested the Real Estate Valuation Centre of the State Land Authority (Valsts Zemes dienesta Nekustamā īpašuma vērtēšanas centrs) to determine the cadastral value of their respective plots of land for the year 1996. In five letters of 15 January 1996, the Centre certified that the value amounted to LVL 564,410 (about EUR 900,000) for the land belonging to Mr Vistiņš; as to that of Mr Perepjolkins, the cadastral value of the various plots amounted to LVL 285,830, LVL 767,724, LVL 769,824 and LVL 1,303,102 respectively, representing a total of LVL 3,126,480 (about EUR 5,010,000). 21. On 11 June 1997 the administration of the Free Commercial Port of Riga applied, in turn, to the Valuation Centre, requesting it to calculate the amount of compensation that would have to be paid to the applicants in the event of expropriation of their land, in accordance with Article 2 of the Supreme Council’s decision on the conditions of entry into force of the Law on the expropriation of real estate in the public interest (the “General Expropriation Act”, enacted in 1923). That Article – which was applicable inter alia to the applicants – limited the amount of the compensation to be paid to the owners of certain land that was to be expropriated; the compensation could not exceed the cadastral value of the land as fixed on 22 July 1940, multiplied by a conversion coefficient. 22. On 12 June 1997 the Centre issued two certificates stating that the first applicant would receive LVL 548.26 (about EUR 850) for his 17,998 sq. m plot of land, and the second LVL 8,616.87 (about EUR 13,500) for his plots of land, of which the total surface area came to 47,740 sq. m. 23. By Regulation no. 273 of 5 August 1997, which was adopted in the context of delegated legislative authority (see paragraph 41 below) and which entered into force on 9 September 1997, the Cabinet ordered the expropriation of all the land in question for the benefit of the State. On 30 October 1997 the measure was confirmed by Parliament, which enacted a special law for that purpose (see paragraph 54 below). Under that law Mr Vistiņš and Mr Perepjolkins were to be paid compensation for the expropriation, which would be deemed completed once the sums had been paid into their current accounts. 24. On 8 May 1998 the Latvian Land and Mortgage Bank (Latvijas Hipotēku un zemes banka) opened current accounts in the names of each of the applicants. On 14 October 1998 the bank officially certified that the above-mentioned sums of LVL 548.26 and LVL 8,616.87, awarded to the applicants by way of compensation, had actually been paid into the two accounts. The applicants, however, refused to make use of those sums in any way. Following the payments, by two orders of 17 and 20 November 1998 the Riga Land Registry Court (zemesgrāmatu tiesnesis) ordered that the title to the expropriated land be registered in the name of the State. No tax was levied on the above-mentioned sums. 25. In 1998 the second applicant brought two sets of proceedings to obtain rent arrears for the use of his land. In the first set of proceedings, against the Riga Port Authority and the Free Commercial Port of Riga, he requested the payment of sums due under the lease for the period from 21 April 1994 to 31 March 1996. In a judgment of 15 October 1998, upheld in cassation proceedings on 6 January 1999, the Riga Regional Court ordered the Free Port to pay the second applicant LVL 278,175 (about EUR 448,150) for the use of his land during the period in question. 26. The second applicant subsequently filed a new claim against the Free Port, seeking the payment of rent arrears for the period after 1 April 1996, together with compensation for the servitude imposed on his property. On 18 March 1999 the Civil Division of the Supreme Court partly upheld his claim, awarding the applicant the sum of LVL 90,146.84 (about EUR 145,000) on that basis, after fixing the amount of the rent at 2% of the cadastral value of the land at the material time. In fixing that amount the Civil Division particularly took into account the fact that the second applicant had not invested in any development of the land in question. It further indicated that the applicant’s title to the property had ceased on 9 September 1997, when the expropriation had become effective. In a judgment of 12 May 1999 the Senate of the Supreme Court upheld the judgment of the Civil Division. 27. The first applicant, Mr Vistiņš, brought similar proceedings. In a judgment of 9 June 1999 the Civil Division ordered the Free Port to pay him LVL 53,036 (about EUR 85,000) in rent arrears for the period from 1994 to 1997. 28. In January 1999 the applicants sued the Transport Ministry (Satiksmes ministrija) before the Riga Regional Court. In their pleadings they requested the annulment of the cadastral registration of the State’s title, and the restoration, in the land registers, of the previous entries attesting to their ownership of the land in question. 29. In support of their claim, the applicants alleged that the General Expropriation Act provided for a uniform procedure which had not been observed in their case. According to that procedure, after the enactment of the special Law of 30 October 1997, the Transport Ministry was required first to start negotiations with them with a view to reaching a friendly settlement as to the amount of the compensation (section 5 of the General Expropriation Act); if those negotiations failed, the Ministry would have to refer the matter to the competent court for settlement of the dispute (section 9). The applicants particularly emphasised that they were not satisfied with the sums paid by way of compensation and that they were deprived of their right to challenge those sums before a court. In this connection, the applicants pointed out that the orders of the Land Registry Court had been made in the absence of any prior final judgment concerning the amount of the compensation; they thus argued that the orders did not comply with section 18 of the General Expropriation Act. The applicants submitted that the expropriation in general and the transfer of title in particular had been carried out in breach of that Act, thus directly entailing a violation of Article 1 of Protocol No. 1. 30. In a judgment of 29 March 2000 the Regional Court dismissed the applicants’ claims. According to the judgment, the expropriation was not based on the General Expropriation Act, as the applicants had claimed, since the measure in question had been decreed in the context of the Latvian land reform, and thus the special Law of 30 October 1997 was to be applied. Section 4 of the special Law provided that the mere existence of the law and the payment of compensation for the expropriation sufficed for the statutory transfer of title to the State. Noting in the present case that the corresponding sums had been paid into the applicants’ accounts, the Regional Court found that both of those elements were present, and that by registering the State as the new owner of the land in question, the Land Registry Court had acted in accordance with the law. 31. Moreover, the Regional Court pointed out that section 3(1) of the Law of 30 October 1997 (on the calculation of compensation) referred to Article 2 of the Supreme Council’s decision on the conditions of entry into force of the General Expropriation Act and that this decision had been declared compliant with Article 1 of Protocol No. 1 by the Constitutional Court. 32. The applicants appealed before the Civil Division of the Supreme Court. They emphasised at the outset that they did not object to the expropriation as such, provided the statutory formalities were observed and the amount of the compensation was reasonable. In their view, this had not been the case, as, in particular, no expert’s report had been ordered for the purpose of determining the actual value of the disputed land (section 16 of the General Expropriation Act). The applicants did not challenge the Regional Court’s finding that the Law of 30 October 1997 constituted a lex specialis in relation to the general law; they argued, however, that the said law could not be construed as derogating from the normal expropriation procedure and that, consequently, by recognising the State’s title without having received a copy of a judgment determining the amount of the compensation, the Land Registry Court had acted illegally. 33. In a judgment of 28 September 2000 the Civil Division dismissed the applicants’ appeal, essentially endorsing the reasoning and findings of the judgment in question. Addressing the applicants’ objection to the compensation awarded, it pointed out that the amounts had been determined in accordance with Article 2 of the above-mentioned Supreme Council decision. If the applicants had considered that the calculation by the State’s Land Authority had been erroneous and that the relevant coefficients had been incorrectly applied, they could have challenged the calculation in separate proceedings, but they had not done so. 34. The applicants lodged a cassation appeal with the Senate of the Supreme Court. In their appeal, they submitted that the direct and immediate object of their claim was not to challenge the calculation of the compensation as such, but rather the fact that they had not been able to have the amount fixed through fair judicial proceedings, as required by the General Expropriation Act. If such proceedings had taken place, they would have been able to provide the court with evidence of their investments in respect of the land in question; they pointed out that they were not entitled to initiate such proceedings themselves, as section 9 of the Act reserved that right for the State authorities. 35. In a judgment of 20 December 2000 the Senate dismissed the applicants’ appeal on the same grounds as the Civil Division. 36. In the meantime, on 17 August 2000, the State had granted the use of all the plots of land in question to a private transport company, B., from which it has been receiving rent to date. 37. On 9 December 1999 the Finance Department of the Riga City Council notified the first applicant of a tax reassessment, requesting him to pay the sum of LVL 18,891 in land tax in respect of the land that had belonged to him, plus penalties, for the period from 1 January 1997 to 30 October 1997, the date of the expropriation. The first applicant challenged this before the Ziemeļu District Court of First Instance, which upheld his claim and annulled the reassessment. The City Council appealed before the Riga Regional Court, which, in a judgment of 10 January 2003, upheld the annulment of the reassessment. In its judgment the court found that, as the land tax was attached to a plot of land and not to a specific individual, it could be paid by someone other than the owner. It noted that the tax had already been paid by the public corporation responsible for the port’s management which was using the land on the basis of a servitude. The City Council lodged a cassation appeal with the Senate of the Supreme Court, which dismissed that appeal in a judgment of 19 March 2003. 38. On 22 January 1999 the Finance Department of Riga City Council notified the second applicant of a tax reassessment for LVL 78,382, including penalties, for the year 1997. The applicant brought annulment proceedings before the court of competent jurisdiction, which upheld his claim. The City Council appealed and on 26 February 2002 the Riga Regional Court annulled the judgment of the Court of First Instance, finding that the second applicant’s land was not part of that for which the public corporation had paid land tax. That judgment was upheld in cassation proceedings. However, in September 2003 the Senate of the Supreme Court reopened the proceedings on account of newly discovered facts. The case file was sent to the Administrative Court of Appeal, which, in a judgment of 15 July 2005, upheld the second applicant’s claim and annulled the disputed reassessment on the ground that the port management company had already paid land tax for the land in question. On 7 February 2006 the Senate of the Supreme Court, ruling on a cassation appeal, upheld that judgment, so the second applicant was not obliged to pay any supplementary tax on the land in question. 39. Adopted in 1922, the Latvian Constitution (Satversme) became fully applicable again in 1993. In 1997, the year when the impugned expropriations took place, it did not yet include a charter of fundamental rights, which were governed by a separate instrument, the Constitutional Law of 10 December 1991 on the rights and obligations of persons and citizens (Konstitucionālais likums “Cilvēka un pilsoņa tiesības un pienākumi”). Section 21 of that Law read as follows: “The State recognises and protects ownership and the right to inheritance. An individual may be the owner of property of all kinds, except that which is subject to the restrictions laid down in section 9 [pertaining to natural resources]. Property may be expropriated only as provided for by law and pursuant to a judicial decision. Where property is expropriated for the purpose of public projects, the owner shall be entitled to appropriate compensation.” 40. By a Law of 15 October 1998, which entered into force on 6 November 1998, the legislature inserted into the Constitution a new Chapter VIII on fundamental rights. In that Chapter, the new Article 105 of the Constitution provides as follows: “Everyone has a right of property. Property may not be used for purposes contrary to the interests of society. Property rights may be restricted only as provided by law. Forced deprivation of property for the needs of society shall be authorised only in exceptional cases, on the basis of a special law and in return for fair compensation.” 41. Article 81 of the Constitution (repealed in 2007) entrusted the Cabinet with delegated and limited legislative power. At the time of the expropriation of the land in question, this provision read as follows: “Between two legislative sessions, the Cabinet shall be entitled, in cases of pressing need, to adopt regulations with statutory force. Such regulations may not amend either the law on parliamentary elections, the laws on judicial organisation and procedure, the Budget Act or budgetary law, or laws enacted by the sitting legislature; nor may they regulate amnesty, the issuance of Treasury bills, taxes levied by the State, customs duties, railway fares and loans, and they will lapse if they are not submitted to Parliament within three days after the opening of the following legislative session.” 42. The first sub-section of section 12 of the Latvian Cities Land Reform Act of 20 November 1991 (Likums “Par zemes reformu Latvijas Republikas pilsētās”) originally read as follows: “In all ... cases, where the original owner’s land has [in the meantime] been built upon, or where, in accordance with urban planning and construction projects it is intended to erect thereon constructions necessary to satisfy the needs of society, the former owners of the land or their heirs shall be entitled, as they choose: to claim restitution of their title to the property and to obtain from the owner of the building or construction ... the payment of rent, of which the maximum amount shall be fixed by the Cabinet ...; or to request that they be granted the right of ownership or use of another plot of land of the same value, situated within the administrative boundaries of the same town, depending on the intended use of such land; or to receive compensation in accordance with the statutory conditions.” 43. A Law of 31 March 1994 imposed restrictions on the restitution of land on which certain constructions or facilities had been erected. It thus amended the above wording as follows: “Former property owners or their heirs shall recover their title to land that previously belonged to them, except: ... (3) Where, on the land of the former owners, there can be found ... civil engineering and transport facilities or infrastructure ..., [for example] of ports. The title to the land is then registered in the name of the State or the local authority concerned; as to the former owners and their heirs, they shall be entitled, as they choose, to request that they be granted title to another plot of land of the same value and situated within the administrative boundaries of the same town, or otherwise to receive compensation in accordance with the statutory conditions.” 44. A Law of 24 November 1994 amended that provision as follows: “Former property owners or their heirs shall recover their title to land that previously belonged to them, except: ... (3) Where, on the land in question, there can be found ... civil engineering and transport facilities or infrastructure ..., [for example] of ports. The title to the land is then registered in the name of the State or the local authority concerned, after the former owners or their heirs have, as they choose, and in accordance with the statutory conditions, received land of the same value situated elsewhere ... or compensation. If it is impossible to reach an agreement with the former owners of the land, or their heirs, as to compensation or the allocation of another plot of land of the same value, the land shall then be expropriated in accordance with the conditions laid down in the law on the expropriation of real estate on public-interest grounds.” 45. The Law of 12 October 1995 reformulated the above provision, deleting the last sentence concerning the expropriation of land. The Law of 8 May 1997, which entered into force on 6 June 1997, added to the subsection in question a note that read as follows, having the same statutory force as section 12 itself: “Note: Where the former owners of the land or their heirs possess dwellings on the territory of a port, they are entitled to recover title to that land to the extent that they have the lawful use thereof; [the surface area of such land] must not, however, exceed 1,200 square metres, unless the land in question is situated within the residential area of Kundziņsala Island, including on the territory of the Free Commercial Port of Riga, where the former owners and their heirs may be granted restitution of their title in respect of the entire surface area of the land that belonged to them.” 46. At the same time a new subsection was inserted into section 12. It reads as follows: “Where the former owners of the land or their heirs have recovered title to land on which are erected any facilities referred to in point 3 of the first subsection hereof ..., the annual amount of rent payable for the land shall not exceed five per cent of its cadastral value.” 47. At the material time, section 19(4) of the Ports Act of 22 June 1994 (Likums par ostām) read as follows: “Only the State and local authorities acting through the intermediary of a port authority shall be entitled to purchase land within the territory of a port. It shall be prohibited for a port authority to sell land situated within the territory of a port.” 48. Section 19(5) of that Act, as amended by a Law of 24 October 2002, which entered into force on 28 November 2002, reads as follows: “Former owners (or their heirs) who, as at 21 July 1940, possessed land situated on the current territory of the port, and whose title to the land has been recognised ... but has not been restored on account of the statutory restrictions, shall be entitled to receive land of the same value or to be compensated in the form of compensation certificates, the number of which shall be calculated according to the updated cadastral value of the land in question. If the persons concerned have received compensation certificates corresponding to the cadastral value of the land for 1940, they will granted an additional number of ... certificates corresponding to the difference between the cadastral value of 1940 and the updated cadastral value.” 49. Regulation no. 171 of 6 May 1997 on the calculation of compensation to be awarded to former landowners or their heirs, and on the determination of the value of land of which ownership has been transferred in cities (Noteikumi par kompensācijas aprēķināšanu bijušajiem zemes īpašniekiem vai viņu mantiniekiem un maksas noteikšanu par īpašumā nodoto zemi pilsētās) was adopted on the basis of the Latvian Cities Land Reform Act. Article 8 of the Regulation reads: “Where persons claiming compensation are not satisfied with the compensation amount calculated [by the State Land Authority], they shall be entitled to submit their complaint to the courts.” 50. At the material time, and up to 1 January 2011, expropriation was governed by the Expropriation (Public Interest) Act (Likums “Par nekustamā īpašuma piespiedu atsavināšanu valsts vai sabiedriskajām vajadzībām” – the “General Expropriation Act”), which was first enacted in 1923 and which re-entered into force on 15 September 1992. The relevant sections of that Act read as follows: “Expropriation of real estate in the public interest shall be authorised only in exceptional cases, always with payment of compensation and on the basis of a special law.” “The proposal to expropriate ... shall be made by the government on the basis of an opinion by the relevant administrative body or local authority, where the institution in question is unable to acquire the real estate by means of an agreement with the owner. The proposal must include information about the real estate to be expropriated and the justification for the expropriation.” “After the [expropriation] law has been enacted, the institution that proposed the expropriation shall approach the owner with a view to reaching a [friendly] agreement for the transfer of the real estate, and, as the institution sees fit, shall either offer compensation or propose to exchange [the real estate] for property of the same value.” “Where compensation [for the expropriation] is determined by friendly agreement, or where the value of the expropriated real estate is compensated for by the exchange thereof for other property, the parties shall enter into a contract ...” “Where [the parties] fail to reach an agreement, the case shall be examined by a court upon an application by the expropriating institution. After receiving the application, the court shall assign a bailiff to assess the value of the real estate, in the presence of the representative of the expropriating institution, together with the owner and three experts chosen by joint agreement between the parties ...” “The expropriating institution shall submit to the court a statement indicating and justifying its assessment of the value of the real estate to be expropriated. Copies of the statement shall be served on the owner of the real estate and on any mortgage creditors of the owner ...” “The value shall be assessed according to local prices and the state of the relevant property. Should the owner so request, the assessment shall also take into account its profitability. The profitability of real estate shall be assessed on the basis of information supplied by its owner. When the value of the property is determined in accordance with the income generated by the latter, it shall correspond to the average net income from the real estate over the past five years increased by five per cent, or, where the owner has held it for less than five years, over the entire period of possession, increased by five per cent.” “Before examining the case, the court shall summon the owner, the representative of the expropriating authority and any mortgage creditors. The court shall determine the compensation to be paid on the basis of experts’ opinions, either according to local prices or, where the owner so requests and the court finds such request reasonable, according to the profitability [of the property]. The court’s decision may be appealed against in accordance with the statutory procedure.” “After the court’s decision pertaining to the expropriation of the real estate takes effect, the owner shall be paid the compensation determined and any interest at the rate fixed by the court; the interest rate shall not be lower than 6 per cent per annum from the date of transfer of the property until the date of payment.” “After the payment of compensation ..., the institution concerned shall transmit to the Land Registry Division a copy of the court’s decision together with a description of the real estate, for the purposes of its registration in the name of the State or local authority.” 51. A Law of 19 December 1996 inserted certain provisions into Article 2 of the Supreme Council’s decision of 15 September 1992 on the conditions of the entry into force of the 1923 General Expropriation Act (Lēmums “Par Latvijas Republikas likuma ‘Par nekustamā īpašuma piespiedu atsavināšanu valsts vai sabiedriskajām vajadzībām’ spēkā stāšanās kārtību”); the relevant parts of those provisions read as follows: “Where, in the course of the land reform, an expropriation ... concerns real estate that is necessary for ... the maintenance or operation of ... transport infrastructure, [and where the object of the expropriation] has been or is to be restored to the former owner (or to the heirs thereof), the amount of the compensation shall be determined as a sum of money, according to the statutory procedure; however, it shall not exceed the value of the said real estate as fixed by the land registers or by cadastral records drawn up before 22 July 1940 and including an indication of the property’s value ... The conversion coefficients to be applied to the value of the property, converting the prices from 1938-1940 (in pre-war lati) into current prices ..., shall be determined by the State Land Authority. Where, after the restitution of title, the owner has increased the value of the real estate, any investments related to the increase in value must also give rise to compensation. Similarly, compensation must be paid for any expenses reasonably incurred by the owner (or heirs) related to the restitution of title (surveying, obtaining of information from records, etc.). Any expenses incurred in respect of the services of a representative must be reimbursed within the limits of the amounts actually paid; however, they must not exceed the scales of lawyers’ fees. The expropriation procedures laid down by the present Article shall apply also to owners who have acquired property from the former owner (or heirs thereof) by way of donation.” 52. On 1 January 2011 the 1923 Act was superseded by a new Expropriation (Public Interest) Act (Sabiedrības vajadzībām nepieciešamā nekustamā īpašuma atsavināšanas likums), enacted on 14 October 2010. Under section 4 of that new Act, expropriation of real estate can take the form of a friendly settlement between the State and the owner of the property in question, or of “forced” expropriation ordered on the basis of a special law. 53. The use of the term “special law” in Article 105 of the Constitution and in section 1 of the 1923 Act indicates that each individual expropriation measure falls within the exclusive remit of the legislature, that is to say, Parliament. As the Constitutional Court observed in its judgment of 16 December 2005, this is a specific feature of the Latvian legal system in comparison with that of other countries (see paragraph 62 below). In this system any expropriation is always based on two legislative instruments: the general law, determining the rules of expropriation in general, and a special targeted law by which Parliament orders the expropriation of designated property in a specific case. As to the sum to be paid in compensation, it is fixed by friendly settlement or, failing that, by the courts (section 9 of the 1923 General Expropriation Act). 54. Regulation no. 273 of 5 August 1997 on the expropriation of land for the needs of the State within the Free Commercial Port of Riga was promptly submitted to Parliament, as required by Article 81 of the Constitution (as then in force). On 30 October 1997 Parliament enacted a law on expropriation for the needs of the State of land within the Free Commercial Port of Riga (Likums “Par zemes īpašuma atsavināšanu valsts vajadzībām Rīgas tirdzniecības brīvostas teritorijā”), which used almost the exact same wording as the Regulation. The relevant parts of that law read as follows: “The expropriation, for the needs of the State, shall concern land belonging to Mr Genādijs Perepjolkins within the territory of the Free Commercial Port of Riga, on Kundziņsala, along the bank of the Daugava, for respective surface areas of 1.8620 hectares ..., 1.1000 hectares ..., 1.0970 hectares and 0.7150 hectares ..., together with land in the same sector belonging to Mr Jānis Vistiņš for a surface area of 1.7998 hectares ...” “The Transport Ministry shall be responsible for having the land referred to in section 1 hereof ... entered in the land register in the name of the State.” “(1) A current account shall be opened with the public corporation Latvijas Hipotēku un zemes banka [Latvian Land and Mortgage Bank] in the name of each of the landowners referred to in section 1 hereof; the compensation shall be paid into such accounts in accordance with Article 2 of the Supreme Council’s decision on the conditions of the entry into force of the Expropriation (Public Interest) Act. (2) The number of the current account shall be notified, by registered letter, to each of the beneficiaries of the compensation payment.” “The land referred to herein shall be entered in the land register in the name of the State on the basis of the present Act and following confirmation from the Latvijas Hipotēku un zemes banka that the sums determined as compensation for the value of the properties have [actually] been paid into the accounts of the persons mentioned in section 1 hereof.” 55. The Law of 5 February 1997 on the expropriation of land for the needs of the State within the territory of the Riga State Airport Corporation (Likums “Par zemes īpašumu atsavināšanu valsts vajadzībām valsts lidostu uzņēmuma ‘Rīga’ teritorijā”) is almost identical in structure to that of the law mentioned previously. Sections 1 and 2 order the expropriation of the specific plots of land enumerated in the annexes to the law. Section 3 requires the Transport Ministry to have the State’s title entered in the land register, while the last two sections concern the conditions of payment of the compensation and the effective transfer of title. 56. To the extent that it is relevant to the present case, section 6 of the Free Commercial Port of Riga Act of 6 November 1996 (Rīgas tirdzniecības brīvostas likums) provided as follows: “(1) There shall be established hereby a personal servitude for the benefit of the public corporation ‘Commercial Port of Riga’, affecting the land of natural persons or other legal entities ... that is occupied by the Free Port. ... (6) The user of the land shall pay to its owner compensation for the use of the servitude; the amount of the compensation shall be determined by joint agreement, but it may not exceed five per cent per annum of the cadastral value of the land. ...” 57. On 9 March 2000 Parliament enacted a new Free Port of Riga Act (Rīgas brīvostas likums). It entered into force on 11 April 2000, superseding the previous Act. Section 4(8) of this new Act is identical to section 6(6) of the old Act. 58. Under Article 994, first paragraph, of the Civil Code (Civillikums), “[o]nly the person who is recorded in the land register as owner of real estate may be recognised as such”. However, Article 1477, second paragraph, stipulates that “[r]ights in rem based on a law shall be effective even in the absence of an entry in the land registers”. 59. The relevant provisions of the Civil Code concerning the validity of contracts and other agreements read as follows: “An unlawful or immoral act whose aim runs counter to religion, statute law or morality, or which is intended to circumvent the law, cannot give rise to an agreement; any such agreement shall be null and void.” “An agreement that expresses a genuine intent but has been concealed by another agreement shall be valid, unless it has been entered into with the aim of misleading a third party or, in general, of conducting an unlawful transaction. The visible agreement shall remain valid solely to the extent that this is necessary for the validity of the concealed agreement.” 60. Article 1919 of the Civil Code authorises the revocation of a donation (dāvinājums) on grounds of ingratitude on the part of the donee. Apart from an ordinary donation, the Latvian Civil Code provides for three specific categories of donation: a donation of all the donor’s present property, a donation subject to a condition or obligation, and a donation in consideration of past services (dāvinājums atlīdzības nozīmē), as governed by Article 1933 of the Code, which reads: “A donation in consideration of past services is a donation agreed in return for services rendered. Such donations may not be revoked on grounds of ingratitude.” 61. In a judgment of 30 April 1998 given in case no. 09-02(98), the Constitutional Court declared Article 2 of the Supreme Council’s decision on the conditions of entry into force of the General Expropriation Act (see paragraph 51 above) compliant with Article 1 of Protocol No. 1. It observed as follows: “... 5. Land reform is a continuous and complex process which does not end with the return of the real property concerned to the former owners or their heirs, but with the completion of the restructuring of legal, social and economic relations ... ... 7. The second and fourth paragraphs of Article 2 of the decision do not deprive owners whose property has been expropriated in the public interest of their right to apply to the courts for the determination of compensation. The second paragraph of Article 2 of the decision establishes only the upper limit of such compensation. Therefore, the argument ... that such persons are deprived of their right to judicial protection and to equality before the courts is unfounded. ...” 62. In a judgment of 16 December 2005, given in case no. 2005120103, the Constitutional Court declared unconstitutional, and null and void, the amendments made to the General Expropriation Act in 2005. The relevant parts of that judgment read as follow: “... (22) ... (22-2) The fourth sentence of Article 105 of the Constitution provides that forced deprivation of property is allowed only on the basis of a ‘special law’ enacted in exceptional cases. The fact that expropriation must be carried out not only on the basis of a law but ‘on the basis of a special law’ is to a certain extent a specific feature of the Latvian Constitution. Most constitutions of European States envisage only that expropriation must be carried out on the basis of a law or in accordance with a procedure established by law. The aim of Article 105 of the Constitution, pertaining to expropriation on the basis of a special law, is to protect the fundamental rights of the individual against any arbitrariness on the part of the administrative authorities. The word ‘specific’ here must not only be interpreted literally and grammatically, but must primarily be given a substantive meaning. When enacting such a ‘specific’ law, the legislature must‘exceptional’ in nature and whether it serves the needs of State or society; it must also ensure that the expropriation gives rise to fair compensation. ...” 63. Under section 9(1) of the Land Tax Act of 20 December 1990 (Likums “Par zemes nodokli”), as in force at the material time, a person acquiring land was exempt from the payment of land tax in respect thereof for six months from the date of its acquisition. 64. In its version in force in 1994, section 17 of the Law on the reform and the conditions of entry into force of the Land Registry Act of 22 December 1937 read as follows: “In order to determine the value of property that is liable for tax in respect of the registration of ownership following a contractual transfer of title, the highest of the following amounts shall be used: (1) the sale price indicated in the contract; (2) the amount resulting from the land tax assessment; (3) the amount resulting from the assessment for the purposes of obtaining a mortgage from a lending institution.” | 1 |
train | 001-58188 | ENG | ITA | CHAMBER | 1,997 | CASE OF DE SANTA v. ITALY | 4 | Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | C. Russo;N. Valticos;R. Pekkanen | 7. Mr Maurizio De Santa is the secretary of the municipal welfare agency (Ente Comunale Assistenza) of the city of Udine, where he lives. 8. On 27 December 1977 he applied to the Friuli-Venezia Giulia Regional Administrative Court (“the RAC”) for judicial review of a decision of his employer’s board of governors, which, on 6 September 1997, in adopting the staff regulations, had assigned to him a level of remuneration lower than that to which he considered himself to be entitled on the basis of the collective agreements on contracts of employment negotiated at national level by the unions concerned (accordi nazionali di lavoro del personale degli enti locali). He also contested the discrimination between himself and other employees, who were paid on the basis of the salary scales laid down in the contracts in question. 9. On 10 March 1982 the RAC ordered the municipal welfare agency to file certain documents. In a judgment of 17 November 1982, the text of which was deposited with the registry on 16 May 1983, it dismissed the applicant’s application as being ill-founded. 10. On 28 June 1984 Mr De Santa appealed to the Consiglio di Stato. On 12 December 1984 Udine District Council, which had by then succeeded the municipal welfare agency, lodged a counter-appeal. It contended, as a preliminary point, that the applicant’s appeal was inadmissible for failure to comply with the time-limit; as regards the merits, it argued that the appeal should be dismissed as being ill-founded. 11. On 19 July 1984 the applicant filed an application for a date to be fixed for the hearing. On 22 October 1987 he requested that the case be set down for an urgent hearing. In a judgment of 10 June 1994, the text of which was deposited with the registry on 29 November 1994, the Consiglio di Stato dismissed the objection of inadmissibility and dismissed the applicant’s appeal. | 1 |
train | 001-84609 | ENG | GBR | ADMISSIBILITY | 2,008 | THE CONDE NAST PUBLICATIONS LTD v. THE UNITED KINGDOM | 4 | Inadmissible | Giovanni Bonello;Ján Šikuta;Josep Casadevall;Kristaq Traja;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi | The first applicant, Condé Nast Publications Ltd, is a company incorporated in England and Wales which is the publisher of Vanity Fair, a magazine published monthly in New York and the United Kingdom. The second applicant, Mr G. Carter, is a Canadian national who is the editor-in-chief of Vanity Fair and lives in New York. They were represented before the Court by Mr M. Stephens, a lawyer practising in London. Roman Polanski (“RP”), a well-known film director who held dual Polish and French nationality, had pleaded guilty in 1977 in the United States (“US”) to unlawful sexual intercourse with a 13-year-old girl. He fled from the US before sentencing. Thereafter he lived in France from where, being a French citizen, he could not be extradited to the US. In 2002 the applicants published in the July issue of Vanity Fair an article concerning RP which described how he had allegedly tried to seduce a Swedish model at a fashionable New York nightspot shortly after his pregnant wife’s murder in 1969. He brought an action in the United Kingdom for libel against Vanity Fair and, fearing possible arrest and extradition to the US, applied to give his evidence by video conference link (“VCF”). On 9 October 2003 the High Court ordered that RP be permitted to give his evidence in the libel trial by VCF from a Paris hotel. It was noted that the technology to be used would be of a high standard and that in VCF evidence there was generally very little delay, very little room for confusion and cross-examination could take place at the same pace as if a witness were present at court. On 11 November 2003 the Court of Appeal allowed the appeal of the applicants. It was considered that it was “clearly an indulgence” to permit RP to give his evidence by VCF and the real question was whether, as a matter of policy in the particular circumstances of this case, that indulgence should be granted. It was considered that the court’s general policy should be to discourage litigants from escaping the normal processes of the law, rather than to facilitate it, so that, accordingly, the judge had erred in making the VCF order which should be set aside. On 10 February 2005 the House of Lords allowed an appeal by RP by a majority of 3-2. Lord Nicholls of Birkenhead, delivering the leading majority speech, with whom Lord Hope of Craighead and Baroness Hale of Richmond agreed, found that there was no doubt that, as between RP and Condé Nast, the judge’s order was rightly made. The test of the relevant Practice Direction for the use of VCF, namely that it could be allowed to save costs and where it would be beneficial to the efficient, fair and economic disposal of the litigation, was satisfied in the circumstances. RP was entitled to bring his action in the United Kingdom where the offending article had been published. His flight from the US in 1978 and the steps he had taken ever since to remain beyond the reach of the US court, did not preclude him from bringing proceedings in England in respect of damage to his reputation flowing from publication of defamatory material in the United Kingdom. Hence, the libel proceedings did not constitute an abuse of the process of the court. A direction that RP’s evidence might be given by means of VCF, an entirely satisfactory means of giving evidence, would not prejudice Condé Nast to any significant extent; indeed, any prejudice would more likely be suffered by RP by reason of the lessened impact of his evidence and celebrity status on the jury. Improvements in technology enabled RP’s evidence to be tested as adequately if given by VCF as it would be if given in court. If a VCF order were refused, RP would be gravely handicapped in the conduct of the proceedings. In practice he would either abandon his action or, possibly, continue but under the serious disadvantage that his oral evidence on the crucial dispute of fact, concerning what took place at the restaurant, would not be placed before the jury. Either way, in its conduct of the litigation Condé Nast would receive an unjustified windfall at the expense of RP. Condé Nast would find itself in the fortunate position of not being called to account for having published what might be a serious libel. Whether the use of the court’s procedures in a particular way would bring the administration of justice into disrepute or would be an affront to the public conscience, called for an overall balanced view. A fugitive from justice was not as such precluded from enforcing his rights through the courts of the United Kingdom. RP’s status as a fugitive offender did not deprive him of any rights he would otherwise possess in respect of the subject matter of his action. The contrary approach, adopted in the name of the public interest, would lead to wholly unacceptable results in practice. It would mean that for so long as a fugitive remained on the run from the criminal law, his property and other rights could be breached with impunity. That could not be right. Such harshness had no place in the law that knew no principle of fugitive disentitlement. Although a direction that a fugitive such as RP may give his evidence by use of VCF was a departure from the normal way a claimant gives evidence in libel proceedings, the extent of this departure should not be exaggerated; it was expressly sanctioned by the Civil Procedure Rules and was not an indulgence. Despite his status, a fugitive from justice was entitled to invoke the assistance of the court and its procedures in protection of his civil rights. He could bring or defend proceedings even though he was, and remained, a fugitive. If he was entitled to lodge such proceedings there could be little rhyme or reason in withholding from him a procedural facility flowing from a modern technological development which was now readily available to all litigants. To withhold that facility would be to penalise him because of his status. The appeal was to be allowed and the judge’s order restored. Lord Slynn of Hadley dissented. He noted that there were at least two policy considerations arising in the present case which were in conflict. The first was that the court should not frustrate the claimant’s accepted right to sue in the civil courts by refusing a procedural step provided for by the Rules when there was no valid reason to do so. The second was that the civil courts should not take steps the effect of which was to frustrate or impede the due execution of the criminal procedure of another State with which the United Kingdom had an extradition treaty and under which, if the appellant were in England, the United Kingdom would be required to respond to a request for his extradition so that he could be sentenced and obliged to comply with any sentence imposed. Although it was recognised that the fact that RP was a fugitive offender did not bar him from starting proceedings, there was only one reason for the request of the order which was to avoid the risk or likelihood of arrest and extradition and to escape sentence and punishment in the US for an admitted offence. To accede to his request in the absence of other overriding considerations compelling the grant of the application, would be contrary to public or judicial policy. Where a person convicted on his own admission fled the jurisdiction, in the absence of special factors compelling a different result, a VCF order may and should be refused where the sole reason for asking for it was that he wished to escape conviction or sentence in the country where he had commenced proceedings or to avoid extradition to another country for the same reason. Lord Carswell also dissented, finding that although it was not necessary to import into the United Kingdom legal system the full rigour of the fugitive offender doctrine as it applied in the US, permitting a fugitive to give his evidence by VCF so that he could stay out of the jurisdiction and avoid arrest affronted the public conscience and brought the administration of justice into disrepute. Moreover, it was noted that excluding the claimant from presenting his case in court by VCF would not constitute a breach of Article 6 of the European Convention of Human Rights as the right of access to court is not absolute. The trial took place in July 2005. RP gave evidence by VCF from a Paris hotel suite and the editor and eyewitnesses came to the UK and gave evidence in person. The applicants claim that RP’s cross-examination by VCF was made difficult for defence counsel given delays and inaudibility. On 22 July 2005 the jury found for RP and awarded him 50,000 pounds sterling (GBP) in damages. The applicants did not lodge an appeal. The Civil Evidence Act 1995 provides, in so far as relevant, that: “1.—(1) In civil proceedings evidence shall not be excluded on the ground that it is hearsay. (...) 3. Rules of court may provide that where a party to civil proceedings adduces hearsay evidence of a statement made by a person and does not call that person as a witness, any other party to the proceedings may, with the leave of the court, call that person as a witness and cross-examine him on the statement as if he had been called by the first-mentioned party and as if the hearsay statement were his evidence in chief.” R. 32 of the Civil Procedure Rules (“CPR”) provides: “(I) The Court may control the evidence by giving directions as to ... (c) the way in which the evidence is to be placed before the court.” Annex 3 to the Practice Direction to the CPR, Pt 32 sets out video conferencing guidance. Paragraph 2 of that guidance states: “VCF may be a convenient way of dealing with any part of proceedings: it can involve considerable savings in time and cost. Its use for the taking of evidence from overseas witnesses will, in particular, be likely to achieve material saving of costs, and such savings may also be achieved by its use for taking domestic evidence. It is, however, inevitably not as ideal as having the witness physically present in court. Its convenience should not therefore be allowed to dictate its use. A judgment must be made in every case in which the use of VCF is being considered not only as to whether it will achieve an overall cost saving but as to whether its use will be likely to be beneficial to the efficient, fair and economic disposal of the litigation. In particular, it needs to be recognised that the degree of control a court can exercise over a witness at the remote site is or may be more limited than it can exercise over a witness physically before it.” | 0 |
train | 001-23714 | ENG | PRT | ADMISSIBILITY | 2,004 | DAVENPORT v. PORTUGAL | 4 | Inadmissible | Georg Ress;Mark Villiger | The applicant, Mr David Davenport, is a United Kingdom national who was born in 1939. He was represented before the Court by Ms C. Harby, a lawyer from the AIRE centre in London. On 9 April 2002, the Court was informed of the applicant’s death. His son, Mr Mark Davenport, expressed the wish to pursue the application. He is represented by Ms C. Harby. The facts of the case, as submitted by the parties, may be summarised as follows. On 25 October 1990, the applicant bought a plot of land situated in Silves (Portugal). The purchase was registered in the Land Registry (Conservatória do Registo Predial) of Silves. The previous owner of the land had applied to the Silves City Council (Câmara Municipal) seeking permission for the land (including the plot of the applicant as well as other plots) to be developed for urban construction. The City Council granted a construction permit (alvará) on 25 February 1983. On 21 June 1993, the Public Attorney instituted proceedings against the Silves City Council in the Administrative Tribunal (Tribunal Administrativo de círculo) of Lisbon. He submitted that the decision passed by the City Council granting the permit was void, as some administrative procedures had not been followed. The Public Attorney asserted that when the permit was granted, the City Council had not drawn up a formal plan for the urbanisation of the area. In those circumstances, the previous approval of the Directorate-General of Urban Services (Direcção-Geral dos Serviços de Urbanismo) was necessary pursuing to the Decree-Law no. 289/73 of 6 June 1973. As such approval had not taken place, the permit was null and void. Finally, the Public Attorney asked the Tribunal to serve summonses on the individuals having bought land on the area in question as private defendants. The applicant filed his defence on 16 March 1994. He submitted that he had purchased the property in good faith and that he was unaware of any alleged failures in the issue of the permit. In his view, even if the Administrative Tribunal annulled the permit, that could not affect his rights. On 7 November 1994, the judge suspended the proceedings in view of the death of one of the private defendants. By a decision of 29 September 1998, the judge considered that the proceedings could be resumed. On 27 March 2001, the Administrative Tribunal gave its judgment in favour of the Public Attorney and declared the construction permit granted by the Silves City Council to be null and void. The applicant was notified of this decision on 22 November 2001. On 6 December 2001, the applicant filed an appeal against this judgment with the Supreme Administrative Court. On 12 February 2003, the Supreme Administrative Court rejected the appeal. | 0 |
train | 001-57493 | ENG | GBR | CHAMBER | 1,986 | CASE OF GILLOW v. THE UNITED KINGDOM | 2 | Violation of Art. 8;No violation of Art. 14+8;No violation of Art. 6;Just satisfaction reserved | Gaukur Jörundsson | 9. Mr. Joseph Gillow and his wife Mrs. Yvonne Gillow were born in England in 1916 and 1918 respectively. They are both British citizens and retired. 10. In April 1956, Mr. Gillow was appointed Director of the recently-created States of Guernsey Horticultural Advisory Service. Consequently, the applicants, after selling their home in Lancashire, moved with their family and furniture to Guernsey. Initially, they occupied a house owned by the States of Guernsey. However, in 1957, Mr. Gillow bought a plot of land on Guernsey, on which, after obtaining the requisite planning permission, he built a house, called "Whiteknights". He and his family took occupation of this house on 1 September 1958. The property's rateable value was £51, of which £49 was attributable to the house itself. It was then, and still is, "controlled housing" (see paragraph 30 below). However, the applicants did not require a licence to occupy the house, since they had "residence qualifications" by virtue of the Housing Control (Extension and Amendment) (Guernsey) Law 1957 ("the Housing Law 1957") (see paragraph 30 below). 11. In August 1960, after Mr. Gillow had resigned from his post in the Guernsey Horticultural Advisory Service, the applicants and their family left Guernsey and Mr. Gillow took up employment with the Food and Agriculture Organisation (F.A.O.). Thereafter, and until he retired in 1978, he worked overseas for various development Agencies on the basis of temporary contracts. 12. From August 1960 to July 1978, "Whiteknights" was let either to persons with the necessary "residence qualifications" or under a licence from the States of Guernsey Housing Authority ("the Housing Authority") in accordance with the Housing Law 1957 and its subsequent amendments (see paragraphs 30-33 below). During this period, the applicants corresponded periodically with the Housing Authority from various addresses, inter alia, to inquire as to the operation of the Housing Laws in the event of their selling the property. In November 1963, Mr. Gillow transferred ownership of the house to his wife. 13. On 26 July 1978, the Housing Authority wrote to Mrs. Gillow advising her of the current tenant's intention to leave "Whiteknights" and enquiring who would be the next tenant. By letter of 31 August, Mrs. Gillow informed the Housing Authority that she and her husband proposed to return to Guernsey. The Authority replied, on 15 September, that the applicants were not entitled to occupy their house unless they were granted a licence under section 3 of the Housing (Control of Occupation)(Guernsey) Law 1975 (the "Housing Law 1975" - see paragraph 33 below). "Whiteknights" was empty after the departure of the last-mentioned tenant on 31 July 1978. It appears that neither the Housing Authority nor the applicants received any request to let the house after that date. 14. In November 1978, the applicants returned to England from Hong Kong and they lived temporarily with Mrs. Gillow's mother in England. On 21 April 1979, Mrs. Gillow wrote to the Housing Authority advising it that she and her husband intended to return to "Whiteknights" to retire. She added that she was currently seeking a teaching post in Guernsey. Furthermore, the house required various repairs, some of which the applicants proposed to carry out themselves. Accordingly, in addition to seeking a long-term occupation licence, Mrs. Gillow also requested a temporary licence, until September 1979, so that this work could be carried out. 15. On 29 April 1979, Mr. and Mrs. Gillow went back to Guernsey and re-occupied "Whiteknights". On 7 May, Mrs. Gillow, having received no reply from the Housing Authority, wrote again to it repeating her request and stating that she and her husband had returned to Guernsey. The Housing Authority replied on 14 May, informing Mrs. Gillow that, after having been considered at a meeting on 3 May, her application for a long-term licence to occupy "Whiteknights" had been rejected in the light of the "present adverse housing situation". The reply also stated: firstly, that the applicants had at no time been granted a licence to occupy this house; secondly, that even assuming that Mrs. Gillow took up employment considered essential to the community (see paragraph 33 below), the applicants would not be permitted to stay in their property after her retirement, because she was too old to complete a minimum of ten consecutive years in such employment, as required by the Housing Law 1975. No reference was made in the letter to the request for a temporary licence. 16. On 5 July 1979, a representative of the Housing Authority visited the applicants and furnished them with an official form of application for a temporary licence. They lodged the application four days later, but it was refused by decision of the Housing Authority on 19 July. Notification of the refusal was given to Mrs. Gillow on 27 July, and was accompanied by the reasons therefor, namely: - that Mrs. Gillow had failed to adduce evidence showing that she would be employed in a position essential to the community; - that "Whiteknights" was likely to be sought after by persons fulfilling the residential qualifications which the applicants lacked; - that in the "present adverse housing situation", the Housing Authority was unable in principle to justify granting a licence to the applicants. Mrs. Gillow was also informed of her right to appeal from this decision to the Royal Court, under section 19 of the Housing Law 1975 (see paragraph 33 below). Finally, she was notified that, unless she and her husband could show good reasons to the contrary, the Housing Authority would refer their occupation of "Whiteknights" to the Guernsey Law Officers with a view to prosecution if they did not vacate the house within seven days. 17. In their reply of 29 July 1979, the applicants repeated their request for a temporary licence at least until the end of August, in order to complete the necessary repairs to the property and to put it on the market for sale. They claimed that they had not been "occupying" the house, within the meaning of the Housing Law 1975. They maintained that the Law could not reasonably prevent them from carrying out the repairs necessitated by the fact that the property had been let for the previous eighteen years, and that the Law allowed them to take the steps required to sell the property, steps which precluded anyone else from occupying it in the meantime. The applicants also contended that they had not been informed until September 1978 that they required a licence to live in "Whiteknights"; in particular, they had not been notified of the entry into force on 2 February 1970 of the Housing Control (Guernsey) Law 1969 ("the Housing Law 1969"), which contained new provisions under which they ceased to have "residence qualifications" (see paragraph 32 below). 18. That letter was considered at a meeting of the Housing Authority on 9 August 1979. A reply was sent to Mrs. Gillow on 15 August, confirming that she had not been notified before 15 September 1978 of the change in the law or of the need to obtain a licence. The Housing Authority also agreed that, if the applicants vacated "Whiteknights" by 1 September 1979, it would take no action in respect of their unlawful occupation. 19. On 23 August, Mrs. Gillow requested a further extension, until the end of September, of the applicants' permission to stay, since the property had not yet been sold. This request was refused on 30 August and Mrs. Gillow was so informed on 3 September. Furthermore, the applicants were given seven days to leave the house, on pain of prosecution. On 11 September 1979, Mr. and Mrs. Gillow met the President of the Housing Authority and sought, inter alia, permission to remain in their property for a further six months, in order to effect the sale. On this occasion, they raised the question of compensation for their loss of residence rights. The Housing Authority wrote to the applicants on 20 September, reporting that their application had been reconsidered on 13 September and refused. They were informed that proceedings would accordingly be instituted against them for unlawful occupation, unless they vacated "Whiteknights" by 31 October 1979. 20. Mr. and Mrs. Gillow consulted an advocate in early October and, on 13 October, instructed him to appeal to the Royal Court against all the Housing Authority's decisions. Such appeals could only be lodged by an advocate of the Royal Court, but the applicants' advocate failed to file them within the statutory time-limit (31 October 1979). However, on 5 November he requested the Housing Authority to take no action against the applicants until he had had a further opportunity of advising them. On 9 November, he submitted on their behalf a fresh application for a licence to occupy "Whiteknights" until 30 April 1980, in order to effect its sale. In its reply of 13 November, the Housing Authority stated that: "On 8 November 1979 the Housing Authority noted the contents of your letter but resolved with regret that as [the applicants] took occupation without [a] licence and have been given an adequate time to vacate the premises, it is unable to justify withholding action in this matter. The documents in the case have been referred to the Law Officers." On 16 November, the Authority notified the advocate that the further licence application had been refused on 12 November. 21. On 20 November, the advocate notified the Housing Authority, the police and the prosecuting authorities that the applicants intended to appeal. However, on 17 December the police visited the applicants at "Whiteknights" and asked them to make a statement but they refused to do so unless their advocate was present. By letter of 19 December to the chief of police, they explained that an appeal was being lodged. They were nevertheless summoned to appear in court on 1 February 1980. 22. On 22 January 1980, the applicants discovered that the appeal to the Royal Court had not yet been lodged and addressed a complaint to the Chambre de Discipline of the Guernsey Bar against their advocate. He finally filed an appeal - in the name of Mrs. Gillow and directed against the Housing Authority's decisions of 3 May, 19 July and 12 November 1979 refusing the licences - on 1 February 1980 at about 9 a.m. This appeal sought the grant of either an unrestricted licence or, alternatively, permission to occupy "Whiteknights" until 30 April 1980, and alleged that the decisions in question were an unreasonable exercise of the Housing Authority's discretion and were ultra vires. The appeal was accepted by the Royal Court for examination, although it had been lodged out of time. 23. Later on the same day, the applicants appeared, in accordance with the summons, before the Magistrate's Court. They asked for an adjournment on the ground that Mrs. Gillow's appeal went to the heart of the question whether their occupation of "Whiteknights" was unlawful or not. However, the adjournment was refused on the insistence of the Law Officer. The applicants cases were dealt with separately, the charges against Mr. Gillow being taken first. He was convicted of occupying "Whiteknights" without a licence and fined. Mrs. Gillow's trial was adjourned twice and then suspended sine die, the court having taken into account, inter alia, Mrs. Gillow's appeal to the Royal Court and the fact that Mr. Gillow had appealed against his conviction. 24. The applicants finally sold "Whiteknights" on 15 April 1980 for a price of £33,000, which in their view was less than its actual value. 25. On 8 July 1980, the Royal Court, which was composed of a President and eleven Jurats, dismissed Mrs. Gillow's appeal, unanimously as regards the Housing Authority's decisions of 3 May and 19 July 1979 (see paragraphs 15 and 16 above) and by a majority of 8 votes to 3 as regards the decision of 12 November 1979 (see paragraph 20 above). By virtue of section 19(4) of the Housing Law 1975, this judgment was final and conclusive. 26. Mr. Gillow's appeal against his conviction was heard and dismissed by the Royal Court on 26 August 1980. Before and during the hearing, Mr. Gillow challenged the accuracy of the transcript of the first-instance proceedings and asked for leave to hear the original tape. This request was refused, but the Registrar of the Court listened to the tape during a recess and pronounced the transcript accurate. Mr. Gillow also alleged that the Royal Court was inherently biased because, with the exception of one Jurat, its composition was the same as when it had determined his wife's appeal against the decisions of the Housing Authority. He further maintained that the composition of the Royal Court, as such, was archaic. 27. The complaint which the applicants lodged with the Bar Chambre de Discipline on 26 January 1980 against their advocate for delay in filing the appeals against the Housing Authority's decisions was found to be substantiated on 9 September 1980. 28. The Bailiwick of Guernsey is a dependency of the British Crown. It has its own legislative assembly, courts of law and administrative and fiscal systems, which are separate from those of Great Britain and Northern Ireland. The legislative assembly is the States of Deliberation, which has 60 members and is presided over by the Bailiff or Deputy Bailiff, both of whom are appointed by the Sovereign. The States legislate for the Island by way of "Laws" or, in some circumstances, by way of Ordinances; the former require approval by Her Majesty in Council before they can take effect. Although the United Kingdom Parliament has power to legislate for Guernsey, it would be contrary to constitutional convention for it do so in respect of matters domestic to the island, such as the Housing Laws. The Royal Court of Guernsey is a court of unlimited jurisdiction which sits either at first instance or on appeal. It is composed of the Bailiff, the Deputy Bailiff or a Lieutenant Bailiff, as President, together with twelve Jurats appointed by the States of Election. The Magistrate's Court has summary jurisdiction in criminal matters and jurisdiction up to a limited amount in civil suits. 29. Following the liberation of the Island in 1945 after the Second World War, the return of many families and the influx of a large number of new residents created acute housing problems, which were followed by considerable increases in property prices. To meet this situation, the States enacted the Housing Control (Emergency Provisions)(Guernsey) Law 1948 (the "Housing Law 1948"), which came into force on 17 July 1948. The Law limited the right to reside in Guernsey without a licence to persons having "residence qualifications", that is persons who had been ordinarily resident there at some time between 1 January 1938 and 30 June 1940. The system of housing control introduced by this law has been modified from time to time to meet changing circumstances pertaining in the island. 30. On 12 October 1957, this Law was replaced by the Housing Law 1957, which replaced the above-mentioned final qualifying date of 30 June 1940 by 30 June 1957. Thus, persons, like the applicants, who had been ordinarily resident in Guernsey on or before that date had "residence qualifications" and were permitted to live there without a licence. The new Law also freed from control all houses of a "rateable value" (for the purposes of local taxation) in excess of £50 per annum. Such properties, known as "open market houses", could be occupied by anyone, without any restrictions. Houses with a lower rateable value, on the other hand, fell into the category of "controlled housing" and could be occupied only by persons having either "residence qualifications" or a licence granted by the Housing Authority for the particular house. 31. The Housing Law 1957 was amended on matters of detail in 1962 and 1965 (with regard to furnished accommodation) and in 1966, when the Housing Control (Amendment) (Guernsey) Law 1966 raised the minimum rateable value for "open market houses" to £100. This was later reduced, by the Housing Control (Rateable Value) Ordinance, to £85. The Housing Control (Guernsey) Law 1967 and the Housing Control Ordinance 1967 consolidated all the previous legislation in this area. 32. In the late 1960's, a significant number of people who had "residence qualifications" under the Housing Law 1957 but had subsequently left Guernsey, sought to return to the island. On 2 February 1970, there entered into force the Housing Law 1969, which added a further requirement as regards "residence qualifications": to possess these the person concerned should not only have been ordinarily resident in Guernsey at some time between 1 January 1938 and 30 June 1957 but also in occupation of a dwelling on 31 July 1968 or be the spouse or child of someone so resident. The Law, however, included a saving provision in favour of anyone in lawful occupation of controlled premises on 29 January 1969, but solely as regards those premises. The applicants therefore ceased to possess "residence qualifications" entitling them to occupy "Whiteknights" without a licence, since they were not resident in Guernsey on the relevant date. As regards the grant of licences to persons without "residence qualifications" to occupy controlled houses, the Housing Law 1969 gave the Housing Authority discretionary powers which were limited by the enumeration of factors to be considered in deciding particular cases. Furthermore, the Law provided for appeals from the Housing Authority's decision to the Royal Court. 33. The Housing Law 1969, which was originally enacted for three years, was extended until 31 December 1975. On 1 January 1976, it was replaced by the Housing Law 1975. This statute preserved the basic distinction between "open market houses", available to all, and "controlled housing" for which "residence qualifications" or a licence were required. The categories of persons having "residence qualifications" were set out in section 6 of the Law. It altered the basis of determining "residence qualifications" by allowing them also to be acquired by a certain period of lawful, licensed, residence in controlled housing and not only by residence on a particular date (section 6(1)(j)). At the same time, certain provisions were designed to preserve existing rights; in particular, "residence qualifications" continued to be possessed by persons who had been both ordinarily resident in Guernsey at some time between 1 January 1938 and 30 June 1957 and in occupation of a dwelling on 31 July 1968 (section 6(1)(h)). Since the applicants did not possess "residence qualifications", they needed a licence from the Housing Authority. As far as the granting of a licence was concerned (section 3), section 5 of the Housing Law 1975 enumerated the factors to be taken into account by the Housing Authority, including, inter alia: (a) whether the person concerned was engaged in employment considered essential to the community (sub-section 1 (a) - "essential licence" holder); (b) whether the number of dwellings similar to that for which application was made and available for occupation was sufficient to meet the housing requirements of persons possessing "residence qualifications" (sub-section 1(b)). However, the Housing Authority could, in the exercise of its discretion, take into account "such other factors as [it] may, from time to time, deem necessary or expedient" (sub-section 2). According to the Government, prolonged ownership was a factor which the Housing Authority took into account in this connection, but it was not given substantial weight in the absence of other special features. The fact that an applicant had formerly possessed "residence qualifications" under an earlier law was also a factor to which the Housing Authority would have regard but more weight would be attached to the time that the applicant had actually spent in Guernsey. Section 19 of the Law provided for an appeal to the Royal Court against the refusal of a licence on the grounds that the decisions of the Housing Authority were ultra vires or constituted an unreasonable exercise of its powers. Section 24 defined the offence of unlawful occupation as follows: "Any person (a) who occupies or causes or permits any other person to occupy a dwelling in contravention of any of the provisions of this Law; or (b) who contravenes any condition of a housing licence; shall be guilty of an offence and liable, on conviction, to a fine not exceeding five hundred pounds, and, in the case of a continuing offence, to a further fine not exceeding fifty pounds for each day during which the offence continues after conviction." 34. The Housing (Control of Occupation) (Guernsey) Law 1982 entered into force on 1 November 1982. It is designed to replace gradually the old "residence qualifications" developed from the Housing Law 1948 by a system of periods of residence: 10 years for persons born in Guernsey or having a parent born in Guernsey; 15 years for essential workers and their families; and 20 years for other licence holders. 35. Guernsey is an island of 62 square kilometers (24 square miles). In 1939, the population of Guernsey was 43,800, and in 1951, three years after the introduction of the Housing Law 1948, it was 45,747. Between 1951 and 1976, the census data available showed an increase to 54,057, but by 1981 the population had dropped to 53,488. Today the island has an estimated overall population of 55,000 and an average population per square mile of 2,300 persons. This makes Guernsey one of the most densely populated areas within the member States of the Council of Europe. In addition, during the summer months there are up to 12,500 tourists on the island at any one time, giving an average population at that time of 2,750 per square mile. The 1976 census reveals that in the period from 1971 to 1975 6,379 persons moved into Guernsey to live and 4,093 moved out. Between 1976 and 1981, which is the period relevant to the present case, 5,393 persons moved in and 5,817 moved out, giving an excess of outflow over inflow of 424. The economy of the island depends on horticulture, agriculture and tourism and, in more recent years, the international finance industry. One of the island's greatest problems has been finding sufficient housing accommodation, while protecting the relatively small area of countryside and other spaces from overdevelopment. 36. On 31 December 1981, 1,776 licences were in force, of which more than 25 per cent had been issued in the four-year period since 1977. The statistics for the years 1978 to 1985 show that a certain balance had been maintained between the essential and non-essential licences granted by the Housing Authority (see paragraph 33 above). The number of essential licence holders exceeded that of non-essential licence holders for 1978, 1979, 1982, 1983 and 1984, but the contrary was the case in 1980 and 1985. According to statistics supplied by the Government, the non-essential licences fall mainly into one or other of the following categories: 1. persons, principally in the tourist and horticultural industries, housed by their employer in staff quarters: 117 in 1978 and 119 in 1983; 2. returned Guernsey persons and persons with strong Guernsey connections: 152 in 1978 and 237 in 1983; 3. retired licence-holders and persons now qualified by virtue of long periods of residence under the 1975 and the 1982 Laws: 36 in 1978 and 154 in 1983; 4. compassionate and "en famille" (1982 Law) licences: 61 in 1978 and 184 in 1983; 5. miscellaneous (including licences from 1950's-1960's if house built): 190 in 1978 and 124 in 1983. The strong demand for licences is also illustrated by the number of refusals: 84 in 1979, 109 in 1980, 158 in 1983 and 197 in 1985; the unsuccessful applicants included persons who had "residence qualifications" under previous Housing Laws and persons who had previously been in essential employment. 37. The official census statistics for 1981 show that there were a total of 18,716 dwellings on the island, of which 17,429 were occupied, leaving an unoccupied residue of 1,287 (as compared with 1,040 in 1976). The 1981 census stated that, of the vacant accommodation, 35 per cent consisted of "tourist units", 12 per cent were on sale, 10 per cent were being renovated and 29 per cent were "habitable and probably vacant pending new occupiers or for sale", leaving 14 per cent unexplained. On the other hand, a limited survey, made in 1978 by the Housing Authority on the problem of the empty houses found that, after excluding holiday flats, flats over shops and partially-occupied houses, only 92 dwellings were unoccupied and available for long-term occupation. However, some of them were ruined or in very bad condition. Although the Housing Authority concluded that there had been "no significant deterioration in the situation since the last survey" made in 1974, it recommended, inter alia, the re-development of old buildings in town areas. | 1 |
train | 001-57843 | ENG | GBR | CHAMBER | 1,993 | CASE OF SIBSON v. THE UNITED KINGDOM | 3 | Preliminary objection joined to merits (non-exhaustion of domestic remedies);No violation of Art. 11 | C. Russo;John Freeland | 7. Mr Sibson, who was born in 1929, was employed by Courtaulds Northern Spinning Ltd, formerly Courtaulds Northern Textiles Ltd, ("CNS") from November 1973 as a heavy goods vehicle driver. He was based at its depot at Greengate, Lancashire, together with between forty and fifty other drivers. His services gave complete satisfaction at all times. 8. Until the events giving rise to the present case, the applicant was a member of the Transport and General Workers Union ("TGWU"); from 1981 to 1984 he was its branch secretary. In 1985 all the other non-managerial employees at Greengate save one belonged to that union. At that time, however, that depot was not a "closed shop" (see paragraph 17 below). Indeed, the later of two statements of his terms of employment furnished to the applicant specified that he had the right to be a member of no trade union and that he would be informed if this right came to be modified by the conclusion of a closed shop agreement. 9. In March 1985 a fellow driver, Mr D., allegedly accused Mr Sibson of having "milked the funds" of the union whilst he was branch secretary. The applicant subsequently lodged with the local TGWU branch a complaint to the effect that Mr D. had "disseminated false statements tending to depreciate" him as one of its officers, but it was dismissed by the branch adjudication panel on 20 July 1985. Mr Sibson was so dissatisfied with that decision that he resigned from TGWU by letter of 24 July and joined the United Road Transport Union instead. Some of his fellow drivers immediately ostracised him and others obstructed him in the performance of his work. 10. Between July and October 1985 CNS attempted in vain to resolve the dispute. After a period of "uneasy peace", a substantial majority of the TGWU members at Greengate voted, on 12 October, in favour of (a) a closed shop agreement with CNS and (b) industrial action if Mr Sibson continued in employment at that depot after 25 October. At a meeting on 21 October between Mr Dear, the personnel manager of CNS, and the branch committee of the union it was agreed that the strike threat would be lifted if the applicant either rejoined TGWU or was employed on driving work not based at Greengate. On 22 October the applicant told Mr Dear that he would rejoin the union only if he received an apology from Mr D. and that he would not accept the alternative proposed by Mr Dear, namely a move to Chadderton, a depot about 1½ miles away from Greengate. In a letter of the same date to the applicant, Mr Dear summarised the discussions to date; stated that CNS were contractually entitled to transfer the applicant to Chadderton, where his earnings would be similar to those at Greengate; denied that the move would be a demotion; and expressed the hope that the applicant would give serious thought to his position because "[his] dismissal [was] a possibility". 11. Further meetings were then held, with the participation of a senior official of the Advisory, Conciliation and Arbitration Service. The applicant declined to accept as an apology a certain statement to be signed by Mr D. As regards a transfer to Chadderton, the applicant expressed concern about conditions there, in particular his fear - which Mr Dear assured him was groundless - of losing his current lorry and allowances for nights spent away from home; he also said that he could not face the aggravation from other drivers which he was sure would continue at that depot. At a final meeting on 8 November 1985 the applicant declined to accept either of the alternatives then put before him - working at Greengate after rejoining TGWU or moving to Chadderton - and suggested that the management should dismiss him. Mr Dear refused to do that, and added that if the applicant reported to Greengate for work, he would be sent home without pay. Mr Sibson, citing his solicitor’s advice that that would constitute constructive dismissal (see paragraph 19 below), then said that he would resign with immediate effect, which he did by letter of the same date. He did not take up Mr Dear’s further offer, dated 14 November, of employment at Chadderton with the same opportunity for earnings and expenses as previously. 12. Mr Sibson then lodged with the Industrial Tribunal a complaint of unfair dismissal (see paragraph 18 below) against CNS and TGWU. In the grounds for his application he stated that he had "been ‘constructively dismissed’ for refusing to accept ‘action short of dismissal’" (see paragraph 20 below). His representative in these proceedings was not legally qualified, legal aid not being available for this purpose. CNS and TGWU contended that a closed shop agreement was in existence (which would have made any dismissal fair; see paragraph 18 below). CNS also denied that there had been either constructive dismissal or action short of dismissal. Mr Dear admitted in cross-examination the absence of any operational reason for moving the applicant to Chadderton, the sole purpose being to avoid a strike; had a strike not been threatened, CNS would have retained him at Greengate and not put any pressure on him to rejoin TGWU. By decision of 21 July 1986, the Industrial Tribunal unanimously accepted the complaint of unfair dismissal; it did not deal with the merits of the allegation of action short of dismissal. It found that Mr Sibson was entitled to refuse to rejoin TGWU because there was no closed shop agreement in force; that the request that he move to Chadderton was not reasonable since it was not made for genuine operational reasons but solely to avoid a strike; that CNS had no right to suspend the applicant without pay; that he was therefore entitled to treat himself as dismissed; and that the dismissal was unfair because its only motive was his exercise of his express right not to belong to a union. The tribunal reserved the question of remedies for further consideration, the applicant having opted for re-engagement (see paragraph 18 below). 13. On 16 January 1987 the Employment Appeal Tribunal, by a majority, dismissed an appeal by CNS on points of law. It found that the Industrial Tribunal had not erred in law, misdirected itself or reached an unreasonable conclusion. 14. On 25 March 1988 the Court of Appeal unanimously upheld an appeal by CNS on a point of law, confined to the question whether Mr Sibson had been constructively dismissed. It found that there was an implied term in his contract that his employer could - for any reason - direct him to work at any place within reasonable daily reach of his home; the Industrial Tribunal had erred in law in holding that this right could be exercised only if the direction were reasonable and that this condition would not be satisfied unless the direction was made for genuine operational reasons. Lord Justice Slade stated, as regards this implied "mobility term": "I cannot see how Mr Sibson could reasonably have objected to a term giving the contract this limited degree of flexibility when he entered the employment in 1973. If the evidence had disclosed any special circumstances which as at that time made it a matter of importance to him that he should be based at ... Greengate ... rather than at (say) Chadderton, the Industrial Tribunal would no doubt have said so." The Court of Appeal concluded that CNS had acted within its contractual rights in requiring the applicant to transfer to a nearby depot and that he could not be regarded as having been constructively dismissed. No question of unfair dismissal therefore arose. 15. On 15 April 1988 Mr Sibson applied for legal aid to appeal to the House of Lords. On 30 June legal aid was granted for the purpose of obtaining counsel’s opinion on the merits of an appeal. On 8 August counsel advised that there were no reasonable prospects of success and that leave to appeal would not be given. Further legal aid was therefore refused on 19 August. 16. The relevant domestic law in force at the time of the events giving rise to the present case may be summarised as follows. 17. A closed shop is an undertaking or workplace where there is in existence a "union membership agreement", that is an agreement or arrangement between one or more trade unions and one or more employers or employers’ associations having the effect in practice of requiring employees of a certain class to be or become members of a specified union (section 30 of the Trade Union and Labour Relations Act 1974, as amended). 18. The Employment Protection (Consolidation) Act 1978 ("the 1978 Act") provided that, subject to exceptions not relevant to the present case, "every employee shall have the right not to be unfairly dismissed by his employer" (section 54); the remedies for unfair dismissal were compensation or, if the individual concerned so elected and if the Industrial Tribunal in its discretion so decided, reinstatement or re-engagement (section 68). In determining whether to make a reinstatement or re-engagement order, the tribunal had to take into account, inter alia, whether it was practicable for the employer to comply therewith (section 69). Under section 58(1)(c) of the 1978 Act, as substituted by section 3 of the Employment Act 1982: "Subject to subsection (3), the dismissal of an employee by an employer shall be regarded for the purposes of this Part as having been unfair if the reason for it (or, if more than one, the principal reason) was that the employee - ... (c) was not a member of any trade union, or of a particular trade union, or of one of a number of particular trade unions, or had refused or proposed to refuse to become or remain a member." By way of exception to the foregoing, section 58(3) of the 1978 Act laid down the basic rule that, if a "union membership agreement" (i.e. a closed shop; see paragraph 17 above) was in existence, the dismissal of an employee for refusal to become or remain a member of a specified union was to be regarded as fair. With effect from 26 July 1988 - that is, after the events giving rise to the present case - this provision was repealed by the Employment Act 1988. In determining whether or not a dismissal was unfair, an Industrial Tribunal was directed to take no account of pressure exercised on the employer to dismiss the employee, for example by threatening to strike; however, a third party, such as a trade union, which had exercised such pressure because the employee was not a member of a union could be joined as a party to the proceedings and ordered to pay the whole or part of any compensation awarded to the employee (sections 63 and 76A of the 1978 Act). 19. The notion of constructive dismissal was encapsulated in section 55(2)(c) of the 1978 Act, which provided: "... an employee shall be treated as dismissed by his employer if ... the employee terminates [his] contract, with or without notice, in circumstances such that he is entitled to terminate it without notice by reason of the employer’s conduct." It does not suffice, in this connection, that the employer’s conduct is unreasonable; it must amount to a significant breach going to the root of the contract of employment or showing that he no longer intends to be bound by one or more of its essential terms (per Lord Denning, Master of the Rolls, in Western Excavating (E.C.C.) Ltd v. Sharp [1978] Industrial Cases Reports 221, construing an earlier but identical provision). 20. Section 23(1)(c) of the 1978 Act, as amended by section 10(4) of the Employment Act 1982, conferred on an employee (defined by section 153(1) of the 1978 Act so as to include a person whose employment had ceased) a right "not to have action (short of dismissal) taken against him as an individual by his employer for the purpose of compelling him to be or become a member of any trade union or a particular trade union ...". The remedy in well-founded cases was compensation, which might extend beyond financial loss to such matters as injury to reputation and feelings, of such amount as the tribunal considered just and equitable in all the circumstances. Provisions relating to the existence of a closed shop and to the exercise of pressure on the employer, akin to those applicable in the context of unfair dismissal (see paragraph 18 above), also applied in this area. | 0 |
train | 001-81242 | ENG | UKR | CHAMBER | 2,007 | CASE OF REDKA v. UKRAINE | 4 | Violation of Art. 6-1;Violation of Art. 13 | Peer Lorenzen | 4. The applicant was born in 1967 and lives in Kyiv. 5. In August 2000 the applicant was dismissed from his position as a senior tax inspector (старший державний податковий інспектор) of the Moskovsky District Tax Inspectorate of Kyiv (the “Moskovsky Inspectorate,” Державна податкова інспекція у Московському районі м. Києва). On 6 September 2000 he instituted civil proceedings in the Moskovsky District Court of Kyiv (Московський районний суд м. Києва) seeking his reinstatement, compensation for lost income and moral damage. Subsequently the proceedings were transferred to the Vatutinsky District Court of Kyiv (the “District Court,” Ватутінський районний суд м. Києва). 6. On 2 August 2001 the District Court ordered the applicant's reinstatement and awarded him 4,040.41 Ukrainian hryvnyas (“UAH”) in compensation for lost income and UAH 600 in compensation for moral damage. Pursuant this judgment, the applicant was reinstated and paid the compensation equivalent to his one-month income. 7. On 26 September 2001 the applicant resigned from the civil service. 8. On 5 November 2001 the Kyiv City Court of Appeal (“the Court of Appeal,” Апеляційний суд м. Києва) upheld the judgment of 2 August 2001 in part ordering the applicant's reinstatement and recalculated the amount of compensation due to him. In particular, the Court of Appeal awarded the applicant UAH 6,031.65 in compensation for lost income and UAH 200 in compensation for moral damage. 9. On 30 November 2001, due to the mergers of the city administrative districts, the Moskovsky Inspectorate was liquidated and replaced by the Golosiyivsky District Inspectorate (the “Golosiyivsky Inspectorate”; Державна податкова інспекція у Голосіївському районі м. Києва). 10. On 7 March 2002 the Supreme Court rejected the requests for leave to appeal in cassation submitted by the Moskovsky (Golosiyivsky) Inspectorate and the applicant's representative. 11. On 20 December 2001 the District Court issued an enforcement writ for the judgment of 5 November 2001 indicating the Moskovsky Inspectorate as the debtor. 12. On 21 December 2001 the applicant submitted the writ to the Golosiyivsky District Bailiffs' Service (the “Bailiffs”; Відділ Державної виконавчої служби Голосіївського районного управління юстиції м. Києва). 13. On 8 January 2002 the Bailiffs initiated the enforcement proceedings and on 31 January 2002 submitted an invoice to the National Bank (Національний Банк України). 14. Having received no response from the National Bank, on 12 April and 9 July 2002 the Bailiffs requested the District Court to issue a duplicate enforcement writ. Having received a duplicate writ without a seal on 12 August 2002, the Bailiffs returned it to the District Court for validation. On 26 March 2003 the District Court informed the applicant that it had never received the returned duplicate writ. 15. On 13 May 2003 the Bailiffs requested the District Court to issue another duplicate writ. On 4 June 2003 the District Court fulfilled this request, indicating the Moskovsky Inspectorate as the debtor. 16. On 6 August 2003 the Golosiyivsky Inspectorate paid the applicant UAH 6,031.65 in compensation for lost income due to him by the judgment at issue (97% of the judgment debt). 17. On 14 August 2003 the State Treasury (Відділення Державного Казначейства у Голосіївському районі м. Києва) rejected the Bailiffs' request to pay the remainder award of UAH 200 (3% of the debt) in compensation for moral damage, having noted that the Moskovsky Inspectorate had been liquidated in 2001. 18. On 18 August 2003 the Bailiffs terminated the enforcement proceedings on account of the debtor's liquidation and returned the writ to the applicant informing him of his right to re-introduce it at a later date. 19. According to the Government's submissions, in June 2006 the remainder judgment debt of UAH 200 was transferred to the Bailiffs' account. On 30 June and 25 September 2006 the Bailiffs requested the applicant to provide his banking details to effect the money transfer, but he never responded. 20. The relevant domestic law is summarised in the judgment of Vasylyev v. Ukraine, (no. 10232/02, §§ 19-22, 13 July 2006). | 1 |
train | 001-70354 | ENG | UKR | CHAMBER | 2,005 | CASE OF SVINTITSKIY AND GONCHAROV v. UKRAINE | 4 | Violation of Art. 6-1;Not necessary to examine under Art. 13;Violation of P1-1;Pecuniary and non-pecuniary damage - financial awards (global);Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses (Convention proceedings) - partial awards | null | 7. The applicants were born in 1954 and 1960, respectively, and live in the city of Kirovograd, Ukraine. 8. Until 1998 the applicants served as career officers in military unit A-425. In 1998, the applicants retired. 9. Upon retirement, the applicants were entitled to different types of compensation and payments. As these entitlements went unpaid, they instituted proceedings in the Cherkassy Garrison Military Court against military unit A-0425 for their recovery. 10. On 13 August 1998 the court found for Mr Svintitskiy and awarded him UAH 2,376.37. 11. On 24 September 1998 the court found for Mr Goncharov and awarded him UAH 670. 12. These court decisions were not appealed and came into force. The execution writs were sent to the Kirovograd Bailiffs' Service for enforcement. 13. Between March 1999 and March 2000 the applicants lodged numerous complaints with the local departments of justice and defence and with the local prosecutor's office about the non-enforcement of the judgments in their favour. 14. By letter of 6 September 1999, the head of the economic department of the Ministry of Defence informed the applicants that the judgments in their favour remained unenforced due to the lack of sufficient funding from the State Budget. 15. By letter of 12 January 2000, the Kirovograd District Prosecutors' Office informed the Mr Svintitskiy that the judgment in his favour could not be enforced due to the lack of funds of the debtor, and the impossibility of attaching the debtor's property since it belonged to the State. 16. On 1 August 2001 the judgment in favour of Mr Goncharov was enforced in full. 17. On 17 September 2001 the judgment in favour of Mr Svintitskiy was enforced in full. 18. The relevant domestic law is summarised in the judgment of Voytenko v. Ukraine (no 18966/02, §§ 20-25, 29 June 2004). | 1 |
train | 001-61060 | ENG | UKR | CHAMBER | 2,003 | CASE OF KUZNETSOV v. UKRAINE | 2 | No violation of Art. 3 with regard to alleged assaults;Violation of Art. 3 with regard to lack of effective investigation;Violation of Art. 3 with regard to conditions of detention;Violation of Art. 8;Violation of Art. 9;Non-pecuniary damage - financial award;Costs and expenses partial award | Nicolas Bratza | 9. On 12 December 1995 the Ivano-Frankivsk Regional Court (oблacний суд) convicted the applicant of the murder of four persons and sentenced him to death and ordered the confiscation of his personal property. 10. On 22 February 1996 the Supreme Court (Верхoвний суд) upheld the judgment of the first-instance court. The applicant was transferred by the authorities in charge of the Isolation Block of the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior (Адміністрація слідчого ізолятору Управління міністерства внутрішніх справ) to one of the cells for persons awaiting execution of their death sentence. 11. A moratorium on executions was declared by the President of Ukraine on 11 March 1997. In judgment no. 11pп/99 of 29 December 1999, the Constitutional Court of Ukraine held that the provisions of the Criminal Code concerning the death penalty were contrary to the Constitution of Ukraine. Death sentences were therefore commuted to life imprisonment pursuant to Act no. 1483-III of 22 February 2000. On 2 June 2000 the Ivano-Frankivsk Regional Court commuted the applicant's death sentence to life imprisonment. 12. The facts of the case concerning the conditions of the applicant's detention in Ivano-Frankivsk Prison and the events during his time there were disputed. 13. The facts as presented by the applicant are set out in paragraphs 16 to 19 below. The facts as presented by the Government are set out in paragraphs 20 to 25 below. 14. A description of the material submitted to the Commission and to the Court will be found in paragraphs 26 to 41 below. 15. The Commission, in order to establish the facts in the light of the dispute over the conditions of the applicant's detention and the events which occurred in Ivano-Frankivsk Prison, conducted its own investigation pursuant to former Article 28 § 1 (a) of the Convention. To this end, the Commission examined a series of documents submitted by the applicant and the Government in support of their respective assertions and appointed three delegates to take evidence from witnesses at a hearing conducted at the Ministry of Justice in Kiev on 23 and 26 November 1998, and in Ivano-Frankivsk on 24 and 25 November 1998. The Commission's evaluation of the evidence and its findings of facts are summarised in paragraphs 42 to 57 below. 16. On 12 December 1995 the Ivano-Frankivsk Regional Court convicted the applicant of the murder of four persons, sentenced him to death and ordered the confiscation of his personal property. 17. On 22 February 1996 the Supreme Court upheld the judgment of the first-instance court. Upon a decision of the Administration of the Isolation Block of the Ministry of the Interior, the applicant was transferred to a cell intended for prisoners awaiting the death penalty. According to the applicant, he was deprived of all his rights. 18. The applicant claimed that the Pre-Trial Detention Act (“the Act”) did not apply to him, since the relevant legislation was an Instruction which operated in secret. Pursuant to the Instruction, the applicant was not taken for an outside walk for more than two and a half years. He could be visited by his mother only once a month, he had been refused visits and, since July 1996, the number of visits had been reduced to one every three months. 19. Following his application for confession sent to the Greek Catholic Bishop of the Ivano-Frankivsk diocese, the clergy approached the investigative isolation unit on this matter. Since September 1997 both he and his mother had been forbidden to send any letters to each other. 20. The Government stated that the legal status and the conditions governing the detention of persons sentenced to capital punishment were set out in the Act and the Code of Criminal Procedure. According to section 8 of the Act, a person sentenced to death was kept in custody away from other prisoners. The cell to which the applicant had been transferred after his sentence had become final complied with the sanitary and hygiene rules laid down in section 11 of the Act: the cell measured 9 square metres, it had a bed, a table, a radio, sufficient natural and electrical lighting, heating, running water and a toilet. 21. The applicant was provided with three meals a day, clothing and footwear of standard type as well as other articles of everyday use. Medical assistance, treatment, prophylactic and anti-epidemic measures were arranged and implemented in accordance with legislation on health protection. 22. According to section 12 of the Act, prior to the sentence being carried out, prisoners sentenced to death were, as a rule, allowed visits from relatives and other individuals not more than once a month, by written permission of the court within whose jurisdiction the case fell. The length of a visit was two hours maximum. After a case had been dealt with by an appellate court, visits by lawyers and legal assistants could be granted by the Head of the Central Directorate of the Ministry of the Interior, the Head of the Regional Directorate of the Ministry of the Interior or his deputy responsible for the isolation block. Visits by defence counsel were granted without any limits as to their number and length. 23. After the first-instance judgment had been given, on 14 December 1995 and 4 January 1996 the applicant's mother and, on 18 December 1995 and 17 January 1996, his solicitor requested permission to visit the applicant. The mother visited the applicant on 14 December 1995 and on 4 January 1996. The applicant's lawyer visited him on 18 December 1995 and on 18 January 1996. During the period from 22 February 1996 to 29 December 1997, the applicant's mother applied for a visit to the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior on 29 February, 15 March, 4 April, 5 and 31 May, 23 September, 18 November and 19 December 1996, 3 and 6 June, 24 September 1997 and 4 January 1998. They were granted permission for visits on 29 February, 19 March, 9 April, 7 May, 7 June, 23 September and 4 December 1996, 4 March, 4 June, 4 September and 4 December 1997 and 4 March 1998. The applicant's solicitors applied for a visit on 12 March, 11 April, 23 September, 2 and 18 December 1996. Permission was granted for visits on 15 March, 29 April, 23 September, 2 and 20 December 1996. 24. Persons sentenced to death were allowed to send an unlimited number of letters. During the period 1995-1998, the applicant sent 24 letters: 16 letters relating to the criminal case and 8 letters to his relatives. On 6 October 1997, for the first time, the applicant applied to the Regional Directorate of the Ministry of the Interior for permission to send letters to his relatives. Thereafter he sent letters to his mother on 3 and 19 November, 9 and 30 December 1997, 19 and 29 January, 16 February, 12 March, 6 April, 6 May, 10 June, 2 July, 6 August, 1 September, 5 October, 4 November and 4 December 1998. He received letters from his relatives on 24 September, 8 and 24 October, 24 November and 25 December 1997, and 14 and 28 January, 5 and 10 February, 13, 16 and 30 March, 6, 9 and 16 April, 6, 12, 20 and 22 May, 3, 17, 22 June, 1, 15, 20 and 30 July, 19, 25 and 31 August, 15 and 17 September, 1, 10, 14 and 22 October, 10, 21 and 23 November and 4 and 17 December 1998. 25. The Government added that the Prosecutor General had conducted a thorough investigation into issues raised in the applicant's and his parents' complaints concerning the application of illegal methods of investigation in the applicant's case, namely torture and brutal and inhuman treatment. The allegations had not been proved and had been found unsubstantiated. In fact, complaints by the applicant and his mother were received on 18 April, 19 and 29 July and 26 August 1996, 31 January, 5 February, 15, 19 and 21 March, 14 and 16 May, 10 June, 16 July 1997, and were answered on 22 April, 24 July, 26 August, 16 September 1996, and on 4 and 7 February, 31 March, 19 and 20 May, 23 June and 23 July 1997. On 19 May 1997 the exchange of letters and the proceedings concerning the complaints filed by the applicant and his mother were terminated pursuant to section 12 of the Act. 26. On 23 October 1998 the applicant's mother submitted a request to the Ivano-Frankivsk Regional Prosecutor, the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior and the prison governor. They requested that a medical commission of independent doctors be set up in order to examine the applicant's state of health. She alleged that the inmates had been tortured, which had resulted in a suicide attempt or an attempt on the applicant's life. On 3 November 1998 the applicant's mother was informed by the governor of the prison that her request had been rejected on the grounds that there had been no sign of torture or the use of any other physical violence against the applicant and that his state of health was satisfactory. 27. On 23 and 24 October 1998 the applicant's mother sent a letter to Mrs Leni Fischer, then President of the Parliamentary Assembly of the Council of Europe. She complained of torture inflicted on the applicant and one of his fellow-inmates, Poltoratskiy, which had resulted in the applicant's suicide attempt and alleged that they had been taken to hospital and that the applicant had been paralysed. The mother further complained that she had been prevented from seeing the applicant. 28. In a letter of 26 October 1998 the applicant's mother informed the Commission that “in establishment BI 304/199 in Ivano-Frankivsk there was an attempt to execute the unjustly condemned M. Kuznetsov and B. Poltoratskiy illegally, and that the Government tried to conceal this event”. 29. On 26 October 1998 the applicant's mother sent a request to the Regional Prosecutor to set up a medical commission in order to examine the applicant's state of health. She stated that she had been informed that her son's health had been in danger. 30. The prison doctor issued a medical report on 28 October 1998. The report concluded that the applicant did not show any signs of having been beaten or tortured and that his state of health was satisfactory. It was confirmed and signed by the applicant. 31. In his handwritten statement of 28 October 1998 the applicant stated inter alia that no physical violence had been used against him, that he had been treated in a proper way by the prison administration, that his rights had not been violated, that he had no complaint to the prison administration, that he did not think about committing suicide again and that the prison administration had not been involved in his suicide attempt. 32. The Ivano-Frankivsk Regional Directorate for the Execution of Sentences of the Ministry of the Interior issued a report on 29 October 1998 in response to the applicant's mother's complaint about alleged torture and her request for a medical commission of independent doctors to examine the applicant's state of health. The report stated that on 28 October 1998 the applicant had been examined by the prison doctors who had found no signs of physical injuries. It also stated that the applicant denied that he had been tortured. 33. In a letter of 30 October 1998 the Deputy Head of the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior informed the applicant's mother that her complaint concerning torture to which the applicant had allegedly been subjected had been examined and found to be unsubstantiated. A medical examination of the applicant had not confirmed any signs of torture. Accordingly, there was no reason to set up a medical commission to investigate the allegations. 34. In a letter of 2 November 1998 the Ivano-Frankivsk Deputy Regional Prosecutor informed the applicant's mother that her complaint concerning visits to the applicant had been examined and that no violation of the applicant's rights in this regard had been found. 35. In his next letter of 18 December 1998, the Deputy Regional Prosecutor informed the Prosecutor General that there had been several medical examinations of the applicant during the last months in order to establish whether there had been any damage to his state of health caused by the prison administration. The last examination had been carried out on 28 October 1998 with the participation of the staff of the Protection of Health Department of the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior. The examination had established that the applicant had not been treated in a manner which was degrading to his human dignity. 36. On 21 December 1998 the applicant requested permission from the Deputy Head of the Regional Directorate of the Ministry of the Interior, Mr Kmyta, to meet a priest. His request was granted and the applicant met a priest on 26 December 1998. 37. In his letter of 10 January 1999 the prison governor informed the applicant's mother that her son had attempted to commit suicide on 3 September 1998 and that he had been saved. He also said that a copy of the decision on refusal to institute criminal proceedings in connection with her son's suicide attempt had been sent to the Regional Prosecutor. 38. In a decision of 5 March 1999 the Senior Prosecutor rejected a criminal complaint by the applicant's mother's against the Ivano-Frankivsk Deputy Regional Prosecutor. He refused to institute criminal proceedings against the Deputy Regional Prosecutor on the ground that no offence committed by him had been found. He stated inter alia that the Act did not apply to the detention conditions of death row prisoners. These were governed by the Instruction, which was covered by the rules on State secrecy. 39. According to the prison records, the applicant's mother applied to visit the applicant on 24 September 1997, and on 4 and 26 March, 27 June, 27 August, 24 October and 30 November 1998. Permission was given on 7 October 1997, 4 March, 22 April, 1 July, 11 August, 17 November and 11 December 1998 for visits which took place on 4 December 1997 and 4 March, 4 June, 6 July, 11 August and 28 November 1998 and on 5 January 1999. The request of 27 August 1998 was not granted. 40. In an undated document Deputy Head of the Isolation Block, Y.M. Pavlyuk, declared that during the period from 11 September 1997 and 18 December 1998, neither the applicant nor his parents had asked for permission for the applicant to see a priest. He further declared that during this period no member of the clergy had asked for such permission. 41. According to the applicant's medical card, the applicant was found to be suffering from gastritis on 13 May and 16 July 1996. On 31 July, 20 August, 16 September, 1 and 6 November 1996, 10 and 15 January, 23 June, 28 August, 12 September, 30 October and 27 November 1997, 23 January, 1 April, 16 July and 4 December 1998 the applicant was found to be suffering from chronic gastritis. On 3 September 1998 the applicant was hospitalised after his suicide attempt. On 4 September 1998 he returned to prison. Between 4 and 7 September 1998 he was administered medicines. On 7 and 18 September, 1, 18 and 28 October, 9, 19 and 27 November 1998 the applicant was seen by the prison psychiatrist and on 28 October and 4 December 1998 he was examined by the prison doctor. 42. Since the facts of the case were disputed, the Commission conducted an investigation, with the assistance of the parties, and accepted oral evidence taken from nineteen witnesses: the applicant; the applicant's parents; Mr Bronislav S. Stichinskiy, Deputy Minister of Justice; Mr Drishchenko, Deputy Prosecutor General; Mr Dotsenko, Head of the Penitentiary Department of the Prosecutor General's Office; Mr Ivan V. Shtanko, Deputy Minister of the Interior; Mr Petro A. Yaremkiv, governor of Ivano-Frankivsk Prison; Mr Bogdan V. Kachur, prison doctor; Mr Valeriy I. Slobodanyuk, prison psychiatrist; Mr Stanislav V. Prokhintskiy, medical assistant; Mr Yuriy M. Pindus, assistant to the prison governor who was on duty on 3 September 1998; Mr Fedir O. Savchuk, assistant to the prison governor who was on duty on the night of 2-3 September 1998; Mr. Mikhail D. Kozakievich, duty guard on duty on the night of 2-3 September 1998; Mr. Bogdan B. Galyas, duty guard on duty on the night of 3 September 1998; Mr Igor P. Ivashko, deputy prison governor; Mr Yaroslav M. Pavlyuk, Deputy Head of the Isolation Block; Mr Valentin M. Nabiulin, Head of the Department for Supervision over Isolation Blocks and Prisons with the Directorate for the Execution of Sentences; Mr Oleksand V. Kmyta, Deputy Head of the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior; Mr Anatoliy O. Boyko, Head of the Ivano-Frankivsk Regional Department for the Execution of Sentences of the Ministry of the Interior. The Commission's findings may be summarised as follows: 43. The applicant gave evidence before the Delegates that he had been beaten on 2 September 1998, because of a note which he had passed to another inmate, Poltoratskiy, while he had been mopping the floor in the corridor on 1 September 1998. He had informed Poltoratskiy about a letter he had received from his parents and about its contents. According to him, he had just wanted to communicate because he had been bored sitting alone in his cell. Next morning, he had been called out and beaten by six or seven masked persons with clubs in the “cinema room” on his back, legs and shoulders but not on his head. 44. The Commission noted that the applicant had written and had signed a statement on 28 October 1998, to the effect, inter alia, that he had been treated in an appropriate manner by the prison administration, that no physical force had been used against him and that he had nothing to complain about. It took into account the fact that before the Delegates, the applicant had denied the contents of his statement and pointed out that the practice of a prison authority to order an inmate to confirm in writing that he had been treated correctly by prison officers raised suspicions. 45. The Commission considered that the applicant's account of his beating contained a number of details and elements which it would not have expected to find in a fabricated story. It noted, however, that there was no record of any occurrence relating to the ill-treatment described by the applicant. The Commission accepted the applicant's statement that he had not complained in order not to make things worse. However, his account of the events was not supported by any oral or written evidence produced before the Commission or its Delegates. It also noted that the applicant's examination on 3 September 1998 and his subsequent medical treatment between 4 and 7 September 1998 had revealed no sign of physical injury from the ill-treatment he had described. There was no record of such in his medical file by the prison doctor, the prison psychiatrist or the medical assistant . 46. On 3 September 1998 the applicant was found hanging in his cell, but was resuscitated. According to his mother, his suicide attempt was either the result of his ill-treatment by the prison administration or an attempt to execute him. The Commission accepted the evidence given by Mr Dorotsenko, Head of the Penitentiary Department of the Prosecutor General's Office, that on 3 September 1998, at 8.48, during a routine inspection the applicant had been found with a noose around his neck made out of a piece of blanket. The prison staff had taken all necessary medical measures to save his life. After that he had been taken to hospital, from which he had returned on the following day. His mother had last seen him in August 1998. The witness said that by his attempted suicide the applicant had violated prison rules, and had therefore been placed in solitary confinement for 15 days. 47. The Commission observed that the applicant's mother's account of the suicide attempt was not completely borne out by the applicant himself who had testified before the Delegates that he had hanged himself because of the beating by prison officers on 2 September 1998. However, he had not recalled any detail relating to the events of 3 September 1998. He had submitted that he had been in a nervous state and could not endure any longer the treatment to which he had been subjected. The Commission noted in this regard that the applicant's account that he had attempted to commit suicide was supported by the testimony given by the prison governor, his two assistants and by the two warders on duty between 2 and 3 September 1998. The statements of these witnesses might not have been totally consistent in every detail. However, the Commission found such differences to be of a minor nature when considered against the detailed, precise and globally consistent accounts presented by them. 48. In this respect the Commission also attached relevance to the fact that the applicant had immediately been given external heart massage and mouth-to-month resuscitation which had saved his life. At the same time, the ambulance had been called and after the applicant had been examined by the ear, nose and throat specialist, he was transferred to the psycho-neurological hospital where he stayed one day. The Commission noted that three days after his return from hospital, the applicant had stated that he had not hanged himself at all. It considered, however, that the applicant had been then in a state of shock and of partial amnesia. Moreover, the testimony of the prison psychiatrist who had examined the applicant in detail stated that the applicant used to say that he could not see what had caused him to commit suicide and that he could not even imagine why he had done it. The Commission therefore found that it could not be considered as established beyond reasonable doubt that the applicant had been subjected to ill-treatment in prison on 2 and 3 September 1998. 49. On 23 October 1998 the applicant's mother requested the Ivano-Frankivsk Regional Prosecutor, the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior and the prison governor to set up an independent medical commission in order to examine the applicant's health. She alleged that inmates had been tortured which resulted in a suicide attempt by the applicant or in an attempt on his life. She repeated this request to the Ivano-Frankivsk Regional Prosecutor on 26 October 1998, stating that she had been informed that the applicant's state of health was in danger. On 30 October 1998 the applicant's mother was informed by Mr Kmyta, Deputy Head of the Regional Directorate of the Ministry of the Interior, that her complaint concerning the applicant's alleged torture had been examined and found to be unsubstantiated and that the latter's medical examination had not revealed any signs of torture. There was, accordingly, no reason to set up a medical commission to investigate the allegations. On 3 November 1998 the mother was informed by the prison governor that her request had been rejected on the grounds that there was no sign of torture or the use of any other form of physical violence against the applicant and that his health was satisfactory. In a letter of 20 November 1998 to the applicant's mother, the Deputy Regional Prosecutor confirmed that, on 28 October 1998, the applicant had undergone a medical examination which had established that no violation of the applicant's rights in this regard had been found. 50. In the meantime, on 29 October 1998, the Ivano-Frankivsk Regional Department for the Execution of Sentences of the Ministry of the Interior had stated in its report, inter alia, that on 28 October 1998 the applicant had been examined by the prison doctors who had found no sign of physical injury. 51. On 18 December 1998 the Ivano-Frankivsk Deputy Regional Prosecutor sent a letter to the Deputy Prosecutor General in which he had stated, inter alia, that there had been several medical examinations of the applicant during the previous months which could have established whether the applicant's health had been damaged as a result of his treatment by the prison authorities. The last examination had been carried out on 28 October 1998, with the participation of the staff of the Protection of Health Department of the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior, and it was found that the applicant had been treated in an appropriate manner. On 10 January 1998 the governor of the prison informed the applicant's mother that the applicant had attempted to commit suicide on 3 September 1998 and that he had been saved. He also informed her that a copy of the decision on refusal to institute criminal proceedings in connection with her son's suicide attempt had been sent to the Regional Prosecutor. The domestic investigations had then ended on 5 March 1999 with a decision by the Senior Prosecutor on the applicant's mother's criminal complaint against the Ivano-Frankivsk Regional Prosecutor. The Senior Prosecutor had refused to institute criminal proceedings on the ground that no offence had been established. 52. The Commission found that there were no contemporaneous records giving details of any investigation, which the domestic authorities had carried out into the applicant's mother's allegations of the events on 2 and 3 September 1998. It had not seen a single document proving that an investigation had been carried out by the domestic authorities other than those directly involved in the facts of which the applicant's mother complained. Moreover, although it appeared from the extract of the applicant's medical file and from the evidence given by Mr B.V. Kachur, prison doctor, that the applicant had been under medical care between 4 and 7 September 1998 and had been seen by the prison psychiatrist on 7 and 18 September and 1, 18 and 28 October 1998, the applicant's medical examination with the participation of the staff of the Ivano-Frankivsk Protection of Health Department had been carried out on 28 October 1998, i.e. more than one month after the applicant's alleged ill-treatment. 53. The Commission found that the eight “death row” inmates in Ivano-Frankivsk Prison, including the applicant, were kept in single cells without the opportunity to communicate with other inmates. The applicant's cell measured 2 by 5 by 3 metres. There was an open toilet, a washbasin with one tap with cold water, two beds, a table and a little bench, both fixed on the floor, central heating and a window with bars. The applicant had in his cell some books, onion, garlic, oil, a stock of soap and toilet paper. During the Delegates' visit on 24 and 25 November 1998, the cell had been overheated, particularly in comparison with other rooms in the prison. The light was on 24 hours a day and the central radio was switched off at night. The inmates were frequently observed by prison warders through a spy hole in the door of the cell which deprived them of any kind of private space. The cell was freshly painted, from which the inference may be drawn that conditions had been worse prior to the Delegates' visit. The Commission accepted the applicant's evidence that until May 1998, he had not been allowed to take daily outdoor walks and that the shutters had been removed from the window in his cell in November 1998. The Commission found the applicant's evidence - which was not contested by the Government - persuasive. 54. The Commission further accepted the applicant's mother's evidence that the applicant had been suffering from nervous disorder already before he had been sentenced and detained. On the ground of his mental illness he had been relieved from military service. Moreover, he had been suffering from chronic gastritis. 55. Concerning the applicant's mother's visits, the Commission found that apart from her request of 27 August 1998, all her requests for visits had been granted. The prison records showed that she had applied to visit her son on 24 September 1997 and 4 and 26 March, 27 June, 25 July, 24 October and 30 November 1998. Permission had been given on 7 October 1997 and 4 March, 22 April, 1 July, 11 August, 17 November and 11 December 1998 for visits which had taken place on 4 December 1997 and 4 March, 4 June, 6 July, 11 August, 28 November and 5 January 1999. The Commission pointed out that the mother's requests to visit to the applicant of 24 September 1997 and 26 March 1998 had been granted for 4 December 1997 and 4 June 1998, i.e. about three months after the requests had been submitted. Moreover, two warders had been present during the mother's visits, being authorised to interrupt the conversation if they considered that the mother or the applicant had said anything “untrue”. 56. Regarding the applicant's correspondence, the Commission found that on 6 October 1997 the applicant had applied for the first time to the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior for permission to send a letter to his relatives. Thereafter he had sent letters to his mother on 3 and 9 November 1997, 9 and 30 December 1997, and 19 and 29 January, 16 February, 12 March, 6 April, 6 May, 10 June, 2 July, 6 August, 1 September, 5 October, 4 November and 4 December 1998. He had received letters from his mother on 24 September, 8 and 24 October, 24 November and 25 December 1997, and 14 and 28 January, 5, and 10 February, 13, 16 and 30 March, 6, 9 and 16 April, 6, 12, 20 and 22 May, 3, 17 and 22 June, 1, 15, 20 and 30 July, 19, 25 and 31 August, 15 and 17 September, 1, 10, 14 and 22 October, 10, 21 and 23 November and 4 and 17 December 1998. 57. The applicant gave evidence that his mother had requested permission for a priest to come to see the applicant. However, from the undated document signed by Mr Y.M. Pavlyuk, Deputy Head of the Isolation Block, it appeared that during the period from 11 September 1997 to 18 December 1998, neither the applicant nor his mother nor a member of the clergy had asked for such permission. 58. Under Article 8 §§ 2 and 3, the Constitution is directly applicable. There is a guaranteed right to lodge an action in defence of the constitutional rights and freedoms of the individual and of the citizen directly on the basis of the Constitution of Ukraine. 59. Article 9 § 1 provides that international treaties, which are in force and agreed on as binding by the Verkhovna Rada of Ukraine, are part of the national legislation of Ukraine. 60. Article 15 § 3 prohibits censorship. 61. Under Article 19 the legal order in Ukraine is based on the principles according to which no one may be forced to do what is not envisaged by the legislation. State authorities and local self-government bodies and their officials are obliged to act only on these grounds, within the limits of their authority, and in the manner envisaged by the Constitution and the laws of Ukraine. 62. Article 22 provides that human and citizens' rights and freedoms are guaranteed and may not be diminished by the adoption of new laws or the amendment of laws that are in force. 63. Under Article 29 §§ 2 and 4 no one may be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with procedures established by law. Everyone arrested or detained must be informed without delay of the reasons for his arrest or detention, apprised of his rights, and from the moment of detention must be given the opportunity to defend himself in person, or to have the assistance of a defence lawyer. 64. Under Article 55 §§ 2 and 4, everyone is guaranteed the right to challenge the decisions, actions or omissions of State authorities, local self-government bodies, officials and officers of a court of law. After exhausting all domestic legal remedies everyone has the right to appeal for the protection of his rights and freedoms to the relevant international judicial institutions or to the relevant authorities of international organisations of which Ukraine is a member or participant. 65. Under Article 59 everyone has the right to legal assistance. Such assistance is provided free of charge in cases envisaged by law. Everyone is free to choose the defender of his rights. In Ukraine the Bar (адвокатура) ensures the right to a defence against charges and the provision of legal assistance in deciding cases in courts and before other State authorities. 66. Article 63 § 3 provides that a convicted person enjoys all human and citizens' rights, subject only to restrictions determined by law and established by a court ruling. 67. Under Article 64, human and citizens' rights and freedoms guaranteed by the Constitution may not be restricted, except in cases envisaged by the Constitution of Ukraine. 68. Conditions on death row in the Ukrainian prison system were successively governed by an Instruction of 20 April 1998 on conditions of detention of persons sentenced to capital punishment (hereinafter “the Instruction”) and by Temporary Provisions of 25 June 1999 on the conditions of detention of persons sentenced to capital punishment in the isolation blocks (hereinafter “the Temporary Provisions”). 69. The Instruction provided that after the sentence had become final, persons sentenced to death had to be kept in isolation from other prisoners in specially designed cells. Save in exceptional cases no more than two such prisoners were to be detained in one cell. The cell area allocated to one prisoner in a single cell had to be not less than 4 square metres and in a double cell not less than 3 square metres. The prisoners were provided with an individual sleeping-place and with bed linen. They wore a uniform designed for the category of especially dangerous recidivists. Reference was also made to their legal status and obligations. This determined the frequency of meetings with relatives and the number of letters inmates could send and receive: they were allowed one visit per month and could send one letter per month. There was no limitation on the correspondence they could receive. The inmates could receive two small packets a year. They were allowed to have a daily one-hour walk in the fresh air. Outside their cells, inmates were handcuffed. They were not allowed to work. Prisoners were also allowed to read books, magazines and newspapers borrowed from the prison library and/or bought through the prison distribution network; they could receive money transfers; they could keep personal objects and food in their cells, and buy food and toiletries in the prison shop twice a month (up to the value of the statutory minimum wage), and play board games. They could meet lawyers. Medical treatment was provided in accordance with national legislation. The prisoners could lodge complaints with State authorities. Such complaints had to be dispatched within three days. Complaints to the Public Prosecutor were not censored. 70. The Temporary Provisions extended the rights of persons sentenced to capital punishment in comparison with the Instruction. In particular, prisoners were allowed to have eight hours of sleep during the night; they could receive six parcels and three small packets per year, buy food and toiletries in the prison shop (up to the value of 70% of the statutory minimum wage), pray, read religious literature and have visits from a priest, and write complaints to State authorities. They were allowed to send and receive letters without any limits and to have monthly visits of up to two hours from their relatives. A prison official had to be present during visits. 71. According to the Code of Criminal Procedure, pre-trial detention is a preventive measure in respect of an accused, a defendant or a person suspected of having committed a crime punishable with imprisonment, or a convicted person whose sentence has not yet been enforced. 72. In accordance with section 8(4) of the Act, persons sentenced to capital punishment whose sentence had not become final were held separately from all other detained persons. 73. Section 9(1) of the Act provides inter alia that detainees have the right (a) to be defended in accordance with the rules of criminal law, (b) to be acquainted with the rules of detention, (c) to take a one-hour daily walk, (d) to receive twice a month a parcel weighing up to eight kilograms and to receive unlimited money transfers and amounts of money by way of remittance or personal delivery, (e) to buy foodstuffs and toiletries to the value of one month's statutory minimum wage, paying by written order, as well as unlimited amounts of stationery, newspapers and books in prison shops, (f) to use their own clothing and footwear and to have with them documents and notes related to their criminal case, (g) to use TV sets received from relatives or other persons and board games, newspapers and books borrowed from the library in their previous place of imprisonment or bought at shops, (h) individually to perform religious rituals and use religious literature and objects made of semi-precious materials pertaining to their beliefs, provided that this does not lead to a breach of the rules applicable to places of pre-trial detention or restrict the rights of other persons, (i) to sleep eight hours a night, during which time they are not required to participate in proceedings or to do anything else except in cases of extreme emergency, and (j) to lodge complaints and petitions and send letters to State authorities and officials in accordance with the procedure prescribed by section 13 of the Act. 74. Under section 11, detainees are required to be provided with everyday conditions that meet sanitary and hygiene requirements. The cell area for one person may not be less than 2.5 square metres. Detainees are to be supplied with meals, an individual sleeping-place, bedclothes and other types of material and everyday provisions free of charge and according to the norms laid down by the Government. In case of need, they are to be supplied with clothes and footwear of a standard form. 75. In accordance with section 12(1), permission for relatives or other persons to visit a detainee (in principle, once a month for one to two hours) can be given by the administrative authorities of the place of detention, but only with the written approval of an investigator, an investigative authority or a court dealing with the case. Under paragraph 4, detainees have the right to be visited by defence counsel, whom they may see alone with no restrictions on the number of visits or their length, from the moment the lawyer in question is authorised to act on their behalf, such authorisation being confirmed in writing by the person or body dealing with the case. 76. Under section 13(1), detainees can exchange letters with their relatives and other persons and enterprises, establishments and organisations with the written permission of an authority dealing with the case. Once a sentence starts to run, correspondence is no longer subject to any limitations. 77. According to Article 28 of the Code (Main requirements of the regime in detention institutions), the main features of the regime in detention establishments are: the compulsory isolation and permanent supervision of sentenced persons, so as to exclude any possibility of new crimes or other acts against public order being committed by them; strict and continuous observance of obligations by these persons; and various detention conditions dependent on the character and gravity of the offence and the personality and behaviour of the sentenced person. Sentenced persons must wear a uniform. They must be searched; body searches must be conducted by persons of the same sex as the person searched. Correspondence is subject to censorship, and parcels and packages are subject to opening and checking. A strict internal routine and rules must be established in corrective labour establishments. Sentenced persons are prohibited from keeping money and valuables, or other specified objects, in corrective labour establishments. Any money and valuables found are to be confiscated and, as a rule, transferred to the State in accordance with a reasoned decision of the governor of the institution, sanctioned by a prosecutor. A list of objects which sentenced persons are allowed to possess, showing the number or quantity of each item and the procedure for confiscating objects whose use is prohibited in corrective labour establishments, must be established by the internal regulations of such establishments. Under the procedure established by the Code, sentenced persons are allowed to buy food and toiletries, paying by written order, to be visited, to receive parcels and small packets [Nota: Parcels to be forwarded to a prisoner may be sent by post (посилка) or brought in person to the prison (передача). Small items like books or periodicals can be sent by post as a small packet (бандероль – literally a “bundle”)] and money by remittance, to correspond and to send money to relatives by remittance. 78. Article 37 § 1 (Purchase of food and toiletries by sentenced persons) provides that sentenced persons are allowed to buy food and toiletries, paying by written order, from the money received by remittance. 79. Article 40 provides inter alia that a lawyer may be given permission to meet his client on presentation of his licence and identity card. Visits are not limited as to their number and length and, at the lawyer's request, may be carried out without a prison warder being present. 80. Under Article 41 (Receipt of parcels and small packets by persons sentenced to imprisonment) sentenced persons held in corrective labour colonies (виправнo-тpудова колонія) are allowed to receive, per year: seven parcels in colonies subject to the general regime (колонія загального режиму), six parcels in colonies subject to the strengthened regime (колонія посиленого режиму) and five parcels in colonies subject to the strict and special regime (колонія суворого режиму). Sentenced persons held in educational labour colonies (колонія виховно-трудова) are allowed to receive per year: ten parcels in colonies subject to the general regime and nine parcels in colonies subject to the strengthened regime. Convicted offenders serving their sentence in a prison are not allowed to receive parcels. Irrespective of the type of regime under which they are held, sentenced persons are allowed to receive not more than two small packets per year, and to buy literature through the sales distribution network without any restrictions. The quantity of parcels and small packets of all types is not restricted for sentenced persons held in corrective labour colony camps (виправнo-тpудова колонія-поселення). A list of foodstuffs and toiletries which sentenced persons are allowed to receive in parcels and small packets, as well as the procedure for their receipt by and delivery to the sentenced persons, is to be established in the internal regulations of corrective labour establishments. 81. Under Article 42 (Receipt and sending of money by sentenced persons by remittance) sentenced persons are allowed to receive unlimited amounts of money by remittance, as well as to send money to their relatives and, if this is permitted by the authorities of the corrective labour establishments, to other persons. The money received by remittance is transferred to the personal account of the sentenced person. 82. Article 43 § 2 (Correspondence of persons sentenced to imprisonment) provides that sentenced persons held in prisons may receive unlimited mail and may send letters as follows: one letter per month for those held under the general regime and one letter every two months for those held under the strengthened regime. 83. According to section 12(1), the public prosecutor deals with petitions and complaints concerning breaches of the rights of citizens and legal entities, except complaints that are within the jurisdiction of the courts. Paragraph 4 provides that an appeal lies from the prosecutor's decision to the supervising prosecutor and, in certain cases, to the court. Paragraph 5 provides that the decision of the Prosecutor General is final. 84. Under section 38 the prosecutor or his deputy has the power to make a request to a court for any materials in a case where a judgment or another decision has come into force. If there are any grounds for reopening the proceedings, the prosecutor challenges the court judgment or any other decision. 85. Under section 44(1) the matters subject to the public prosecutor's supervision are: adherence to the legal rules on pre-trial detention and corrective labour or other establishments for the execution of sentences or coercive measures ordered by a court, adherence to the procedures and conditions for holding or punishing persons in such establishments; the rights of such persons; and the manner of carrying out by the relevant authorities of their duties under the criminal law and legislation on the enforcement of sentences. The public prosecutor may at any time visit places of pre-trial detention, establishments where convicted persons are serving sentences or establishments for compulsory treatment or reform, in order to conduct interviews or peruse documents on the basis of which persons have been detained, arrested or sentenced or subjected to compulsory measures; he may also examine the legality of orders, resolutions and decrees issued by the administrative authorities of such establishments, terminate the implementation of such acts, appeal against them or cancel them where they do not comply with the law, and request officials to give explanations concerning breaches which have occurred. 86. In its Resolution, the Assembly deplored the executions which, reportedly, had been carried out recently in Latvia, Lithuania and Ukraine. In particular, it condemned Ukraine for apparently violating its commitments to introduce a moratorium on executions of the death penalty upon its accession to the Council of Europe. It called upon this country to honour its commitments regarding the introduction of a moratorium on executions and the immediate abolition of capital punishment, warning it that further violation of its commitments, especially the carrying out of executions, would have consequences under Order No. 508 (1995). 87. The Assembly confirmed in this Resolution that it had received official information that, in the first half of 1996, eighty-nine executions had been carried out in Ukraine, and regretted that the Ukrainian authorities had failed to inform it of the number of executions carried out in the second half of the year. The Assembly was particularly shocked that executions in Ukraine had been shrouded in secrecy, with apparently not even the families of the prisoners having been informed, and that the executed had been reportedly buried in unmarked graves. It condemned Ukraine for having violated its commitment to put into place a moratorium on executions, deplored the executions that had taken place, and demanded that it immediately honour its commitments and halt any executions still pending. 88. In these texts, the Assembly noted that Ukraine had clearly failed to honour its commitments (212 persons had been executed between 9 November 1995 and 11 March 1997, according to official sources). At the same time, it noted that since 11 March 1997 a de facto moratorium on executions had been in effect in Ukraine. The Assembly insisted that the moratorium be reconfirmed de jure and that the Verkhovna Rada ratify Protocol No. 6 to the Convention. It stressed the importance of the de facto moratorium on executions and firmly declared that, if any further executions took place, the credentials of the Ukrainian parliamentary delegation would be annulled at the following part-session of the Assembly, in accordance with Rule 6 of its Rules of Procedure. 89. Delegates of the CPT visited places of detention in Ukraine in the years 1998, 1999, and 2000. Reports on each of the visits were published on 9 October 2002, together with the Responses to the Reports of the Ukrainian Government. 90. The visit of the delegation, which took place from 8 to 24 February 1998, was the CPT's first periodic visit to Ukraine. In the course of the visit the delegation inspected, inter alia, the pre-trial prison (SIZO) (“investigation isolation” establishment) No. 313/203 in Kharkiv. On the ground floor of building No. 2 of SIZO No. 203 were housed at the time of the visit fifteen prisoners who had been sentenced to death, although as was recorded in a footnote to the Report, the delegation had received assurances that since 11 March 1997 a de facto moratorium on executions had been observed. 91. In its Report (paragraph 131), the CPT expressed at the outset its serious concern about the conditions under which these prisoners were being held and about the regime applied to them. It was noted that prisoners sentenced to death were usually accommodated two to a cell, the cell measuring 6.5-7m². The cells had no access to natural light, the windows being obscured by metal plates. The artificial lighting, which was permanently on, was not always sufficiently strong with the result that some cells were dim. To ventilate the cells, prisoners could pull a cord that opened a flap; despite this the cells were very humid and quite cold (paragraph 132). The equipment in the cells was described in the Report as being rudimentary, consisting of a metal bed and/or sloping platform (equipped with a thin mattress, sheets of dubious cleanliness and a blanket which was manifestly insufficient to keep out the cold), a shelf and two narrow stools. Prisoners were supposed to be able to listen to radio programmes via a speaker built into the wall of the cell, but it had been reported to the delegation that the radio only functioned sporadically (ibid.). All the cells had un-partitioned toilets which faced the living-area; as a result, a prisoner using the toilet had to do so in full view of his cellmate. As regards toiletries, prisoners sentenced to death were in a similarly difficult situation as many of the other inmates; items such as soap and toothpaste were rarities (ibid.). It was further recorded that prisoners sentenced to death had no form of activity outside their cells, not even an hour of outdoor exercise. At best they could leave their cells once a week to use the shower in the cell-block, and for an hour a month, if they were authorised to receive family visits. In-cell activities consisted of reading and listening to the radio when it worked. Apart from the monthly visits which some inmates received, human contact was limited essentially to the occasional visit by an Orthodox priest or a member of the health-care staff, who spoke to the prisoners through a grille in the cell-door (paragraph 133). 92. The CPT summarised its findings in this regard as follows: “In short, prisoners sentenced to death were locked up for 24 hours a day in cells which offered only a very restricted amount of living space and had no access to natural light and sometimes very meagre artificial lighting, with virtually no activities to occupy their time and very little opportunity for human contact. Most of them had been kept in such deleterious conditions for considerable periods of time (ranging from 10 months to over two years). Such a situation may be fully consistent with the legal provisions in force in Ukraine concerning the treatment of prisoners sentenced to death. However, this does not alter the fact that, in the CPT's opinion, it amounts to inhuman and degrading treatment.” (paragraph 134). It was further recorded that the delegation had received numerous complaints from prisoners sentenced to death about the fact that they lacked information with regard to their legal situation the progress of their cases, follow-up to applications for cases to be reviewed, examination of their complaints etc. (paragraph 138). 93. In its Response to the 1998 Report, the Ukrainian Government recorded that a number of organisational and practical steps had been taken to resolve the problems identified by the CPT. In particular, the Temporary Regulations had been introduced to guarantee to prisoners sentenced to death the right to be visited once a month by relatives, to be visited by a lawyer to get legal assistance, to be visited by a priest and to receive and send correspondence without limitation. It was further noted (i) that prisoners sentenced to death would have daily walks in the open air and that for this purpose 196 yards of the pre-trial prisons had been rebuilt or re-equipped; (ii) that, in order to improve natural lighting and air of all cells, the blinds and metal peakes over cell windows had been removed; and (iii) that, for the purposes of informing inmates sentenced to death of their rights and legal status, extracts from the Temporary Regulations had been placed on the walls of each cell. 94. A CPT delegation visited Ukraine from 15 to 23 July 1999 in the course of which they again inspected SIZO No. 313/203 in Kharkiv where, at the time of the visit, there were detained 23 prisoners who had been sentenced to death. The Report noted that certain changes had occurred since the previous visit. In particular, the cells had natural light and were better furnished and the prisoners had an hour of exercise per day in the open air, although it was observed that there was insufficient space for real physical exercise (paragraphs 34-35). The Report further recorded that important progress had been made in the right of prisoners to receive visits from relatives and to correspond (paragraph 36). However, the CPT noted certain unacceptable conditions of detention including the fact that prisoners continued to spend 23 out of 24 hours a day in their cells and that opportunities for human contact remained very limited (paragraph 37). A third visit to Ukraine took place from 10 to 21 September 2000, in the course of which the delegation inspected, inter alia, the pre-trial prison (SIZO No.15) in Simferopol. The CPT welcomed the decision of the Ukrainian authorities to abolish the death penalty and noted that most of the approximately 500 prisoners subject to the death sentence had had their sentences commuted to life imprisonment. 95. Despite these welcome steps, the CPT recorded that the treatment of this category of prisoner was a major source of concern to the Committee (paragraph 67). It was noted that, further to a provisional instruction issued in July 2000 and pending the establishment of two high-security units specifically intended for life prisoners, such prisoners were subjected to a strict confinement regime (paragraph 68). While living space in the cells was generally satisfactory and while work had started on refurbishing cells in all the establishments visited, there were major deficiencies in terms of access to natural light and the quality of artificial light and ventilation (paragraph 69). Moreover, life-sentence prisoners were confined in their cells for 23 ½ hours a day with no form of organized activities and, by way of activities outside their cells, were entitled to only half an hour outdoor exercise, which took place in unacceptable conditions. There was virtually no human contact: since the entry into force of the July 2000 instruction, visits from relatives had been forbidden and prisoners were only allowed to send one letter every two months, although there were no restrictions on receiving letters (paragraph70). 96. In their Response to the Report the Ukrainian Government noted further legal amendments which ensured that life prisoners had one hour of exercise per day and two family visits of up to four hours per month. Further, to ensure adequate access to light, metal shutters had been removed from windows in all cells. | 1 |
train | 001-57833 | ENG | FRA | CHAMBER | 1,993 | CASE OF MELIN v. FRANCE | 3 | No violation of Art. 6 | R. Pekkanen | 7. Mr Pierre-André Melin, a French national, lives off private means and resides at Courbevoie (Hauts-de-Seine). He formerly practised as a lawyer. 8. On 6 May 1985 the Nanterre Criminal Court convicted him of fraud and sentenced him to a suspended term of sixteen months’ imprisonment, combined with an order (mise à l’épreuve) requiring him, inter alia, to compensate the victim for the damage which he had sustained. 9. The applicant appealed immediately to the Versailles Court of Appeal, which, giving judgment on 15 January 1986 in Mr Melin’s presence, upheld the lower court’s guilty verdict. On the other hand, it deferred pronouncement of sentence until 25 June 1986 as the accused had undertaken to reimburse the victim within six months if the court were to find him guilty. This aspect of the proceedings is not in issue. The typed text of the judgment was filed with the registry on the same day as its delivery. 10. Two days later Mr Melin lodged an appeal on points of law against the Court of Appeal’s judgment with the latter’s registry (Article 576 of the Code of Criminal Procedure). He stated that he reserved the right "to put forward any other relevant ground once he had received the certified copy of the decision in question". According to the applicant, he requested a copy of the judgment on the same occasion. A registry official allegedly took down his address and the case references, so as to be able to send him one in return for a forty franc fiscal stamp. The Government maintain that there were two possibilities: either the applicant had not requested a copy and could not therefore be surprised at not receiving one; or he had in fact asked for one, in which case a copy had undoubtedly been sent to him. 11. On 14 February 1986 the appeal file reached the registry of the Court of Cassation. Three and a half months later, on 27 May, the Criminal Division dismissed the appeal because no grounds had been put forward and because the contested judgment did not disclose any procedural defect. This decision was notified to Mr Melin on 18 June and recorded that the party seeking damages had submitted a memorial. 12. In a letter of 23 June to the President of the Criminal Division, the applicant explained that he had been unable to submit a memorial because he had not had available to him the text of the judgment of 15 January 1986; in addition he complained that the judge-rapporteur had failed to communicate to him a time-limit for the submission of a memorial. On 4 July the Chief Registrar replied to him that, as the judgment of the Court of Cassation was final, he could not appeal against it. 13. Throughout these various proceedings Mr Melin had conducted his own defence, though he had been assisted by a lawyer at first instance. 14. The main provisions of the Code of Criminal Procedure referred to in this case are as follows: "Every judgment shall include a statement of its reasons and an operative part. The operative part shall record the offences of which the accused have been found guilty or in respect of which they have been held liable, the sentence pronounced, the laws applied and the orders made with regard to civil claims. The judgment shall be read out by the president." Amended by Law no. 85-1407 of 30 December 1985, which came into force on 1 February 1986, this provision is now worded as follows: "Every judgment shall include a statement of its reasons and an operative part. The reasons shall constitute the basis of the decision. The operative part shall record the offences of which the accused have been found guilty or in respect of which they have been held liable, the sentence pronounced, the laws applied and the orders made with regard to civil claims. The judgment shall be read out by the president or by one of the judges; in so doing the president or judge may confine himself to the operative part ..." "... After it has been signed by the president and the registrar, the original copy shall be lodged with the court registry not later than three days after the delivery of the judgment. The fact that it has been so lodged shall be recorded in the register kept in the registry specifically for this purpose. ..." According to the Court of Cassation’s case-law, failure to comply with the formalities laid down in Article 486 does not entail the nullity of the judgment in issue. Thus the belated lodging of the original copy of a judgment cannot render the judgment void where no prejudice has ensued for the applicant (Criminal Division, 27 November 1984, Bulletin criminel no. 370). "The rules laid down for the criminal courts shall apply in the courts of appeal, subject to the provisions set out below." "Service of decisions, where such service is necessary, shall be effected at the request of the prosecuting authority or of the party claiming damages." "The prosecuting authority and all the parties shall have five clear days in which to appeal to the Court of Cassation after the delivery of the impugned judgment. ..." "An appellant on points of law may lodge a memorial, bearing his signature and setting out the grounds of his appeal, with the registry of the court from whose judgment he is appealing, either when he gives notice of appeal or within the following ten days. The registrar shall issue him with a receipt." "After expiry of this time-limit, a convicted appellant may transmit his memorial directly to the Court of Cassation; the other parties may not avail themselves of this provision without the services of a lawyer who is a member of the Court of Cassation Bar. ..." "Where one or more lawyers have been instructed, the judge- rapporteur shall set down a time-limit for the memorials to be filed with the registrar of the Criminal Division." "The memorials shall set out the grounds of appeal and cite the legal provisions whose violation is alleged. A fiscal stamp must be affixed, except where the appellant has been sentenced after conviction of a serious criminal offence (crime). They must be lodged within the prescribed time-limit. No additional pleading may be joined thereto after the judge- rapporteur has filed his report. If a memorial setting out additional grounds is lodged belatedly, it may be declared inadmissible." "In cases concerning any category of criminal offence, the Court of Cassation may give judgment on the appeal on points of law immediately after expiry of a period of ten days, which period begins to run on the date on which the Court of Cassation receives the file. ..." | 0 |
train | 001-23713 | ENG | AUT | ADMISSIBILITY | 2,004 | HAIDER v. AUSTRIA | 4 | Inadmissible | Georg Ress | The applicant, Mr Anton Haider, is an Austrian national, who lives in Hörbranz (Austria). He is represented before the Court by Mr W. L. Weh, a lawyer practising in Bregenz (Austria). The facts of the case, as submitted by the parties, may be summarised as follows. In 1971 the applicant bought a plot of land, designated in the area zoning plan as agricultural land, in Möggers, Vorarlberg. He had the intention to build a hotel on that land. In 1975 the Möggers Municipality adopted an area zoning plan (Flächenwidmungsplan) in which the applicant’s land was designated as building plot (Bauland). On 10 January 1992 the applicant filed a request for a building permit for a hotel with 65 beds and a restaurant. On 17 March 1992 the mayor of Möggers held a hearing. A land use planning expert commented on the project by stating that the applicant’s plot of land was situated in a completely unspoilt area between two built-up areas of Möggers and that in his view a project of this size was not desirable. On 21 October 1992 the Möggers Municipality issued a building prohibition for the area in which the applicant’s land was situated. On 29 October 1992 the mayor held another hearing. On 1 April 1993 the District Authority dismissed the applicant’s request for a building permit on the ground that the project would have been contrary to the objectives of the building prohibition, that the water supply and sewage disposal were not ensured for the land and that the project, if realised, would alter the characteristics of the village and the landscape (Orts- und Landschaftsbild). Moreover, it found that each of these reasons was sufficient in itself to dismiss the applicant’s request. On 15 April 1993 the applicant filed an appeal. He complained that the District Authority’s reasoning was insufficient and inconclusive. On 20 July 1993 the Vorarlberg Regional Government dismissed the applicant’s appeal. It based this decision merely on the finding that his request was contrary to the building prohibition. The applicant filed a complaint with the Constitutional Court as well as with the Administrative Court, claiming that the building prohibition was unlawful. On 14 June 1994 the Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success. On 17 November 1994 the Administrative Court dismissed the complaint. It found that the building prohibition was lawful and that, therefore, the dismissal of the applicant’s application for a planning permission was equally lawful. Subsequently, the Möggers Municipality opened proceedings for the modification of the area zoning plan. On 11 July 1996 the Municipal Council issued a new area zoning plan under which the applicant’s land was designated as undeveloped land (Freiland) on which the owner was not allowed to construct buildings. On 18 February 1997 the applicant filed a new application for a planning permission for his project in order to challenge the modification of the area zoning plan. On 16 April 1997 the District Authority dismissed the applicant’s application on the ground that it conflicted with the area zoning plan. On 3 June 1997 the Regional Government dismissed the applicant’s appeal of 5 May 1997 and confirmed the decision. On 28 July 1997 the applicant lodged a complaint with the Constitutional Court. He submitted that the modification of the area zoning plan had been unlawful and that the planning permission, therefore, should have been granted. He also complained that his right to property had been violated. On 7 June 1999 the Constitutional Court refused to deal with the complaint for lack of prospects of success. Consequently, the Constitutional Court referred the case to the Administrative Court. On 15 September 1999 the applicant supplemented his complaint pending before the Administrative Court. He submitted that the modification of the area zoning plan was unlawful. He requested a hearing and to carry out an inspection of the location. On 23 February 2001 the Administrative Court dismissed the complaint. It considered that it was unnecessary to institute proceedings with the Constitutional Court to examine the area zoning plan, as that court had already refused to deal with the case for lack of prospects of success. It found that there was no doubt that the modification of the area zoning plan was lawful. It dismissed the requests for a hearing and an inspection of the location, as the case merely concerned questions of law. This decision was served on 19 March 2001. In Austrian administrative law one distinguishes decrees (Verordnung) and (individual) decisions (Bescheid). Decisions of administrative authorities are addressed to individuals and can be challenged by way of appeal (Berufung) under Section 67 of the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz). Final administrative decisions may be challenged by way of complaints with the Constitutional Court under Article 144 of the Constitution and complaints with the Administrative Court under Article 130 of the Constitution. In contrast, decrees are addressed to the general public. The lawfulness of decrees can only be reviewed by the Constitutional Court. If it is possible to institute administrative proceedings in which the allegedly unlawful decree applies, the question of its lawfulness can be brought before the Constitutional Court by a constitutional complaint under Article 144 of the Federal Constitution, or by a request made by the Administrative Court, an Independent Administrative Panel or an ordinary court under Article 139 of the Constitution. In exceptional circumstances a person who is affected by a decree may seize the Constitutional Court with an independent request for review of the lawfulness of a decree, namely, if the decree has direct consequences on the situation of the person without it being necessary that an administrative decision be taken. The Constitutional Court examines whether there has been any infringement of an applicant’s right under the Constitution and whether any decree unauthorised by statute law or any unconstitutional statute or international treaty unlawful under Austrian law has been applied (Article 144 of the Federal Constitution). In Vorarlberg land planning use is governed by the Vorarlberg Land Planning Act (Raumplanungsgesetz). Area zoning plans and any amendments thereto are regarded as decrees. The proceedings in which they are issued are not ordinary administrative proceedings and the persons affected are not parties to them. The competent local authorities (Gemeinden) must take into consideration principles of sustainable land planning use as well as planning proceedings of neighbouring local authorities and other public law corporations (Sections 2 and 3 of the Land Planning Act). If the area zoning plan is the basis for the granting or withholding of building permits, the persons affected are expected to assert their rights in administrative proceedings concerning the building permit, in which they can allege that the underlying area zoning plan has no legal basis or is contrary to the applicable legislation. According to Section 39 § 1 of the Administrative Court Act, that court is to hold a hearing after its preliminary investigation of the case where a complainant has requested a hearing within the time-limit. Section 39 § 2 (6), which was added to the Act in 1982, provides however that, notwithstanding a party’s application, the Administrative Court may decide not to hold a hearing if it is apparent from the written pleadings of the parties and the files relating to the previous proceedings, that an oral hearing is not likely to contribute to the clarification of the case. Article 144 § 2 of the Federal Constitution reads as follows: "The Constitutional Court may ... decline to accept a case for adjudication if it does not have sufficient prospects of success or if it cannot be expected that the judgment will clarify an issue of constitutional law. The Court may not decline to accept for adjudication a case excluded from the jurisdiction of the Administrative Court by Article 133." | 0 |
train | 001-85860 | ENG | GBR | ADMISSIBILITY | 2,008 | LIVERSAGE v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi | The applicant, Mr Fredrick Liversage, is a British national who was born in 1944 and lives in Lancashire. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 4 October 1997. On 21 September 2000, the applicant made a claim for widows’ benefits. On 22 September 2000, the applicant was informed that his claim had been disallowed as he was not a woman. On an unspecified date the applicant made a request for reconsideration. On 29 September 2000 his claim was reconsidered but the decision remained unchanged. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law. The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007. | 0 |
train | 001-22731 | ENG | TUR | ADMISSIBILITY | 2,002 | SOYSEVER v. TURKEY | 4 | Inadmissible | Ireneu Cabral Barreto;Mark Villiger | The applicant, Mr Murat Soysever, is a Turkish national, who was born in 1969 and lives in Ankara. He was represented before the Court by Mr Muharrem Turan and Mr Akif Erol, lawyers practising in Istanbul. The facts of the case, as submitted by the parties, may be summarised as follows. Following an administrative ordinance issued by the General Staff (Genel Kurmay Başkanlığı) on 20 June 1995 the applicant and his family were denied to access to the military premises on the grounds that a photo showing his wife wearing an Islamic scarf was not acceptable for the military and social security identity cards. The applicant’s close relatives wearing Islamic scarves were also not allowed into the military buildings. On 1 August 1997 the Supreme Military Council (Yüksek Askeri Şura) decided to discharge the applicant from the army on grounds of acts of “insubordination and immoral conduct” pursuant to Article 94(b) of Law 926. The Government submit the following in the light of the intelligence reports concerning the applicant: The applicant, a sergeant, was a member of the Fethullah Gülen’s Nurcu sect. He was involved in disseminating the ideology of the sect. He had an antisocial character and his wife wore an Islamic scarf. His superiors considered him an insubordinate and undisciplined soldier. He was sentenced to two days’ confinement for disobeying his superiors and fourteen days’ confinement for disobeying orders. He was deprived of leave for being late to duty and received written warnings for negligence. A committee of nine members of the armed forces concluded, in the light of the findings of the above intelligence reports, that the applicant had breached military discipline and that he should be discharged from the army. Subsequently, the Supreme Military Council based its decision on that opinion. The relevant provisions of the Constitution are as follows: “None of the rights and freedoms set forth in the Constitution may be exercised with the aim of undermining the territorial integrity of the State or the indivisible unity of its people, imperilling the existence of the Turkish State and the Republic, abolishing fundamental rights and freedoms, handing over control of the State to a single individual or group or bringing about the dominance of one social class over the others, establishing discrimination on the grounds of language, race, religion or adherence to a religious sect or setting up by any other means a State order based on such beliefs and opinions.” “Everyone shall have the right to freedom of conscience, faith and religious belief. Prayers, worship and religious services shall be conducted freely, provided that they do not violate the provisions of Article 14. No one shall be compelled to participate in prayers, worship or religious services or to reveal his religious beliefs and convictions; nor shall he be censured or prosecuted because of his religious beliefs or convictions. ... No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal influence thereby.” “All acts or decisions of the administration are subject to judicial review ... Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of the Supreme Military Council shall not be subject to judicial review. ...” Article 129 §§ 2, 3 and 4 of the Constitution provides that a disciplinary action cannot be imposed to the civil servants provided that that the right to defence is respected. Moreover, it lays out that the disciplinary actions, other that the warnings and the reprimands are subject to legal control. The provisions concerning the soldiers are reserved. Article 21 of Law on the Military Administrative High Court stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control. Section 22 (c) of the Military Legal Service Act provides: “Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held, shall be subject to the provisions of the Turkish Pensions Act. ... Where their conduct and attitude reveal that they have adopted unlawful opinions.” Section 50 (c) of the Military Personnel Act provides: “Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of the Turkish Pensions Act. The Regulations for Military Personnel shall lay down which authorities have jurisdiction to commence proceedings, to examine, monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings. A decision of the Supreme Military Council is required to discharge an officer whose case has been submitted by the Chief of Staff to the Supreme Military Council.” Section 94 (b) of the Military Personnel Act provides: “(b) Discharge from the army for the acts of insubordination and immoral conduct: Notwithstanding the seniority in the service, the non-commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to Law on the Turkish Pension Fund. The investigation, examination and follow-up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non-commissioned officers. The General Staff determines which non-commissioned officers’ cases concerning their discharge from the army should be examined by the Supreme Military Council.” Article 99 of the Regulations on assessment of officers and non-commissioned officers provides: “Irrespective of length of service, the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held: ... (e) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful, subversive, separatist, fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions.” | 0 |
train | 001-72684 | ENG | GBR | CHAMBER | 2,006 | CASE OF EVANS v. THE UNITED KINGDOM | 2 | No violation of Art. 2;No violation of Art. 8;No violation of Art. 14+8;Indication under Rule 39 continued until judgment becomes final or until further order | Josep Casadevall;Nicolas Bratza | 6. The applicant was born in October 1971 and lives in Wiltshire. The facts, as found by Mr Justice Wall (“Wall J”), who heard the parties’ oral evidence (see paragraph 14 below), are as follows. 7. On 12 July 2000 the applicant and her partner, J, commenced treatment at the Bath Assisted Conception Clinic (“the clinic”). The applicant had been married and had been referred for fertility treatment at the clinic with her husband in 1995, but had not pursued it because of the breakdown of her marriage. 8. On 10 October 2000 the applicant and J were informed, during an appointment at the clinic, that preliminary tests had revealed that the applicant had serious pre-cancerous tumours in both ovaries, and that her ovaries would have to be removed. They were told that because the tumours were growing slowly, it would be possible first to extract some eggs for in vitro fertilisation (“IVF”), but that this would have to be done quickly. 9. The consultation of 10 October 2000 lasted approximately an hour in total. A nurse explained that the applicant and J would each have to sign a form consenting to the IVF treatment and that, in accordance with the provisions of the Human Fertilisation and Embryology Act 1990 (“the 1990 Act”), it would be possible for either of them to withdraw his or her consent at any time before the embryos were implanted in the applicant’s uterus (see paragraphs 27-30 below). The applicant asked the nurse whether it would be possible to freeze her unfertilised eggs, but was informed that this procedure, which had a much lower chance of success, was not performed at the clinic. At that point J reassured the applicant that they were not going to split up, that she did not need to consider the freezing of her eggs, that she should not be negative and that he wanted to be the father of her child. Wall J found that J gave these assurances in good faith, because at that time he loved the applicant, genuinely wanted a child with her and wanted to support her during a very difficult period (see also paragraph 15 below). 10. Thereafter, the couple entered into the necessary consents, by signing the forms required by the 1990 Act (see paragraph 29 below). Immediately beneath the title to the form appeared the following words: “NB – do not sign this form unless you have received information about these matters and have been offered counselling. You may vary the terms of this consent at any time except in relation to sperm or embryos which have already been used. Please insert numbers or tick boxes as appropriate.” J ticked the boxes which recorded his consent to use his sperm to fertilise the applicant’s eggs in vitro and the use of the embryos thus created for the treatment of himself and the applicant together. He further ticked the box headed “Storage”, opting for the storage of embryos developed in vitro from his sperm for the maximum period of 10 years and also opted for sperm and embryos to continue in storage should he die or become mentally incapacitated within that period. The applicant signed a form which, while referring to eggs rather than sperm, essentially replicated that signed by J. Like J, she ticked the boxes providing for the treatment of herself and for the treatment “of myself with a named partner.” 11. On 12 November 2001 the couple attended the clinic and eleven eggs were harvested and fertilised. Six embryos were created and consigned to storage. On 26 November the applicant underwent an operation to remove her ovaries. She was told that she should wait two years before attempting to implant any of the embryos in her uterus. 12. In May 2002 the relationship broke up. The future of the embryos was discussed between the parties. On 4 July 2002 J wrote to the clinic to notify it of the separation and to state that the stock of embryos should be destroyed. 13. The clinic notified the applicant of J’s withdrawal of consent to further use of the embryos and informing her that it was now under a legal obligation to destroy them, pursuant to section 8(2) of Schedule 3 to the 1990 Act (see paragraph 29 below). The applicant commenced proceedings in the High Court, seeking an injunction requiring J to restore his consent to the use and storage of the embryos and a declaration, inter alia, that he had not varied and could not vary his consent of 10 October 2001. Additionally she sought a declaration of incompatibility under the Human Rights Act 1998 to the effect that section 12 of, and Schedule 3 to, the 1990 Act breached her rights under Articles 8, 12 and 14. She also pleaded that the embryos were entitled to protection under Articles 2 and 8. Interim orders were made requiring the clinic to preserve the embryos until the end of the proceedings. 14. The trial judge, Wall J, heard the case over five days and took evidence from, among others, the applicant and J. On 1 October 2003, in a 65 page judgment (Evans v. Amicus Healthcare Ltd and others, [2003] EWHC 2161 (Fam)), he dismissed the applicant’s claims. 15. He concluded that J had not given consent to the continuing treatment of the applicant on her own and that there had been no consent on his part to the use of the embryos irrespective of any change of circumstance. He rejected the applicant’s submission that J was estopped from withdrawing his consent, finding that both the applicant and J had embarked on the treatment in good faith on the basis that their relationship would continue. It did not, however, and in the changed circumstances of separation, it would be inequitable not to allow either party to change his or her mind and to withdraw consent to the treatment. 16. As to the applicant’s Convention claims, Wall J held in summary that an embryo was not a person with rights protected under the Convention, and that the applicant’s right to respect for family life was not engaged. He did, however, accept that the relevant provisions of the 1990 Act did interfere with the private life of both parties, but held that it was proportionate in its effect, the foundation for the legislation being a treatment regime based on the twin pillars of consent and the interests of the unborn child (see further paragraphs 26-27 below). He considered it entirely appropriate that the law required couples embarking on IVF treatment to be in agreement about the treatment, and permitted either party to withdraw from it at any time before the embryo was transferred into the woman. 17. Wall J emphasised that the provisions of Schedule 3 to the Act (see paragraph 29 below) applied equally to all patients undergoing IVF treatment, irrespective of their sex, and concluded with an illustration of how the requirement for joint consent could similarly affect an infertile man: “If a man has testicular cancer and his sperm, preserved prior to radical surgery which renders him permanently infertile, is used to create embryos with his partner; and if the couple have separated before the embryos are transferred into the woman, nobody would suggest that she could not withdraw her consent to treatment and refuse to have the embryos transferred into her. The statutory provisions, like Convention rights, apply to men and women equally.” 18. The applicant’s appeal to the Court of Appeal was dismissed in a judgment delivered on 25 June 2004 (Evans v. Amicus Healthcare Ltd, [2004] EWCA Civ 727). The court held that the clear policy of the 1990 Act was to ensure the continuing consent of both parties from the commencement of treatment to the point of implantation of the embryo, and that “the court should be extremely slow to recognise or to create a principle of waiver that would conflict with the parliamentary scheme”. J was thus entitled to withdraw his consent as and when he did and such withdrawal prevented both the use and continued storage of the embryos. The court rejected the applicant’s argument that J had concealed his ambivalence, thereby inducing her to go forward with him into couple treatment, holding this to be an unjustified challenge to the finding of the trial judge who had had the obvious advantage of appraising the oral evidence of the applicant, J, and the other witnesses (see paragraphs 14-15 above). The Court of Appeal was also informed by J’s counsel that J’s clear position in withdrawing his consent was one of fundamental rather than purely financial objection. 19. While there was an interference with the private lives of the parties, Lord Justices Thorpe and Sedley found it to be justified and proportionate, for the following reasons: “The less drastic means contended for here is a rule of law making the withdrawal of [J’s] consent non-conclusive. This would enable [the applicant] to seek a continuance of treatment because of her inability to conceive by any other means. But unless it also gave weight to [J’s] firm wish not to be father of a child borne by [the applicant], such a rule would diminish the respect owed to his private life in proportion as it enhanced the respect accorded to hers. Further, in order to give it weight the legislation would have to require the Human Fertilisation and Embryology Authority or the clinic or both to make a judgment based on a mixture of ethics, social policy and human sympathy. It would also require a balance to be struck between two entirely incommensurable things. ... ... The need, as perceived by Parliament, is for bilateral consent to implantation, not simply to the taking and storage of genetic material, and that need cannot be met if one half of the consent is no longer effective. To dilute this requirement in the interests of proportionality, in order to meet [the applicant’s] otherwise intractable biological handicap, by making the withdrawal of the man’s consent relevant but inconclusive, would create new and even more intractable difficulties of arbitrariness and inconsistency. The sympathy and concern which anyone must feel for [the applicant] is not enough to render the legislative scheme ... disproportionate.” 20. Lady Justice Arden stated, by way of introduction, that: “The 1990 Act inevitably uses clinical language, such as gametes and embryos. But it is clear that the 1990 Act is concerned with the very emotional issue of infertility and the genetic material of two individuals which, if implanted, can lead to the birth of a child. ... Infertility can cause the woman or man affected great personal distress. In the case of a woman, the ability to give birth to a child gives many women a supreme sense of fulfilment and purpose in life. It goes to their sense of identity and to their dignity.” Arden LJ noted that neither the Warnock Report nor the Green Paper which had preceded the legislation had discussed what was to happen if the parties became estranged during treatment (see paragraphs 23-27 below). However, she went on to find: “Like Thorpe and Sedley LJJ, I consider that the imposition of an invariable and ongoing requirement for consent in the 1990 Act in the present type of situation satisfies Article 8 § 2 of the Convention. ... As this is a sensitive area of ethical judgment, the balance to be struck between the parties must primarily be a matter for Parliament ... . Parliament has taken the view that no one should have the power to override the need for a genetic parent’s consent. The wisdom of not having such a power is, in my judgment, illustrated by the facts of this case. The personal circumstances of the parties are different from what they were at the outset of treatment, and it would be difficult for a court to judge whether the effect of [J’s] withdrawal of his consent on [the applicant] is greater than the effect that the invalidation of that withdrawal of consent would have on [J]. The court has no point of reference by which to make that sort of evaluation. The fact is that each person has a right to be protected against interference with their private life. That is an aspect of the principle of self-determination or personal autonomy. It cannot be said that the interference with [J’s] right is justified on the ground that interference is necessary is protect [the applicant’s] right, because her right is likewise qualified in the same way by his right. They must have equivalent rights, even though the exact extent of their rights under Article 8 has not been identified. The interference with [the applicant’s] private life is also justified under Article 8 § 2 because, if [the applicant’s] argument succeeded, it would amount to interference with the genetic father’s right to decide not to become a parent. Motherhood could surely not be forced on [the applicant] and likewise fatherhood cannot be forced on [J], especially as in the present case it will probably involve financial responsibility in law for the child as well.” 21. On the issue of discrimination, Lord Justices Thorpe and Sedley considered that the true comparison was between women seeking IVF treatment whose partners had withdrawn consent and those whose partners had not done so; Lady Justice Arden considered that the real comparators were fertile and infertile women, since the genetic father had the possibility of withdrawing consent to IVF at a later stage than in ordinary sexual intercourse. The three judges were nevertheless in agreement that, whatever comparators were chosen, the difference in treatment was justified and proportionate under Article 14 of the Convention for the same reasons which underlay the finding of no violation of Article 8. The Court of Appeal further refused leave to appeal against Wall J’s finding that the embryos were not entitled to protection under Article 2, since under domestic law a foetus prior to the moment of birth, much less so an embryo, had no independent rights or interests. 22. On 29 November 2004 the House of Lords refused the applicant leave to appeal against the Court of Appeal’s judgment. 23. The birth of the first child from IVF in July 1978 prompted much ethical and scientific debate in the United Kingdom, which in turn led to the appointment in July 1982 of a Committee of Inquiry under the chairmanship of Dame Mary Warnock DBE to “consider recent and potential developments in medicine and science related to human fertilisation and embryology; to consider what policies and safeguards should be applied, including consideration of the social, ethical and legal implications of these developments; and to make recommendations.” The Committee reported in July 1984 (Cmnd 9314) and its recommendations, so far as they related to IVF treatment, were set out in a Green Paper issued for public consultation. After receipt of representations from interested parties, they were included in a White Paper, Human Fertilisation and Embryology: A Framework for Legislation, published in November 1987 (Cm 259). The White Paper noted “the particular difficulties of framing legislation on these sensitive issues against a background of fast-moving medical and scientific development”. Nonetheless, following further consultation, the Human Fertilisation and Embryology Bill 1989 was published, and passed into law as the Human Fertilisation and Embryology Act 1990. 24. The solution recommended and embodied in the 1990 Act was to permit, subject to certain express prohibitions, the creation and subsequent use of live human embryos produced in vitro, subject to a number of conditions, restrictions and time limits. 25. Thus, by section 3(1) of the Act, no person shall bring about the creation of an embryo, or keep or use an embryo except in pursuance of a licence. The storage or use of an embryo can only take place lawfully in accordance with the requirements of the licence in question. The contravention of section 3 (1) is an offence (created by section 41(2)(a) of the Act). 26. One of the policy objectives of the 1990 Act was to promote the welfare of the child. Thus, section 13(5) provides: “A woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment (including the need of that child for a father), and of any other child who may be affected by the birth.” 27. The second important policy objective of the 1990 Act was to ensure that both gamete providers (i.e. the providers of the sperm and eggs) continued to consent from the commencement of the treatment until the implantation of the embryos. The primacy of continuing bilateral consent had been central to the Warnock Committee’s recommendations about the regulation of IVF treatment and although neither the Warnock Report nor the Green Paper had discussed what was to happen if the parties became estranged during treatment, the White Paper emphasised that donors of genetic material would have the right under the proposed legislation to vary or withdraw their consent at any time before the embryos were used. 28. By section 12(c) of the Act, it is a condition of every licence granted that the provisions of Schedule 3 to the Act, which deal with consent, shall be complied with. 29. Schedule 3 provides: “Consents to use of gametes or embryos Consent 1. A consent under this Schedule must be given in writing and, in this Schedule, ‘effective consent’ means a consent under this Schedule which has not been withdrawn. 2. — (1) A consent to the use of any embryo must specify one or more of the following purposes— (a) use in providing treatment services to the person giving consent, or that person and another specified person together, (b) use in providing treatment services to persons not including the person giving consent, or (c) use for the purposes of any project of research, and may specify conditions subject to which the embryo may be so used. (2) A consent to the storage of any gametes or any embryo must— (a) specify the maximum period of storage (if less than the statutory storage period), and (b) state what is to be done with the gametes or embryo if the person who gave the consent dies or is unable because of incapacity to vary the terms of the consent or to revoke it, and may specify conditions subject to which the gametes or embryo may remain in storage. (3) A consent under this Schedule must provide for such other matters as the Authority may specify in directions. (4) A consent under this Schedule may apply— (a) to the use or storage of a particular embryo, or (b) in the case of a person providing gametes, to the use or storage of any embryo whose creation may be brought about using those gametes, and in the paragraph (b) case the terms of the consent may be varied, or the consent may be withdrawn, in accordance with this Schedule either generally or in relation to a particular embryo or particular embryos. Procedure for giving consent 3.—(1) Before a person gives consent under this Schedule— (a) he must be given a suitable opportunity to receive proper counselling about the implications of taking the proposed steps, and (b) he must be provided with such relevant information as is proper. (2) Before a person gives consent under this Schedule he must be informed of the effect of paragraph 4 below. Variation and withdrawal of consent 4.—(1) The terms of any consent under this Schedule may from time to time be varied, and the consent may be withdrawn, by notice given by the person who gave the consent to the person keeping the gametes or embryo to which the consent is relevant. (2) The terms of any consent to the use of any embryo cannot be varied, and such consent cannot be withdrawn, once the embryo has been used— (a) in providing treatment services, or (b) for the purposes of any project of research. Use of gametes for treatment of others 5.—(1) A person’s gametes must not be used for the purposes of treatment services unless there is an effective consent by that person to their being so used and they are used in accordance with the terms of the consent. (2) A person’s gametes must not be received for use for those purposes unless there is an effective consent by that person to their being so used. (3) This paragraph does not apply to the use of a person’s gametes for the purpose of that person, or that person and another together, receiving treatment services. In vitro fertilisation and subsequent use of embryo 6.—(1) A person’s gametes must not be used to bring about the creation of any embryo in vitro unless there is an effective consent by that person to any embryo the creation of which may be brought about with the use of those gametes being used for one or more of the purposes mentioned in paragraph 2(1) above. (2) An embryo the creation of which was brought about in vitro must not be received by any person unless there is an effective consent by each person whose gametes were used to bring about the creation of the embryo to the use for one or more of the purposes mentioned in paragraph 2(1) above of the embryo. (3) An embryo the creation of which was brought about in vitro must not be used for any purpose unless there is an effective consent by each person whose gametes were used to bring about the creation of the embryo to the use for that purpose of the embryo and the embryo is used in accordance with those consents. (4) Any consent required by this paragraph is in addition to any consent that may be required by paragraph 5 above. Embryos obtained by lavage, etc. ... Storage of gametes and embryos 8.—(1) A person’s gametes must not be kept in storage unless there is an effective consent by that person to their storage and they are stored in accordance with the consent. (2) An embryo the creation of which was brought about in vitro must not be kept in storage unless there is an effective consent, by each person whose gametes were used to bring about the creation of the embryo, to the storage of the embryo and the embryo is stored in accordance with those consents. (3) An embryo taken from a woman must not be kept in storage unless there is an effective consent by her to its storage and it is stored in accordance with the consent.” 30. The material effect of Schedule 3 was summarised in the judgment of Lords Justices Thorpe and Sedley as follows: “(i) Those contemplating the storage and/or use of embryos created from their gametes must first be offered counselling; (ii) they must specifically be informed of the circumstances in which consent to the storage or use of an embryo may be varied or withdrawn; (iii) consent given to the use of an embryo must specify whether the embryo is to be used to provide treatment services to the person giving consent, or to that person together with another, or to persons not including the person giving consent; (iv) an embryo may only be stored while there is effective consent to its storage from both gamete providers, and in accordance with the terms of the consent; (v) an embryo may only be used while there is an effective consent to its use from both gamete providers, and in accordance with the terms of that consent; (vi) consent to the storage of an embryo can be varied or withdrawn by either party whose gametes were used to create the embryo at any time; (vii) consent to the use of an embryo cannot be varied or withdrawn once the embryo has been used in providing treatment services.” 31. On the basis of the material available to the Court, including the “Medically Assisted Procreation and the Protection of the Human Embryo Study on the Solution in 39 States” (Council of Europe, 1998), the situation in the various Member States of the Council of Europe would appear to be as follows. In Denmark, France, Greece and Switzerland, the right of either party freely to withdraw his or her consent at any stage up to the moment of implantation of the embryo in the woman is expressly provided for in legislation; in the Netherlands, this rule is included in secondary legislation. In Belgium, Germany and Finland clinical practice appears to conform to this model, and it further appears that, as a matter of law or practice, in Iceland, Sweden and Turkey the male donor enjoys a similar power of veto to that afforded by the United Kingdom. 32. A number of countries have, however, regulated the consent issue differently. In Hungary, for example, in recognition of the fact that medically-assisted reproduction represents a far heavier burden for the woman than for the man, and absent any prior written agreement to the contrary, the woman is entitled to proceed with the treatment notwithstanding the death of her partner or the divorce of the couple. In Austria, Estonia and Italy the man’s consent can be revoked only up to the point of fertilisation, beyond which it is the woman alone who decides if and when to proceed. In Spain, the man’s right to revoke his consent is recognised only where he is married to and living with the woman. 33. The field of medically assisted reproduction is not regulated at federal level in the United States, and since few States have introduced laws concerning the subsequent withdrawal of consent by one party, it has been left to the courts to determine how the conflict between the parties should be resolved. There is, therefore, a series of judgments by State Supreme Courts regarding the disposal of embryos created through IVF. 34. In Davis v. Davis, (842 S.W.2d 588, 597; Tenn. 1992), the Supreme Court of Tennessee held in 1992: “...disputes involving the disposition of pre-embryos produced by in vitro fertilization should be resolved, first, by looking to the preferences of the progenitors. If their wishes cannot be ascertained, or if there is dispute, then their prior agreement concerning disposition should be carried out. If no prior agreement exists, then the relative interests of the parties in using or not using the pre-embryos must be weighed. Ordinarily, the party wishing to avoid procreation should prevail, assuming that the other party has a reasonable possibility of achieving parenthood by means other than use of the pre-embryos in question. If no other reasonable alternatives exist, then the argument in favor of using the pre-embryos to achieve pregnancy should be considered. However, if the party seeking control of the pre-embryos intends merely to donate them to another couple, the objecting party obviously has the greater interest and should prevail.” 35. In Kass v. Kass (98 N.Y. Int. 0049), the couple had signed an agreement with the clinic which stipulated that, “in the event that we ... are unable to make a decision regarding the disposition of our frozen pre-zygotes”, the embryos could be used for research. When the couple separated, Mrs Kass sought to overturn the agreement and proceed to implantation. Although she prevailed at first instance (the court reasoning that just as a woman has exclusive control over her reproduction so should she have the final say in the area of IVF), the New York Court of Appeal decided that the existing agreement was sufficiently clear and should be honoured. 36. In A.Z. v. B.Z, (2000, 431 Mass. 150 ; 725 N.E. 2d 1051) there was again a previous written agreement, according to which, in the event of separation, the embryos were to be given to the wife, who now wished to continue with the treatment, contrary to the wishes of the husband. However, the Supreme Court of Massachusetts considered that the arrangement should not be enforced because, inter alia, as a matter of public policy “forced procreation is not an area amenable to judicial enforcement”. Rather, “freedom of personal choice in matters of marriage and family life” should prevail. 37. This judgment was cited with approval by the Supreme Court of New Jersey, in J.B. v. M.B. (2001 WL 909294). Here, it was the wife who sought the destruction of the embryos while the husband wanted them preserved for use with a future partner. Although constitutional arguments were advanced on behalf of the wife, the court declined to approach the matter in this way, reasoning that it was in any event not sure that enforcing the alleged private contract would violate her rights. Instead, the court subscribed to the view taken in the Z. case regarding public policy and ordered that the wife’s wishes be observed. 38. In the final case in this series, Litowitz v. Litowitz, (48 P. 3d 261, 271), the Supreme Court of Washington decided in 2002 to adopt a contractual analysis and to honour the couple’s agreement with the clinic not to store the embryos for more than five years. 39. In Nachmani v. Nachmani (50(4) P.D. 661 (Isr)) a childless Israeli couple decided to undergo IVF and then to contract with a surrogate in California to bear their child because the wife would not be able to carry the foetus to term. The couple signed an agreement with the surrogate, but not with the IVF clinic regarding the disposal of the embryos in the event of their separation. The wife had her last eleven eggs extracted and fertilised with her husband’s sperm. The couple then separated, before the embryos could be implanted in the surrogate, and the husband, who had gone on to have children with another woman, opposed the use of the embryos. The District Court found in favour of the wife, holding that the husband could no more withdraw his agreement to have a child than a man who fertilises his wife’s egg through sexual intercourse. A five-judge panel of the Supreme Court reversed this decision, upholding the man’s fundamental right not to be forced to be a parent. The Supreme Court reheard the case as a panel of eleven judges and decided, seven to four, in favour of the wife. Each judge wrote a separate opinion. The judges in the majority found that the woman’s interests and in particular her lack of alternatives to achieve genetic parenthood outweighed those of the man. Three of the minority judges, including the Chief Justice, reached the opposite conclusion, emphasising that the wife had known that her husband’s consent would be required at every stage and that the agreement could not be enforced after the couple had become separated. The fourth of the dissenters held that the man’s consent was required before the obligation of parenthood could be imposed on him. 40. The General Rule stated in the Article 5 of the Council of Europe Convention on Human Rights and Biomedicine States as follows: “An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. The person concerned may freely withdraw consent at any time.” 41. Principle 4 of the principles adopted by the ad hoc committee of experts on progress in the biomedical sciences, the expert body within the Council of Europe which preceded the present Steering Committee on Bioethics (CAHBI , 1989), stated: “1. The techniques of artificial procreation may be used only if the persons concerned have given their free, informed consent, explicitly and in writing, in accordance with national requirements...” 42. Finally, Article 6 of the Universal Declaration on Bioethics and Human Rights provides: “Article 6 – Consent a) Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice.” | 0 |
train | 001-58036 | ENG | NOR | CHAMBER | 1,997 | CASE OF ERIKSEN v. NORWAY | 3 | No violation of Art. 5-1;No violation of Art. 5-3 | null | 6. The applicant is a Norwegian citizen. In 1965 he was involved in a traffic accident in which he suffered serious brain damage. He subsequently showed a distinct tendency to become aggressive. 7. In 1967 he was convicted of offences under Articles 227, 228 and 292 of the Norwegian Penal Code (threatening behaviour and inflicting bodily harm) and sentenced to preventive detention (sikring) for a maximum period of five years in accordance with Article 39 para. 1 (e) of the Penal Code (see paragraph 53 below). In an expert psychiatric opinion obtained at that time, he was declared mentally ill (sinnssyk) and he spent the period from May 1967 to July 1972 in mental hospitals. 8. From 1973 to 1978 the applicant was detained for a period of approximately four years at either Telemark Central Hospital or Reitgjerdet Mental Hospital in accordance with the provisions of the Mental Health Act 1961 (lov om psykisk helsevern). 9. In 1978 the applicant was placed under "judicial observation" (judisiell observasjon) after having physically assaulted his father. The expert psychiatric opinion obtained at that time concluded that he was not mentally ill but had an underdeveloped and permanently impaired mental capacity (mangelfullt utviklede og varig svekkede sjelsevner) and that there was a clear risk of his committing further criminal offences. 10. By a judgment of 26 June 1978 the District Court (herredsrett) of Kragerø convicted the applicant of an offence under Article 228 of the Penal Code. It sentenced him to sixty days’ imprisonment and authorised the use of security measures under Article 39 para. 1 (a) to (f) of the Penal Code for a maximum period of five years. 11. On 3 July 1978 the prosecuting authority decided to detain the applicant in accordance with Article 39 para. 1 (e) in a security ward at Ila National Penal and Preventive Detention Institution ("Ila"). 12. On 21 January 1980 the Ministry of Justice decided, pursuant to Article 39 para. 1 (a) to (c) to release the applicant on the condition, inter alia, that he reside at his parents’ home. Owing to a number of violent incidents, the applicant was however rearrested, and by a judgment of 15 June 1980 the District Court of Kragerø sentenced him to ninety days’ imprisonment, which sentence was deemed to have been served in detention on remand. 13. On 24 July 1980 the Ministry of Justice decided to place the applicant in preventive detention once more at Ila in accordance with Article 39 para. 1 (e). On 2 June 1981 he was released to his parents’ home under preventive supervision in accordance with Article 39 para. 1 (a) to (c). 14. A number of unfortunate episodes led the Ministry of Justice to decide under Article 39 para. 1 (e) to detain the applicant again. He returned to Ila on 17 July 1981. 15. On 5 February 1982 the Ministry of Justice decided to apply Article 39 para. 1 (f), of the Penal Code and on 16 February the applicant was sent to Oslo District Prison. On 4 November 1982 he was transferred to Ullersmo National Prison ("Ullersmo"). 16. Whilst so detained, the applicant was convicted by the District Court of Asker and Bærum on 18 March 1983 and sentenced to six months’ imprisonment for physically assaulting prison staff at Ila and Ullersmo on three occasions. The expert psychiatric opinion obtained for the trial concluded, as before, that the applicant was not mentally ill but suffered from an underdeveloped and permanently impaired mental capacity. 17. With regard to the question of security measures, the court pointed out that the information available showed that detention in a prison or similar institution was inappropriate and had a destructive influence on the applicant. The court found that he clearly needed psychiatric care and concluded that everything should be done to give him adequate treatment. It accordingly authorised the prosecuting authority to impose security measures under Article 39 para. 1 except those provided in sub-paragraphs (e) and (f), namely detention in a security ward or in a prison. Having served his sentence the applicant was released on 18 November 1983 and placed in a flat at Kragerø under the surveillance of the local police. 18. On 19 December 1983 the applicant was arrested and detained on remand, again charged with offences under Articles 227 and 228 of the Penal Code. A further expert psychiatric opinion was obtained. It reached the same conclusion as the two earlier ones. 19. By judgment of 20 September 1984 the District Court of Kragerø found the applicant guilty on most of the charges brought against him and sentenced him to one hundred and twenty days’ imprisonment. Furthermore, the court authorised the prosecuting authority to use any of the security measures mentioned in Article 39 para. 1 of the Penal Code for a maximum period of five years. It found that, having regard to the applicant’s almost total lack of self-control in certain situations and to his physical strength, it could not rule out the use by the competent authorities of preventive detention in a prison or in a security ward under Article 39 para. 1 (e) and (f) should this prove necessary. Apparently there was such a need, since the applicant remained at Ila. 20. The applicant appealed to the Supreme Court (Høyesterett) against the decision as regards preventive detention. In a decision (kjennelse) of 12 January 1985 Mr Justice Røstad stated, inter alia, on behalf of the unanimous court: "I consider it beyond doubt that the scope of the security measures should be extended as set out in the judgment now appealed against. Like the District Court I find that the requirements for imposing security measures are fulfilled. [The applicant], who must be considered to have, as required by Article 39 [of the Penal Code], a deviant character, represents a serious danger regarding new offences, including threatening behaviour under Article 227. I may add that it cannot be considered disproportionate to impose security measures on such a clearly dangerous offender. In my view, the protection of society requires that the authorities should be able to impose such security measures as are considered necessary in order to prevent [the applicant] from committing further serious offences. In view of the summing-up of counsel for the defence, I would point out that I find no basis for arguing that the decision of a Norwegian court concerning the authorisation to use security measures in a case like the present one would violate [Article 3] of the ... Convention (art. 3). It is for the implementing authorities to ensure that the security measure takes a form which in practice not only protects the interests of society but also seeks to promote those of [the applicant], including his need for psychiatric treatment." 21. On 7 November 1985 the applicant was transferred from Ila to Ullersmo pursuant to a decision of the Ministry of Justice under Article 39 para. 1 (f) of the Penal Code. 22. On 29 October 1986 he was convicted by the District Court of Asker and Bærum of having attacked a prison officer and was given a suspended sentence of forty-five days’ imprisonment. On 12 January 1987 he was transferred from Ullersmo to Sunnås Rehabilitation Centre near Oslo in order to receive treatment from a psychologist for fourteen days. Certain examinations were carried out, but the applicant was sent back to Ullersmo after attacking one of the nurses. 23. On 24 February 1987 the applicant was sent to Reitgjerdet Mental Hospital, where it was established that he had become psychotic. As he thus met the requirements for compulsory placement, he was kept there until 4 December 1987, on which date the hospital concluded that he was no longer psychotic. 24. The applicant nevertheless stayed at the hospital on a voluntary basis, but after some weeks he became aggressive towards other patients and staff. As he refused to be placed in the ward for difficult patients, he was sent back to Ullersmo, still under the authorisation of the Ministry of Justice in accordance with Article 39 para. 1 (f) of the Penal Code. 25. With effect from 8 February 1988 the preventive measures were changed. Under Article 39 para. 1 (a) to (c) the Ministry of Justice decided that the applicant should be released from Ullersmo, on condition that he live in a house at Skien under the supervision of the Probation and After Care Service (kriminalomsorg i frihet). 26. On 19 April 1988 the applicant physically assaulted the social workers supervising him and the Ministry of Justice decided on the same day to replace preventive supervision under Article 39 para. 1 (a) to (c) by detention in a secure institution, at least for a short time, in accordance with Article 39 para. 1 (f). The applicant was transferred to Arendal District Prison. 27. On 19 May 1988 he was released from Arendal District Prison and moved to the house at Skien. 28. Following several violent incidents the Ministry of Justice decided on 21 July 1988, in accordance with a recommendation from the Probation and After Care Service, that preventive supervision at Skien should cease and that the applicant was to be transferred to Ila under Article 39 para. 1 (e). 29. On 21 October 1988 the Ministry of Justice decided that the applicant should be released and placed under preventive supervision pursuant to Article 39 para. 1 (a) to (c) of the Penal Code and he was brought back to the house at Skien. However, as on several occasions he violated the restrictions imposed on him the Ministry decided, in December 1988, to detain him at Ila again in accordance with Article 39 para. 1 (e). 30. On 11 January 1989 the applicant was convicted by the District Court of Kragerø of offences under Article 227 and Article 228 in conjunction with Article 230 of the Penal Code (threatening behaviour and physical assaults), committed against two social workers, a member of his family, a neighbour of his parents and members of that person’s family. He was sentenced to one hundred and twenty days’ imprisonment, which sentence was deemed to have been served in detention on remand. However, he continued to be detained at Ila under Article 39 para. 1 (e) as authorised by the District Court on 20 September 1984 and upheld by the Supreme Court on 12 January 1985 (see paragraphs 19 and 20 above). 31. The review available under Norwegian law of the lawfulness of the applicant’s repeated periods of detention in the Ila security ward and in prison (under Article 39 para. 1 (e) or (f) of the Penal Code) formed the subject matter of the E. v. Norway judgment of 29 August 1990 (Series A no. 181-A). In that case the Court concluded that there had been no violation of Article 5 para. 4 (art. 5-4) with regard to the scope of judicial review available but that there had been a violation of this provision (art.54) on account of a failure in certain review proceedings to take a decision "speedily". 32. While the applicant was detained again at Ila the authorities continued their efforts to solve the problems of his placement. On 22 June 1989 Dr Odd Gunnar Heitun, psychiatrist, submitted an expert opinion to the director of Ila concerning the use of security measures. Dr Heitun stated that the applicant’s state of mind and conduct had not significantly changed from year to year since 1965. He recommended an extensive programme whereby the applicant could live in his own home in Skien, under the surveillance of four social workers during day time and with regular counselling by a psychologist or psychiatrist, the whole project to be supervised by a project leader. It was estimated that to run the programme would cost a little less than two million Norwegian kroner per year. In September 1989 a meeting was arranged at Ila, attended by representatives from the Telemark Mental Hospital, the Telemark County Physician (fylkeslegen), the Telemark Probation and After Care Service, the applicant’s lawyer, social workers and the psychiatrist, Dr Heitun. Since certain matters remained to be clarified, no concrete proposal was adopted. 33. On 26 October 1989 the Institution Board (anstaltrådet) at Ila discussed the question of continuing the security measures in the light of the fact that the court authorisation to that effect would expire on 25 February 1990. Following this meeting the majority of the Board decided to recommend to the Vestfold and Telemark State prosecutor (Statsadvokaten i Vestfold og Telemark) to request the prolongation of the authorisation to use security measures under Article 39 para. 1 (a) to (f) of the Penal Code. The recommendation was forwarded to the State prosecutor by letter of 11 January 1990 in which the acting director of Ila, inter alia, stated as follows: "[The applicant] has now been placed, for approximately one year, in closed preventive detention [lukket sikring] at Ila. During this period he has on several occasions acted aggressively towards the prison officers. During previous stays in the institution he has attacked employees and has shown that his threats may be serious. Since 23 December 1988 [the applicant] has been placed in a cell of his own in section G since, for security reasons, it could not be justified to offer him a place in the open ward. Furthermore, [the applicant] has not been granted leave of absence since I fear that, due to [his] behaviour in prison, similar incidents might occur during such leave. I refer to the fact that he has been convicted several times for threatening behaviour and physical assault, most recently by a judgment of [11] January 1989 convicting him of similar offences committed while on leave in 1988. ... [The applicant] has disclosed a deviant character from a very young age. His behaviour and conduct do not appear to have changed essentially since 1965 when he suffered brain damage. In 1988 he was on three occasions transferred to Skien under preventive supervision but every time it was discontinued due to circumstances relating to [the applicant]. Therefore I consider it probable - or rather very likely - that he will commit new offences involving violence if he were to be released when the security measure authorisation expires. The possibility also exists that he would then commit far more serious offences than those of which he has previously been convicted. It has turned out to be impossible to make other arrangements acceptable to [the applicant]. As recently as 9 March and 23 May 1989 the Ministry of Justice refused [the applicant’s] requests to replace the detention with preventive supervision. The arrangement proposed by Dr Heitun, psychiatrist, appears to be more secure, but considerably more expensive than the previous ill-fated arrangements ... However, today there is no adequate alternative to continuing preventive detention at Ila. Accordingly, I would recommend renewed preventive detention upon expiry of the authorisation to use security measures on [25] February 1990 ..." 34. On the basis of the above recommendation the Vestfold and Telemark State Prosecutor "filed charges" (satte under tiltale) against the applicant by "indictment" (tiltalebeslutning) of 2 February 1990 in order to obtain the Kragerø District Court’s authorisation, pursuant to Article 39 para. 3, second sub-paragraph, of the Penal Code, to prolong by three years the authorisation to use security measures. 35. On 7 February 1990 the chief of police requested the District Court to detain the applicant on remand for a period of four weeks in accordance with Article 171 of the 1981 Code of Criminal Procedure (Straffeprosessloven), in order to obtain a medical opinion to be used during the forthcoming hearing concerning the question of further authorisation to use security measures. It was noted that the existing authorisation would expire on 25 February 1990. 36. On 12 February 1990 the District Court considered the question of detention on remand. The applicant maintained that detention on remand beyond 25 February 1990 would be illegal and would mean that he would be punished for the same offences twice. He alleged that the only reason why the authorities had requested his detention on remand was because they had failed to take the necessary procedural steps, although they had known for five years when the authorisation to use security measures would expire. On this occasion, the District Court decided to obtain two expert statements and an opinion from the Medico-Legal Council (Den rettsmedisinske kommisjon), despite the fact that the applicant and the prosecution agreed that a statement by Dr Heitun would be sufficient. 37. In its decision of 12 February 1990 to detain the applicant on remand for a period of four weeks after 25 February 1990 the District Court stated: "In accordance with Norwegian law the prosecuting authority shal consider and, where appropriate, determine the question of prolonging the period during which security measures can be used, even if the person in question has not committed new criminal offences, see Article 39 para. 3 of the Penal Code. ... In addition, the second paragraph in fine of Article 171 of the Code of Criminal Procedure authorises detention on remand in cases where such detention is needed pending a new decision on security measures, on the condition that continuing the use of security measures is the most likely outcome of the case and that one of the specific conditions for detention under the first paragraph of Article 171 is fulfilled. In this case it is the condition in the third sub-paragraph of the first paragraph which is relevant, namely the risk of new criminal offences punishable by more than six months’ imprisonment. ... The security measure issue cannot be examined before 25 February 1990. This is due to the fact that the necessary expert opinion will not be ready before that date. ... The Court finds reason to grant the prosecutor’s request, see [the above-mentioned provisions of the Code of Criminal Procedure]. The Court finds it very likely that [the applicant] - if released in two weeks - would commit criminal offences such as threatening behaviour (Article 227 of the Penal Code) and physical assault (Article 228). He has without doubt strong character deviations, little tolerance and he easily makes threats, and also attacks people. Today he is opposed to any arrangement for supervision. In its assessment the Court refers first of all to what has happened earlier. The Supreme Court’s decision of 1985 contains a thorough account of the previous period. Since 1985 he has been convicted twice for violations of Articles 227 and 228. Dr Heitun, psychiatrist, too must be understood as considering that [the applicant], due to his weak impulse control and impaired capacity to control himself, will find himself in situations where he reacts with verbal threats if he is released and that things will - despite his good intentions - go wrong. Furthermore, it is likely that the case to be brought before the district court will end with the granting of an authorisation to use security measures against [the applicant] - for one or more years and with one or more of the measures mentioned in Article 39 para. 1 (a) to (f) of the Penal Code. It suffices here to refer to the fact that this has been recommended by Ila prison authorities and that Dr Heitun has drawn up a new plan for security measures. In the present circumstances, the Court cannot see that the detention constitutes a disproportionate measure. [The applicant’s] case is sad and tragic, but the Court cannot have regard solely to his interests but must also take into account the risk of the applicant’s exposing others to fear and danger. As far as the Court can see from the case documents, it appears that the outcome will be the use of security measures to be implemented at Skien which should work better than the last programme and which would provide him with far better living conditions than he has experienced during the last fourteen months." 38. The applicant appealed against this decision to the Agder High Court (Agder Lagmannsrett). On 23 February 1990 the High Court upheld the decision of the lower court and added: "There is no doubt that, under Norwegian law, it has up to now been assumed that it is permissible to prolong security measures beyond the maximum period even if the person concerned has not committed any crime during that period ... The High Court does not find that such an arrangement constitutes a violation of Article 4 of Protocol No. 7 to the Convention (P7-4) on double jeopardy. The statutory requirement that the Court must fix a maximum period for security measures is based, inter alia, on concern for the convicted person, namely to afford him after a certain period judicial review of the necessity of continued security measures ... The High Court has no particular reason to doubt that there is a very imminent risk that [the applicant] would commit new criminal offences were he to be released at the end of the period of security measures, without the prison or the prosecuting authorities having any control over him ... In order to prevent new acts of violence it is necessary that he be taken care of also after the expiry of the security measure. Accordingly, there is a need for detention on remand and a very high probability that a further authorisation to use security measures will be granted ... The High Court notes that detention on remand does not appear to be a disproportionate measure. The interests of protecting society override those of the [applicant] in being released. The fact that the request for detention on remand of [7] February 1990 ... was based on the ground that time was needed in order to obtain an additional expert opinion is, in the High Court’s view, of no relevance to the question of detention. The hearing at which the extension of the security measures is to be examined cannot be held until an opinion has been submitted by a further expert in psychiatry, in addition to Dr Heitun. Until the hearing can be held it is necessary to take care of [the applicant], in view of the danger of repetition of crime. The High Court has understanding for the feeling of hopelessness expressed by [the applicant’s] counsel about the fact that a programme for [the applicant] has still not been made. However, nt] has previously received, it cannot be maintained that his detention on remand would amount to a violation of Article 3 of the Convention (art. 3)." 39. The applicant appealed against this decision to the Supreme Court. On 16 March 1990 the Appeals Selection Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) rejected the appeal. In its decision the court stated: "In accordance with Article 39 para. 3, second sub-paragraph, [of the Penal Code] the Court must in cases concerning security measures fix a maximum period beyond which no measures can be taken without the Court’s permission. A decision to prolong an authorisation does not mean that the person in question is convicted or punished again for the offences which constituted the basis for the judgment allowing the use of security measures. The fact that these offences constitute the basis for using security measures has already been decided in this judgment. What is relevant for the question whether the use of security measures should be prolonged beyond the initial maximum period fixed is an assessment of the other circumstances which provide the reasons for using security measures, the person’s mental capacity and the risk of further criminal offences being committed. It follows from the judgment allowing the use of security measures, read in conjunction with Article 39 para. 3, second sub-paragraph, that the period of security measures may be prolonged, if there is reason to do so after such an evaluation. In view of the above, it does not appear that the High Court based its decision on an incorrect interpretation of Article 4 para. 1 of Protocol No. 7 to the Convention (P7-4-1) by assuming that a prolongation of the period of security measures in accordance with Article 39 para. 3, second sub-paragraph, of the Penal Code would not be contrary to the Convention provision (P7-4-1). The Court does not find either that the High Court’s decision is based on an incorrect interpretation of Articles 3 or 6 of the Convention (art. 3, art. 6)." 40. The applicant accordingly remained at Ila, in detention on remand, after the Supreme Court’s authorisation of 12 January 1985 expired on 25 February 1990. 41. On 20 March 1990 the District Court decided to extend the applicant’s detention until 23 April 1990, stating as follows: "The basis for the continuing detention - both factual and lega - is the same as when the Court examined the detention issue on 12 February 1990; see also the decisions of the High Court and the Appeals Selection Committee of the Supreme Court. The Court does not consider the extension to be disproportionate either. With reference, among other things, to the recommendation of the Ila Institution Board and the psychiatrist Dr Heitun’s submissions during the Court session of 12 February 1990, it is likely that the case will result in a prolongation of the authorisation to use security measures against [the applicant]. The fact that the question of the continued use of security measures ought to have been decided before the expiry of the period authorised cannot constitute a ground for release ..." 42. The applicant appealed against this decision to the Agder High Court. 43. On 22 March 1990 the experts, Dr Heitun and Dr Johannesen, submitted their opinion to the District Court. It concluded: "1. It is questionable whether [the applicant] can be regarded as a person with an underdeveloped mental capacity. 2. [The applicant] suffers from a permanently impaired mental capacity 3. [The applicant] is not in a state of insanity during the examination and there is no sign of reduced consciousness. 4. Prolonged authorisation to use security measures should not be granted and in case it is, it should exclude detention in a prison or in a security ward." 44. On 30 March 1990 the Agder High Court upheld the District Court’s decision of 20 March 1990. The High Court stated: "The Court finds that there is a great risk that [the applicant] will commit criminal acts which are punishable by imprisonment for a term exceeding six months if he were to be released now and that, therefore, continued detention on remand is necessary until the question of prolonging the authorisation to use security measures can be examined in court. The Court disagrees with counsel for [the applicant] that it is unlikely that such prolongation will be granted. In the light of the risk of new criminal offences being committed, to release the applicant, before an examination of whether to prolong the authorisation to use security measures, would be so questionable that to detain him on remand until such time does not seem disproportionate. Nor does it appear to be contrary to Article 5 para. 3 (art. 5-3) of the European Convention on Human Rights. The Court also refers to the fact that the extension of the detention on remand is based on the need to reschedule the case as it will be necessary to replace the judge ..." 45. On 19 April 1990 the Appeals Selection Committee of the Supreme Court rejected the applicant’s appeal against the above decision of the High Court. 46. On 20 April 1990 the District Court extended the period of detention on remand by four weeks, until 21 May 1990, referring in substance to its decisions of 12 February and 20 March 1990. 47. On 25 April 1990 the Medico-Legal Council rejected the medical expert opinion of 22 March 1990 and requested the submission of a revised opinion in the case. 48. On 14 May 1990 the prosecutor-general (Riksadvokaten) withdrew the request for a prolongation of the authorisation to use security measures against the applicant. He was accordingly released on 15 May 1990. 49. During his detention from 25 February to 15 May 1990, the applicant was held in solitary confinement, as had been the case also from December 1988 until that period. 50. In July, August and September 1990 the applicant committed several offences. As a consequence he was arrested on 24 September 1990 and detained on remand until 15 November 1990. By judgment of 13 February 1991 he was convicted, inter alia, of threatening behaviour and physical assault under Articles 227 and 228 of the Penal Code and was sentenced to seven months’ imprisonment. Furthermore, the District Court authorised the use of security measures pursuant to Article 39 para. 1 (a) to (f) of the Penal Code for a period of three years. This judgment was upheld by the Supreme Court on 1 November 1991, excluding only the security measure set out in Article 39 para. 1 (c). 51. In the meantime the applicant had been arrested again, on 16 May 1991, and detained on remand. By judgment of 11 July 1991 he was sentenced to an additional ninety days’ imprisonment for further violations of, amongst other provisions, Articles 227 and 228 of the Penal Code. He was released on 13 July 1991. He served the remaining part of the sentence from 14 January until 16 April 1993. By judgment of 29 June 1994 the applicant was sentenced by the Kragerø District Court to ten months’ imprisonment having been found guilty on thirty-two counts of threatening behaviour and physical assault from December 1991 until April 1994. The applicant appealed against this judgment but the Appeals Selection Committee of the Supreme Court refused leave to appeal. He served the prison sentence. On 21 April 1995 the District Court sentenced the applicant to seventy-five days’ imprisonment for physical assault on a prison officer. On 3 September 1996 it convicted him on one charge of threatening behaviour, two charges of physical assault and four charges of invasion of privacy and sentenced him to six months’ imprisonment. An appeal to the High Court was dismissed on 18 October 1996. On a further appeal, the Supreme Court, in a judgment of 21 February 1997, reduced the sentence to ninety days. 52. The Director of Public Prosecutions has, upon the advice of the Kragerø police and the public prosecutor of Vestfold and Telemark, decided not to request an extension of the order of security measures (see paragraph 50 above), which expired on 16 April 1996. 53. Article 39 of the Penal Code in its relevant parts reads as follows: "1. If an otherwise punishable act is committed in a state of insanity or unconsciousness or if a punishable act is committed in a state of unconsciousness due to self-inflicted intoxication, or in a state of temporarily reduced consciousness, or by someone with an underdeveloped or permanently impaired mental capacity, and there is a danger that the offender, because of his condition, will repeat such an act, the court may decide that the prosecuting authority, as a security measure, shall (a) assign or forbid him a particular place of residence, (b) place him under surveillance by the police or a specially appointed probation officer and order him to report to the police or the probation officer at designated intervals, (c) forbid him to consume alcoholic beverages, (d) place him in secure private care, (e) place him in a mental hospital, sanatorium, nursing home or security ward, where possible, in accordance with the general provisions promulgated by the King, (f) keep him in preventive detention. 2. If such condition involves a danger of acts of the kind covered by Articles 148, 149, 152 (second paragraph), 153 (first, second and third paragraphs), 154, 155, 159, 160, 161, 192-98, 200, 206, 212, 217, 224, 225, 227, 230, 231, 233, 245 (first paragraph), 258, 266, 267, 268 or 292, the court shall decide to apply such security measures as are mentioned above. 3. These measures are terminated when they are no longer regarded as necessary, but may be resumed if there is reason to do so. The security measures listed under (a) to (d) may be employed concurrently. The court shall determine the maximum period for which security measures may be imposed without its further consent. 4. Unless the court has decided otherwise, the prosecution may choose between the above-mentioned security measures. The decision to terminate, resume or alter a security measure is made by the Ministry. Before a decision about security measures or their termination is made, the opinion of a medical specialist must normally be obtained. The same procedure should be followed at regular intervals during the period in which security measures are in force. ..." 54. Article 171 of the Code of Criminal Procedure reads as follows: "Any person who with just cause is suspected of one or more acts punishable by law with imprisonment for a term exceeding six months may be arrested when: (1) there is reason to fear that he will evade prosecution or the execution of a sentence or other precautions; (2) there is an immediate risk that he will interfere with any evidence in the case, e.g. by removing clues or influencing witnesses or accomplices; (3) it is deemed to be necessary in order to prevent him from again committing a criminal act punishable by imprisonment for a term exceeding six months; and (4) he himself requests it for reasons that are found to be satisfactory. When proceedings relating to security measures have been instituted, or it is probable that such proceedings will be instituted, an arrest may be made regardless of whether a penalty may be imposed, as long as the conditions in paragraph 1 are otherwise fulfilled. The same applies when a judgment in favour of security measures has been pronounced or it is a question of extending the maximum period for using security measures." 55. Arrest and detention may be ordered under the second paragraph of Article 171 if a request has been made for an authorisation to use security measures under Article 39 of the Penal Code, or if a judgment has been given on the matter or if there is question of extending the maximum period of an Article 39 authorisation Detention on remand under the second paragraph of Article 171 may in such instances serve as a provisional measure to apply until the authorisation may be implemented (Andenæs, Norsk straffeprosess, vol. II, first edition 1985, p. 111, and second edition 1994, pp. 154-55). 56. The applicant submitted a copy of a decision of 28 April 1931 by the Appeals Selection Committee of the Supreme Court, quashing a decision by a city court to prolong an authorisation to use security measures under Article 39 of the Penal Code. Such prolongation should, after a main hearing (hovedforhandling), be decided by way of judgment by the city court which had initially given the authorisation, sitting, not with a single judge (forhørsrett), but with lay assessors (domsmenn). 57. On 26 January 1996 the Supreme Court delivered a judgment (Norsk Retstidende 1996, p. 93) which included the following statements about the interpretation of the second paragraph of Article 171: "The connection between the criminal acts that provided the grounds for security measures, and the new - extended - authorisation of such supervision is quite crucial to the question whether the second paragraph, cf. the first paragraph, of Article 171 of the Code of Criminal Procedure requires that there must be a justified suspicion of a new criminal act punishable by imprisonment for a term exceeding six months. The Supreme Court cannot see that any such requirement can be read into the provision. Since the original criminal act can be the offence that provides grounds for continued security measures, it must also be possible for it to be the offence that forms the basic condition for a remand in custody pursuant to the said provision, which moreover will also in this instance require tha the general conditions for a remand in custody, e.g. a risk of repetition of an offence, are fulfilled (see Norsk Retstidende 1992, p. 136). This interpretation is supported by the legislative background of this provision. Before the 1981 Code of Criminal Procedure the provision concerning a remand in custody in connection with proceedings relating to security measures was contained in Article 39 para. 1 (b), item 4, of the Penal Code. There was nothing in that provision which indicated a new criminal act as a condition for a remand in custody in connection with proceedings for an extension of security measures. There is nothing in the legislative history in connection with the inclusion of this provision among the provisions of the Code of Criminal Procedure concerning remanding in custody which indicates that any change on this point was intended. Nor is it indicated by any considerations of policy. It is conceivable that the need for an extension of security measures will first become clear close to the expiry of the period of the security measures without there being any reason to criticise the prosecuting authority for not raising the question earlier, and without the need that has become apparent having any basis in the commission of a new criminal act punishable by imprisonment for a term exceeding six months. In such cases it may appear to be unconditionally necessary in order to prevent the commission of new serious criminal acts that the offender should be remanded in custody until a new legally enforceable authorisation for security measures subsists. The Supreme Court cannot see that this interpretation of the second paragraph of Article 171, cf. the first paragraph, of the Code of Criminal Procedure - to the effect that a new criminal act punishable by imprisonment for more than six months is not required - is contrary to the provision in the European Convention on Human Rights. The provision in the Convention which might conceivably be applicable must be Article 5 para. 1 (c) (art. 5-1-c). The European Court of Human Rights has interpreted this provision (art. 5-1-c) to the effect that it ‘permits deprivation of liberty only in connection with criminal proceedings’ (see, inter alia, the Court’s judgment of 22 February 1989 in the Ciulla case). The rule must be that a person who is convicted of a criminal act cannot, after having served his sentence, be subjected to a new remand in custody on the basis of the matters that have been adjudicated because there is reason to fear the commission of new criminal acts. In cases of security measures, however, the situation is - as the Court has stated - that an authorisation of limited duration is given to apply specific security measures, which can be extended if the conditions for such extension subsist. The extension will be a part of the reaction system - see Article 5 para. 1 (a) of the Convention (art. 5-1-a). When a decision is made to remand an offender in custody as a step in proceedings for the extension of security measures, because he is dangerous and it is necessary to protect vulnerable persons - in this case children against sexual assaults - the Supreme Court can take no other view than that the remand in custody, in the same way as when a remand in custody is otherwise used pending a sentence becoming legally enforceable, has the necessary connection with the criminal acts committed and the lawful prosecution thereof. The Supreme Court also finds it necessary to consider the restriction which the European Court of Human Rights has read into Article 5 para. 1 (c) of the Convention (art. 5-1-c) as regards the condition ‘necessary to prevent him from committing a criminal act’, i.e. that a remand in custody must be to ‘prevent a concrete and specific offence’ (see, inter alia, the Court’s judgment of 6 November 1980 in the Guzzardi case). This need for concretisation is significant. A more general risk of punishable offences would not be sufficient ... In the opinion of the Supreme Court, the risk of a criminal act [in this case] was concrete and specific for the purposes of Article 5 para. 1 (c) (art. 5-1-c) ..." 58. Article 174 of the Code of Criminal Procedure requires that the detention should not be a disproportionate measure. 59. According to chapter 2, section 3, of the Mental Health Act, a person who, because of his or her mental state, does not seek the medical supervision and psychiatric health care which he or she needs and whose nearest relatives fail to ensure that he or she does so, may be subjected to compulsory medical examination and may, if necessary, be placed without his or her own consent, for up to three weeks, for treatment in a hospital or other appropriate place. However, under section 5, a person suffering from serious mental illness may be admitted to hospital without his or her consent if his or her nearest relatives or a public authority so desire, and if the senior physician at the hospital considers, on the basis of the patient’s state of health, that such admission is necessary in order to prevent him from suffering harm or that the prospect for recovery or substantial improvement is jeopardised or that the patient presents a serious danger to himself or others. | 0 |
train | 001-22807 | ENG | UKR | ADMISSIBILITY | 2,002 | SUSLO v. UKRAINE | 4 | Inadmissible | Gaukur Jörundsson | The applicant, Anna Ivanovna Suslo, is a Ukrainian national, who was born in 1929 and resides in the city of Chernigov. She is represented before the Court by Ms. Rozmovenko, a lawyer practising in Chernigov, Ukraine. In 2000 the applicant instituted civil proceedings in the Desnyansky District Court of Chernigov against her son, ex-daughter-in-law and the Executive Committee of the Chernigov City Council in relation to a dispute concerning the ownership of an apartment. On 24 July 2000, the court rejected the applicant’s claim (Рішення Деснянського районного суду м. Чернігова). On 3 October 2000 the Chernigiv Regional Court upheld (Ухвала Чернігівського обласного суду) the decision of the court of first instance. In 2001 the applicant appealed to the Supreme Court of Ukraine under the new cassation appeal procedure introduced in June 2001. On 5 February, 2002, the panel of three judges of the Civil Chamber of the Supreme Court of Ukraine (Ухвала Верховного Суду України) rejected the applicant’s request for leave to appeal. A third level of jurisdiction, to be part of the ordinary judicial procedure, was introduced into the Ukrainian legal system by the law of Ukraine “on the Introduction of Changes to the Civil Procedure Code of Ukraine” of 21 June 2001. It came into force on 29 June 2001. Under the new provisions, the parties are entitled to appeal against the decision of the first instance court and/or the appellate court to the Supreme Court of Ukraine, acting as a court of cassation. The law (Article 329) provides for the filter of cassation appeals by a panel of three judges of the Civil Chamber of the Supreme Court who decide whether or not leave to appeal should be granted. No participation of the parties is foreseen at this stage of proceedings. Leave to appeal is granted unless the panel unanimously decides otherwise. The system became effective as of 29 June 2001 and concerned cases pending before first and second instance courts. Under transitional provisions of the same law, any final decision in a civil case could be appealed under the new cassation procedure within three months of the new law coming into force, that was from 29 June to 29 September 2001. | 0 |
train | 001-85146 | ENG | CZE | ADMISSIBILITY | 2,008 | HABERLANDOVA AND PUR v. THE CZECH REPUBLIC | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Snejana Botoucharova | The applicants, Ms Drahomíra Haberlandová and Mr Radomír Pur, are Czech nationals who were born in 1948 and 1951 respectively, and live in Zábřeh na Moravě. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 1 March 1994 a certain P. (hereinafter “the plaintiff”) brought in the Šumperk District Court (okresní soud) a civil action against the first applicant and other persons seeking to termination and settlement of their joint ownership of immovable property and to creation of an easement. On 8 February 2000 the District Court delivered a meritorious judgment against which the plaintiff appealed. On 17 January 2002 the Ostrava Regional Court (krajský soud) did not allow the latter’s partial withdrawal of his action. The District Court’s judgment thereby became partially final. In a judgment of 8 July 2002 the Regional Court quashed the remaining part of the first instance judgment and remitted the relevant part of the case to the District Court which, on 4 November 2003, split for a separate hearing the plaintiff’s request to create an easement to the property and decided on the merits of his action. On 1 February 2005 the Regional Court upheld the meritorious part of the first instance judgment and modified it in respect of fees and expenses. On 14 June 2006 the Supreme Court (Nejvyšší soud) dismissed the plaintiff’s appeal on points of law (dovolání). On 18 July 2006 the applicants applied for compensation pursuant to Act no. 82/1998 as amended. They claimed CZK 54,829 (EUR 2,086) in respect of pecuniary damage. The second applicant further claimed CZK 100,000 (EUR 3,805) in respect of non-pecuniary damage. The applicants finally claimed CZK 14,669 (EUR 558) in respect of fees incurred in the proceedings before the national courts. In a letter of 15 January 2007 the Ministry of Justice informed them that their application had been accepted, that it had been found that their right to a determination of their civil claim within a reasonable time had been violated and that the second applicant had been awarded a sum of CZK 100,000 (EUR 3,805) in respect of non-pecuniary damage he might have sustained. The Ministry refused, however, the applicants’ claim regarding compensation for pecuniary damage and court fees. On 24 July 2007 the applicants informed the Registry that they did not intend to turn to a court under section 15(2) of Act no. 82/1998 as amended. The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007). | 0 |
train | 001-61412 | ENG | NLD | CHAMBER | 2,003 | CASE OF BAARS v. NETHERLANDS | 3 | Violation of Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings | null | 9. The applicant was born in 1928 and lives in Maaseik (Belgium). 10. On 15 February 1993 the applicant was arrested and taken into police custody (verzekering) on suspicion of forgery and of being an accessory to bribery of a public official. The public official concerned was a Mr B. The applicant was released from police custody on 19 February 1993. On 7 June 1995 the applicant was informed that the preliminary judicial investigation (gerechtelijk vooronderzoek) into the case had been closed. 11. By summons of 24 August 1995, the applicant was ordered to appear on 7 September 1995 before the Maastricht Regional Court (arrondissementsrechtbank) on charges of forgery committed together with others between 5 October 1991 and 5 November 1992. 12. Criminal proceedings had already been brought before the Maastricht Regional Court against Mr B. in relation to the same facts. Although both sets of criminal proceedings concerned the same facts, the criminal proceedings brought against Mr B. and the applicant were conducted separately. 13. In its judgment of 11 October 1995 in the applicant's case, the Maastricht Regional Court declared the prosecution inadmissible. It held that the judicial authorities had failed to deal with the applicant's case with the required diligence and that therefore the applicant's right to a trial within a reasonable time under Article 6 § 1 of the Convention had been violated. The public prosecutor lodged an appeal with the 's-Hertogenbosch Court of Appeal (gerechtshof), but informed the applicant on 17 August 1996, before the appeal proceedings had commenced, that this appeal had been withdrawn. 14. On 20 January 1997, in the course of the criminal proceedings on appeal in the case of Mr B., the applicant was heard as a witness before the 'sHertogenbosch Court of Appeal. In its judgment of 3 February 1997, the 'sHertogenbosch Court of Appeal convicted Mr B. of, inter alia, participating in forgery. It was found established that a receipt dated 9 October 1991 in relation to an alleged payment of NLG 7,414 by Mr B. to the applicant had been fraudulently written out in co-operation with Mr B. 15. In the meantime, on 18 November 1996, the applicant had lodged a request under Article 591a of the Code of Criminal Procedure (Wetboek van Strafvordering) for the reimbursement of costs and expenses incurred in the course of the criminal proceedings against him. His total claim amounted to NLG 104,708.80. On the same day he had lodged a request under Article 89 of the Code of Criminal Procedure for compensation for pecuniary and non-pecuniary damage caused by his having been kept in police custody. This claim amounted to NLG 205,000. 16. In its decision of 2 April 1997 in respect of the applicant's claim for costs and expenses incurred, the Maastricht Regional Court awarded the applicant an amount of NLG 114.60 for travel expenses and rejected his claims for the remainder. In a separate decision of the same date, the Maastricht Regional Court rejected the applicant's claim for compensation for the time spent in pre-trial detention. The applicant lodged appeals against both decisions with the 's-Hertogenbosch Court of Appeal. 17. In two separate decisions of 19 March 1998, the Court of Appeal rejected the applicant's appeals against the two decisions of 2 April 1997 in relation to his claim for costs and expenses and his claim for the time spent in pre-trial detention. Its reasoning in both decisions included the following: “It appears from the case against the co-accused B., in which the Court of Appeal delivered its final judgment on 3 February 1997 convicting B. of, amongst other things, 'participating in forgery', that the document referred to under a. above is a receipt. The Court of Appeal takes the view that this receipt was forged by the applicant together with B. who was then an alderman of Maastricht. Given the following circumstances: a. It is stated on this receipt that it was drawn up on 9 October 1991, whereas B. has stated that he was not in the Netherlands on that date and the applicant, heard as a witness at the appeal hearing on 20 January 1997 in the criminal case against B., has stated that the receipt was drawn up and signed after the journey to Egypt, i.e. after 27 or 28 November 1991; b. B. initially stated that he had received the sum allegedly paid to him by the applicant from his son, which his son confirmed; c. B. stated, after he and his son had withdrawn these statements, that he had received that money from his mother-in-law; d. B.'s mother-in-law stated unambiguously on 12 February 1993 that she had never given her son-in-law any money, nor given any into his safe-keeping; e. all the expenses for the journey to Egypt billed by the ... travel agency were debited to the account of 'travel, accommodation and representation expenses' of Baars Contractors and Road Builders Ltd. (Aannemings- en wegenbouwmaatschappij Baars B.V.) – that is, as business expenses – and were only debited to the private current account of the applicant, on the applicant's instructions, on 21 January 1992, the Court of Appeal finds in its judgment of 3 February 1997 that B. did not at any time, and in particular, did not on 9 October 1991 pay the sum of NLG 7,414 to the applicant. Based on these circumstances, from which it follows that the applicant – if the prosecution department had not forfeited the right to prosecute by exceeding a reasonable time and [the prosecution] had not been declared inadmissible by the Regional Court for that reason – would in all likelihood (met grote mate van waarschijnlijkheid) have been convicted, the Court of Appeal finds no reasons in equity for awarding compensation, and it will therefore dismiss the appeal.” 18. At the time of the events complained of, the relevant provisions of the Code of Criminal Procedure provided as follows: Article 89 “1. If a case ends without the imposition of a punishment or measure, or when such punishment or measure is imposed but on the basis of a fact for which detention on remand is not allowed, the court may, at the request of the former suspect, grant him compensation at the expense of the State for the damage which he has suffered as a result of police custody, clinical observation or detention on remand (voorlopige hechtenis). Such damage may include non-pecuniary damage. ...” Article 90 “1. Compensation shall be awarded in each case if and to the extent that the court, taking all circumstances into account, is of the opinion that there are reasons in equity to do so. 2. In the determination of the amount, the personal circumstances (levensomstandigheden) of the former suspect shall also be taken into account. ...” Article 591 “1. Compensation shall be paid to the former suspect or his heirs out of State funds for costs borne by the former suspect under or pursuant to the provisions of the Act on Fees in Criminal Cases (Wet tarieven in strafzaken), in so far as the appropriation of these costs has served the investigation or has become devoid of purpose by the withdrawal of summonses or legal remedies by the public prosecution service (openbaar ministerie). 2. The amount of compensation shall be determined at the request of the former suspect or his heirs. This request must be submitted within three months following the termination of the case. The determination shall be made in the court with jurisdiction as to both facts and law before which, at the time of its termination, the case was or would have been prosecuted or else was last prosecuted, by the District Court judge or by the presiding judge as the case may be. The presiding judge may appoint one of the judges of the Court of Appeal or the Regional Court who have dealt with the case to do so. The District Court judge or the [Regional Court or Court of Appeal] judge shall issue an order of payment (bevelschrift van tenuitvoerlegging) for the amount of the compensation. ...” Article 591a “1. If the case ends without imposition of a punishment or measure ..., the former suspect or his heirs shall be granted compensation out of State funds for his travel and subsistence expenses incurred for the investigation and the examination of his case, calculated on the basis of the Act on Fees in Criminal Cases. 2. If the case ends without imposition of a punishment or measure ..., the former suspect or his heirs may be granted compensation out of State funds for the damage which he has actually suffered through loss of time as a result to the preliminary investigation and the examination of his case at the trial, as well as the costs of counsel. This will include compensation for the costs of counsel during police custody and detention on remand. Compensation for such costs may furthermore be granted when a case ends with the imposition of a punishment or measure on the basis of a fact for which detention on remand is not allowed. ... 4. Articles 90 and 591, paragraphs 2 to 5, shall apply by analogy. ...” | 1 |
train | 001-66747 | ENG | POL | CHAMBER | 2,004 | CASE OF DURASIK v. POLAND | 4 | Violation of Art. 6-1;Non-pecuniary damage - financial award | Nicolas Bratza | 4. The applicant was born in 1951 and lives in Łódź, Poland. 5. On 4 November 1993 the applicant lodged with the Łódź Regional Court (Sąd Wojewódzki) a civil action against the State Treasury – the Zgierz Hospital. She claimed compensation and a monthly pension for damage she had sustained as a result of a medical treatment at the Zgierz Hospital. 6. On 5 November 1993 the court exempted the applicant from the courtfees. 7. On 20 March 1995 the trial court held the first hearing. 8. Subsequently, hearings were held on 12 June and 13 November 1995. 9. On 27 November 1995 the Łódź Regional Court gave judgment. It dismissed the applicant's action. The trial court found no fault on the part of the doctors concerned and accordingly dismissed the liability of the State Treasury for the damage. 10. The applicant appealed against this judgment. 11. On 28 February 1996 the Lodz Court of Appeal (Sąd Apelacyjny) quashed the impugned judgment and remitted the case to the Regional Court. 12. The trial court held the first hearing on 2 October 1996. 13. At the subsequent hearings which were held on 29 August and 12 November 1997 the trial court ordered an expert opinion and heard an expert witness. 14. At the hearing held on 23 January 1998 the defendant asked the court to prepare another expert opinion. 15. Between 24 January 1998 and 18 January 1999 no hearings were held. 16. Subsequently, the Łódź Regional Court held six hearings and on 22 July 1999 it gave judgment. The trial court again dismissed the action. 17. The applicant appealed against the judgment. 18. The Łódź Court of Appeal held five hearings and on 9 October 2001 it gave judgment. The appellate court partly allowed the appeal and awarded the applicant PLN 4,000 in compensation. The court found, inter alia, that the doctors had failed to act diligently; consequently, the State Treasury was liable for the damage sustained by the applicant. 19. On 29 January 2002 the applicant lodged a cassation appeal with the Supreme Court. 20. On 29 October 2002 the Supreme Court (Sąd Najwyższy) rejected her cassation appeal. | 1 |
train | 001-86086 | ENG | RUS | CHAMBER | 2,008 | CASE OF ISMOILOV AND OTHERS v. RUSSIA | 2 | Violation of Art. 3;Violation of Art. 5-1-f;Violation of Art. 5-4;Violation of Art. 6-2;Non-pecuniary damage - award;Costs and expenses - award | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | 7. According to reports by Amnesty International and Human Rights Watch between June and August 2004 twenty-three businessmen were arrested in Andijan (Uzbekistan). In September 2004 twenty of their employees were detained in Tashkent. Another group of thirteen businessmen were arrested in Andijan in February 2005. All of them were accused of involvement with an organisation by the name of Akramia, charged with criminal offences and committed for trial. 8. The Uzbek government claimed that Akramia was an extremist religious group. They maintained that in his writings the group's leader, Akram Yuldashev, had called for the formation of an Islamic state in Uzbekistan and for the ousting of the legitimately elected State representatives. They also claimed that Akramia was a branch of Hizb-ut-Tahrir, which was categorised as a terrorist organisation in Uzbekistan. In contrast, Akram Yuldashev always insisted that he had no interest in politics. He maintained that he had never called for the overthrow of the authorities or for the creation of an Islamic state. His writings did not touch upon political issues, but rather on general moral themes. A circle of sympathisers had formed around him, who tried to follow his view of Islam in their own lives. Akram Yuldashev's supporters argued that there was no such thing as an organised group known as Akramia. The name “Akramia” was derived by an Uzbek court in 1999 from Akram Yuldashev's first name. Furthermore, Akram Yuldashev and his supporters denied having any links with Hizb-ut-Tahrir. 9. The verdict in respect of the twenty-three businessmen was expected on 11 May 2005. However, its pronouncement was postponed. A group of supporters who gathered in front of the court building to protest the businessmen's innocence and demand justice were arrested on 11 and 12 May 2005. 10. In the early hours of 13 May 2005 armed men attacked a number of military barracks and government buildings in Andijan, killing and injuring several guards, and seizing weapons and a military vehicle. They broke into the city prison, where they freed the businessmen and hundreds of remand and convicted prisoners, and later occupied a regional government building on the main square and took a number of hostages. 11. At the same time thousands of unarmed civilians gathered in the main square, where many spoke out to demand justice and an end to poverty. In the early evening the security forces surrounded the demonstrators and started to shoot indiscriminately at the crowd. The demonstrators attempted to flee. According to witnesses, hundreds of people – including women and children – were killed. The Uzbek authorities deny responsibility for the deaths, blaming them on Islamic “extremist” organisations, such as Akramia and Hizb-ut-Tahrir, who were intent on overthrowing the government and creating an Islamic state in Uzbekistan. 12. Hundreds of people suspected of involvement in the 13 May events were detained and charged. The charges included “terrorism” and premeditated, aggravated murder – capital offences – as well as attempting to overthrow the constitutional order and organising mass disturbances. At least 230 people were convicted and sentenced to between twelve and twenty-two years' imprisonment for their alleged participation in the unrest. All trials except one were closed to the public. The defendants' relatives and international observers were denied access to the courtroom. The Organisation for Security and Co-operation in Europe (OSCE) and Human Rights Watch observers who were present at the only public trial from September to November 2005 were unanimous in their conclusion that the trial fell far short of international standards. They noted that all the defendants pleaded guilty to charges of “terrorism” and asked for forgiveness, while several even requested that they be given the death penalty. Their confessions, which were obtained from them during incommunicado pre-trial detention, closely followed the wording of the indictment. The observers expressed concerns that the defendants could have been subjected to torture and that their confessions could have been extracted under duress. Retained lawyers were not allowed to the detention centres or in the courtroom and were barred from representing their clients. The defendants were represented by State-appointed counsel who did not mount an active defence of the accused. There was no cross-examination of defendants or witnesses, and contradictions in the testimonies were not addressed. No witnesses for the defence were called to testify. The prosecution did not introduce any forensic, ballistic, or medical reports, nor did it present any exhibits or call expert witnesses. All the defendants were found guilty, predominantly on the basis of their confessions, and sentenced to terms of imprisonment ranging from fourteen to twenty years (see Human Rights Watch report of 11 May 2006 “The Andijan Massacre: one year later, still no justice”; and the report of 21 April 2006 from the OSCE/ODIHR “Trial monitoring in Uzbekistan – September/October 2005”). 13. All the applicants stated that they were Muslims. They denied membership of any political or religious organisations. 14. In 2000 Mr Muhamadsobirov was arrested in Uzbekistan by the Uzbekistan National Security Service (“the SNB”). He stated that the SNB agents had repeatedly beaten him, threatened to rape his wife and demanded he confessed to planning a violent overthrow of the State. He was subsequently convicted for distributing Islamic leaflets. In prison Mr Muhamadsobirov was repeatedly beaten by the wardens and tortured with electric shocks. He was placed in a punishment cell if he prayed. Food was scarce and the inmates were starving. He was released in 2003. The SNB agents repeatedly threatened to re-arrest him and to fabricate new criminal charges. He left for Russia on 19 February 2004. 15. His brother, Mr Muhametsobirov, moved to Russia in 2000. He has been living in Russia ever since. 16. Mr Kasimhujayev and Mr Rustamhodjaev have been living in Russia since 2001. 17. Mr Usmanov, Mr Naimov, Mr Makhmudov, and Mr Alimov were partners in private companies in Tashkent or Andijan. Mr Ismoilov, Mr Ulughodjaev, and Mr Sabirov were employees of private companies. In autumn 2004 the tax authorities and the SNB launched an inquiry into the companies' tax affairs. The applicants were repeatedly questioned about business matters and about their or their relatives' alleged participation in Akramia's activities. The SNB agents threatened to arrest Mr Ulughodjaev and Mr Sabirov. In January 2005 business partners of Mr Usmanov, Mr Makhmudov, and Mr Alimov were arrested. 18. Mr Naimov was arrested by the SNB in September 2004 and held in detention for fifteen days. He stated that he had been subjected to repeated beatings and questioned about his business and alleged membership of Akramia. After his release he was summoned to the SNB office on several occasions where the SNB agents threatened him and his family. 19. Mr Usmanov, Mr Naimov, Mr Makhmudov, Mr Alimov, Mr Ismoilov, Mr Ulughodjaev, and Mr Sabirov left Uzbekistan for Russia between January and March 2005 for fear of persecution. 20. Mr Hamzaev owned a company in the town of Kokand (Uzbekistan). He has never been to Andijan. He travelled to Russia on 23 April 2005 on business. 21. Before 2003 Mr Tashtemirov lived in Kyrgyzstan. In 2003 he moved to Turkey. He has never been to Uzbekistan. In June 2005 he went to Russia on a business trip. 22. On 13 May 2005 all the applicants except Mr Tashtemirov and Mr Kasimhujayev were in Russia. Mr Tashtemirov was in Turkey and Mr Kasimhujayev in Andijan. However, he denied any involvement in the Andijan events. 23. After the May events two of Mr Ismoilov's brothers were arrested. Their fate remains unknown. 24. On 2 February 2005 the Tashkent prosecutor's office accused Mr Naimov of membership of Akramia, and charged him with organising a criminal conspiracy, attempting to overthrow the constitutional order of Uzbekistan, membership of an illegal organisation and the possession and distribution of subversive literature (Articles 159 § 4, 242 § 1, 244-1 § 3, and 244-2 § 1 of the Uzbekistan Criminal Code). On 25 May 2005 it ordered his arrest. 25. On 17, 18 and 19 June 2005 the Uzbekistan prosecutor's office charged the other applicants with membership of extremist organisations, such as Akramia, Hizb-ut-Tahrir and the Islamic Movement of Turkestan, financing terrorist activities, attempting a violent overthrow of the constitutional order of Uzbekistan, aggravated murder and organising mass disorders on 13 May 2005 in Andijan (offences under Articles 97 § 2 (a, d, j and m), 155 § 3 (a and b), 159 § 3 (b), 242 § 2, and 244 of the Uzbekistan Criminal Code). Some of the applicants were also charged with involvement in subversive activities, unlawful possession of firearms, and the dissemination of materials liable to undermine public security and public order, in conspiracy with others and with financial backing from religious organisations (Articles 161, 244-1 § 3, 244-2, and 247 § 3 of the Uzbek Criminal Code). On the same dates the Tashkent and Andijan prosecutor's offices ordered the applicants' arrest. 26. At the material time aggravated murder (Article 97 § 2 of the Criminal Code) and terrorism (Article 155 § 3 of the Criminal Code) were capital offences in Uzbekistan. However, Uzbekistan abolished the death penalty with effect from 1 January 2008 and replaced it with life imprisonment. The remaining offences are punishable by terms of imprisonment ranging from five to twenty years. 27. The applicants said that on 18 June 2005 they had been arrested in Ivanovo. They had not been informed of the reasons for their arrest. On 20 June 2005 they had been questioned by SNB agents from Uzbekistan who had beaten them and threatened them with torture in Uzbekistan. They had been told that they would be forced to confess to various crimes and be sentenced to long prison terms or death. 28. The documents issued by various State authorities indicate inconsistent dates of, and reasons for, the applicants' arrest. Thus, on 6 December 2005 the officer in charge of the Oktyabrskiy District Police Station affirmed that Mr Ismoilov, Mr Usmanov, and Mr Tashtemirov had been arrested on 19 June 2005 and charged with administrative offences for uttering obscenities in public and refusing to produce identity documents. A police report dated 20 June 2005 stated that the applicants had been arrested on that day because they were wanted by the Uzbek police. However, in a letter of 16 January 2006, the Ivanovo regional police department asserted that all the applicants had been arrested on 19 June 2005. 29. On 20 June 2005 the Ivanovo police informed the Tashkent police of the applicants' arrest. On the same day the Tashkent prosecutor's office requested the Ivanovo prosecutor's office to keep the applicants in detention pending extradition. 30. In July 2005 the Prosecutor General's Office of the Russian Federation received requests for the applicants' extradition from the Prosecutor General of Uzbekistan. The Uzbek prosecutor's office gave an assurance that without Russia's consent the applicants would not be extradited to a third-party State, or prosecuted or punished for any offences committed before extradition and which were not mentioned in the extradition request. It also stated that after serving their sentences they would be free to leave Uzbekistan. 31. On 21 July 2005 further assurances were given by the First Deputy Prosecutor General of Uzbekistan. He gave an undertaking that the applicants would not be subjected to the death penalty, torture, violence or other forms of inhuman or degrading treatment or punishment. Their rights of defence would be respected and they would be provided with counsel. He also gave an assurance that the Uzbek authorities had no intention of persecuting the applicants out of political motives, on account of their race, ethnic origin, or religious or political beliefs. Their intention was to prosecute the applicants for the commission of particularly serious crimes. 32. The Ivanovo prosecutor's office carried out an inquiry and established that none of the applicants, except Mr Kasimhujayev, had left Russia in May 2005. Mr Kasimhujayev had been in Andijan from 10 to 25 May 2005. Mr Tashtemirov had arrived in Russia from Turkey in June 2005. None of the applicants had made money transfers to Uzbekistan in 2005. 33. On 14 July 2005 counsel for the applicants complained to the Sovetskiy and Frunzenskiy District Courts of Ivanovo that their detention was unlawful. She submitted that the applicants had not been served with detention orders. On 15 July 2005 (the decisions are dated 15 May 2005, but this appears to be a misprint) the Sovetskiy and Frunzenskiy District Courts of Ivanovo returned the complaints because counsel had not indicated which acts or omissions of State officials she wished to challenge, which made it impossible to establish whether they had territorial jurisdiction to examine the complaints. 34. The applicants did not appeal. 35. By separate decisions of 20, 25, 27, 28, and 29 July 2005, the Sovetskiy, Oktyabrskiy, Frunzenskiy, and Leninskiy District Courts of Ivanovo ordered the applicants' detention pending extradition on the basis of Articles 108 and 466 of the Russian Code of Criminal Procedure (see paragraphs 85 and 87 below). They referred to the gravity of the charges, and to the risk of the applicants' absconding, re-offending or obstructing the investigation. It was also noted that the applicants had absconded from Uzbekistan to Russia. The courts held that it was not possible to apply a less restrictive measure and that only detention could secure their extradition and “the execution of any sentence that might be imposed”. The courts did not set a time-limit on the detention. 36. On 9 or 11 August 2005 the Ivanovo Regional Court upheld the decisions on appeal. 37. On 20 June 2006 counsel for the applicants asked the director of the remand centre to release the applicants. In particular, she claimed that Article 109 of the Code of Criminal Procedure set the maximum period of detention at twelve months (see paragraph 85 below). A further extension was permitted only in exceptional circumstances. As the detention period had not been extended following the expiry of the twelve-month period on 20 June 2006, the applicants' subsequent detention was unlawful. 38. On 21 June 2006 the director of the remand centre replied that Article 109 did not apply to cases of detention pending extradition and refused to release the applicants. 39. Counsel challenged that refusal before a court, pursuant to Articles 254 and 258 of the Civil Code (see paragraph 89 below). On 26 and 28 June 2006 the Oktyabrskiy District Court of Ivanovo returned the complaint claiming that it had to be examined in criminal, not civil, proceedings. On 31 July, 7, 21, and 23 August 2006 the Ivanovo Regional Court upheld those decisions on appeal. 40. On 30 June 2006 counsel for the applicants petitioned the Sovetskiy, Oktyabrskiy, Frunzenskiy, and Leninskiy District prosecutors for the applicants' release. On 3 and 10 July 2006 the prosecutors rejected their applications. They pointed out that domestic law did not set a maximum period for detention pending extradition or establish a procedure for the extension of such detention. 41. In July 2005 counsel lodged applications for release with the Sovetskiy, Oktyabrskiy, Frunzenskiy, and Leninskiy District Courts of Ivanovo. She reiterated the arguments set forth in her complaint of 20 June 2006 and submitted that the director of the detention centre and the prosecutors had acted unlawfully in refusing release. 42. On 1 August 2006 the Sovetskiy District Court refused to entertain the applications for release. It held, firstly, that they could not be examined in criminal proceedings because there were no criminal proceedings pending against the applicants in Russia. It further held that domestic law did not set a maximum period for detention pending extradition and added: “Russian law in substance prohibits impermissibly excessive, unlimited and uncontrolled detention. [The applicants'] detention cannot be said to be impermissibly excessive, unlimited or uncontrolled, because it has not exceeded the time-limit set in Article 109 of the Criminal Procedure Code. [The applicants] were held in detention pending the decisions by the Prosecutor General's office to extradite [them] to Uzbekistan. Those decisions were only taken on [27, 31 July, or 1 August 2006]. Moreover, [the applicants'] detention was prolonged as a result of [their] application for refugee status to the Ivanovo Region Federal Migration Service and [their] challenges of the Federal Migration Service decisions before the courts. Therefore, the detention has not been excessive.” 43. On 24 August 2006 the Ivanovo Regional Court upheld that decision on appeal. It endorsed the reasoning of the District Court and indicated that the applications were to be examined in civil proceedings. 44. On 26 July, 7 and 8 September 2006 the Frunzenskiy District Court returned the applications of Mr Rustamhodjaev and Mr Kasimhujayev because their applications could not be examined in criminal proceedings. It also pointed out that Article 109 of the Code of Criminal Procedure did not apply to detention pending extradition. On 17 October 2006 the Ivanovo Regional Court upheld those decisions on appeal. 45. Mr Tashtemirov's applications were disallowed in decisions of 28 July and 4 September 2006 by the Oktyabrskiy District Court, which held that domestic law did not set a maximum period for detention pending extradition and that there was no reason to vary the preventive measure. On 22 August and 28 September 2006 the Ivanovo Regional Court upheld those decisions on appeal. 46. Mr Alimov contested the refusal to release him under Article 125 of the Code of Criminal Procedure (see paragraph 86 below). On 18 September 2006 the Leninskiy District Court refused to entertain his application. It found that such complaints were to be filed with a court having jurisdiction for the place where the preliminary investigation was carried out. Since Mr Alimov was not the subject of any investigation in Russia, his application for release could not be examined in Russian criminal proceedings. It indicated that the application for release should be examined in civil proceedings. On 17 October 2006 the Ivanovo Regional Court quashed that decision as unlawful. On 7 November 2006 the Leninskiy District Court refused to entertain the application for the same reasons as before. On 5 December 2006 the Ivanovo Regional Court upheld the decision on appeal. 47. The applicants again challenged the refusal to release them in civil proceedings. By separate decisions of 22 January 2007 the Oktyabrskiy District Court refused to hear the applications because they could not be examined in civil proceedings. It held that the applications had to be examined in criminal proceedings. On 12 and 19 March 2007 the Ivanovo Regional Court upheld the decisions on appeal. 48. In January 2007 the applicants unsuccessfully petitioned prosecutors at different levels for their release. 49. By separate decisions of 2 and 5 March 2007 the Sovetskiy, Leninskiy, Frunzenskiy and Oktyabrskiy District Courts ordered, of their own motion, the applicants' release. They found that Article 109 of the Code of Criminal Procedure was applicable to detention pending extradition and established a maximum period for detention at eighteen months. As the applicants had been detained for more than twenty months, they had to be released immediately. 50. On 5 March 2007 the applicants were released. 51. On 27 March 2007 the Ivanovo Regional Court upheld the decisions of 2 and 5 March 2007 on appeal. 52. On 5 August 2005 the applicants applied to the Russian Federal Migration Service (“the FMS”) for refugee status. In particular, they submitted that they had left Uzbekistan for fear of persecution in connection with their business activities. They claimed that some of the applicants or their relatives had a history of unlawful prosecution. They denied membership of Akramia or any involvement in the events in Andijan. They maintained that the accusations against them were groundless and that their prosecution was arbitrary and politically motivated. 53. On 25 January 2006 the Office of the United Nations High Commissioner for Refugees (“the UNHCR”) intervened in support of their applications. The Commissioner submitted that Akramia was a peaceful non-violent group of followers of the teachings of Akram Yuldashev. In his writings, Akram Yuldashev called on Muslim businessmen to cooperate and help the poor. There was no evidence of the group's involvement in any extremist activities. It was believed that successful Muslim businessmen were persecuted in Uzbekistan because of their popularity and influence over the local population. It further continued: “In the UNHCR's opinion, in Uzbekistan criminal prosecution of people accused of involvement in the activities of extremist religious organisations can be arbitrary in nature and can result in violations of inalienable human rights, including arbitrary arrest, torture, violations of fair trial guarantees, imposition of penalty unproportionate to the committed crime. Moreover, as the Uzbek authorities do not tolerate any forms of opposition, there is a high risk of attributing membership of such religious organisations to people who have been noticed for their opposition views or who are perceived by the authorities as supporters of opposition groups. Therefore, there is a great risk that people involved in the activities of such religious organisations, or to whom such an involvement is attributed by the authorities, can be persecuted for the reasons enumerated in the 1951 Convention relating to the status of refugees which was ratified by the Russian Federation in 1993, especially taking into account the lack of an effective mechanism of legal guarantees in [Uzbekistan].” 54. The UNHCR further argued that the risk of persecutions had increased after the Andijan events. 55. On 10 February 2006 Human Rights Watch also supported the applicants' request for refugee status. They submitted as follows: “We are deeply concerned about [the applicants'] fate if their application is dismissed and they are extradited to Uzbekistan. It would be a breach of the prohibition against returning individuals to a country where they will face the risk of being subjected to torture... In Uzbekistan ... torture is systematic. People accused of participation in the Andijan events are at an increased risk of torture: we have documented tens of cases of extraction of confessions by means of torture and other forms of inhuman and degrading treatment. Confessions obtained under duress serve as a basis for criminal prosecution. Trials of people charged in connection with the May massacre in Andijan fell far short of international procedural standards. Courts in Uzbekistan are not independent, the defendants are deprived of their right to effective defence, and convictions are based exclusively on doubtful confessions of defendants and statements by prosecution witnesses. In breach of Uzbek and international law cases of tens of defendants are examined in closed trials. Serious doubts as to fairness of the Andijan trials were expressed by the UN High Commissioner for Human Rights.” 56. On 16 March 2006 a deputy head of the Ivanovo Regional Department of the FMS rejected the applications by reference to sections 1 § 1 (1) and 2 § 1 (1 and 2) of the Refugees Act (see paragraphs 92 and 93 below). He found that the applicants had not been persecuted for their political or religious beliefs, or their social status. They had been prosecuted for the commission of serious criminal offences which were punishable under Russian criminal law. In particular, they had been charged with supporting Hizb-ut-Tahrir and the Islamic Movement of Turkestan, which had been recognised by the Russian Supreme Court as terrorist organisations and whose activities were banned in Russia. He further noted that the Uzbek authorities had undertaken not to impose the death penalty on the applicants and to ensure that they would not be subjected to torture or ill-treatment and would be provided with defence counsel. 57. The applicants challenged the refusals before the Oktyabrskiy District Court of Ivanovo. They maintained that the real motives behind their prosecution were political and that they were in fact being persecuted for their successful business activities. They also submitted that there was a great risk that they would be tortured and unfairly tried in Uzbekistan. 58. On 8, 9, 13, 15, and 16 June 2006 the Oktyabrskiy District Court confirmed the decisions of 16 March 2006. It found that the applicants had come to Russia to find employment. They had not proved that they had left Uzbekistan for fear of being persecuted on account of their religious or political beliefs, or social status. In the decisions concerning certain applicants it also added: “The court considers that the Ivanovo Regional Department of the Federal Migration Service ... correctly disregarded the Andijan events and their aftermath because [the applicants] denied ... involvement in those events and had come to Russia long before they occurred.” 59. The court concluded that the applicants did not meet the requirements of section 1 § 1 (1) of the Refugees Act and were, therefore, not eligible for refugee status. However, it struck down the reference in the decisions of 16 March 2006 to section 2 § 1 (1 and 2) of the Refugees Act because the Uzbek authorities had not proved beyond reasonable doubt that the applicants had committed a crime against peace, a war crime, a crime against humanity or a serious non-political crime. 60. On 5 July 2006 the UNHCR granted the applicants mandate refugee status. 61. On 12, 17, 19, 24 and 26 July 2006 the Ivanovo Regional Court upheld the decisions of the Oktyabrskiy District Court on appeal. 62. On 14 August 2006 the applicants applied to the Ivanovo Regional FMS for temporary asylum on humanitarian grounds. They claimed that there was a risk of ill-treatment and unfair trial in Uzbekistan. 63. On 14 November 2006 the acting head of the Ivanovo Regional Department of the FMS rejected their applications. He found that there were no humanitarian grounds warranting temporary asylum. The applicants were in good health, there was no military conflict in Uzbekistan and the situation with regard to human rights had been improving. In particular, according to the FMS report on the situation in Uzbekistan more than 300 human-rights laws had been adopted. The Supreme Court had issued a circular warning against convictions based on confessions extorted under duress or in incommunicado detention. The death penalty had been abolished as from 1 January 2008. 64. The applicants challenged the refusals before the Oktyabrskiy District Court of Ivanovo, repeating their fears of ill-treatment and an unfair trial in Uzbekistan. They submitted reports by the UN General Assembly, the UN Special Rapporteur on Torture and Human Rights Watch in support of their allegations. 65. By separate decisions of 30 November, 1, 4 and 11 December 2006 the Oktyabrskiy District Court annulled the decisions of 14 November 2006. It found that the reports submitted by the applicants contained well-documented evidence of widespread torture in Uzbekistan. The acting head of the Ivanovo Regional Department of the FMS had disregarded those reports. He had also disregarded the fact that the applicants had been granted mandate refugee status by the UNHCR. The conclusion that the applicants did not run any risk of ill-treatment if returned to Uzbekistan had been hypothetical and had not been supported by evidence. The FMS report on the situation in Uzbekistan could not be admitted in evidence because it was generic and did not contain any reference to its sources of information. The Court remitted the applicants' request for temporary asylum for a fresh examination by the Ivanovo Regional Department of the FMS. 66. The Ivanovo Regional Department of the FMS appealed. On 29 January 2007 the Ivanovo Regional Court upheld the decisions of the Oktyabrskiy District Court in respect of Mr Makhmudov, Mr Ulughodjaev and Mr Hamzaev. On 30 January 2007 the Ivanovo Regional Department of the FMS withdrew their appeals in respect of the remainder of the applicants. 67. It appears that no decision on the applicants' request for temporary asylum has been taken to date. 68. On 27, 31 July, and 1 August 2006 the First Deputy Prosecutor General of the Russian Federation decided to extradite the applicants to Uzbekistan. The decisions in respect of certain applicants read as follows: “On the night of 12-13 May 2005 [an applicant], acting in criminal conspiracy and being a member of the religious extremist party Hizb-ut-Tahrir al-Islami, committed the following offences in aggravating circumstances: attempted overthrow of the constitutional order of the Uzbekistan Republic, murder, terrorism, and organised mass disorders in Andijan with the aim of destabilising the socio-political situation in Uzbekistan.” 69. The decisions in respect of the other applicants read as follows: “[An applicant] has been a member of an extremist organisation; he disseminated materials liable to undermine public security and public order, in conspiracy with others and with financial backing from religious organisations. On the night of 12-13 May 2005 [the applicant], acting in criminal conspiracy and being a member of the religious extremist party Hizb-ut-Tahrir al-Islami, unlawfully obtained weapons and ammunition and committed the following offences in aggravating circumstances: the attempted overthrow of the constitutional order of the Uzbekistan Republic, murder, terrorism, subversive activities, and organised mass disorders in Andijan with the aim of destabilising the socio-political situation in Uzbekistan.” 70. Extradition orders were granted in respect of aggravated murder, terrorism, the establishment and membership of an illegal organisation, the illegal possession of arms, and participation in mass disorders. However, the prosecutor refused to extradite the applicants for the attempted overthrow of the constitutional order of Uzbekistan and dissemination of materials liable to undermine public security and public order in conspiracy with others and with financial backing from religious organisations, because these were not offences under Russian criminal law. 71. Counsel for the applicants challenged the decisions before a court. In particular, she submitted that on 13 May 2005 the applicants were in Russia and denied any involvement in the events in Andijan. The accusations against them were unfounded and they were in fact being persecuted by the Uzbek authorities on account of their political and religious beliefs and their successful businesses. The applicants were charged with capital offences and there was a risk of their being sentenced to death following an unfair trial. They also faced torture and other forms of ill-treatment because torture was widespread in Uzbekistan and confessions were often extracted from defendants under duress. She also argued that the documents that had been submitted by the Uzbek prosecution office to support their extradition requests were flawed. Finally, she submitted that the wording of the extradition decisions violated the applicants' right to be presumed innocent. 72. On 29 and 30 August, 1, 4, 5, 12, 13, 14, 15 and 21 September 2006 the Ivanovo Regional Court upheld the extradition decisions. It held that the applicants were charged with offences punishable under Uzbek and Russian criminal law, that the Uzbek authorities had given assurances that the applicants would not be tortured or sentenced to death, and that the Uzbek and Russian authorities had followed the extradition procedure set out in the applicable international and domestic law. The court rejected the suggestion that the applicants would be subjected to inhuman treatment and that their rights would be violated in Uzbekistan. It further held that the issue of the applicants' guilt or innocence was not within the scope of the review by the extraditing authorities. The extradition decision only described the charges against the applicants, and did not contain any findings as to their guilt. Therefore, the presumption of innocence had not been violated. 73. The applicants appealed. On 28 November 2006 the Supreme Court of the Russian Federation upheld the decisions on appeal, finding that they were lawful and justified. 74. In his report submitted in accordance with the United Nations Commission on Human Rights resolution 2002/38 (E/CN.4/2003/68/Add.2) the Special Rapporteur on the question of torture, Theo van Boven, described the situation in Uzbekistan as follows: “66. The combination of a lack of respect for the principle of presumption of innocence despite being guaranteed by the Constitution (art. 25) and [the Code of Criminal Procedure] (art. 23), the discretionary powers of the investigators and procurators with respect to access to detainees by legal counsel and relatives, as well as the lack of independence of the judiciary and allegedly rampant corruption in the judiciary and law enforcement agencies, are believed to be conducive to the use of illegal methods of investigation. The excessive powers in the overall criminal proceedings of procurators, who are supposed at the same time to conduct and supervise preliminary criminal investigations, to bring charges and to monitor respect for existing legal safeguards against torture during criminal investigations and in places of detention, make investigations into complaints overly dependent on their goodwill. 67. The Special Rapporteur regrets the absence of legal guarantees such as the right to habeas corpus and the right to prompt and confidential access to a lawyer and relatives. He further observes that pre-trial detainees are held in facilities which are under the same jurisdiction as investigators in the case... 68. The Special Rapporteur believes, on the basis of the numerous testimonies (including on a number of deaths in custody) he received during the mission, not least from those whose evident fear led them to request anonymity and who thus had nothing to gain personally from making their allegations, that torture or similar ill-treatment is systematic as defined by the Committee against Torture. Even though only a small number of torture cases can be proved with absolute certainty, the copious testimonies gathered are so consistent in their description of torture techniques and the places and circumstances in which torture is perpetrated that the pervasive and persistent nature of torture throughout the investigative process cannot be denied. The Special Rapporteur also observes that torture and other forms of ill-treatment appear to be used indiscriminately against persons charged for activities qualified as serious crimes such as acts against State interests, as well as petty criminals and others.” 75. The United Nations High Commissioner for Human Rights also stated in her report of 1 February 2006 entitled “Report of the mission to Kyrgyzstan concerning the events in Andijan, Uzbekistan, 13-14 May 2005” (E/CN.4/2006/119): “42. The main relevant concerns identified by the United Nations human rights treaty bodies and the special procedures of the Commission can be summarized as follows: violations of the right to life, in particular the execution of prisoners under sentence of death despite requests for interim measures by the Human Rights Committee; violations of the principle of prohibition of torture, in particular the systematic and widespread use of torture, the high numbers of convictions based on confessions extracted by torture and the use of 'solved crimes' as a criterion for the promotion of law enforcement personnel; violations of fair trial provisions, in particular the lack of access to legal counsel, the lack of independence of the judiciary and of the respect of the principle of 'equality of arms'; the lack of a definition of 'terrorist acts'; and violations of freedom of opinion and expression, of the press and media and of freedom of association and freedom of religion... 55. There is an urgent need for a stay of deportation to Uzbekistan of the Uzbek asylum-seekers and eyewitnesses of the Andijan events who would face the risk of torture if returned.” 76. In its report of 20 September 2005, “Uzbekistan: lifting the siege on the truth about Andijan”, Amnesty International remarked: “Amnesty International is concerned by reports of alleged torture and other ill-treatment by law enforcement officials in the aftermath of the events in Andijan. Individuals, who have been detained and subsequently released, claimed that the detainees were being subjected to various forms of torture and other ill-treatment including beatings, beating of the heels with rubber truncheons, and the insertion of needles into gums and under fingernails. Torture and other ill-treatment have reportedly been used to force detainees to 'confess' to being involved in religious extremism. A senior policeman who spoke anonymously to IWPR claimed to have witnessed law enforcement officials threatening to rape a detainee's female relative if he did not confess to being involved in the events in Andijan. Amnesty International has also received reports that the detainees have been sexually assaulted with truncheons... Amnesty International considers individuals charged in connection with the events in Andijan to be at serious risk of being tried in a manner that violates even the most basic international fair trial standards. In April 2005 the UN Human Rights Committee expressed its concern about continuing violations of the right to a fair trial in Uzbekistan... In particular, the Committee expressed concern that the judiciary is not fully independent and pointed to the high number of convictions based on 'confessions' made in pre-trial detention that were allegedly obtained by torture or other ill-treatment. The Committee also expressed concern that the right of access to a lawyer from the time of arrest is often not respected in practice... On 1 August 2005 the government announced that it would abolish the death penalty as of 1 January 2008. Amnesty International welcomes this development but is concerned that unless fundamental changes are introduced immediately then scores of people are likely to be sentenced to death and executed before January 2008. In previous reports Amnesty International has documented that Uzbekistan's flawed criminal justice system provides fertile ground for miscarriages of justice and executions due to judicial error or grossly unfair trials. Amnesty International is also concerned that the August 2005 announcement may come too late to protect those people who have been charged with capital crimes – premeditated aggravated murder and terrorism – in connection with the events in Andijan. Amnesty International considers that these individuals are at great risk of suffering a violation of their right to life as a result of the likely imposition of the death penalty following what would likely be an unfair trial. The death penalty has played an important role in the clampdown on 'religious extremism' in Uzbekistan and dozens of alleged 'Islamists' have been sentenced to death and executed without being granted the right to effective assistance of counsel and to prepare a defence... In April 2005 the Human Rights Committee deplored the fact that at least 15 individuals have been executed by the Uzbek authorities, while their cases were pending before the Human Rights Committee.” 77. In conclusion, Amnesty International stated: “Amnesty International is concerned for the safety of all those individuals who have been detained in connection with the events in Andijan. These concerns are based on Uzbekistan's well-documented history of human rights violations in the name of national security. Amnesty International considers all such detained individuals to be at serious risk of being subjected to torture and other ill-treatment. Amnesty International also considers those individuals who have been charged with criminal offences to be at risk of being tried in a manner that violates international fair trial standards. ... [I]ndividual[s] who have been charged with capital offences are at great risk of suffering a violation of their right to life, as a result of likely imposition of the death penalty following an unfair trial.” 78. In his report of 18 October 2006 “Situation of human rights in Uzbekistan” (A/61/526) the UN Secretary General expressed his concern about the fate of individuals extradited to Uzbekistan after the Andijan events: “18. On 9 August 2006, the Government of Kyrgyzstan extradited four Uzbek refugees and one asylum-seeker to Uzbekistan... Back in Uzbekistan, the five Uzbek citizens face a series of charges, including terrorism, the attempted overthrow of the constitutional order of the Republic of Uzbekistan, and the establishment of an illegal organization. As per information received by OHCHR, no one has been granted access to the five since their return. 19. The fate of four other Uzbek individuals, who fled the Andijan events to Kyrgyzstan and were forcibly returned to Uzbekistan in June 2005, remains unclear. Though the Government of Uzbekistan informed OHCHR about their whereabouts, no international body has been granted access to them thus far. 20. UNHCR continues to be concerned about the fate of an increasing number of Uzbek asylum-seekers and refugees, some of whom fled the Andijan events, who have been detained in countries of the Commonwealth of Independent States and forcibly returned to Uzbekistan despite a real risk of mistreatment in breach of international standards. In February 2006, 11 Uzbek asylum-seekers were forcefully returned from Ukraine to Uzbekistan. In a press statement of 16 February 2006, UNHCR said that it was appalled by this forceful deportation. Thus far, the Office of the United Nations High Commissioner for Refugees (UNHCR) has not had access to the 11 individuals... According to information received by OHCHR, no access has been granted to these individuals since their return to Uzbekistan. 21. OHCHR is concerned about other individuals who have fled since the Andijan events and who are under pressure from the Government of Uzbekistan or the host country to return despite a real risk of mistreatment in breach of international standards... 46. In an interview of 10 April 2006, the Special Rapporteur on the question of torture said that 'there is ample evidence that both police and other security forces have been and are continuing to systematically practise torture, in particular against dissidents or people who are opponents of the regime'... 48. The Human Rights Committee, in its concluding observations of 31 March 2005 (CCPR/OP/83/UZB), remained concerned about the high number of convictions based on confessions made in pre-trial detention that were allegedly obtained by methods incompatible with article 7 of the International Covenant on Civil and Political Rights. The Committee expressed concern at the definition of torture in the Criminal Code of Uzbekistan. In addition, the Committee pointed to the allegations relating to widespread use of torture and ill-treatment of detainees and the low number of officials who have been charged, prosecuted and convicted for such acts. The Government of Uzbekistan was due to submit follow-up information by 26 April 2006 on these issues in accordance with the request of the Committee. So far, no such information has been submitted to the Human Rights Committee.” 79. In the report of 11 May 2006, entitled “Uzbekistan: Andijan – impunity must not prevail”, Amnesty International claimed: “Scores of people suspected of involvement in the Andijan events have been sentenced to long terms, in vast majority in closed secret trials, in violation of international fair trial standards. Most had been held incommunicado for several months in pre-trial detention... The Uzbek authorities have also continued to actively – and often successfully – seek the extradition of members or suspected members of banned Islamic parties or movements, such as Hizb-ut-Tahrir and Akramia, whom they accuse of participation in the Andijan events, from neighbouring countries, as well as Russia and Ukraine. Most of the men forcibly returned to Uzbekistan continue to be held in incommunicado detention, thus increasing fears that they are at risk of being tortured or otherwise ill-treated. Over the years Amnesty International has documented many cases of people forcibly returned or extradited to Uzbekistan at the request of the Uzbek authorities who were tortured to extract 'confessions', sentenced to death after unfair trials and executed.” 80. 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.” 81. Article 16 of the European Convention on Extradition of 13 December 1957 (CETS no. 024), to which Russia is a party, provides as follows: “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.” 82. The CIS Convention on legal aid and legal relations in civil, family and criminal cases (the 1993 Minsk Convention), to which both Russia and Uzbekistan are parties, provides that a request for extradition must be accompanied by a detention order (Article 58 § 2). 83. A person whose extradition is sought may be arrested before receipt of a request for his or her extradition. In such cases a special request for arrest containing a reference to the detention order and indicating that a request for extradition will follow must be sent. A person may also be arrested in the absence of such request if there are reasons to suspect that he has committed, in the territory of the other Contracting Party, an offence entailing extradition. The other Contracting Party must be immediately informed of the arrest (Article 61). 84. A person arrested pursuant to Article 61 must be released if no request for extradition is received within forty days of the arrest (Article 62 § 1). 85. Chapter 13 of the Russian Code of Criminal Procedure (“Measures of restraint”) governs the use of measures of restraint, or preventive measures (меры пресечения), which include, in particular, placement in custody. Custody may be ordered by a court on an application by an investigator or a prosecutor if a person is charged with an offence carrying a sentence of at least two years' imprisonment, provided that a less restrictive measure of restraint cannot be used (Article 108 §§ 1 and 3). The period of detention pending investigation may not exceed two months (Article 109 § 1). A judge may extend that period up to six months (Article 109 § 2). Further extensions of up to twelve months, or in exceptional circumstances, up to eighteen months, may only be granted if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). No extension beyond eighteen months is permissible and the detainee must be released immediately (Article 109 § 4). 86. Chapter 16 (“Complaints about acts and decisions by courts and officials involved in criminal proceedings”) provides for the judicial review of decisions and acts or failures to act by an investigator or a prosecutor that are capable of adversely affecting the constitutional rights or freedoms of the parties to criminal proceedings (Article 125 § 1). The competent court is the court with jurisdiction for the place where the preliminary investigation is conducted (ibid.). 87. Chapter 54 (“Extradition of a person for criminal prosecution or execution of sentence”) regulates extradition procedures. Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court, a prosecutor must decide on the measure of restraint in respect of the person whose extradition is sought. The measure must be applied in accordance with the established procedure (Article 466 § 1). A person who has been granted asylum in Russia because of possible political persecution in the State seeking his extradition may not be extradited to that State (Article 464 § 1 (2)). 88. An extradition decision made by the Prosecutor General may be challenged before a court. Issues of guilt or innocence are not within the scope of judicial review, which is limited to an assessment of whether the extradition order was made in accordance with the procedure set out in the relevant international and domestic law (Article 463 §§ 1 and 6). 89. A person may apply for judicial review of decisions and acts or failures to act by a State body or a State official that are capable of violating his/her rights or freedoms, hindering the realisation of his or her rights and freedoms, or imposing an obligation or liability unlawfully (Articles 254 § 1 and 255). If the court finds the application well-founded, it must order the State body or State official concerned to remedy the violation or remove the obstacle to the realisation of the rights and freedoms in question (Article 258 § 1). 90. On 4 April 2006 the Constitutional Court examined an application by Mr Nasrulloyev, who had submitted that the lack of any limitation in time on the detention of a person pending extradition was incompatible with the constitutional guarantee against arbitrary detention. The Constitutional Court declared the application inadmissible. It reiterated its settled case-law that excessive or arbitrary detention, unlimited in time and without appropriate review, was incompatible with Article 22 of the Constitution and Article 14 § 3 of the International Covenant on Civil and Political Rights in all cases, including extradition proceedings. However, in the Constitutional Court's view, the absence of any specific regulation of detention matters in Article 466 § 1 did not create a legal lacuna incompatible with the Constitution. Article 8 § 1 of the 1993 Minsk Convention provided that, in executing a request for legal assistance, the requested party would apply its domestic law, that is, the procedure laid down in the Russian Code of Criminal Procedure. Such procedure comprised, in particular, Article 466 § 1 of the Code and the norms in its Chapter 13 (“Measures of restraint”) which, by virtue of their general character and position in Part I of the Code (“General provisions”), applied to all stages and forms of criminal proceedings, including proceedings for the examination of extradition requests. The Constitutional Court emphasised that the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the Code of Criminal Procedure did not allow the authorities to apply a custodial measure without complying with the procedure established in the Code of Criminal Procedure or the time-limits fixed in the Code. 91. Article 33 of the UN Convention on the Status of Refugees of 1951, which was ratified by Russia on 2 February 1993, provides 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 judgement of a particularly serious crime, constitutes a danger to the community of that country.” 92. The Refugees Act (Law no. 4258-I of 19 February 1993) incorporated the definition of the term “refugee” contained in Article 1 of the 1951 Geneva Convention, as amended by the 1967 Protocol relating to the Status of Refugees. The Act defines a refugee as a person who is not a Russian national and who, owing to a well-founded fear of being persecuted 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, 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, unwilling to return to it (section 1 § 1 (1)). 93. The Act does not apply to anyone believed on reasonable grounds to have committed a crime against peace, a war crime, a crime against humanity, or a serious non-political crime outside the country of refuge prior to his admission to that country as a person seeking refugee status (section 2 § 1 (1, 2)). 94. A person who has applied for refugee status or who has been granted refugee status cannot be returned to a State where his life or freedom would be imperilled on account of his race, religion, nationality, membership of a particular social group or political opinion (section 10 § 1). 95. If a person satisfies the criteria established in section 1 § 1 (1), or if he does not satisfy such criteria but cannot be expelled or deported from Russia for humanitarian reasons, he may be granted temporary asylum (section 12 § 2). A person who has been granted temporary asylum cannot be returned against his will to the country of his nationality or to the country of his former habitual residence (section 12 § 4). 96. The UN General Assembly resolution 62/148 of of 18 December 2007 “Torture and other cruel, inhuman or degrading treatment or punishment” (UN Doc.:A/RES/62/148) reads as follows: “The General Assembly ... 12. Urges States not to expel, return ('refouler'), extradite or in any other way transfer a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture, and recognizes that diplomatic assurances, where used, do not release States from their obligations under international human rights, humanitarian and refugee law, in particular the principle of non-refoulement...” 97. In his interim report submitted in accordance with Assembly resolution 59/182 (UN Doc.: A/60/316, 30 August 2005), the Special Rapporteur of the Commission on Human Rights on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, reached the following conclusions: “51. It is the view of the Special Rapporteur that diplomatic assurances are unreliable and ineffective in the protection against torture and ill-treatment: such assurances are sought usually from States where the practice of torture is systematic; post-return monitoring mechanisms have proven to be no guarantee against torture; diplomatic assurances are not legally binding, therefore they carry no legal effect and no accountability if breached; and the person whom the assurances aim to protect has no recourse if the assurances are violated. The Special Rapporteur is therefore of the opinion that States cannot resort to diplomatic assurances as a safeguard against torture and ill-treatment where there are substantial grounds for believing that a person would be in danger of being subjected to torture or ill-treatment upon return. 52. The Special Rapporteur calls on Governments to observe the principle of non-refoulement scrupulously and not expel any person to frontiers or territories where they might run the risk of human rights violations, regardless of whether they have officially been recognized as refugees.” 98. Specifically referring to the situation of torture in Uzbekistan and returns to torture effected in reliance upon diplomatic assurances from the Uzbek authorities, the UN Special Rapporteur on Torture Manfred Nowak has stated to the 2nd Session of the UN Human Rights Council on 20 September 2006: “The practice of torture in Uzbekistan is systematic, as indicated in the report of my predecessor Theo van Boven's visit to the country in 2002. Lending support to this finding, my mandate continues to receive serious allegations of torture by Uzbek law enforcement officials... Moreover, with respect to the events in May 2005 in Andijan, the UN High Commissioner for Human Rights reported that there is strong, consistent and credible testimony to the effect that Uzbek military and security forces committed grave human rights violations there. The fact that the Government has rejected an international inquiry into the Andijan events, independent scrutiny of the related proceedings, and that there is no internationally accepted account of the events, is deeply worrying. Against such significant, serious and credible evidence of systematic torture by law enforcement officials in Uzbekistan, I continue to find myself appealing to Governments to refrain from transferring persons to Uzbekistan. The prohibition of torture is absolute, and States risk violating this prohibition - their obligations under international law - by transferring persons to countries where they may be at risk of torture. I reiterate that diplomatic assurances are not legally binding, undermine existing obligations of States to prohibit torture, are ineffective and unreliable in ensuring the protection of returned persons, and therefore shall not be resorted to by States.” 99. The UN High Commissioner for Refugees' Note on Diplomatic Assurances and International Refugee Protection published on 10 August 2006 reads as follows: 22. In general, assessing the suitability of diplomatic assurances is relatively straightforward where they are intended to ensure that the individual concerned will not be subjected to capital punishment or certain violations of fair trial rights as a consequence of extradition. In such cases, the wanted person is transferred to a formal process, and the requesting State's compliance with the assurances can be monitored. While there is no effective remedy for the requested State or the surrendered person if the assurances are not observed, non-compliance can be readily identified and would need to be taken into account when evaluating the reliability of such assurances in any future cases. 23. The situation is different where the individual concerned risks being subjected to torture or other cruel, inhuman or degrading treatment in the receiving State upon removal. It has been noted that 'unlike assurances on the use of the death penalty or trial by a military court, which are readily verifiable, assurances against torture and other abuse require constant vigilance by competent and independent personnel'. The Supreme Court of Canada addressed the issue in its decision in Suresh v. Canada (Minister of Citizenship and Immigration), contrasting assurances in cases of a risk of torture with those given where the person extradited may face the death penalty, and signalling '...the difficulty in relying too heavily on assurances by a state that it will refrain from torture in the future when it has engaged in illegal torture or allowed others to do so on its territory in the past. This difficulty becomes acute in cases where torture is inflicted not only with the collusion but through the impotence of the state in controlling the behaviour of its officials. Hence the need to distinguish between assurances regarding the death penalty and assurances regarding torture. The former are easier to monitor and generally more reliable than the latter.' 24. In his report to the UN General Assembly of 1 September 2004, the special Rapporteur of the UN Commission on Human Rights on torture and other cruel, inhuman or degrading treatment or punishment examined the question of diplomatic assurances in light of the non-refoulement obligations inherent in the absolute and nonderogable prohibition of torture and other forms of ill-treatment. Noting that in determining whether there are substantial grounds for believing that a person would be in danger of being subjected to torture, all relevant considerations must be taken into account, the Special Rapporteur expressed the view that: 'in circumstances where there is a consistent pattern of gross, flagrant or mass violations of human rights, or of systematic practice of torture, the principle of nonrefoulement must be strictly observed and diplomatic assurances should not be resorted to.'” 100. The European Committee for the Prevention of Torture's (the CPT) 15th General Report of 22 September 2005 on their activities covering the period from 1 August 2004 to 31 July 2005 expressed concern about reliance on diplomatic assurances in light of the absolute prohibition against torture: “38. Reference was made in the Preface to the potential tension between a State's obligation to protect its citizens against terrorist acts and the need to uphold fundamental values. This is well illustrated by the current controversy over the use of 'diplomatic assurances' in the context of deportation procedures. The prohibition of torture and inhuman or degrading treatment encompasses the obligation not to send a person to a country where there are substantial grounds for believing that he or she would run a real risk of being subjected to such methods. In order to avoid such a risk in given cases, certain States have chosen the route of seeking assurances from the country of destination that the person concerned will not be ill-treated. This practice is far from new, but has come under the spotlight in recent years as States have increasingly sought to remove from their territory persons deemed to endanger national security. Fears are growing that the use of diplomatic assurances is in fact circumventing the prohibition of torture and ill-treatment. 39. The seeking of diplomatic assurances from countries with a poor overall record in relation to torture and ill-treatment is giving rise to particular concern. It does not necessarily follow from such a record that someone whose deportation is envisaged personally runs a real risk of being ill-treated in the country concerned; the specific circumstances of each case have to be taken into account when making that assessment. However, if in fact there would appear to be a risk of ill-treatment, can diplomatic assurances received from the authorities of a country where torture and ill-treatment is widely practised ever offer sufficient protection against that risk? It has been advanced with some cogency that even assuming those authorities do exercise effective control over the agencies that might take the person concerned into their custody (which may not always be the case), there can be no guarantee that assurances given will be respected in practice. If these countries fail to respect their obligations under international human rights treaties ratified by them, so the argument runs, why should one be confident that they will respect assurances given on a bilateral basis in a particular case? 40. In response, it has been argued that mechanisms can be devised for the post-return monitoring of the treatment of a person deported, in the event of his/her being detained. While the CPT retains an open mind on this subject, it has yet to see convincing proposals for an effective and workable mechanism. To have any chance of being effective, such a mechanism would certainly need to incorporate some key guarantees, including the right of independent and suitably qualified persons to visit the individual concerned at any time, without prior notice, and to interview him/her in private in a place of their choosing. The mechanism would also have to offer means of ensuring that immediate remedial action is taken, in the event of it coming to light that assurances given were not being respected.” | 1 |
train | 001-80510 | ENG | TUR | CHAMBER | 2,007 | CASE OF ATICI v. TURKEY | 4 | No violation of Art. 3;Violation of Art. 3;Violation of Art. 5-3 | null | 4. The applicant was born in 1970 and lives in Istanbul. 5. On 16 October 1992 the applicant was arrested by police officers on suspicion of being a member of an illegal organisation, namely Dev-Sol (Revolutionary Left) and was taken into custody. 6. On 26 October 1992 an investigating judge remanded the applicant in custody in Gebze Prison. 7. On 8 January 1993 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant and 16 other co-accused, charging them with membership of an illegal, armed organisation and participation in activities that undermined the constitutional order of the State. The public prosecutor sought the death penalty for the applicant, pursuant to Article 146 § 1 of the Criminal Code. 8. On 11 December 2002 the applicant was released pending trial. 9. Following a constitutional amendment in 2004, the State Security Courts were abolished and the applicant's case was transferred to the Istanbul Assize Court. On 2 May 2005 the Istanbul Assize Court convicted the applicant as charged and sentenced him to life imprisonment. The Court of Cassation quashed this judgment. The case was remitted to the Istanbul Assize Court, where it is apparently still pending. 10. The applicant was detained in Gebze Prison. He had various health problems and underwent several operations. He has submitted medical reports to this effect. 11. On 27 July 2001 the applicant was transferred to the Kandıra/Kocaeli F-Type Prison. On his arrival at the prison, the security forces and the prison guards allegedly subjected the applicant to a strip- search, which included an anal inspection. The applicant complained about this incident to the Kandıra public prosecutor. 12. On 2 August 2001 the applicant was to be taken to hospital for a routine medical check when he was again allegedly subjected, by force, to an anal and oral inspection. The applicant tried to resist the search, which he thought was degrading. Following this, the security forces drew up a report, stating that the applicant had objected to the search and had therefore not been taken to hospital. The applicant filed a complaint with the Kandıra public prosecutor about this treatment. 13. On 16 August 2001 the applicant's lawyer complained to the Directorate General of Sentences and Prisons regarding the incident of 2 August 2001. She submitted that her client had been subjected to a degrading search and had not been taken to hospital for a medical examination. She requested that the applicant be transferred to Bayrampasa Prison in Istanbul in order to facilitate his treatment and to avoid the problems related to transfers and searches. 14. In a letter dated 4 October 2001, the Directorate disputed the content of that complaint. They maintained that the applicant had received medical treatment in the infirmary of the Kandıra/Kocaeli F Type Prison, as well as having been taken to the Kocaeli State Hospital on 6 August 2001. They added that the prison authorities were corresponding with a hospital in Istanbul in order to arrange for the applicant's subsequent medical treatment. Lastly, they maintained that a prison change was unnecessary as the applicant could be conveyed to and from the hospital in Istanbul if necessary. 15. On 13 February 2002 the applicant's lawyer filed a complaint with the Kocaeli Criminal Court. She stated that her client had been subjected to degrading treatment during a search on 7 February 2002, and had been detained in solitary confinement because of his resistance to that measure. She asked the court to take the necessary action against the prison officers concerned. She also requested that her client be transferred back to the cell which he had shared with two other inmates, or to another one which would allow him to mix with others in the courtyard. 16. On 27 February 2002 the Kocaeli Criminal Court rejected this request. It concluded that the Cell Allocation Committee (Oda Secici Kurulu) had placed the applicant in a room where he could share part of the prison courtyard with two other inmates. The complaint concerning the acts of the prison officers was left for the public prosecutor to consider. 17. On 26 April 2002 the public prosecutor decided that no prosecution should be brought against the prison guards of the Kandıra/Kocaeli F-Type Prison in respect of the events of 27 July 2001. In his decision not to prosecute, the prosecutor noted that the security forces had been obliged to use force to restrain the prisoners (including the applicant) since they had resisted transfer from Gebze Prison to the F-Type Prison. After their arrival at the F-Type Prison, the prisoners had been examined by a doctor who had drawn up medical reports. He concluded that there was thus no concrete evidence to prosecute the soldiers or the prison guards. 18. On 20 May 2002 the applicant's lawyer challenged the public prosecutor's decision of 26 April 2002 before the Kocaeli Assize Court. She maintained that the public prosecutor had decided not to prosecute without having conducted a sufficient preliminary investigation. She argued that, under domestic law, it was compulsory for a public prosecutor to commence criminal proceedings where there was enough testimony to show that the security forces and the prison officers could have been responsible for the alleged ill-treatment. 19. On 4 December 2002 the applicant was transferred to the Gebze Special Type Prison. He was released from that prison on 11 December 2002. 20. In a letter dated 2 September 2005, the governor of the Kandıra/Kocaeli F-Type Prison informed the Kocaeli public prosecutor that the applicant had been held in a single room between 7 February and 15 May 2002, though not by way of disciplinary punishment. He maintained that the applicant could share the courtyard with other inmates. He relied on the report prepared by the psychological and social services, which had recommended that the applicant be sent to another prison as he had fallen out with his friends from the organisation and therefore had no one to share the room with. The applicant maintained that the “single room” mentioned in the letter was a cell from where he could not share the courtyard with other inmates. | 1 |
train | 001-73044 | ENG | DEU | ADMISSIBILITY | 2,006 | ZABAWSKA v. GERMANY | 4 | Inadmissible | null | The applicant, Mrs Barbara Zabawska, is a Polish national who was born in 1949 and lives in Piła. The applicant is the mother of a child born out of wedlock in 1989. The child’s father is married to another woman and lives with her and their two children in Germany near Hamburg. On 24 September 1991 the Piła District Court (sąd rejonowy) ordered the child’s father to pay maintenance in an amount of 1,000,000 old Polish zlotys (PLZ) corresponding to approximately 65 German marks (DEM) at the exchange rate prevailing at the material time. Thereafter the applicant applied to the Lauenburg District Court (Amtsgericht) for an increase in the child maintenance. On 1 February 1993 the applicant and the child’s father concluded a settlement before the District Court according to which the father agreed to pay a further monthly maintenance sum of DEM 35 in addition to the sum fixed by the Polish court. Apparently the father initially paid the total maintenance sum of DEM 100 on a regular basis. On 5 September 1995 the Federal Administration Office (Bundesverwaltungsamt), designated in Germany as Receiving Agency pursuant to the United Nations Convention on the Recovery Abroad of Maintenance, received a letter from the applicant dated 25 June 1995 containing a request for an increase in the monthly maintenance payments. On 24 May 1996 she reduced her initial claim to DEM 250. Pursuant to the Convention on the Recovery Abroad of Maintenance, the Poznan District Court, as the competent Transferring Agency on the Polish side, was informed by the Federal Administration Office of this request. On 14 December 1995, after having investigated the father’s last known place of residence, the Federal Administration Office contacted the child’s father and requested him to disclose his financial situation. On 18 January 1996 the child’s father, represented by a lawyer, drew the attention of the Federal Administration Office to the settlement reached on 1 February 1993. On 29 January 1996 he submitted information concerning his ability to pay. On 30 April 1996 the Federal Administration Office informed the Poznan District Court of the state of the proceedings. On 24 June 1996 the applicant informed the Federal Administration Office that she was currently receiving monthly maintenance payments for her son from a relative of the child’s father in an amount of 160 Polish zlotys (PLN) corresponding at the material time to DEM 85. At the beginning of October 1996 the competent employment office informed the Federal Administration Office that the child’s father had been unemployed for a certain time and some months later that he was unemployed since the end of December 1996. Having received no further information on his financial situation from the child’s father despite several reminders, namely of 9 July 1996, 18 July 1997 and 30 March 1998, the Federal Administration Office brought an action against him on behalf of the child before the Schwarzenbek District Court (Amtsgericht). On 29 May 1998 the District Court received the child’s maintenance claim together with a request for legal aid. After an extension of the time-limit, observations of the child’s father on the child’s maintenance claim were received by the District Court in August 1998. In reply to a request of the District Court of 18 August 1998, the Federal Administrative Office set the child support, as requested by the applicant, at the amount of DEM 250 per month. On 26 January 1999 the District Court granted the applicant’s son legal aid. The Poznan District Court was informed about the proceedings. On 7 July 1999 a hearing was held before the Schwarzenbek District Court. The child and the Federal Administration Office were represented by Youth Office of the Duchy of Lauenburg. The District Court had regard to the fact that the child’s father had been again unemployed since January 1999 and, with the consent of both parties, ordered the stay of the proceedings. Following the hearing, the Federal Administration Office informed the Poznan District Court of this decision. On 11 November 1999 and 25 January 2000 the competent employment office informed the Federal Administration Office that the child’s father was still unemployed. In a letter to the Federal Administration Office of 28 January 2000 the applicant stated that the child’s father was the owner of a house and several cars in Poland. The Federal Administration Office forwarded this letter to the Poznan District Court and recommended an investigation into this matter by the Polish authorities, since for the time being there was no possibility under German law to obtain an increase in maintenance payments. By a default judgment of 13 February 2002 the Piła District Court ordered the child’s father to pay monthly maintenance in an amount of PLN 550 (approximately 125 euros). On 11 March 2002 the Poznan District Court communicated to the Federal Administration Office a letter of the applicant dated 20 February 2002 in which she had confirmed that the amount of the child allowance had been increased and paid on a regular basis and that there were no arrears. The Convention on the Recovery Abroad of Maintenance was adopted and opened for signature on 20 June 1956 by the United Nations Conference on Maintenance Obligations. The Convention came into force on 25 May 1957 and was ratified by Germany and Poland. As an agreement on legal assistance which concerns merely the receipt and the transmission of maintenance claims, it complements the existing legal remedies existing under domestic or international law. Pursuant to the Convention, the Receiving Agencies of maintenance claims designated by the Contracting Parties shall take on behalf of the claimant all appropriate steps fort he recovery of maintenance. The relevant provisions of the Convention read as follows: “1. The purpose of this Convention is to facilitate the recovery of maintenance to which a person, hereinafter referred to as claimant, who is in the territory of one of the Contracting Parties, claims to be entitled from another person, hereinafter referred to as the respondent, who is subject to the jurisdiction of another Contracting Party. This purpose shall be effected through the offices of agencies, which will hereinafter be referred to as Transmitting and Receiving Agencies. 2. The remedies provided for in this Convention are in addition to, and not in substitution for, any remedies available under municipal or international law.” “1. Each Contracting Party shall, at the time when the instrument of ratification or accession is deposited, designate one or more judicial or administrative authorities, which shall act in its territory as Transmitting Agencies. 2. Each Contracting Party shall, at the time when the instrument of ratification or accession is deposited, designate a public or private body, which shall act in its territory as Receiving Agencies.” “Where a claimant is on the territory of one Contracting Party, hereinafter referred to as the State of the claimant, and the respondent is subject to the jurisdiction of another Contracting Party, hereinafter referred to as the State of the respondent, the claimant may make application to a Transmitting Agency in the State of the claimant for the recovery of maintenance from the respondent.” “The Transmitting Agency shall transmit the documents to the Receiving Agency of the State of the respondent, unless satisfied that the application is not made in good faith.” “The Transmitting Agency shall, at the request of the claimant, transmit, under the provision of Article 4, any order, final or provisional, and any other judicial act, obtained by the claimant for the payment of maintenance in the competent tribunal of any Contracting Party, and, where necessary and possible, the record of the proceedings in which such order was made.” “1. The Receiving Agency shall, subject always to the authority given by the claimant, take on behalf of the claimant, all appropriate steps for the recovery of maintenance, including the settlement of the claim and, where necessary, the institution and prosecution of an action for maintenance and the execution of any order or other judicial act for the payment of maintenance. 2. The Receiving Agency shall keep the Transmitting Agency currently informed. If it is unable to act, it shall inform the Transmitting Agency of its reason and return the documents. 3. Notwithstanding anything in this Convention, the law applicable in the determination of the questions arising in such action or proceedings shall be the law of the State of the respondent, including its private international law.” | 0 |
train | 001-5424 | ENG | AUT | ADMISSIBILITY | 2,000 | HOFSTÄDTER v. AUSTRIA | 4 | Inadmissible | Nicolas Bratza | The applicant is an Austrian citizen, born in 1948. He is a farmer residing in Guntramsdorf (Austria). Before the Court he is represented by Mr. E. Proksch, a lawyer practising in Vienna. The facts of the case, as submitted by the parties, may be summarised as follows. On 8 February 1966 the Lower Austrian District Agricultural Authority (Agrarbezirksbehörde - "the District Authority") instituted consolidation proceedings (Zusammenlegungsverfahren) for Guntramsdorf. In December 1966 the applicant received several parcels of land situated in Guntramsdorf as a donation from third persons. In February 1967 and April 1967 he bought further land in Guntramsdorf. On 17 October 1967 the District Authority, on the basis of a draft consolidation plan, ordered the provisional transfer of compensation parcels. This measure also affected several parcels of the land owned by the applicant and his father. According to an agreement concluded with the District Authority the applicant's father, who has the same name as the applicant, Franz Hofstädter, and had also acted on the applicant’s behalf, agreed in August 1967 to the exchange of several parcels of land. The decision of 17 October 1967 was served on the parties concerned, not by mail but by a circular letter which an employee of the Guntramsdorf Municipal Office (Gemeindeamt) served on the parties by visiting them. Acknowledgements of receipt were signed. On 26 June 1973 the District Authority by a circular letter informed the 26 owners of land concerned by the consolidation proceedings that a consolidation plan had been drawn up which could be inspected at the Guntramsdorf Municipal Office between 16 and 30 July 1973. During this period appeals against the consolidation plan could be lodged. This circular letter was again not served by mail but by an employee of the Municipal Office. On the acknowledgement of receipt under No. 24 the applicant’s mother is mentioned and there is a signature beside her name. Under No. 22 there is the name “Hofstädter Franz” and the address Berggasse 84. Beside his name is a signature which seems to be identical to the one beside No. 24. The applicant claims that he did not receive the circular letter. It had been served on another person bearing the same name as the applicant and who had died in the meantime. According to the Government, the circular letter was properly served on the applicant and his mother had signed the receipt in his place. The applicant's father filed an appeal against the consolidation plan which he later withdrew. No appeal by the applicant is recorded in the files. On 26 February 1979 the Mödling District Court (Bezirksgericht), acting as the land registry, amended the land register according to the consolidation plan. This decision was served on the applicant. On 13 November 1980 the District Authority issued a decree (Verordnung) by which the consolidation proceedings were formally terminated. This decree was published in the official gazette, published at the Guntramsdorf Municipality Office and the District Authority and entered into force on 29 November 1980. On 1 May 1984 the applicant sent a letter to the District Agricultural Authority. He submitted that he still maintained an appeal he had lodged on 19 July 1973 and that the amendments entered on the land register were incorrect or invalid. He further announced that after the harvest in 1984 he would cultivate his previous parcels of land and requested the District Authority to re-establish the former borders. On 29 May 1984 the applicant appeared before the District Authority. He submitted a copy of his appeal of 19 July 1973 and stated that he had handed over the appeal to the civil servant who had directed the land consolidation proceedings. He was informed that no appeal had been found in the files, that by the decree of 13 November 1980 the land consolidation proceedings had been terminated and that therefore no further decision could be taken. According to the copy of the appeal handed over to the officer of the District Authority, the applicant had complained that certain parcels of his land were too far away from the land he had received in compensation and that he should keep other parcels which were closer to his farming estate. On 12 July 1984 the District Authority, referring to the applicant’s letter of 1 May 1984, informed him that no appeal by the applicant against the consolidation plan had ever been received by the authority. The proceedings had become final (rechtskräftig), the land register had been amended accordingly and no further decision relating to the land consolidation proceedings could be taken. The applicant was advised to refrain from any interference with other people’s land as this would only create serious problems for him. Four years later, on 18 March 1988 the applicant, assisted by counsel, requested the District Authority to resume the consolidation proceedings and, in particular, to serve on him the District Authority's circular letter of 26 June 1973 or, alternatively, the consolidation plan, so that he could appeal against the plan. On 31 May 1988 the District Authority rejected the applicant's request for lack of competence. On the applicant’s appeal, the Lower Austria Regional Land Reform Board (Landesagrarsenat - "the Regional Board") on 10 January 1989 quashed this decision. On 7 April 1989 the District Authority again rejected the applicant's request and found that, after the publication of the decree of 13 November 1980, no further claims concerning the consolidation proceedings could be made. On 30 May 1989 the Regional Board dismissed the applicant's appeal and confirmed the District Authority's decision. It noted that, under Section 28 of the Lower Austrian Agricultural Land Planning Act (Flurverfassungs-Landesgesetz), consolidation proceedings have to be terminated by a decree once all the plan’s measures, including the changes in the land register (Grundbuch), have been carried out. On 6 March 1991 the Constitutional Court (Verfassungsgerichtshof) refused to deal with the applicant's complaint as it found that it had no prospect of success and referred the case to the Administrative Court (Verwaltungsgerichtshof). The Constitutional Court also found that it had no doubts as to the constitutionality of the decree of 13 November 1980 since any alleged deficiencies in the communication of the circular letter of 26 June 1973 could no longer affect the lawfulness of the decree by which the consolidation proceedings had been concluded. On 16 November 1993 the Administrative Court dismissed the applicant's complaint and confirmed the District Authority's reasoning. The Administrative Court found that, as a consequence of the entry into force of the District Authority's decree of 13 November 1980, the land consolidation authorities no longer had jurisdiction. Thus the land consolidation authorities were no longer competent to serve the consolidation plan on the applicant. | 0 |
train | 001-82738 | ENG | MDA | CHAMBER | 2,007 | CASE OF NADULISNEAC ION v. MOLDOVA | 4 | Violation of Art. 6-1;Violation of P1-1 | Nicolas Bratza | 6. The applicant was born in 1953 and lives in Edineţ. 7. Following the applicant's unlawful detention for three days and then his acquittal, on an unspecified date in 2002 he brought an action against the Edineţ Department of Finances, seeking compensation for wrongful prosecution. 8. On 3 December 2002 the Edineţ District Court ruled in favour of the applicant and ordered the defendant to pay him 11,739 Moldovan lei (MDL) (the equivalent of 850.04 euros (EUR) at the time). On the same date the District Court issued an enforcement warrant. The judgment was not appealed against and after fifteen days it became final and enforceable. 9. On 11 June 2003 a Bailiff of the Edineţ District sent the enforcement warrant to a Bailiff of the Râşcani District. 10. In May 2006, after the case had been communicated to the Government, the judgment was enforced. 11. The relevant domestic law was set out in Prodan v. Moldova (no. 49806/99, ECHR 2004III (extracts)) and Popov v. Moldova (no. 1) (no. 74153/01, §§ 29-41, 18 January 2005). 12. The Civil Code of 12 June 2003 reads as follows: “(1) Default interest is payable for delayed execution of pecuniary obligations. Default interest shall be 5% above the interest rate provided for in Article 585 [NBM refinancing interest rate] unless the law or the contract provides otherwise. Proof that less damage has been incurred shall be admissible. (2) In non consumer-related situations default interest shall be 9% above the interest rate provided for in Article 585 unless the law or the contract provides otherwise. Proof that less damage has been incurred shall be inadmissible.” | 1 |
train | 001-108400 | ENG | RUS | CHAMBER | 2,012 | CASE OF SAKHVADZE v. RUSSIA | 3 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment);Non-pecuniary damage - award | Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen | 4. The applicant was born in 1975 and is currently serving a prison sentence in the Vladimir region. 5. In 2004 and 2005 the applicant was convicted of a number of criminal offences and sentenced to eight years’ imprisonment. He has served his sentence in prisons in the Vladimir region. 6. From 20 July 2006 to 5 June 2009 the applicant was admitted to the tuberculosis unit in the hospital attached to Vladimir prison no. 3 (“the hospital”). On 5 June 2009 the applicant was transferred to medical facility LIU-8 in Kirzhach, in the Vladimir region. 7. The applicant raised the following specific grievances concerning his medical history and state of health. 8. On an unspecified date the applicant was diagnosed with cervical spinal myelopathy accompanied by motor neuron impairment. In 2009 he described his condition as follows. He could bend his left knee but his right knee only bent with severe pain. As a result, the applicant hardly ever moved and his leg muscles were atrophied. His right-hand fingers were crooked; it was painful when he tried to straighten them. He suffered from severe pain in his right hand, left shoulder, small of the back, knees, neck, left foot and hip. His right-hand palm, back and right hip were covered with sores. He had sores on his right-hand fingers which suppurated. 9. During his admission and stay in the hospital from July 2006 to June 2009 the applicant was examined by neurologist K. The applicant’s medical records indicate that the applicant was bedridden and, for a period of time, communicated with hospital staff by handwritten notes. The neurologist recommended an MRI scan and early release from prison on health grounds. For unspecified reasons, no MRI scan was carried out. Early release was refused in August 2006. 10. In September 2006 the applicant was examined by neurologist N., who prescribed physical therapy, vitamin-based treatment, pain relief medication and non-steroidal anti-inflammatory drugs. It was also recommended that the applicant be examined by a rheumatologist and a trauma specialist (see also paragraph 17 below). X-rays of the right wrist joint and left knee joint were indicated. 11. It is unclear what acts of medical care were performed in relation to the applicant’s myelopathy from September 2006 to February 2007. 12. In reply to a letter from the applicant’s lawyer, in February 2007 L., a neurologist at the Vladimir Region Clinical Hospital, wrote to him advising that myelopathy was a chronic and slowly progressing disease, leading to gradual deterioration of the patient’s condition with increased symptoms related to the motor function, level of awareness, the function of the pelvic organs and bedsores. The neurologist concluded that “complex therapy was required in a specialised medical institution, including an electromyography (EMG) test every six months, irrespective of the treatment’s effectiveness”. 13. In September 2007 the applicant complained to the national authorities in relation to inadequate medical assistance rendered to him and poor conditions of his detention (see paragraphs 41-58 below). 14. In 2008 one of the above-mentioned neurologists examined the applicant and prescribed massage, medication and vitamins. 15. According to the applicant, he was not provided with any specific treatment (medication or physical therapy) in relation to his myelopathy. Any mention in his medical records of a refusal to receive myelopahyrelated treatment was forged. None of the refusals were written on a special form and none of them bore his signature, despite the requirements of national legislation (see also paragraph 18 below). 16. Since early 2009 the applicant has suffered from frequent convulsions and has had difficulties in holding items in his hands. 17. In May 2009 the applicant was examined by neurologist N., who made the following findings: “There is long-term and progressive post-traumatic damage to the lumbosacral plexus, which prevents active movement with the left leg. Damage to the lumbar spine and left leg prevents autonomous walking and results in a considerable reduction of autonomous movement. Thus, at the moment, the patient has a persisting dysfunction of the motor function of the left leg, impossibility of autonomous movement, dysfunction of the motor function of the right arm/hand...The patient requires constant help and active treatment. Focus should be on physiotherapeutic procedures and medical rehabilitation (electro-stimulation, anaesthetic/analgesic treatment). I recommend medication by Milgamma compositum, Berlition and adequate nonsteroid anaesthetic/analgesic treatment and vascular medication with Kurantil and a course of Aktovegin... A consultation with a trauma specialist and a rheumatologist is necessary to [further] adapt [existing] medical procedures.” Similar recommendations were made in September 2009. 18. Since 1998 the applicant has been suffering from tuberculosis, which became drug-resistant and affected by haemoptysis (coughing up of blood) in July 2006. The applicant was prescribed medication and injections but refused them on numerous occasions because of acute negative side effects such as nausea. The applicant’s medical records indicate that on several occasions medical staff talked to him about the need to continue treatment but to no avail. 19. On an unspecified date before his admission to hospital, the applicant underwent a gastrectomy, significantly reducing his stomach. The applicant has also had half of his tongue removed, due to which his speech is impaired. In 2009 the applicant weighed less than 56 kg for 180 cm in height. 20. The applicant has also suffered (and continues to suffer) from acute pain in the stomach area, the liver, the kidneys and from nausea. According to the applicant, he was not examined by a gastroenterologist or given any treatment. An endoscopy was carried out for the first time in 2008. On three occasions it was not carried out, although the applicant had not made a valid refusal. No medication was provided to him. 21. In January 2007 the applicant was given an electrocardiogram (ECG) test. No prior or subsequent tests or medication were provided, despite the applicant’s acute and persistent heart pains. He was not examined by a cardiologist. 22. Since mid-2007 the applicant has also suffered from enuresis (urinary incontinence). It was recorded in late 2007 that the applicant had made verbal complaints to the unit supervisor about his treatment and had asked that his mattress be replaced because of a urine odour. His request was refused, as no smells were detected and the mattress was dry. 23. Despite his liver pains, he was not examined by a hepatologist; nor was he given any medication. He submitted that the latter was particularly important, given that he had received chemotherapy for his tuberculosis. 24. In July 2006 the applicant was examined by an ophthalmologist. In March 2007 he was diagnosed with slight nearsightedness and retinal angiospasm. In reply to a complaint he made of deteriorating eyesight, in April 2008 it was recorded that no visual acuity test could be carried out in the cell and no treatment was required. 25. The applicant has lost most of his teeth. His remaining teeth and his gums are rotten and cause him pain. The applicant had two consultations with a dentist; no treatment was given following those consultations. 26. According to the applicant, no medical assistance has been provided to him – in particular, from late December 2008 to June 2009 – in relation to his above-mentioned conditions (see also paragraph 27 below). 27. A discharge certificate was issued on 12 January 2009. It is unclear whether the applicant remained in solitary confinement or was transferred to another part of the hospital. On 15 January 2009 he complained to a neurologist of pain in his extremities and was prescribed medicine. He was also examined by a therapist and was given medicines for headache and abdominal pains. He was examined on 22 January 2009 due to the worsening of his state of health and was given vitamins and medicines for intestinal disbacteriosis and colitis. Three days later he was examined by an ENT specialist, on whose prescription he was given an iodine-based liquid to rinse his mouth with. On 29 January 2009 he was examined by a dentist and an ENT specialist who confirmed a diagnosis of antritis. In February 2009 he was provided with a follow-up check-up and was told to continue the treatment. 28. The Government argued, with reference to the applicant’s medical records, that on numerous occasions between 2006 and 2008 the applicant had refused to be examined, to take medicines (mainly tuberculosis related), to undergo medical examinations or to submit to laboratory tests. For instance, as could be seen from his medical records, the applicant had complained of pain in his body on 12 and 19 September 2007, pelvic pain on 8 October 2007 and pain in his arms on 7 March 2008 but had “plainly refused to submit to an examination”. 29. In support of their statements, the Government relied on typed copies of the applicant’s medical records for the period from July 2006 to January 2009, medical reports (медицинские заключения) of 21 December 2009 issued by the administration of prison no. 3, as well as on various certificates issued by the administrations of prisons no. 3 and LIU-8, their licences for providing medical care and documents confirming the qualifications of their medical staff. 30. The Government stated that the above documents were official documents submitted by duly authorised public officials in the performance of their official duties. These officials, by the nature of their functions, were aware of the fact that any false information could result in prosecution for abuse of power or forgery of official documents. 31. In July 2006 the applicant was admitted to the tuberculosis unit of the hospital attached to prison no. 3. 32. Between July and November 2007 the applicant was kept in various cells accommodating, at various times, two to eight people. In the first cell there was no mandatory ventilation. The cells were dirty, poorly heated, filled with unpleasant kitchen odours and infested with insects and rodents. 33. In November 2007 the applicant was transferred to another cell in which he was kept alone. The cell window was covered with newspaper, hindering access to natural light. The temperature in the cell and the adjoining shower room was often low. 34. Being unable to shout for help owing to the fact that part of his tongue was missing, the applicant was obliged to attract the hospital attendants’ attention by throwing items at the door or by knocking on his bedside table. The door to the cell was kept locked and was unlocked by prison officers at the attendants’ request. 35. The applicant needed assistance to use toilet and to wash himself. Once a month two detainees took him to the shower room and washed him. In addition, a hospital attendant brought a basin into the cell so that the applicant could wash his face. The applicant was provided with a piece of soap and a small roll of toilet paper once a month. 36. The cell was filled with a urine odour because of the applicant’s enuresis. According to the applicant, his request for a new mattress and more frequent cleaning of bed linen was refused. The food was of poor quality. The applicant was not provided with drinking water and had to drink tap water. He was not taken outdoors during his stay in the hospital. 37. The applicant was not visited by doctors or given medication after 29 December 2008. On 12 January 2009 a prison doctor told him that he would soon be discharged from the hospital because he had completed his tuberculosis treatment and that further treatment would be of no use because the applicant was suffering from a drug-resistant form of the disease and his lungs were deteriorating. 38. Although he had been informed of his imminent discharge, the applicant was not transferred from the prison hospital. He was not examined by the doctors; once a day he received visits from hospital attendants who brought him food and water and cleaned his chamber pot. The doctors and nurses refused to examine him, claiming that he had been discharged and thus was not “on the hospital’s books”. 39. The applicant submitted written statements from several detainees, who, however, had not been kept in the same cell(s). Mr Po. described the general material conditions of confinement in the tuberculosis unit between 2004 and 2009. Mr V. described the conditions of his detention in the hospital in 2004 and “in and after 2005”. Mr D. and Mr Ch. stated that since September 2007 they had been kept in rooms measuring approximately fourteen square metres and accommodating ten people. They added that they had heard about the applicant’s solitary confinement; about his inability to move around and to take care of himself; and that he had not been taken outdoors for a long time. 40. According to the Government, the applicant had been kept alone under the constant supervision of one hospital attendant and twentyfourhour assistance from on-duty staff had been available. At any moment the applicant could have asked to be helped by the attendant present. The applicant was able to access, alone or with assistance, a chamber pot or the toilet, which was two metres from his cell. The toilet was equipped with a flushing cistern; a sink was also made available there. The chamber pot was kept in the cell and was always cleaned after use. Bedding had been cleaned and a shower had been available once per week. As could be seen from the applicant’s medical records, in 2007 the applicant had not needed another mattress because he had not asked for it or because there had not been a urine odour in the cell. The cell had functioning mandatory ventilation and air was able to enter the cell through a window ventilator. The window provided access to natural light; this window was properly glazed. Artificial light was also available in the cell. The heating system functioned properly, achieving a room temperature of 20 degrees Celsius on average. The applicant had been fed in accordance with the regulations concerning ill detainees. The applicant had been taken, on foot or in a wheelchair, to outdoor exercise three times per day. 41. On 7 September 2007 the applicant and his lawyer requested that criminal proceedings be initiated concerning inadequate medical assistance rendered to the applicant and poor conditions of his detention. They referred to Article 124 (“failure to provide medical assistance”) and Article 236 (“breach of sanitary and health regulations”) of the Russian Criminal Code. 42. Subsequent events can be split into two parallel sets of proceedings, in which the applicant was represented by a lawyer before the national authorities, including the courts. 43. On 5 October 2007 an assistant to the Vladimir town prosecutor supervising penitentiary facilities (“the town prosecutor”) examined the above complaint and issued a written opinion (заключение) stating that no action was required from the prosecutor under section 33 of the Prosecutors Act (see paragraph 59 below). The town prosecutor approved the assistant prosecutor’s opinion; the applicant was informed accordingly. 44. The applicant brought court proceedings, challenging the opinion of 5 October 2007 and the town prosecutor’s refusal to take action. By a judgment of 21 January 2008 the Oktyabrskiy District Court in Vladimir held that this refusal was unlawful because the inquiry had not been thorough for the following reasons: the applicant’s medical records had not been assessed; no medical expert had been appointed; the material conditions of the applicant’s confinement in hospital had not been inspected; the applicant and his counsel had not been heard; no assessment had been made of the applicant’s complaints concerning lack of outdoor exercise, the deplorable quality of food, insufficiency of hygiene items and the sanitary condition of the shower room and toilets. 45. In February 2008 an assistant town prosecutor issued a new opinion, again concluding that that no action was required from the town prosecutor under section 33 of the Prosecutors Act. This decision was confirmed by the town prosecutor. However, in March 2008 for unspecified reasons the town prosecutor reconsidered his own decision and ordered an additional inquiry. In April 2008 the assistant prosecutor issued a new refusal, which was then confirmed by the town prosecutor. 46. The applicant brought court proceedings to challenge this refusal. By a judgment of 16 June 2008 the District Court held that the refusal had not been properly reasoned because only part of the procedural shortcomings identified in the court decision of 21 January 2008 had been remedied in the resumed inquiry. The court held as follows: “The proper examination of the complaint relating to inadequate medical assistance within the penitentiary system required that an expert opinion should be sought from specialists unrelated to the penitentiary system... The refusal under review contained no assessment of the complaints concerning chest and heart pain; ... no assessment was made of the allegations concerning the lack of consultation with a cardiologist and the absence of any electrocardiogram...The prosecutor’s findings as to the quality of the food was based on ... reports, while no indication was made as to the method used, for instance lab tests. No assessment was made of the relevant logbooks. The assessment concerning sanitary installations, the alleged presence of rodents and insects, and lack of outdoor exercise was not thorough...” 47. In March 2009 the regional tuberculosis hospital examined the applicant’s medical records at the request of the Vladimir Regional Department of the Health Ministry. The hospital considered that the applicant had been provided with adequate tuberculosis-related treatment in prison no. 3 and that the effectiveness of this treatment had been adversely affected by the applicant’s repeated refusals to take medicines and to comply with his doctors’ recommendations. 48. Also, three people, apparently connected to the regional clinical hospital, examined the applicant’s medical records and on 2 April 2009 issued a short report concerning illnesses affecting the applicant’s nervous system. The panel held as follows: “The treatment provided [to the applicant] was in full compliance with the applicable standards, in line with the diagnosis established in 2003 and the recommendations issued by medical specialists in Moscow. Since 2003 the patient has been regularly supervised by neurologists from the regional hospital and medical institutions [in] Moscow and Cherepovets. The disease has developed gradually so that additional check-ups were necessary in the meantime. Conclusions: no cervical spine MRI scan has been carried out, despite a recommendation [that one should be conducted] after computer X-ray imaging; no consultation by a neurosurgeon has been arranged; no thioctic acid based medicine has been prescribed.” 49. The town prosecutor asked the Vladimir Regional Department of the Health Ministry to carry out an inquiry regarding the medical care provided to the applicant in detention. The department’s letter of 6 April 2009 indicated that the department had carried out an “independent” inquiry involving unspecified “out-of-staff” leading medical professionals who had examined the applicant’s medical records. They concluded as follows: “Treatment provided [to the applicant] in prison no. 3 was in compliance with the standard treatment required for patients suffering from drug-resistant tuberculosis... All relevant methods of treatment were used. The effectiveness of the treatment was affected by [the applicant’s] repeated refusals to [take his] prescribed medicines, as confirmed by the medical records. Treatment of [the applicant’s] somatic illnesses was fully compliant with the diagnosis and recommendations made by the Moscowbased specialists in 2003. Since 2003 the patient has been regularly supervised by neurologists from the regional hospital and medical institutions [in] Moscow and Cherepovets. The disease has developed gradually so that additional check-ups were necessary in the meantime. Conclusions: no cervical spine MRI scan has been carried out, despite a recommendation [that one should be conducted] after computer X-ray imaging; no consultation by a neurosurgeon has been arranged; no thioctic acid based medicine has been prescribed.” 50. In his opinion of 18 April 2009, an assistant town prosecutor again considered that no action was required on the part of the prosecutor in reply to the applicant’s complaint. The assistant town prosecutor held as follows: “The applicant has been admitted to hospital in relation to infiltrating pulmonary tuberculosis, as well as cervical spinal myelopathy affecting movement of the right arm and the legs... The main diagnosis (tuberculosis) has been confirmed by X-rays and bacteria analysis. The following medical acts were carried out: blood tests, an electromyography (EMG) test in September 2006, CT scanning in September 2007... As mentioned in the [applicant’s medical] records, between November 2007 and January 2008 [the applicant] refused to take medicines for [treating his] tuberculosis... During his stay in the tuberculosis unit he was regularly examined by neurologist K. The latter explained that he had been supervising the patient since 2005. As can be seen from the medical history: in 2003 the patient was treated for posttraumatic plexopathy. He was given an EMG test, was examined by a specialist doctor and was diagnosed with osteochondrosis and discogenic radiculopathy... He received vascular therapy, B-group vitamins [and] non-steroidal anti-inflammatory drugs. In 2006 the applicant was diagnosed with pulmonary tuberculosis and was treated in a tuberculosis unit. He was given an EMG test, a CT scan and an X-ray. As a result, he was diagnosed with cervical spinal myelopathy... radiculopathy [and] sciatic neuralgia affecting the movement of [his] left foot. The patient was and is regularly examined by a neurologist. The [doctor’s] recommendations included a course of vascular therapy, vitamin therapy and [the applicant] was instructed about the further intake of muscle [neuromuscular] relaxants... At present the patient’s state of health is stable, he has been regularly examined by a neurologist but has refused to [take the medicines prescribed for him] in 2006 and 2007. On several occasions he was examined by specialist medical professionals (such as a surgeon, a therapist and a dermatologist) but refused to be examined by a psychiatrist. At present, he is in section 1 of the hospital in prison no. 3. In order to assess the medical care afforded [to the applicant], specialists from the regional department of the Ministry of Health were asked to examine [his] medical records together with regional specialists.” Having cited the letter of 6 April 2009 (see paragraph 49 above), the assistant prosecutor concluded that “independent specialists [had] considered that the patient had been treated in full compliance with the relevant standards”. Concerning the material conditions of the applicant’s confinement, the assistant prosecutor made the following findings: “The material in the file discloses that in March 2006 the prison received a favourable (preventive) epidemiological report. This report is valid until 2011... In February 2008 section 1 of the prison hospital was inspected; [the inspection] did not disclose any violations of sanitary regulations. Moreover, in September 2007 repair works were carried out in the tuberculosis unit. Thus, in 2008 it was not possible to inspect the sanitary conditions [pertaining in] the earlier period. Food provided to detainees complied with the relevant regulations concerning minimum rations for convicts. Food cooking and [detainees’] diet were controlled by medical professionals together with on-duty officers. [The applicant] was given a special diet for ill detainees. He was also provided with the required hygiene items, which could be confirmed by his signatures in the logbooks. Clothes and bedding had to be submitted for laundering once per week and would be disinfected. During the inquiry detainees T., P. and S. were interviewed. Their testimony was not convincing, as they had been named by [the applicant’s] lawyer. Detainees Kh., Z. and Pa. were also interviewed and stated that the material conditions in the living premises of the tuberculosis unit, including food, had been acceptable; cleaning had been regular. [The applicant] had been in the unit since October 2006 when the material conditions had been the same; he had been given medication and had had regular check-ups. An attending assistant had been assigned to him. Zo. and Pi. had not answered the summons and could not be interviewed. The prison has a contract with a private company for disinfecting the premises and eradicating rodents and insects. This work was done on a weekly basis. No complaints were made by detainees or staff. Consequently, the arguments raised by the [applicant’s] lawyers were examined during the additional inquiry and should be dismissed as unfounded.” 51. The applicant sought judicial review of the refusal of 18 April 2009 under Chapter 25 of the Code of Civil Procedure (see paragraph 60 below). The applicant argued that the report of 2 April 2009 (see paragraph 48 above) had not been “independent” and thorough because: there had been no information about the professional status and the medical specialities of the experts, who may or may not have been the report’s signatories; the applicant had not been examined by any of those individuals; the report had contained no findings concerning the adequacy of the applicant’s medical care in relation to his neurological illness, various (liver, stomach and heart) pains, eyesight or his dental care. Thus, a court-ordered forensic examination was indispensable. 52. By a judgment of 3 August 2009 the Oktyabrskiy District Court in Vladimir examined the applicant’s complaint against the above refusal of 18 April 2009 and rejected the complaint. The court considered that a public prosecutor was empowered to ensure that no inhuman or degrading treatment was inflicted on detainees. To comply with this function the prosecutor was empowered to carry out inquiries, which should result in reasoned decisions. Such an inquiry had been carried out between 2007 and 2009. In the court’s view, the prosecutor had examined all relevant medical documents, including expert reports, and had interviewed a number of public officials, detainees, the applicant and his counsel. The court also held as follows: “A number of medical professionals were charged with the task of assessing the treatment provided to the applicant. An independent expert examination concluded that the applicable standards for treating tuberculosis had been respected; the treatment had been affected by the applicant’s repeated refusals, as recorded, to comply with the recommended course of treatment. The applicable standards of treating somatic diseases had been equally respected. From 2003 the applicant had been supervised by neurologists; no cervical spine MRI scan had been carried out, despite a recommendation [that one should be conducted] after computed X-ray imaging; no consultation by a neurosurgeon had been arranged; no thioctic acid based medicine had been prescribed. As to the complaints concerning chest or heart pain, as indicated in the inquiry report, the applicant had been examined by cardiologists, had had an electrocardiogram test and had received treatment. No sufficient argument was adduced by the applicant for commissioning yet another independent expert report. In any event, this argument had not been raised during the inquiry. As to food, the applicant was given and continues to receive a special diet. The food control record indicates that [his] rations, their quality and quantity were in line with applicable instructions and standards. As to sanitary installations, the competent authority has issued a report confirming the sanitary conditions [were] proper. It was established that in September 2007 significant repair works had been ongoing in the tuberculosis unit. Thus, it had been impracticable to inspect the units, the shower room or the toilet facilities to which the applicant had previously had access. The findings concerning the absence of rodents and insects in the detention facility had been made with reference to a valid contract for disinfection services, the current reports concerning the performance of the contract and due to the absence of any complaints from the [facility’s] personnel or detainees. Hygiene items had been given to the applicant against his signature on a monthly basis. Clothing and bedding was and is disinfected and cleaned once per week. In view of the foregoing, the court concludes that the 2009 inquiry report and its conclusions were reasoned and thorough, and comply with the requirements of [applicable] legislation”. 53. The applicant appealed. On 6 October 2009 the Regional Court upheld the judgment of 3 August 2009. It held as follows: “The applicant’s arguments concerning the correctness of [his] medical diagnosis and the scope and correctness of [his] treatment were thoroughly examined and dismissed by the first-instance court. The latter’s assessment was based on all available medical evidence, which had been received from, amongst other sources, sources unrelated to the penal authorities.” 54. In the meantime, the applicant complained that no decision had been taken as to the institution of criminal proceedings, as requested. By a decision of 23 November 2007 the regional prosecutor’s office refused to institute criminal proceedings, considering there had not been the corpus delicti required under Articles 124 and 236 of the Criminal Code in the actions of the hospital’s staff. On 21 January 2008 the higher investigating authority quashed this decision, considering that it was necessary to interview the medical staff of the detention facility. 55. On 31 January 2008 the investigating authority issued a new refusal to institute criminal proceedings for lack of a criminal offence. On 6 March 2008 the Oktyabrskiy District Court in Vladimir dismissed the applicant’s appeal and upheld this refusal. On 10 April 2008 the Vladimir Regional Court upheld the first-instance decision of 6 March 2008. 56. For unspecified reasons, the inquiry was resumed. On 12 May 2008 an investigator in the Vladimir Investigations Department issued another refusal to institute criminal proceedings. 57. On 23 July 2008 the Leninskiy District Court in Vladimir examined the applicant’s complaint against the refusal of 12 May 2008 under Article 125 of the Code of Criminal Procedure and rejected the complaint. The court held as follows: “Since 2007 the inquiry proceedings have been resumed on several occasions... The applicant is being detained in a medical facility and has been and is being provided with appropriate medical assistance. It has been established that on a number of occasions he impeded treatment and refused to make medicines. It has not been established that the deterioration of his health was due to inaction on the part of the medical staff. No dangerousness on account of a breach of sanitary regulations, required by Article 236 of the Criminal Code, has been established.” 58. On 11 September 2008 the Regional Court upheld the above judgment. 59. Section 33 of the Prosecutors Act (Federal Law no. 2202-I of 17 January 1992) provided at the time that a prosecutor was empowered to order a detention facility to take measures necessary in order that a detainee’s rights and freedoms be respected. 60. In accordance with ruling no. 2 of 10 February 2009 made by the Plenary Supreme Court of Russia, complaints brought by detainees in relation to inappropriate conditions of detention (for instance, a lack of adequate medical assistance), as well as complaints against decisions imposing disciplinary penalties, should be examined by a court under a procedure prescribed by Chapter 25 of the Code of Civil Procedure. According to this procedure, a person may lodge a court action if an action or omission by a public authority or official has violated an individual’s rights or freedoms, has impeded their exercise or has unlawfully imposed an obligation or liability (Articles 254 and 255 of the Code). This action should be lodged within three months of the date when the person learnt about the violation of his rights or freedoms (Article 256). If the court considers that the complaint is justified, the court shall order the respondent authority or official to remedy the violation (Article 258). 61. Section 29 of the Health Care Act (Federal Law no. 5487-I of 22 July 1993) provides that detainees have a right to medical assistance, such assistance being provided if necessary in public or municipal medical institutions and at public or municipal expense. 62. Detailed regulation of medical care in detention is provided in a Regulation adopted by the Federal Ministry of Justice and the Federal Ministry of Health and Social Development (decree no. 640/190 of 17 October 2005). It provides that medical assistance in detention should be the same as that guaranteed by the general programme of free health care provided in Russia (Rule 9 of the Regulation). Outpatient health files and prescription records should not be handed over to detainees; detainees have a right to receive information relating to their state of health and should be given access to medical documents (Rule 65). | 1 |
train | 001-24068 | ENG | IRL | ADMISSIBILITY | 2,004 | DAWSON v. IRELAND | 4 | Inadmissible | Georg Ress | The applicants, Albert and Dudley Dawson, are Irish nationals, born in 1934 and 1938, respectively. They both live in Dublin. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants are insurance brokers. On 22 July 1992 they issued a plenary summons beginning a libel action against the Irish Brokers Association (“IBA”): they took issue with a letter circulated by the IBA indicating that the applicants’ membership of the IBA had been terminated due to non-compliance with the requirements of the Insurance Act 1989. Section 3 of that Act stipulates that every person who contravenes the Act shall be guilty of an offence. On 17 September 1992 the applicants filed a statement of claim. Further to a motion of the applicants, on 21 December the High Court ordered the IBA to deliver its defence. On 28 June 1993 the High Court, following the applicants’ motion, accepted that their solicitors had ceased to be on record. On 9 February 1994 another solicitor (“AC”) filed a notice of change of solicitor, thereby coming on record for the applicants. The case was also set down for trial. The hearing of the case was initially fixed for November 1995 but it could not be heard on the date. By early 1996 AC had come off record although he continued to assist the applicants informally. On 5 March 1996 the case came on for hearing (“first hearing”) before Mr Justice Kinlen and a jury. It was submitted by the IBA that the applicants had gone beyond the ambit of the pleadings in the course of their opening speech to the jury and it was deemed necessary by the trial judge to discharge the jury. On 18 June 1996 the hearing re-commenced before a new jury and Mr Justice Barron (“second hearing”). It ended on 4 July 1996 when the jury returned a verdict in favour of the applicants and awarded the applicants 515,000 Irish pounds (IR£). The trial judge ordered the IBA to discharge the applicants’ costs when taxed and ascertained. In July 1996 the IBA appealed arguing that the defence of “qualified privilege” should have been admitted and that the damages were excessive. They requested a new trial or that the Supreme Court render judgment in the terms of their notice of appeal. The Supreme Court heard the appeal on 18 and 19 February 1997 and reserved judgment which was delivered on 27 February 1997. The Supreme Court (Mr Justice O’Flaherty giving the judgment of the Court, with which the two other judges agreed) dismissed the appeal as regards the question of qualified privilege. However, it allowed the appeal on the question of damages, finding the award excessive. Accordingly, the action was remitted to the High Court for a new trial on the question of damages only. The IBA was ordered to discharge the applicants’ costs of the appeal when taxed and ascertained. On 6 March 1997 the applicants filed a notice in the High Court confirming the re-appointment of AC as their legal representative, but by April 1997 they were filing their own pleadings in the High Court. By notice of motion dated 21 April 1997 the applicants requested, inter alia, that their case be heard as a matter of priority. The IBA also motioned to strike out parts of the applicants’ submissions as “scandalous”. On 25 April 1997 the High Court granted the priority request ordering that the case be listed first in the list to fix dates for jury actions: that list would be called over on 13 May 1997 and the judge doing so would also decide on the IBA’s motion. On 12 May 1997 the IBA issued two motions in the High Court seeking discovery of documents relevant to the quantum of damages including access to the applicants’ past business records and seeking leave to make a lodgment into Court in respect of the libel established. On 12 May 1997, at a call-over of the case-list, a hearing date was not fixed given the outstanding discovery matter. On 14 May 1997 the applicants issued a counter-motion seeking maximum priority for the fixing of a hearing date on damages during the following court term. On 13 June 1997 the High Court heard these motions and reserved judgment. On 23 June 1997 the High Court (Mr Justice Moriarty) delivered a detailed judgment ordering the applicants to deliver particulars of, and disclose documents concerning, turnover for a period of 3 years prior to the libel and particulars of their claimed losses. The IBA was given liberty to amend its defence to allow it to lodge a sum of money into court. It was also ordered that the action be accorded priority in the Dublin jury lists for the following legal term. The applicants were awarded their costs of the IBA’s motion concerning its lodgment into court and the court’s decision on other costs’ matters was reserved. On 7 August 1997 the applicants filed an affidavit of discovery. On 26 August 1997 the applicants filed a motion to have the hearing specially fixed in accordance with the priority accorded on 21 April 1997. On 27 August 1997 the IBA filed an amended defence and on 3 September 1997 the applicants’ replied. On 19 September 1997 the IBA filed a motion requesting that part of the applicants’ reply be struck out (as being, inter alia, prolix, in part scandalous, unnecessary, and irrelevant) and for the applicants to make full discovery in accordance with the court order of 23 June 1997. The IBA supported their motion by affidavits dated 22 September and 15 October 1997 and the applicants filed an affidavit on 24 September 1997. On 29 September 1997 the applicants’ priority listing motion was considered but no order was made pending the outstanding discovery matter. By notice dated 15 October 1997, the applicants discharged AC as their solicitor. On that date also the IBA’s motion (of 19 September) was heard in the High Court (Mr Justice Kelly) which ordered a significant portion of the applicants’ reply to be struck out and that they make discovery as already ordered on 23 June 1997. The decision on costs of the motion was reserved. The action was listed for mention on 4 November 1997. The applicants filed two more affidavits on 21 October 1997, inter alia, objecting to producing certain documents and making some discovery. On 4 November 1997 the High Court (Mr Justice Kelly) ordered the applicants to respond within 14 days to an outstanding matter raised in the IBA’s affidavit of 22 September 1997. A decision as to the award to be made on the costs of that hearing and court order was reserved. The action was listed for mention on 25 November 1997. By affidavit of 13 November 1997 the applicants responded to the matter raised in the IBA affidavit of 22 September 1997. On 11 and 25 November 1997 the IBA filed affidavits in the High Court concerning certain discovery matters. On the latter date also the High Court (Mr Justice Kelly) heard the parties, noted their agreement that the IBA inspect certain of the applicants’ documents and it was ordered that it be done before Christmas. Costs were reserved. On 1 and 5 of December 1997 the applicants and the IBA filed affidavits concerning discovery. The applicants submit that on 8 December 1997 the High Court examined these matters refused the IBA’s motion and did not make a costs’ order in their favour. On 30 January 1998 the IBA wrote to the applicants indicating that many of the matters they had referred to in their reply were not admissible and that objection would be taken at the opening of the trial on damages if the applicants attempted to introduce them (mainly concerning the applicants’ new claim for exemplary damages). The hearing (“third hearing”) on the question of damages took place before the High Court (Mr Justice Budd) from 3 to 6 February 1998, on which latter date the trial judge made certain preliminary rulings and directions, pursuant to the IBA’s motion, excluding submissions by the applicants on certain matters considered to fall outside of the scope of the damages’ proceedings. Since the applicant who was pleading had fallen ill, the matter was adjourned to 10 February 1998. By then, the applicants had considered the rulings of the trial judge and formed the view that the trial judge had thereby taken away their right to a proper trial on the damages’ aspect. The order of 10 February 1998 records that the applicants had “refused to proceed”. It was ordered that their claim for damages be dismissed and that the IBA recover the costs of the hearing together with their costs of the motions in respect of which costs had been reserved. The money lodged in court by the IBA could be withdrawn by the IBA. On 2 March 1998 the applicants appealed against those orders of the High Court and requested a new trial which would include their submissions excluded by the High Court in early February 1998. The Supreme Court heard the appeal on 27 October 1998. On 6 November 1998 judgment was delivered (by Mr Justice O’Flaherty): the court found in the applicants’ favour (considering, inter alia, that the applicants should have been allowed to make submissions on exemplary and aggravated damages) and ordered a new trial in the High Court and the IBA was to re-lodge the sum of money back into court. No order was made as to the costs of the appeal: the costs of the third hearing and of the new trial were matters for the new trial judge. Further to the applicants’ motion dated 9 November 1998, the High Court ordered (on 13 November 1998) that the re-trial of the action be specially fixed for the first day of jury hearings the following legal term. On 21, 22 and 27-30 April 1999 the High Court hearing on damages (“fourth hearing”) took place before Mr Justice Kelly and a jury. On 4 May 1999 the jury awarded the sums of 85,000 Irish pounds (IEP) (damages) and IEP 50,000 (aggravated damages) in compensation. No exemplary award was made. The applicants were also to recover the costs of that hearing together with those costs reserved on 23 June (both motions), 15 October and on 25 November 1997 as well as the costs of two days of the third hearing. On 20 December 1999 the applicants submitted their costs’ calculations to the Taxing Master. The IBA responded on 25 February 2000 and the applicants on 16 March 2000. On 3 July 2000 the Taxing Master delivered rulings on the taxation of costs, disallowing certain of the applicants’ claims and allowing others. Further hearings on costs took place before the Taxing Master on 18-20, 20 and 25 October 2000, on 20 December 2000 and 22 February 2001. On 22 February 2001 the Taxing Master made further rulings and issued a report on the applicants’ costs on 8 March 2001. On 26 February 2001 the applicants issued a motion to review in the High Court the taxation rulings. The applicants took issue, inter alia, with the Taxing Master’s refusal to award them legal costs at IEP 140 per hour as they were not represented and to award them instead an hourly amount for the time they spent in court at the standard rate applicable to the profession of which they were both members (insurance brokers). They also took issue with the decision not to allow all of the costs claimed in respect of the informal assistance of a solicitor after their solicitors had came off record (IEP 7,000 was awarded for this). On 14 March 2001 the IBA also lodged a cross-motion to review certain aspects of the Taxing Master’s award submitting, inter alia, that no award at all should have been made in respect of this informal assistance. By detailed judgment dated 29 June 2001 the High Court (Mr Justice Kelly) dismissed the applicants’ appeal and allowed the IBA’s appeal. The High Court found reasonable the Taxing Master’s refusal to award the applicants the sum of IEP 140 per hour in respect of the time they spent on their own case: the refusal was in line with jurisprudence and the Taxing Master had reasonably made an award for the time spent by the applicants in court at the standard hourly rate charged by insurance brokers. Indeed, it was noted that the applicants had taken the figure of IEP 140 per hour from a newspaper cutting, that the applicants had been unable to present firm evidence to the Taxing Master as to their actual hourly earnings (evidence from the trial indicated that their rate was between IEP 10.00-13.30 per hour) and that the purpose of taxation of costs was reimbursement of costs and not profit-making. As to the award of IEP 7000 for informal legal assistance, the High Court found that the Taxing Master had erred in law and allowed the IBA appeal on this point. Otherwise the High Court considered and confirmed the Taxing Master’s disallowance of costs claimed by the applicants for procedures in respect of which “no order as to costs” had been made by a court (not least because the applicants had not appealed those orders at the time). The High Court also considered and confirmed the Taxing Master’s rulings on miscellaneous items including mileage/travelling/parking (an allowance made), copying (no allowance made), and the costs of purchasing legal text books (no allowance made). In addition, the High Court judge referred to the voluminous criticisms and allegations against the members of the Government, a professional institution, barristers, solicitors and a number of High Court judges including the High Court’s President which the applicants had attempted to introduce into the appeal. Apart from not being relevant to the current appeal, the High Court judge considered those comments to be “serious and scurrilous” and demonstrative of the fact that “obsession has replaced reason and invective has replaced argument”. The High Court also made an award of the costs of the appeal in favour of the IBA, on the understanding that the IBA would not enforce it if the applicants did not appeal further. The applicants claim that they then sought the perfected order of the High Court and, when they received it, considered its terms did not reflect what had been ordered. Accordingly, on 2 October 2001 they applied for an extension of time to appeal to the Supreme Court. On 5 October 2001 the Supreme Court agreed to the extension of time (until 26 October 2001). Costs of that application were awarded to the IBA. On 22 October 2001 the applicants appealed to the Supreme Court claiming, inter alia, that it was unfair that they had not been awarded costs in respect of the time and effort which went into representing themselves whereas a solicitor representing himself would have been granted costs. On 15 April 2002 the appeal court heard the appeal and reserved judgment. The applicants prepared almost 70 typed pages of an opening statement for the Supreme Court and state that they were allowed to read aloud 9 pages only (which 9 pages included their challenge to the accuracy of the High Court judgment of 29 June 2001). On 8 May 2002 the Supreme Court delivered its judgment dismissing the appeal finding, inter alia, that, according to relevant case-law, costs could not be recovered by lay litigants since only legal costs which could be measured by the court could be awarded. The court noted that, in the case of solicitors representing themselves, the costs for their professional skill and labour are capable of being measured and, as pointed out in the case-law, it would be absurd to permit a solicitor to employ another solicitor and recover the costs but not permit him to recover costs if he chose to represent himself. On 10 May 2002 the Supreme Court made an order for the costs of that appeal in favour of the IBA. By summons dated 14 November 2002 and requested by the IBA, the applicants were convoked before the Taxing Master on 24 January 2003 for the examination of the costs of the IBA in successfully defending their appeals against taxation of costs. The Taxing Master refused the applicants’ application for an adjournment and on 28 January 2003 he awarded 77,027.67 euros (“EUR”) to the IBA in respect of the costs of those appeals. The applicants did not appeal against this award. On 4 July 2003 the IBA informed the applicants that they had registered judgment against their property. On 16 July and 11 August 2003 the applicants sent cheques to the IBA in payment of the costs awarded together with interest and asked the IBA to withdraw the judgments against their property. The IBA requested the applicants to forward the appropriate documentation for the vacation of the judgments and it appears that correspondence has continued thereafter on this question. | 0 |
train | 001-96415 | ENG | RUS | CHAMBER | 2,009 | CASE OF MP KINESKOP v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial | Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 5. On 31 July 1998 the applicant company, together with three other plaintiffs, Mr Kesyan, Ms Gorovaya and Ms Makarova, all represented by the same lawyer, filed an action against the Rostov Regional Department of the Federal Treasury and Mrs O. seeking compensation for pecuniary and non-pecuniary damage on account of the unlawful seizure of goods. | 1 |
train | 001-85631 | ENG | GBR | ADMISSIBILITY | 2,008 | NOREMAC v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi | The applicant, Mr Kenneth Noremac, is a British national who was born in 1936 and lives in Kent. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 24 January 2001. They had no children from the marriage. On 1 May 2001 the applicant applied for widows benefits. On 10 May 2001 the applicant was informed that his claim had been disallowed as he was not a woman. The applicant made a request for reconsideration on 17 May 2001. On 30 May 2001 he was informed that he was not entitled to benefits 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 | 001-91932 | ENG | FIN | CHAMBER | 2,009 | CASE OF NATUNEN v. FINLAND | 3 | Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 6-3-b;Damage - claim dismissed;Non-pecuniary damage - award | Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | 5. The applicant was born in 1962 and lives in Helsinki. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. The applicant was suspected of an aggravated drugs offence. On an unspecified date the public prosecutor brought charges against him and two other persons, L.J. and J.J. According to the indictment, the defendants had decided to obtain a large amount of amphetamine from Estonia. Between 28 and 29 September 2001 the applicant and J.J. made a trip to Estonia to arrange the purchase, acting on instructions from L.J. On 15 October 2001 the drugs, hidden in a truck, were brought to Finland by a fourth person. During this period the applicant kept in contact with the Estonian supplier by telephone. On 16 October 2001 the truck driver handed over the drugs to L.J. and J.J., who then hid them. Later in the evening J.J. returned for the drugs, as agreed with L.J. While J.J. was driving back to town, the police stopped and detained him and seized the drugs from his possession. In the meantime, the applicant picked up L.J. from a nearby petrol station. 8. Subsequently, all the defendants contested the above charge. The applicant denied any knowledge of the matter. He maintained that his trip to Estonia had only been for pleasure and that he had not received any instructions from L.J. relating to it. Nor had he kept any contact with the supplier. He further denied any knowledge of what had happened at the petrol station on 16 October 2001. Apparently all the defendants asserted that their collective enterprise had concerned a plan to purchase weapons and not drugs. 9. On 1 February 2002 the applicant’s counsel sent a letter to the police inquiring whether all the telephone calls made between the three defendants by mobile phone had been included in the pre-trial investigation material. He also requested the police to confirm in writing that it was not possible to disclose to the defence the telephone metering information in the possession of the police. 10. In their response of 8 February 2002 the police stated that all the telephone calls pertaining to the investigated offence had been included in the pre-trial investigation material. The police further confirmed that the telephone metering information in their possession could not be disclosed as it was confidential. 11. The evidence obtained through telephone surveillance and produced before the court included 21 recorded telephone conversations and 7 recorded text messages between the defendants between 25 September and 16 October 2001, apparently all pertaining to the different stages of the alleged drugs offence. 12. On 14 February 2002 the Espoo District Court (käräjäoikeus, tingsrätten) found that the defendants had planned to purchase drugs and had carried out the plan together. It convicted them as charged and sentenced each of them to six and a half years’ imprisonment. As to the conviction of L.J. and J.J. the court relied mainly on the testimony of the truck driver and the fact that the drugs had been found in J.J.’s possession. As to its finding that all three defendants had acted in concert in committing the offence, the court relied on information obtained through telephone surveillance. According to the court, the numerous recordings of telephone conversations between the defendants consistently showed that there had been a common understanding about the plan to obtain the drugs several weeks before they were delivered. Their co-operation had begun on 28 September 2001, at the latest, when the applicant had made a trip to Estonia with J.J. Since that journey they had been showing concern about the delay in the delivery. The court found the defendants’ account of the plan to purchase weapons unsubstantiated. The court also relied on the recordings in concluding that the applicant had participated in the actual receiving of the drugs just as actively as the other defendants, even though he had not been there to receive them in person. 13. The applicant, along with the other parties, appealed against the judgment to the Helsinki Court of Appeal (hovioikeus, hovrätten). In his letter of appeal he claimed that all that had been established beyond dispute was that he had made a trip to Estonia and that he had been in contact with the other defendants by telephone, but that did not connect him to the offence of which he had been convicted. The District Court had failed to specify which telephone conversations proved that he had been an accomplice. 14. In his subsequent additional submission to the court the applicant also requested that the public prosecutor be ordered to produce all the recordings of the telephone conversations between the applicant and other defendants, as they would reveal that the dealings involving the defendants had related to matters other than drugs. The applicant contended that only a fraction of all these telephone conversations had been included in the pre-trial investigation material, thus giving a misleading impression of the nature of their association. If the court were to refuse this request, the defence should at least be granted access to all of the recordings. 15. The court requested the prosecutor to submit a reply regarding, inter alia, the above request. In his reply of 12 June 2002 the prosecutor stated that it was not disputed that the applicant had been in contact with J.L. and J.J. by telephone also concerning matters other than the purchase of drugs. These conversations had not, however, been included in the case material and had been destroyed, as was required under chapter 5a, section 13 of the Coercive Measures Act (pakkokeinolaki, tvångmedelslag, Act no. 450/1987). Nor did the conversations in question, according to the prosecutor, relate to any other offence which would have allowed the police to keep the recordings without breaching the law. All the conversations that pertained to the matter had been retained, included in the case file and produced to the court. 16. Having regard to the prosecutor’s reply, the Court of Appeal did not render a decision on the applicant’s request. On 13 December 2002, following an oral hearing, the court upheld the applicant’s conviction. It increased his prison sentence to seven years. 17. In its reasons the court stated, inter alia, that, apart from the testimonies given by the defendants, there was no evidence to support the allegations about purchasing weapons. Furthermore, the court found the defendants’ testimonies regarding those allegations not credible. It also found inconsistencies between the applicant’s testimony and some of the telephone conversations, which had been played back to the court. 18. The applicant sought leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen) maintaining that his conviction had been based mainly, and in practice, on the courts’ false interpretation of those telephone conversations which had been included in the case file. The defence had never been given access to a large number of recordings which had not been included therein, although a request to that end had been made during the pre-trial investigation. He submitted as evidence the response given by the police on 8 February 2002. As the recordings were subsequently destroyed, the applicant had been denied the right to assess their relevance for his defence. The applicant renewed his contention that the recordings which had not been included in the case file would have shown that he had been involved with the co-defendants in a transaction not related to the purchase of drugs. 19. On 19 December 2003 the Supreme Court refused leave to appeal. 20. Chapter 5a, section 2 of the Coercive Measures Act, as in force at the relevant time, provided that an authority investigating a crime could be granted permission to intercept and record telephone calls made by a suspect using an extension in his possession or another extension presumably used by him, or calls received by a suspect through such an extension, if the information thus obtainable could be assumed to be of vital importance for solving a crime. This permission could only be granted for serious offences listed in the provision, including aggravated drugs offences. Weapons offences were not included in the list. 21. Chapter 5a, sections 12 and 13 of the said Act provided that the head of the investigation or another official by his order was to check the recordings at the earliest convenience and that recordings containing information which was not related to the offence covered by the authorisation had to be destroyed after they had been checked. Section 13 allowed, however, the retention of recordings pertaining to such [other] offences where the interception of telecommunications could be permitted. Recordings which were not to be destroyed were to be retained for five years after the case had been resolved with legally binding effect or removed from the docket. 22. Chapter 5a, section 13 of the Coercive Measures Act was amended by Act no. 646/2003, which came into force on 1 January 2004. The current provision states that superfluous information obtained through interception of telecommunications but not related to the offence or pertaining to an offence other than the one covered by the authorisation, is to be destroyed after the case has been resolved with legally binding effect or removed from the docket. The Government Bill (hallituksen esitys, regeringens proposition, no. 52/2002) concerning the amendment stated that, according to the provision in force at the time, superfluous information was to be destroyed as soon as it had been checked. Information supporting the innocence of the suspect could thus also be destroyed as superfluous information. The provision was thus proposed for amendment in order to ensure that all the material would be available for the [subsequent] proceedings, where necessary. 23. Section 1 of the Act on Public Prosecutors (laki yleisistä syyttäjistä, lag om allmänna åklagare, Act no. 199/1997) provides, inter alia, that it is the duty of a prosecutor to see to the realisation of criminal liability in the consideration of a criminal case, the assessment of the charge and the trial in a manner consistent with the public interest and the legal safeguards of the parties. 24. The same principle applies to the conduct of the police, which has the duty, under section 7 (1) of the Criminal Investigations Act (esitutkintalaki, förundersökningslag, Act no. 449/1987) to investigate and take into consideration the facts both for and against the suspect. | 1 |
train | 001-101221 | ENG | SVN | CHAMBER | 2,010 | CASE OF RIBIČ v. SLOVENIA | 3 | Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - award | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra | 5. The applicant was born in 1971 and lives in Frankolovo. 6. On 7 March 1997 the applicant was injured in an accident at work. The applicant's employer had taken out insurance with the insurance company ZM. 7. On 3 September 1998 the applicant instituted civil proceedings against ZM in the Celje District Court (Okrožno sodišče v Celju) seeking damages for the injuries sustained. He also sought an exemption from paying court fees. 8. Between 27 December 1999 and 28 February 2001 the applicant lodged preliminary written submissions and adduced evidence four times. 9. The first hearing was held on 27 September 2000. 10. On 27 October 2000 the court appointed a medical expert. On 18 December 2000 the appointed expert submitted his report. 11. On 4 April 2001 the court held another hearing and decided to deliver a written judgment. The judgment, upholding the applicant's claim in part, was served on the applicant on 25 October 2001. 12. On 7 November 2001 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). He also requested the first-instance court to rectify its judgment. 13. On 9 November 2001 the first-instance court rectified the judgment of 4 April 2001. 14. On 14 May 2003 the Celje Higher Court upheld the applicant's appeal in part and modified the first-instance court's judgment accordingly. That decision was served on the applicant on 5 June 2003. 15. On 20 June 2003 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče), which was rejected on 1 April 2004 as the value of the claim fell below the statutory threshold. That decision was served on the applicant on 23 April 2004. 16. On 23 May 2007 the respondent Government were given notice of the application. The Government was asked to provide information as to whether section 25 of the 2006 Act applied in respect of the present case, which would enable the applicant to avail himself of domestic settlement proceedings before the State Attorney's Office (see Relevant domestic law below). 17. Subsequently, on 12 October 2007, the Government submitted that section 25 of the 2006 Act was not applicable in the present case since the applicant's right to a trial within a reasonable time had not been infringed in the impugned domestic proceedings. Therefore, the Government refused to offer the applicant a settlement proposal under section 25 of the 2006 Act. 18. The applicant did not comment on this issue. 19. The Act on the Protection of the Right to a Trial without Undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006 – “the 2006 Act”) became operational on 1 January 2007. Section 25 lays down the following transitional rules in relation to applications already pending before the Court: “(1) In cases where a violation of the right to a trial without undue delay has already ceased and the party had filed a claim for just satisfaction with the international court before the date of implementation of this Act, the State Attorney's Office shall offer the party a settlement on the amount of just satisfaction within four months of the date of receipt of the case referred by the international court for the settlement procedure. The party shall submit a settlement proposal to the State Attorney's Office within two months of the date of receipt of the proposal of the State Attorney's Office. The State Attorney's Office shall decide on the proposal as soon as possible and within four months at the latest... (2) If the proposal for settlement referred to in paragraph 1 of this section is not acceded to or the State Attorney's Office and the party fail to negotiate an agreement within four months of the date on which the party filed its proposal, the party may bring an action before the court with jurisdiction under this Act. The party may bring an action within six months of receipt of the State Attorney's Office reply that the party's proposal referred to in the previous paragraph was not acceded to, or after the expiry of the period fixed in the previous paragraph for the State Attorney's Office to decide to proceed with settlement. Irrespective of the type or amount of the claim, the provisions of the Civil Procedure Act concerning small claims shall apply in proceedings before a court.” | 1 |
train | 001-23131 | ENG | NLD | ADMISSIBILITY | 2,003 | ISMAIL EBRAHIM and SERHAN EBRAHIM v. THE NETHERLANDS | 4 | Inadmissible | null | The first applicant is a stateless person of Palestinian origin. He was born in Lebanon in 1981. The second applicant is his mother. She is a naturalised Dutch national of Palestinian origin and was born in Lebanon in 1961. The applicants, who are currently both residing in the Netherlands, are represented before the Court by Ms L. Mentink, a lawyer practising in Alkmaar. The respondent Government are represented by their Agents, Mr R.A.A. Böcker and Mrs J. Schukking, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. After the death of the first applicant’s father, who was active for the Palestine Liberation Organisation (“PLO”) in Lebanon, the second applicant married A.E. Ebrahim, the brother of her husband. Between June 1982 and November 1983, the latter was detained by the Israeli authorities because of his PLO activities. After his release, he was accused by the PLO of espionage for Israel. In 1986, A.E. Ebrahim and his family, consisting of the two applicants and a baby born in the meantime, left Lebanon for Germany, where they applied for asylum. After having stayed in Germany and subsequently Denmark, the family moved to the Netherlands where, on 24 May 1991, the second applicant (also on behalf of her children) and her husband applied for asylum or, alternatively, a residence permit on humanitarian grounds. On 16 March 1992, the State Secretary of Justice rejected these requests. The objection filed by the couple was rejected by the State Secretary on 16 September 1992. On 22 October 1992, the second applicant and her husband filed an appeal against the decision of 16 September 1992 with the Judicial Division (Afdeling Rechtspraak) of the Council of State. During their stay in the Netherlands, in the course of which three more children were born to the couple, serious tensions arose between the first applicant and his stepfather. In the latter’s opinion, the first applicant misbehaved by, inter alia, playing truant and having undesirable friends. He felt that he had no longer any authority over the first applicant. After the first applicant had broken into his school where he committed acts of vandalism, his stepfather decided to send him temporarily back to Lebanon. The second applicant thought that the first applicant would only go to Lebanon for a short period in order to become acquainted with his native country and culture. On 25 October 1994, without having been granted a re-entry visa (terugkeervisum) the first applicant travelled to Lebanon, where he moved in with his maternal grandmother in a refugee camp in SouthLebanon. The first applicant’s school and the Netherlands immigration authorities were informed of this fact. On 17 July 1995, pending the appeal proceedings before the Judicial Division, and in accordance with Dutch policy in asylum cases that have not been dealt with within a certain time span, the State Secretary informed the second applicant and her husband that the objections against their residence in the Netherlands had been withdrawn and that instructions had been issued to provide them and the second applicant’s minor children with a residence permit. The second applicant and her husband subsequently withdrew their appeal pending before the Judicial Division. On 1 September 1995, the second applicant reapplied for a residence permit on humanitarian grounds. This permit, also valid for her minor children living with her, was granted on the same day. On an unspecified date the second applicant and her husband filed a petition for naturalisation. In this petition, they further requested the conaturalisation (medenaturalisatie) of their four minor children. This request did not include the first applicant. By Royal Decree (Koninklijk Besluit) of 16 November 1996, the second applicant, her husband and their four children were granted Dutch citizenship. Wishing to return to the Netherlands, the first applicant requested the Netherlands authorities in Lebanon on 23 October 1997 for a temporary residence permit (machtiging tot voorlopig verblijf) on grounds of family reunification. On 23 July 1998, as his visa application remained undetermined, the first applicant filed an objection (bezwaar) with the Minister of Foreign Affairs (Minister van Buitenlandse Zaken) against the implied refusal (fictieve weigering) to grant him a temporary residence permit. On the same day, the first applicant further requested the President of the Hague Regional Court (arrondissementsrechtbank) to issue an interim measure (voorlopige voorziening) ordering the Minister of Foreign Affairs to issue a temporary residence permit or a laissez-passer allowing him to travel to the Netherlands together with the second applicant, who at that time was visiting him in Lebanon. On 14 August 1998 the Hague Regional Court set a deadline of 10 September 1998 for the Visa Department (Visadienst) of the Ministry of Foreign Affairs to determine the first applicant’s request for a visa. On 2 September 1998, in the context of the objection filed on 23 July 1998, the second applicant was heard by a commission of the Immigration and Naturalisation Department (Immigratie- en Naturalisatiedienst) concerning the first applicant’s request to enter the Netherlands. At that hearing, she declared inter alia that the first applicant had been sent to Lebanon after family tensions had arisen in the Netherlands because of the first applicant’s westernisation. It was thought desirable that he learn his language and culture and become acquainted with his family living in Lebanon. In an undated decision taken on or around 10 September 1997, the Minister of Foreign Affairs rejected the first applicant’s objection of 23 July 1998. On 17 September 1998, the first applicant filed an appeal against this decision with the Hague Regional Court. He further requested the President of the Hague Regional Court to issue an interim measure allowing him to travel to the Netherlands. On 6 November 1998, the President of the Hague Regional Court rejected the request for an interim measure. The President did not find it established that the first applicant’s situation was of such gravity that he should be allowed to enter the Netherlands as a matter of urgency. On 19 May 1999, following a hearing held on 18 February 1999, the Hague Regional Court declared the first applicant’s appeal of 17 September 1998 partly founded. Although the Regional Court agreed with the Minister of Foreign Affairs that, under the Netherlands immigration rules, the first applicant did not qualify for a temporary residence permit on grounds of family reunification, it held, as to the first applicant’s complaint under Article 8 of the Convention, that the preparation of the decision taken by the Minister of Foreign Affairs had been negligent and that this decision lacked sufficient reasoning. It was found that the Minister had failed to examine the question of the Netherlands’ positive obligations under Article 8 of the Convention in a satisfactory manner, in that a number of important elements had not, or not sufficiently, been taken into account. Consequently, it quashed the impugned decision and ordered the Minister of Foreign Affairs to take a new decision. As none was taken within the prescribed statutory delay of six weeks, the first applicant filed an appeal on 5 July 1999 with the Hague Regional Court against this failure and requested accelerated proceedings (versnelde behandeling). In the course of the hearing held on 29 July 1999, the first applicant further requested the President of the Hague Regional Court to issue an interim measure allowing him to travel to the Netherlands. In its decision of 6 August 1999, the Hague Regional Court ordered the Minister of Foreign Affairs to determine the first applicant’s objection of 23 July 1998 within a period of ten weeks. It rejected the applicant’s other claims. On 29 October 1999, the first applicant again appealed to the Hague Regional Court as no fresh decision had been taken within the set time-limit and requested accelerated proceedings. In its decision of 30 November 1999, the Hague Regional Court noted that no new decision had been taken by the Minister of Foreign Affairs. It further noted that, on 24 November 1999, the second applicant had been heard by a commission of the Immigration and Naturalisation Department but apparently this hearing did not result in a determination of the first applicant’s objection. In the absence of a new decision on the merits of the objection, the Regional Court could only find that the Minister of Foreign Affairs had again failed to determine the objection timely. Consequently, it declared the first applicant’s appeal founded and ordered the Minister to determine the first applicant’s objection within two weeks. On 14 December 1999 the Minister of Foreign Affairs rejected the first applicant’s objection of 23 July 1998. The Minister recalled that, in its decision of 19 May 1999, the Hague Regional Court had accepted that the first applicant did not qualify for a residence permit on grounds of family reunification under the relevant domestic immigration rules. Insofar as the first applicant relied on Article 8 of the Convention, the Minister accepted that there was family life between the first applicant and his family living in the Netherlands, but did not find that there were such facts or circumstances which might give rise to a positive obligation on the Government to grant the first applicant a residence permit. On this point the Minister considered that the fact that the first applicant’s family had lived in the Netherlands since 1991 and held the Netherlands nationality did not in itself create such an obligation. Further noting that the choice to return the first applicant to Lebanon for a year had apparently been a conscious one, the Minister considered that the applicants should have realised that this choice entailed a risk that the first applicant would not be readmitted to the Netherlands. Having noted, inter alia, that the second applicant had visited the first applicant several times in Lebanon, the Minister did not find it established that there were any objective obstacles to the exercise of the applicants’ family life in Lebanon. As to the fact that the first applicant’s siblings held the Netherlands nationality and were attending school in the Netherlands, the Minister held that this was a subjective rather than an objective obstacle for the exercise of family life elsewhere. Finally, noting that the first applicant had attained the age of eighteen in the meantime, and that, as from a young age, he had taken independent decisions, including the termination of his schooling and his relocation within Lebanon, the Minister held that the first applicant could be regarded as being quite capable of maintaining himself, and concluded that the general interests of the Netherlands in pursuing a restrictive immigration policy outweighed the applicants’ interests. The first applicant filed an appeal with the Hague Regional Court, before which a hearing was held on 17 March 2000. In its decision of 7 April 2000, the Hague Regional Court rejected the appeal. It accepted the finding of the Minister that it had not been established that, on the basis of his personal circumstances, the applicant could not be expected to remain in Lebanon and should be admitted to the Netherlands on humanitarian grounds. It did not find it established that the first applicant was in fact wanted by El Fatah and for that reason was continuously forced into hiding, as he had alleged. Noting that the first applicant was housed and financially supported by his uncle, that other members of his family are living in Lebanon and that the second applicant could continue to provide him with support, the Regional Court concluded that the finding of the Minister could not be regarded as unjust. As to the argument raised under Article 8 of the Convention, the Regional Court concluded that, in the light of its findings as to the first applicant’s personal situation, the interests of the Netherlands Government in pursuing a restrictive immigration policy outweighed the applicants’ interests in exercising their family life in the Netherlands. The Regional Court did not find it established that there were any objective obstacles preventing the applicants from enjoying their family life in Lebanon. It noted on this point that the asylum request of the first applicant’s stepfather had been rejected but that he had subsequently obtained a residence permit because of a special policy allowing asylum seekers to remain when asylum proceedings had lasted more than three years. The Regional Court further rejected the argument that the siblings’ integration into Dutch society should be regarded as an objective obstacle to the whole family’s return to Lebanon. On 6 January 2001, the first applicant travelled on a false passport via Senegal to Belgium intending to continue to the Netherlands. He was arrested in Belgium and placed in aliens’ detention. He subsequently applied for asylum in Belgium. On 9 January 2001, via his lawyer in the Netherlands, the first applicant requested the Netherlands authorities to take over his asylum request from Belgium. On 11 January 2001, the first applicant’s lawyer further filed a new request for a temporary residence permit for the first applicant. After the Belgian authorities had rejected the first applicant’s request for asylum, he was expelled to Senegal on 16 February 2001. Upon his arrival in Senegal, the first applicant was detained as he held no documents allowing him to stay in Senegal. The Senegalese authorities allowed him to telephone the second applicant. On 19 February 2001, the first applicant – via his lawyer in the Netherlands – informed the Netherlands authorities of his situation, requesting them to intervene and allow him to travel to the Netherlands. After the second applicant had sent money to Senegal, the first applicant was released on 9 March 2001 and was told to leave Senegal within three months. On 16 May 2001, the first applicant travelled to the Netherlands, where he has resided since. On 14 June 2001, the Minister of Foreign Affairs rejected the first applicant’s application of 11 January 2001 for a temporary residence permit, finding that such a permit cannot be granted when the person concerned has already entered the Netherlands. The first applicant’s objection to this decision, in which he only argued that he should be regarded as exempted from the obligation to have a temporary residence permit and did not raise any arguments concerning the reasons for the rejection of 14 June 2001, was dismissed by the Minister of Foreign Affairs on 31 July 2001. Although an appeal against this decision could be filed with the Regional Court, it does not appear that the first applicant availed himself of this possibility. In the meantime, on 28 February 2001, the first applicant’s lawyer requested the Hague Regional Court to declare that, on the basis of the Royal Decree of 16 November 1986 and at that time being a minor son of the second applicant, the first applicant is a Dutch national. On 1 August 2001, following a hearing held on 4 July 2001, the Hague Regional Court rejected the first applicant’s request. It noted that the first applicant had already left for Lebanon when his mother, stepfather and their children were granted a Dutch residence permit and that, subsequently, the second applicant and her husband were granted Dutch nationality, it being stipulated that Dutch nationality was withheld from minor children who did not hold a Dutch residence permit. On this point the Regional Court also noted that the request for naturalisation, resulting in the Royal Decree of 16 November 1996, had not included the first applicant. It therefore concluded that no misunderstanding could have arisen about the first applicant’s exclusion from the naturalisation decision. It further rejected as unestablished the first applicant’s argument that, in departing for Lebanon, he had not intended to alter his principal place of residence (hoofdverblijf) in the Netherlands or to sever his family tie. On this point the Regional Court noted that, at the time of naturalisation, the first applicant had already resided for two years in Lebanon with different relatives. In addition, the Regional Court took into account the reasons for his return to Lebanon given by the second applicant before the commission of the Immigration and Naturalisation Department, namely family tensions caused by his westernisation, and the need for him to learn the language and the culture, and to become acquainted with his family in Lebanon. The admission, residence and expulsion of aliens were regulated at the material time by the Aliens Act 1994 (Vreemdelingenwet), the Regulation on Aliens (Voorschrift Vreemdelingen) and the Aliens Act 1994 Implementation Guidelines (Vreemdelingencirculaire; “the Guidelines”), being directives drawn up and published by the Ministry of Justice. On 1 April 2001, the Aliens Act 2000 entered into force – replacing the 1994 Aliens Act – along with a new Regulation on Aliens and new Guidelines. The Netherlands authorities pursue a restrictive immigration policy in view of the high population density in the Netherlands and the problems to which this gives rise. In general and under the legal rules in force until 1 April 2001, aliens are only granted admission for residence purposes if: (a) the Netherlands are obliged under international law to do so; (b) this serves the “essential interests of the Netherlands”, e.g. economic or cultural interests; and (c) there are “cogent reasons of a humanitarian nature” (Chapter A4/5.3 of the Guidelines). No right to admission to the Netherlands can be derived from the fact that a non-Dutch national is living there without a residence permit. An alien wishing to enter and stay in the Netherlands for more than three months must have a temporary residence permit. An application for such a permit can be made to the Netherlands authorities in the alien’s country of origin. The resident in the Netherlands with whom an alien seeking admission is planning to stay, can also apply to the chief of the local police for an official opinion. An application for a temporary residence permit is determined on the basis of the same requirements as a residence permit. These requirements differ depending on the grounds on which an alien seeks admission and residence. The policy for admission for family reunification purposes was at the relevant time laid down in Chapter B1/5 of the Aliens Circular. This provides, insofar as relevant, that a residence permit for the purposes of family reunification may be granted in respect of minor children of a Dutch national when, inter alia, the children factually belong to his/her family and the family ties with the parent already existed abroad and have been maintained. Family ties are considered to have been severed by the longterm integration of the child into another family when the parents no longer exercise parental authority and no longer provide for the costs of the upbringing and care of the child. Aliens who are allowed to remain in the Netherlands pending a decision on their residence status may under certain conditions, with the consent of the Dutch authorities, return to their countries of origin for short periods. If they meet the requirements, being at least compelling reasons of a humanitarian nature, such as a serious illness or the death of close relatives, they may be granted a re-entry visa, which affirms the right of the holder to return to the Netherlands. No re-entry visas for a temporary return to their country of origin are granted to asylum seekers. | 0 |
train | 001-101989 | ENG | RUS | ADMISSIBILITY | 2,010 | KOLESNIKOV v. RUSSIA | 4 | Inadmissible | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | The applicant, Mr Eduard Nikolayevich Kolesnikov, is a Russian national who was born in 1947 and lives in Syzran, the Samara Region. The Russian Government (“the Government”) were represented by Mr G. Matuyshkin, the Representative of the Russian Federation before the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant sued local welfare authorities for an increase of the disability benefits due to him. By judgment of 6 June 2003, as upheld on appeal on 21 July 2003, the Syzran Town Court of the Samara Region (the Town Court) ordered the authorities to pay the applicant a lump sum of 259,462 Russian roubles (RUB) and to increase the monthly and yearly disability payments in line with the relevant domestic legislation. On 19 March 2004 the lump sum was paid to the applicant in full but he continued to receive monthly payments in the amount lower than awarded. On 17 June 2004 the Presidium of the Samara Regional Court (the Presidium) quashed the judgment of 6 June 2003 on supervisory review and remitted the case for a new examination at the first instance court. On 16 December 2004 the Town Court re-examined the case and granted the applicant’s claims. On 28 February 2005 the Samara Regional Court upheld these findings on appeal. On 8 September 2005 the Presidium again quashed the judicial decisions of 16 December 2004 and 28 February 2005 by way of the supervisory review proceedings and ordered a fresh examination of the case. By judgment of 8 December 2005, as upheld by the appeal decision of 27 February 2006, the Town Court allowed the applicant’s action in part. The applicant applied for the supervisory review of the two latest judicial decisions. On 16 December 2006 the Presidium granted his application, quashed the judgments of 8 December 2005 and 27 February 2006 in supervisory review proceedings and ordered that the case be examined afresh by the court of the first instance. On 12 February 2007 the Town Court in the new round of court proceedings examined and granted the applicant’s claim. It ordered the local welfare authority to pay the applicant a lump sum of RUB 653,255 in arrears in respect of various disability benefits and recalculated and further increased the monthly and yearly payments due to him. On 22 February 2007 the judgment entered into force. According to the Government, it was fully executed on 3 December 2007. | 0 |
train | 001-109359 | ENG | ALB | CHAMBER | 2,012 | CASE OF CANI v. ALBANIA | 3 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award | David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano | 6. The applicant was born in 1969 and is currently serving a prison sentence in Lushnja, Albania. 7. Following a number of remittals of the case against the applicant and two other co-defendants, on 4 March 2004 Berat District Court (“the District Court”) convicted the applicant of several criminal charges committed in collusion with the co-defendants. The District Court found that the applicant had acted in aggravating circumstances in that he had been the perpetrator of one of the criminal offences, which had led to the death of a person, whereas the co-defendants had assisted in the commission of that offence. As regards the other criminal offences, the District Court found each co-defendant guilty as charged. The District Court sentenced the applicant to a cumulative sentence of life imprisonment. As the District Court had adopted the use of the summary procedure pursuant to the Code of Criminal Procedure (“the CCP”), the applicant’s sentence was commuted to twenty-five years’ imprisonment. 8. During the District Court proceedings the applicant was mainly represented by court-appointed lawyers. In the final stage of those proceedings, the applicant appointed counsel of his own choosing on the strength of a power of attorney signed on 18 February 2004, which, in so far as relevant, read as follows: “... I hereby authorise S.S as my special counsel and representative to defend and represent me before Berat District Court, the Court of Appeal and the Supreme Court in the trial of the criminal case as regards the charges provided in Articles ... of the Criminal Code. This case has been tried before and by a Court of Appeal decision has been remitted for fresh examination. In accordance with Article 352 of the CCP I request that the case be tried in my absence. I accept the charges levied against me and I authorise counsel to request the use of summary procedure pursuant to Article 403 of the CCP. Counsel has the right to lodge appeals against court decisions that are against my interests. ...” 9. On 12 March 2004 the applicant lodged an appeal with the Vlora Court of Appeal (“the Court of Appeal”). Although he admitted having committed the criminal offences, he challenged the penalty imposed. He argued that the trial court had failed to take account of some mitigating factors in his favour such as the remorse he had shown after committing the crime and his surrender to the authorities, his family’s difficult financial situation and the fact that he had a minor child, the lack of any previous criminal records and his low educational level. 10. On 4 May 2004 a hearing took place which was adjourned to 26 May 2004 in order to summon the applicant to appear before the court. On the same date, a letter was sent by the Court of Appeal to the Police Commissariat and the local prison authorities, requesting them to escort the applicant to the hearing scheduled for 26 May 2004. 11. The applicant did not attend the hearing on 26 May 2004. The court ordered an adjournment until 4 June 2004. The applicant’s representative was present at the hearing. Relevant excerpts from the record of the proceedings read: “The defendant Besnik Cani was summoned and did not appear. The file indicates that he has been informed and will attend the hearing (nga aktet rezulton se ka dijeni dhe do të marrë pjesë në gjykim).” 12. On 27 May 2004 the Court of Appeal sent a letter to the Ministry of Justice, the Directorate General of Prisons and the local prison authorities requesting that the applicant be escorted to the hearing on 4 June 2004 as he had expressed the wish to attend. 13. The applicant did not appear at the hearing of 4 June 2004. The court ordered an adjournment until 18 June 2004. Relevant excerpts from the record of the proceedings read: “The file indicates that the [Police] Commissariat were informed of the need to escort him [to the Court of Appeal] but they did not do so. His lawyer was summoned and was present (nga aktet rezulton se ka dijeni komisariati për ta sjellë dhe nuk e solli).” 14. On 7 June 2004 the Court of Appeal sent a letter to the Ministry of Justice, the Directorate General of Prisons and the local prison authorities requesting that the applicant be escorted to the hearing on 18 June 2004 as he had expressed the wish to be present at the hearing. A handwritten note at the bottom of the letter read: “[they] refused to sign, saying that they are not answerable to the Court of Appeal. [We] do not accompany prisoners. The court does not have any business with us. Send the letter to the Directorate General of Prisons in Tirana.” 15. The applicant was not present at the hearing on 18 June 2004, but his lawyer did attend. Relevant excerpts from the record of the proceedings read: “the lawyer [S.S.] said, “I represented the accused [Besnik Cani] by means of a power of attorney during [the proceedings in] the first-instance [court]. Thus, let us proceed with the hearing.” 16. The Court of Appeal decided to proceed with the hearing in the applicant’s absence as he was represented by his lawyer. 17. On 23 June 2004 the Vlora Court of Appeal sentenced the applicant to a cumulative term of twenty-five years’ imprisonment, reduced by one-third as a result of the use of the summary procedure. The relevant parts of the judgment read as follows. “... The Court [of Appeal] considers that the District Court characterised the criminal offences correctly, but the sentence [of imprisonment] should be changed in the light of large differences in the penalties imposed on each defendant. All the co-defendants are almost in the same position as far as their collusion is concerned and their respective role in the commission of the offences. Despite the fact that the defendant was the perpetrator of one of the offences, there should not be such a large difference in the sentences imposed. Having regard to Article 141 of the Criminal Code which aims at excluding the application of life imprisonment, having regard to the remorse shown by the defendant during the proceedings, his surrender to the authorities following the commission of the crime, and his role as the perpetrator in the commission of the criminal offence, the court considers that he should be ... cumulatively sentenced to twenty-five years’ imprisonment. In these circumstances, having regard to the appeal lodged by the applicant, the District Court decision should be amended in so far as the sentence imposed on the defendant is concerned.” The relevant provisions of the operative part of the judgment read as follows: “... Pursuant to Article 55 of the Criminal Code the accused Besnik Cani is cumulatively sentenced to 25 years’ imprisonment. Pursuant to Article 406 of the Code of Criminal Procedure one third of the sentence imposed on Besnik Cani is reduced.” 18. On an unspecified date the prosecutor lodged an appeal with the Supreme Court on the grounds of an erroneous application of the criminal law. He stated, inter alia, that the penalty imposed by the Court of Appeal, which had not ordered life imprisonment for the applicant for being the perpetrator of a crime that had resulted in the death of a person, did not correspond to the serious danger to society posed by the applicant and the serious criminal consequences of that offence. 19. It would appear that the applicant did not make any written submissions to the Supreme Court in response to the prosecutor’s appeal. On 15 June 2005 the applicant’s brother appointed A.K to represent the applicant before the Supreme Court. 20. At the hearing of 15 June 2005 before the Supreme Court, the applicant was represented by A.K, who requested the court to dismiss the prosecutor’s appeal. On 15 June 2005 the Supreme Court quashed the Court of Appeal judgment and upheld the District Court judgment. The record of the hearing states that the applicant was represented by his lawyer. The relevant parts of the Supreme Court judgment read: “The Supreme Court, having examined the documents in the investigation file and the court file, having examined the grounds of appeal lodged by the prosecutor, considers that the Court of Appeal judgment, which amended the District Court judgment by changing the defendant’s [the applicant’s] conviction, was taken on the basis of an erroneous application of the criminal law, particularly Article 47 et seq. of the Criminal Code, which determine the manner of imposing a sentence. The Supreme Court draws this conclusion because the Court of Appeal did not duly consider the severity of the criminal offences committed by the accused, the serious danger to society that the accused poses by continuing to commit criminal offences, the serious degree of guilt, the grave criminal consequences, and the commission of the criminal offence on more than one occasion, using weapons and acting in collusion with others. The reduction of the sentence by the Court of Appeal on the ground that the accused assisted justice by showing remorse for the offences he had committed and by requesting the use of the summary procedure, is not founded in law. The acceptance of the charges by the accused and his request for the use of the summary procedure assist the speedy rendering of justice. The law takes this into account by reducing the penalty by one-third in accordance with Article 406 of the CCP. A further reduction of the defendant’s sentence, beyond the reduction entitled to by virtue of the application of Article 406 of the CCP, has resulted in a double reduction of the sentence for the same circumstances.” 21. The applicant lodged a constitutional complaint with the Constitutional Court, alleging violations of his right to attend the hearings of the Court of Appeal and of the Supreme Court. 22. On 10 February 2006 the Constitutional Court declared the complaint inadmissible, finding that the grounds of appeal fell outside its jurisdiction (pretendimet e paraqitura prej ankuesit nuk përfshihen në juridiksionin e Gjykatës Kushtetuese ...). 23. The relevant provisions of the Albanian Constitution read as follows. Article 31 “During criminal proceedings, everyone has the right: a. to be notified immediately and in detail of the charges brought against him, of his rights, and to have the possibility to notify his family or relatives; b. to have sufficient time and facilities to prepare his defence; c. to have the assistance of a translator free of charge if he does not speak or understand the Albanian language; ç. to present his own case or defend himself through the assistance of counsel of his own choosing; to communicate freely and privately with him, as well as to be provided with free legal counsel if he does not have sufficient means; d. to examine witnesses who are present and to request the appearance of witnesses, experts and other persons who can clarify the facts.” Article 42 § 2 “In the protection of his constitutional and legal rights, freedoms and interests, or when a criminal charge is brought against him, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.” Article 131 “The Constitutional Court shall decide: ... (f) Final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.” 24. Article 48 § 3 provides that “the appointment of counsel for a person detained, arrested or sentenced to imprisonment, unless he has appointed counsel of his own choosing, may be carried out by his relatives in accordance with the procedure stipulated in paragraph 2 above.” 25. Article 350 provides that “when a defendant, even if in detention, ... does not appear at a hearing and it appears that the absence was caused by force majeure or any other obstacle which exempts him from any responsibility, the court, acting, inter alia, of its own motion, shall adjourn or suspend the judicial examination, set a date for a new hearing and order the renewal of the summons.” 26. Article 352 states that the accused should be represented by counsel when he requests or gives his accord for the judicial examination to continue in his absence. 27. Article 422 provides that any party may appeal against a first-instance court decision, which is the District Court decision. 28. Article 425 § 1 establishes the scope of the examination of an appeal by the Court of Appeal. It provides that the examination of a case by the Court of Appeal is not limited to the grounds of appeal but extends to the whole case, namely an examination of both the facts and the law. Article 425 § 3 proscribes reformatio in peius stating that “in an appeal lodged solely by the accused, the court cannot impose a heavier criminal sanction, order a more severe measure of restraint, or characterise innocence less favourably than the grounds relied upon in the impugned judgment.” 29. The Court of Appeal may make a complete re-assessment of the evidence obtained and examined by the first-instance court, in which case it decides afresh on the appellant’s guilt or innocence. Under Article 427 the Court of Appeal could re-open the judicial examination of a case (përsëritja e shqyrtimit gjyqësor). In the event that one of the parties requests the re-examination of evidence administered during the first-instance court proceedings or seeks the collection of additional new evidence, the Court of Appeal, when deemed necessary, may decide to reopen the judicial proceedings, in part or in whole (Article 427 § 1). In so far as evidence has been discovered subsequent to the first-instance court’s judgment or, in so far as evidence has been discovered in the course of the appeal proceedings, the Court of Appeal decides on a case-by-case basis about its admission (Article 427 § 2). The re-opening of a case may also be decided ex officio when deemed necessary (Article 427 § 3). The Court of Appeal may also re-examine evidence provided that the accused did not attend the first-instance court proceedings, either because he was not notified or because he was unable to attend those proceedings on lawful grounds (Article 427 § 4). 30. Article 428 establishes which decisions may be taken by the Court of Appeal. It provides that the Court of Appeal may decide to dismiss the appeal and uphold the first-instance court decision, to amend the first-instance court decision, to quash the first-instance court decision and terminate the criminal proceedings, or to quash the first-instance court decision and remit the case for a fresh trial. 31. Court of Appeal decisions may be appealed against to the Supreme Court in compliance with one of the following requirements of Article 432: a) the criminal law has not been respected or has been erroneously applied; b) there have been breaches which have resulted in the court’s judgment being declared invalid in accordance with Article 128 of this Code; c) there have been breaches of procedural rules which have affected the adoption of the judgment. 32. Article 434 provides that the Supreme Court shall examine the appeal in so far as points of law have been raised therein. It has the right to examine and to decide of its own motion and at any stage or instance of the proceedings legal issues which have not been examined before. Section 437 provides that the accused and private parties must be represented by a defence lawyer. As to the procedure, paragraph 5 of the said section states that the judge rapporteur introduces the case, followed by the prosecutor’s oral submissions and the defence lawyer’s pleadings. No counter-pleas are allowed. 33. Under Article 441 the Supreme Court can decide: a) to uphold the decision of the lower court; b) to modify the qualification of the criminal offence, insofar as the type, sentence and civil consequences are concerned; c) to quash the [lower court’s] decision and to adopt a judgment without remitting the case for a rehearing to the lower court; d) to quash the [lower court’s] decision and remit the case for a re-hearing; e) to quash the Court of Appeal’s decision and uphold the District Court’s decision. 34. The summary procedure is governed by Articles 403-406 of the Code of Criminal Procedure (“CCP”). The accused or his representative should make a request in writing for the use of a summary procedure, which is based on the assumption that the case can be decided on the basis of the case file as it stands, without submitting it to judicial examination. If the court grants the accused’s request for summary procedure, when giving its decision on the merits it reduces the penalty by one third. Life imprisonment is commuted to twenty-five years’ imprisonment. Both the prosecutor and the accused may appeal against the court’s decision. 35. The Supreme Court’s unifying decision No. 2 of 29 January 2003 stated, in so far as the summary procedure is concerned, the following. “... The summary procedure is important for the sake of judicial economy, because it simplifies and abridges the procedure, increases the expediency and effectiveness of a judicial examination, and consequently results in a benefit to the accused by reducing his penalty by one-third and by not imposing a sentence of life imprisonment. It is important to underline that this benefit should not be to the detriment of justice. For this purpose, the court accepts the accused’s request only when it is persuaded that it could resolve the case on the basis of the case file as it stands, without submitting it to judicial examination. ... The essence of the summary procedure is to admit the documents as collected during the criminal investigation and to avoid the consideration of other evidence at a hearing and the arguments relating thereto. ... The collection of other evidence and requests relating to their invalidity are not part of the summary procedure. The law provides that the case shall be resolved on the basis of the case file as it stands, which implies a mutual acknowledgment of acts and documents by the parties. It is the court’s obligation to assess whether a decision could be taken on the basis of the case file as it stands, without undermining justice and interfering with the lawful interests of the accused. The trial proceeds with the submission of the parties’ final conclusions, which make reference to the case file as it stands ... and the court takes a decision based thereon. If the parties complain that acts or documents are invalid, the court should revoke its decision for use of a summary procedure and order the continuation of a normal judicial examination.” 36. In three decisions (no. 764 of 9 September 2005, no. 720 of 20 October 2005 and no. 224 of 19 April 2006) the Supreme Court upheld the Court of Appeal’s decisions which had further reduced the defendants’ penalties, despite their having obtained a reduction by way of the application of the summary procedure by the District Courts. In further reducing the penalties, the Court of Appeal had regard to the defendants’ admission of guilt and signs of remorse. 37. In three other decisions (no. 2 of 12 January 2011, no. 11 of 10 January 2011 and no. 26 of 9 February 2011) the Supreme Court further reduced the defendants’ penalties, which had been imposed and reduced by virtue of the application of the summary procedure by the District Court and upheld on appeal. In reducing the penalties, the Supreme Court had regard to mitigating circumstances such as the defendants’ surrender to the authorities and their deep remorse over the commission of the crime. | 1 |
train | 001-22938 | ENG | SWE | ADMISSIBILITY | 2,002 | DAVIDSSON v. SWEDEN | 4 | Inadmissible | Nicolas Bratza | The applicant is a Swedish national, born in 1953, who lives in Göteborg. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant has two daughters, C and A, born in 1981 and 1988 respectively. Since their birth they cohabited with their mother. The applicant and the children’s mother have never lived together and their relationship ended permanently in 1993. In the period between 1993 and 1995 the children and their mother received support and therapy several times from the social authorities. In January 1995 C was voluntarily placed at a childcare centre due to the mother’s mental problems and medical drug abuse. Having commenced psychotherapy, the mother found herself also incapable of taking care of A. Thus, on 22 January 1996 A moved in with the applicant. Shortly thereafter, on 31 January 1996 A was taken into immediate care on a provisional basis by decision of a Social Board (stadsdelsnämnden TuveSäve i Göteborg) pursuant to the section 6 of the Act with Special Provisions on the Care of Young Persons (Lagen med särskilda bestämmelser om vård av unga, 1990:52, hereinafter “the 1990 Act”) due to inter alia suspicion of incest and physical abuse, as alleged by C to the staff at the child care centre, where she was placed. It appears that A was fetched by the social authorities from her school. She was temporarily placed at an institution specialising in child psychiatry. The decision about immediate care on a provisional basis was confirmed by the County Administrative Court (Länsrätten i Göteborgs- och Bohus Län) on 9 February 1996. On 27 February 1996 the Social Board revoked its decision as the applicant and A’s mother had agreed that A should remain temporarily at the children’s institution. An investigation was carried out concerning C’s allegation which resulted in a decision not to pursue the case, taken it appears, shortly thereafter. On 22 March 1996 the Social Board decided to take A into immediate care on a provisional basis pursuant to section 6 of the 1990 Act. The decision was confirmed by the County Administrative Court on the 3 April 1996. On 10 May 1996, by request of the Social Board, the County Administrative Court pronounced judgment ordering that A be taken into public care pursuant to sections 1 and 2 of the 1990 Act. Before the court the applicant, A’s mother and 5 witnesses were heard, including two psychiatrists. In addition a psychiatric statement on A was submitted. It was not in dispute that A’s mother could not provide the care needed. In its judgment the court held: “A is a child with special needs. According to the psychiatric statement A is mentally unhealthy, she has already been damaged and she is in need of care. The Social Board has claimed that it is likely that the need for care is caused by the applicant having beaten A. The court finds that this cannot be considered established with the certainty needed. However, it is a fact that A suffered great lack of care while living with her mother. Having shared custody, both parents are responsible therefore. Both parents consider that A can live with [the applicant] and that consequently, intervention [under the 1990 Act] is not needed. However, it follows from the psychiatric statement that the applicant and A’s mother remained passive in spite of serious warning signals concerning A, including inter alia A’s statement expressed during the spring of 1995 that she did not wish to live any longer. The parents have not taken any measures at all as regards A’s unhealthy state of mind. In addition to this passivity, the applicant appears to lack understanding for A’s need for security, stimulation and care. One example thereof is [the applicant’s] reaction at this hearing to all the information gathered on A’s need for care, provided by doctors’ statements and witnesses. In [the applicant’s] opinion A’s main problems are caused by the public care she has been subjected to. Thus, he insists that only he should assess whether A needs special care and only after she has been placed with him. This statement and the information otherwise submitted before the court support the impression that A, deprived of proper care, obviously risks severe damage to her health and development, not only [in relation to] her mother but also if placed with her father. Since [the applicant] and A’s mother cannot consent to the current care plan and have not shown that the needed care can be provided in some other way, A must be taken into care pursuant to the 1990 Act.” On appeal, the judgment was upheld on 23 August 1996 by the Administrative Court of Appeal (Kammarrätten i Göteborg) after an oral hearing where the applicant was heard as well as several witnesses. Leave to appeal was refused by the Supreme Administrative Court (Regeringsrätten) on 6 December 1996. On 7 January 1997 A, who until then had been placed in a children’s home, was placed with foster parents. The applicant maintained access to A three times per week. In the meantime the applicant requested that the care order be revoked. The Social Board refused this on 20 December 1996. The applicant appealed to the County Administrative Court, claiming that the care order be revoked or in the alternative that A be transferred back to the children’s home until a foster family closer to his home in Göteborg could be found. Before the court one of the psychiatrists heard before the County Administrative Court was re-heard and an additional witness on the applicant’s behalf was heard. A’s counsel recommended that the care order be maintained. By judgment of 24 February 1997 the County Administrative Court found against the applicant stating inter alia: “[the applicant] maintains that the conditions for public care according to the 1990 Act are not fulfilled. Moreover, he finds no reasons to take any special measures or make any changes as regards A. On the one hand he accepts that A may be a child with special needs; on the other hand he maintains that it is up to him to assess whether A needs any supportive measures and only after she has been placed with him. As a result of this inflexibility on the part of the applicant the situation is virtually unchanged since the [the court’s judgment of 10 May 1996]. Indeed, as the statement from the children’s home shows, A appears to feel better. According to [the applicant] the reason for this is that A is no longer under the influence of her mother and that she regularly sees him and his family. [According to the court] another explanation could be the beneficial influence of the children’s home. No matter how one assesses it, the case offers no indication that care pursuant to the 1990 Act is no longer needed. The care, which concerns a child with special needs, has lasted for only a short period. The damage inflicted on A has already been proven. In conclusion, the court finds that the care order cannot yet be revoked. As to the placement of A, no objections as such have been submitted regarding the foster family. The foster family is considered qualified. The question remains whether the placement of A at a home situated [approximately 30 kilometres] from the city Alingsås contravenes the principle of proximity, which entails that the child should be placed at a home which is not too far from the child’s home-environment. Taking into consideration that there are good public connections between Göteborg and Alingsås and that [the applicant] is always fetched from and brought to the railwaystation by the foster family, the court finds that the placement of A is not in breach of the principle of proximity. No other reasons have been submitted in favour of returning A to the children’s home.” On appeal, on 11 June 1997 the judgment was confirmed by the Administrative Appeal Court, which held an oral hearing and heard the applicant, A’s mother and three witnesses. It referred to the County Administrative Court’s reasoning and added insofar as relevant the following: “A’s mental damage has not been healed to such an extent that care according to the 1990 Act is no longer needed. As regards [the applicant] there is no indication that he has gained any better insight as to A’s needs or that his circumstances have changed to such an extent that he is capable of taking care of A with the certainty needed, more particularly when her special needs are taken into consideration. “ Leave to appeal was refused by the Supreme Administrative Court on 20 October 1997. On 7 July 1998 the Social Board ordered the determination of the care pursuant to section 21 of the 1990 Act. Normally, measures taken by the social authorities as regards children shall be based on an agreement with the young person concerned and his or her custodian. Such measures are governed by the provisions of the Social Services Act (Socialtjänstlagen, 1980:620). However, if the custodian or the young person - if he or she is above fifteen years of age - does not consent to the necessary care, compulsory public care may be ordered under the 1990 Act (section 1 § 2). Care is to be provided, inter alia, if there is a clear risk of impairment of the health or development of a person under eighteen years of age due to ill-treatment, improper exploitation, lack of care or any other condition in the home (section 2). The Social Board may decide to take a child into care immediately on a provisional basis if later court proceedings concerning compulsory care cannot be awaited on account of the risk to the child’s health or development or of the risk that the continuing examination will be obstructed (section 6). Such a decision shall be submitted to the County Administrative Court for approval (section 7). An order committing a child to care on a permanent basis is issued by the County Administrative Court on application by the Social Board. The application shall include a description of the circumstances concerning the child, measures previously taken and the care that the Social Board intends to arrange (section 4). Once public care has been ordered, it is executed by the Social Board, which decides on the details of the care. In particular, the board shall decide on how the care is to be arranged and where the child is to live (section 11). The council shall ensure that the child’s need of contact with parents and other custodians is met to the utmost possible extent. The council may decide on how this access is to be arranged (section 14). When public care is no longer necessary, the Social Board shall order the termination of the care (section 21). Decisions taken by the Social Board as to, inter alia, the continuation of the care and the parents’ access may be appealed against to the County Administrative Court (section 41). The court’s decisions and judgments may be appealed against to the Administrative Court of Appeal and the Supreme Administrative Court (section 33 of the Administrative Procedure Act (Förvaltningsprocesslagen, 1971:291)). | 0 |
train | 001-58849 | ENG | AUT | CHAMBER | 2,000 | CASE OF MAUER v. AUSTRIA (No. 2) | 3 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award | Nicolas Bratza | 8. On 23 March 1988, the applicant was instructed to inform the police who had parked a car belonging to the applicant in the Schlossgasse in Vienna on 18 March 1988 at 5.30pm. He failed to provide the information, and on 11 October 1988 was fined 2,000 Austrian schillings (ATS) for the failure, pursuant to sections 134 (1) and 103 (2) of the Motor Vehicles Act 1967 (Kraftfahrgesetz). The penal notice (Straferkenntnis) was confirmed by the Vienna Regional Government (Amt der Wiener Landesregierung) on 18 May 1989. On 24 November 1989 a minor error in the penal order was corrected. 9. The applicant's administrative complaint to the Administrative Court (Verwaltungsgerichtshof) was ultimately dismissed on 24 January 1990. The Administrative Court found that the correct provisions of the Motor Vehicles Act had been applied, and further confirmed that the reasons given by the applicant for not having supplied the required information were inadequate. 10. Section 103 (2) of the Motor Vehicles Act 1967 entitles the competent authority, inter alia, to require the registered owner of a motor vehicle to communicate the name and address of a person who has used the vehicle at a specific time. 11. Under section 134 (1) it is an administrative offence (Verwaltungsübertretung) not to comply with the above-mentioned provision, punishable by a fine of up to ATS 30,000 or up to six weeks’ imprisonment in case of default. 12. For a description of the relevant domestic procedure, reference is made to the Umlauft v. Austria judgment of 23 October 1995 (Series A no. 328-B, pp. 34-36, §§ 14-23). | 1 |
train | 001-104728 | ENG | UKR | COMMITTEE | 2,011 | CASE OF FEDOROVA v. UKRAINE | 4 | Violation of Art. 6-1 | Angelika Nußberger;Ganna Yudkivska | 4. The applicant was born in 1945 and lives in Sevastopol. 5. In February 1996 the applicant, who was later joined by a certain B., instituted proceedings in the Gagarinskyy District Court of Sevastopol (“the District Court”) against six individuals seeking annulment of a sale contract and a deed of gift in respect of a flat. 6. On 21 October 1999 the District Court refused to examine the applicant’s claims owing to her repeated failure to attend the hearings. On 12 January 2001 the Sevastopol Court of Appeal (“the Court of Appeal”), upon the Sevastopol Prosecutor’s “protest” of December 2000, quashed this decision and remitted the case to the first instance court which, on 26 January 2004, rejected the applicant’s claims as unsubstantiated. In its judgment, the court enumerated the main arguments of the parties, analysed the evidence obtained, made references to the substantial and procedural laws and gave reasons for its conclusion. 7. On 25 August 2004 the Court of Appeal upheld that judgment, having in particular analysed the evidence obtained by the first-instance court and having rebutted two of the applicant’s statements. 8. On 21 September 2004 the applicant appealed in cassation. She was subsequently twice invited to rectify her appeal to meet procedural requirements. On 30 December 2004 the District Court allowed her request to extend the time-limit for lodging the appeal in cassation. On 3 August 2007 the Crimea Court of Appeal, acting as a cassation court and having agreed with the lower courts’ findings, rejected the applicant’s appeal in cassation as unsubstantiated. 9. According to the Government, between 11 September 1997 and 3 August 2007, two expert examinations were ordered and the applicant filed five procedural requests. She also filed three appeals that did not meet procedural requirements. Of the forty six hearings scheduled during the same period of time, ten were adjourned at the applicant’s request, nine were adjourned owing to the presiding judge’s absence, six were adjourned due to one or more of the defendants’ or witness’s failure to attend, two were adjourned due to the both parties’ failure to attend, and one was adjourned at request of one or more defendants. Overall, due to the applicant’s requests or her failure to attend, the proceedings were delayed for about one year and nine moths, excluding the period between 21 October 1999 and 12 January 2001. | 1 |
train | 001-89062 | ENG | RUS | CHAMBER | 2,008 | CASE OF KHUZHIN AND OTHERS v. RUSSIA | 3 | Remainder inadmissible;Violation of Art. 6-2;Violation of Art. 6-1;Violation of Art. 8;Violation of P1-1;Just satisfaction dismissed | Anatoly Kovler;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 4. The applicants are brothers. Mr Amir and Damir Khuzhin were twins born in 1975 and Mr Marat Khuzhin was born in 1970. They all live in the town of Glazov in the Udmurtiya Republic of the Russian Federation. On 19 June 2006 Mr Damir Khuzhin died in an accident. 5. On 14 April 1999 the first and second applicants were arrested on suspicion of kidnapping committed in concert. The case was assigned to Mr Kurbatov, a senior investigator in the prosecutor’s office of the Udmurtiya Republic. 6. On 12 May 1999 the investigator Mr Kurbatov questioned the third applicant as a witness. On the same day he was placed in custody. On 14 May 1999 the investigator issued a formal decision to arrest the third applicant on suspicion on aiding and abetting kidnapping. 7. On 17 and 26 May 1999 the first applicant was allowed to see his fiancée, Ms Maksimova. It would appear that on the latter date they contracted a marriage because from 9 June 1999 she began visiting him as his wife and changed her name to Mrs Khuzhina. In the subsequent period she visited the first applicant on a regular basis once or twice a month. 8. On 2 June 1999 the three applicants were charged with kidnapping and torture, offences under Articles 117 and 126 of the Criminal Code. They were accused of having abducted a certain Mr V., a homeless tramp, and forced him to perform physical labour in a fruit warehouse owned by them in exchange for extremely low pay. On several occasions V. had run away but the brothers had caught him, beaten him and tortured him by applying electric wires to various parts of his body. 9. On 7 June 1999 the first applicant and his counsel requested the investigator to arrange for a confrontation with V. and a certain witness U. On the following day the investigator refused their request, noting that the confrontation was “undesirable as both V. and U. had previously been financially dependent on the Khuzhin brothers and during a confrontation Amir Khuzhin could exert a negative influence on them”. 10. The third applicant and his counsel requested the investigator to interview witnesses G., L., and A., who could allegedly testify that V. had been able to move around freely and that the Khuzhin brothers had treated him well. On 18 June 1999 the investigator dismissed the request as unsubstantiated. He noted that V.’s liberty of movement had indeed been unrestricted in the beginning and the Khuzhin brothers had restrained him “only at a later stage” and that there were “a sufficient number of depositions by witnesses and the victim to the effect that the Khuzhin brothers had treated V. very badly and humiliated him”. 11. It appears that on an unspecified date the police entered and inspected a warehouse belonging to the applicants. 12. On 20 July 1999 the State television channel Udmurtiya broadcast the Versiya (“Version”) programme. The second part of the programme concerned the applicants’ case. The participants included the presenter Ms Temeyeva, the Glazov town prosecutor Mr Zinterekov, the investigator Mr Kurbatov, and Mr Nikitin, who was head of the division for particularly important cases in the office of the prosecutor of the Udmurtiya Republic, as well as the victim V., whose face was not shown. 13. Mr Zinterekov opened the programme with the following statement: “The Khuzhin brothers are, by their nature, cruel, insolent and greedy; they wished to get cheap or, more precisely, free labour. On the other hand, the victim V., a person with no fixed abode, mild and gentle...” 14. The presenter started telling the story of V.’s enslavement. As she was speaking, black-and-white passport-size photos of the applicants were shown full screen. 15. The presenter’s story alternated with that of the victim V., who related how he had been ill-treated by the Khuzhins and had unsuccessfully attempted to escape. The presenter asked the participants whether the Khuzhin brothers could be described as sadistic. 16. Mr Zinterekov replied as follows: “We, that is, prosecutors and the police, have known these brothers from the time when they were still minors... We investigated the acts committed by the brothers but they could not be held criminally liable by virtue of their young age. After they reached the age [of majority], they found themselves in the dock. All three brothers were convicted of disorderly acts. In my opinion, that offence is very much characteristic of all the Khuzhin brothers in its cruelty and meaningless brutality. I think that the personal qualities of the Khuzhin brothers and [their] desire to have free labour have led to this crime.” 17. The participants subsequently discussed why the victim had not come to the police immediately after the beatings had begun, and commented on legal aspects of the pending proceedings: “[Mr Kurbatov:] You know when [V.] came to the law-enforcement authorities in April 1999, our investigative group in the Glazov town prosecutor’s office was shocked at the cruelty of this crime. When a person comes for protection to the law-enforcement authorities, you should examine him closely, listen carefully to his story. [V.] had more than 187 injuries on him. The Convention [for the Prevention] of Torture naturally comes to mind. [Presenter:] The Khuzhin brothers are now charged under two provisions of the Criminal Code: Article 126 – kidnapping committed for lucrative motives, and Article 117 – torture.” As she was speaking, the first page of the criminal case file was shown on screen. 18. The other participants offered the following comments: [Mr Zinterekov:] The prosecutor’s office will insist on imprisonment as a measure of punishment in respect of all three brothers... For instance, Article 126 § 2 provides for five to ten years’ imprisonment, Article 117 provides for three to seven years’ imprisonment. The court will have to choose... [Mr Nikitin:] A brazen crime. If anyone knows about similar facts, report them to the police and the criminals will be punished... [Presenter:] ... In September the Glazov Town Court begins its examination of the criminal case. Three businessman brothers who got a false idea of being slave-owners will get a well-deserved punishment.” 19. The programme was broadcast again in August 1999 and on 15 May and 25 October 2001. 20. On 7 August 1999 the journalist Ms M. published an article under the headline “The Land of Slaves” («Страна рабов») in the local newspaper Kalina Krasnaya. It began as follows: “I am firmly convinced that the following story is just one fact that emerged from the dim waters of market relations. And ethnic relations as well. Though I wish I were impartial as regards these ethnic relations – each people has its enlightened scholars and cruel murderers.” 21. The journalist related the story of V., who had been exploited and beaten by the Khuzhin brothers. The article mentioned that the elder brother’s first name was Marat, that the two other brothers were twins aged 24 and that they traded in fruit at a local market. The applicants’ last names were not listed. A former classmate of V. who had given him refuge was quoted as citing a statement by V. himself, to the effect that “these Tatars have everything fixed up”. The final paragraph read as follows: “Many, many questions crossed my mind as I was reading the criminal case file. Why is the life of a dirty piglet more valuable than a human life? Why are masses of Russians, Udmurts and others among the unemployed, while ‘they’ not only find work for themselves but also use hired labour! And why does everyone in the town know about the doings of that best friend of all tramps and put up with it? ...” 22. The applicants lodged several complaints about the press coverage of proceedings against them. 23. In a letter of 23 March 2000 Mr Nikitin replied that the programme had been produced on the basis of information supplied by the division for particularly important cases in the office of the prosecutor of the Udmurtiya Republic. Pursuant to Article 139 of the RSFSR Code of Criminal Procedure, the prosecutor’s office had had the right to disclose materials in the case file and make them available to the journalist. 24. In a letter of 3 May 2000 a deputy prosecutor of the Udmurtiya Republic replied that there were no grounds to hold officials of the Glazov prosecutor’s office criminally liable for disclosure of materials from the investigation. 25. On 25 August 2000 Mr Zinterekov wrote that there were no grounds for liability to be incurred either by officials of the prosecutor’s office or by journalists who had provided coverage of the proceedings. 26. On 18 December 2000 a deputy prosecutor of the Udmurtiya Republic replied to the third applicant that Mr Zinterekov could not be held criminally liable for his statements. 27. In a letter of 12 March 2001 a deputy prosecutor of the Udmurtiya Republic confirmed that the disclosure of the case file to the mass media had been in compliance with Article 139 of the Code of Criminal Procedure. He further noted that the Glazov town prosecutor (Mr Zinterekov) had been told to use “a more balanced approach in determining the scope of information that could be made public in criminal cases before the conviction has become final”. 28. In similarly worded letters of 25 July and 15 August 2001, deputy prosecutors of the Udmurtiya Republic informed the first and third applicants that there were no grounds to initiate a criminal case against the maker of the television programme and that no further replies concerning that matter would be given. The Glazov town prosecutor was, however, instructed to check whether a criminal investigation should be opened in connection with the article in the Kalina Krasnaya newspaper. 29. On 27 September 2001 an investigator from the Glazov prosecutor’s office issued a formal decision not to initiate a criminal case for libel against the journalist M., who had authored the article “The Land of Slaves”. It appears from the decision that, in M.’s own words, she had received formal permission from the investigator Mr Kurbatov to consult the case file and that Mr Kurbatov had approved a draft of the article. Mr Kurbatov, however, denied any memory of granting access to the file to M. and claimed he had never read the article in question. He did not deny, though, that he had briefed the presenter of the television programme on details of the criminal case. Referring to the applicants’ conviction by the judgment of 2 March 2001 (see below), the investigator found that the contents of the article had been essentially true and that M. had not disseminated any false information damaging the third applicant’s dignity or honour. 30. On 31 July 2000 the Glazov Town Court held a directions hearing and scheduled the opening of the trial for 10 August 2000. 31. The trial continued in late 2000 and early 2001. Witnesses for the prosecution and defence, as well as the victim Mr V., testified in court. 32. On 2 March 2001 the Glazov Town Court found the applicants guilty of kidnapping and torture under Article 126 § 2 and Article 117 § 2 of the Russian Criminal Code. The third applicant was sentenced to five years and one month’s imprisonment, whilst the first and second applicants were to serve seven years in a high-security colony. 33. The applicants appealed against the conviction. Their points of appeal concerned, in particular, the alleged prejudice to their presumption of innocence which had resulted from the newspaper publication and television programme described above. The prosecution also lodged an appeal. The case file was sent to the Supreme Court of the Udmurtiya Republic for consideration on appeal. 34. On 29 October 2001 the acting president of the Criminal Division of the Supreme Court of the Udmurtiya Republic returned the case file to the Town Court because the trial judge had failed to consider the applicants’ comments on the trial record, to locate the allegedly missing documents and to provide the applicants with a copy of the prosecution’s points of appeal. 35. In an interim decision of 1 November 2001 the Glazov Town Court partly accepted and partly rejected the applicants’ corrections of the trial record. 36. On 18 December 2001 the Supreme Court of the Udmurtiya Republic heard the case on appeal and upheld the judgment of 2 March 2001. The court did not address the applicants’ arguments concerning an alleged impairment of their presumption of innocence. 37. Following their conviction, the applicants remained in detention facility no. IZ-18/2 for unspecified reasons. 38. On 21 October 2002 the facility administration distributed winter clothing to the prisoners. The applicants refused to take it. On 13 November 2002 the third applicant accepted a padded jacket and the second applicant winter shoes. 39. On 26 December 2002 the applicants were listed for transport from detention facility no. IZ-18/2 to correctional colonies. According to them, the outside temperature on that day was -36o C; the Government submitted a certificate from the meteorological service showing that the temperature fell to -29.8 o C in the night. 40. At about 5 p.m., when the applicants were taken to the assembly cell of the detention facility together with ten to twelve other detainees, they were wearing T-shirts and tracksuit bottoms. The wardens offered them winter jackets and hats which, according to the Government, hailed from the humanitarian-aid supplies but had been washed and were neat. The applicants claimed that the items were “torn and old” and refused to take them. 41. At 10 p.m. the applicants, together with other prisoners, were put into a prison van and taken to Glazov railway station to board the Kirov-Kazan train that arrived at 10.10 p.m. The distance between the facility and the station was 800 metres and the journey time was less than five minutes. At 10.05 p.m. the van arrived at the station and the applicants emerged from it without winter clothing. A prison inspector dashed into the van, collected the winter clothing which the applicants had left behind, and gave it to the escorting officer. The officer again offered the clothing to the applicants to put on but they refused to do so, claiming that it was unfit to wear. According to the statements by the inspector and the officer, the clothing was in an “appropriate condition”. 42. It appears that the argument went on for about 10 to 15 minutes. The head of the train escort refused to take the applicants in without appropriate clothing and the facility personnel decided to take them back into the cells. 43. In support of their claim that the clothing had been “inappropriate”, the applicants produced to the Court a written statement signed by five other detainees who had been held in facility no. IZ-18/2 at that time. 44. On 27 and 29 December 2002, 7 January and 11 April 2003 and other dates the applicants complained that they had been subjected to inhuman and degrading treatment on 26 December 2002. 45. On 28 February 2003 Mr Zinterekov responded to them in the following terms: “It has been established that winter clothing was given to you and that you remained outside in clothing inappropriate for that season only because you refused to put it on. Your arguments that the clothing offered did not meet sanitary and hygiene standards could not have been objectively confirmed; there are no grounds for disciplining any officials.” 46. On 12 May 1999 the third applicant arrived in his van at the Glazov police station for questioning. On that day he was taken into custody (see above). 47. On 13 May 1999 the investigator Mr Kurbatov impounded the van and ordered that it should be kept in the car park of a private company. The charging order itself did not indicate the grounds on which it had been issued, but referred back to the investigator’s decision of the same date, a copy of which was not made available to the Court. 48. The third applicant repeatedly complained to various authorities that his van had been unlawfully seized. He alleged that the investigator was using it for his private errands. 49. In a letter of 14 April 2000 the acting Glazov prosecutor reported to the third applicant the findings of an internal inquiry into his complaints. He found as follows: “On 12 May 1999 Mr Kurbatov arrested you... However, the Gazel car, in which you had arrived, remained in the street outside the premises of the Glazov police station, and measures for its safe keeping were not taken. The car remained there until 13 May 1999, when Mr Kurbatov impounded it... However, he did not examine the state of the car, nor did he show it to you or any attesting witnesses... The impounded car was taken by a road police employee from Glazov police station, acting on Mr Kurbatov’s orders, into the premises of the [private company]. The car was not properly sealed... It must be noted at the same time that there existed no legal grounds for impounding the vehicle, as required by Article 175 § 1 of the RSFSR Code of Criminal Procedure. According to that provision, a charging order could be issued with a view to securing a civil claim or a possible confiscation order. However, in this case no civil claim was brought throughout the proceedings and the criminal-law provisions under which [the third applicant] was charged do not provide for confiscation measures as a penal sanction. Thus, Mr Kurbatov breached Articles 141, 142, 175 and 176 of the RSFSR Code of Criminal Procedure – which set out the requirements for the record of impounding and the procedure for issuing charging orders – and also the Instruction on the procedure for seizing, accounting, storing and transferring physical evidence in criminal cases, values and other assets by law-enforcement authorities and courts. Further to the internal inquiry, the prosecutor of the Udmurtiya Republic was advised to determine whether Mr Kurbatov should be disciplined.” 50. On 13 June 2000 the investigator Mr Kurbatov handed the keys and registration documents of the van to the Glazov Town Court. 51. In letters of 19 July and 18 December 2000 the Udmurtiya Republic prosecutor’s office informed the third applicant that Mr Kurbatov had been disciplined for breaches of the Instruction on the procedure for storing physical evidence and fined in the amount of his bonus salary for the first quarter of 2000. 52. It appears that on 4 June 2002 the Glazov Town Court lifted the charging order and the third applicant’s van was returned to Mrs Khuzhina (his brother’s wife). 53. On an unspecified date the third applicant sued the investigator Mr Kurbatov for damages on account of his failure to ensure the safe keeping of his van; all three applicants also brought a defamation action against the journalist Ms M., seeking compensation in respect of non-pecuniary damage. The Glazov Town Court ordered the joinder of both actions and listed a hearing for 3 March 2003. 54. In February 2003 the applicants asked the court for leave to appear. Mrs Khuzhina, as a representative of the first applicant, asked the court to ensure the attendance of the applicants at the hearing. 55. On 3 March 2003 the Town Court issued several procedural decisions. In the first decision, it rejected Mrs Khuzhina’s request for the applicants’ attendance, holding that the Penitentiary Code did not provide for the possibility of bringing convicted persons from a correctional colony to the local investigative unit for the purpose of taking part in a hearing in a civil case. The second decision took stock of the absence of both parties – the journalist Ms M. and a representative of the newspaper had not shown up despite having been notified of the hearing – and indicated that the case would be heard in their absence. It appears that Mrs Khuzhina then walked out of the courtroom in protest against the court’s decision to hear the case in the absence of the first applicant. In a third decision, the court decided to proceed with the case in her absence. It additionally rejected the applicants’ request for leave to appear on the same grounds as above, adding: “...parties to the case do not just have rights but also have duties, such as [a duty] to make written submissions and substantiate their claims. Taking into account the fact that the rights of Mr A. Khuzhin, Mr D. Khuzhin and Mr M. Khuzhin are not restricted and can be exercised by them in full measure, there are no legal grounds to ensure the attendance of individuals who have committed particularly serious, insolent [дерзкие] crimes.” Lastly, the Town Court rejected the applicants’ requests to summon witnesses and study the hearing records, reasoning as follows: “The substantiation of the Khuzhins’ claim seeks to obtain a new assessment of the circumstances and findings set out in the criminal judgment of 2 March 2001. The statements by the Khuzhin brothers are not reasoned or argued; they are not procedural requests as such [sic]; they have repeatedly studied the materials in the case file and can study them again by receiving copies of them; since they are serving a sentence imposed by a court judgment in a penitentiary institution, the case must be examined in their absence.” 56. On 4 March 2003 the Town Court refused for the same reasons the third applicant’s request to obtain attendance of witnesses and an expert. It also decided to proceed with the hearing in the absence of both parties’ representatives. 57. On the same day the Town Court dismissed all of the applicants’ claims. On the defamation issue it found that the article “The Land of Slaves” had been based on the true facts which had subsequently been established in the criminal judgment of 2 March 2001. As regards the claim relating to the damage caused to the third applicant’s van, it established that the vehicle had been returned to him after he had paid compensation to the victim for non-pecuniary damage and that the investigator had acted within his powers and had not caused any damage through his actions. 58. The applicants and Mrs Khuzhina appealed. They complained, in particular, of a breach of the principle of equality of arms. Mrs Khuzhina additionally pointed out that she had not been the representative of either Damir or Marat Khuzhin. 59. On 7 October 2003 the Civil Division of the Supreme Court of the Udmurtiya Republic held an appeal hearing. It appears that neither the applicants nor Mrs Khuzhina were in attendance. The court held that there had been no breach of equality of arms because the applicants had been duly notified of the hearing and informed of their right to appoint representatives. The second and third applicants had not made use of that right, whereas the first applicant’s representative, Mrs Khuzhina, had declined to take part in the hearing. In the court’s view, the joinder of the cases was also lawful and justified because the second applicant had been a party to both claims. 60. According to a letter of 30 April 2003 from the prosecutor of the Udmurtiya Republic to the second applicant, it was incumbent on the court hearing a civil claim to decide whether the detainee’s presence was necessary. The second applicant could have been escorted to the hearing if there had been a decision of the Glazov Town Court to that effect. 61. On an unspecified date the third applicant brought a defamation action against the prosecutor Mr Zinterekov. He challenged as defamatory the statements made by Mr Zinterekov in the Versiya television programme about the applicants’ adolescent delinquency, insolence and greediness. 62. On 14 November 2003 the Glazov Town Court delivered its judgment. Mr Zinterekov made oral submissions to the court; the third applicant was neither present nor represented. In dismissing the defamation action, the court noted as relevant the materials relating to the criminal case against the applicants and, more specifically, a reference letter for the second applicant from his secondary school that concerned his unauthorised absences from classes and disorderly behaviour. The court held that the facts as established in the judgment of 2 March 2001 had justified Mr Zinterekov’s reference to the applicants as insolent and greedy. 63. On 19 December 2003 and 22 January 2004 the third applicant lodged his points of appeal, alleging, in particular, a violation of the principle of equality of arms. 64. The Court has not been provided with any information about the appeal proceedings. 65. The Criminal Code provides that torture is punishable with up to seven years’ imprisonment (Article 117 § 2) and kidnapping with up to twenty years’ imprisonment (Article 126 § 3). 66. The RSFSR Code of Criminal Procedure (in force at the material time) provided as follows: “If the investigator observes, on the basis of the case file, that the crime committed caused pecuniary damage to an individual or organisation, he must explain to them or to their representatives that they have a right to lodge a civil claim... If a civil claim has been lodged, the investigator must issue a reasoned decision recognising [the interested party] as a civil claimant or refusing such status...” “Materials from the preliminary investigation may only be made public with the consent of an investigator or a prosecutor and to the extent they consider it possible...” “With a view to securing a civil claim or a possible confiscation order, the investigator must charge the property of the suspect, defendant ... or of the other persons who keep criminally acquired property... If necessary, the charged property may be impounded...” 67. The Code of Civil Procedure of the Russian Federation provides that individuals may appear before the court in person or act through a representative (Article 48 § 1). A court may appoint an advocate to represent a defendant whose place of residence is not known (Article 50). The Advocates Act (Law no. 63-FZ of 31 May 2002) provides that free legal assistance may be provided to indigent plaintiffs in civil disputes concerning alimony or pension payments or claims for health damage (section 26 § 1). 68. The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses, victims or suspects in connection with certain investigative measures (Article 77.1). The Code does not mention the possibility for a convicted person to take part in civil proceedings, whether as a plaintiff or defendant. 69. On several occasions the Constitutional Court has examined complaints by convicted persons whose requests for leave to appear in civil proceedings had been refused by courts. It has consistently declared the complaints inadmissible, finding that the contested provisions of the Code of Civil Procedure and the Penitentiary Code did not, as such, restrict the convicted person’s access to court. It has emphasised, nonetheless, that the convicted person should be able to make submissions to the civil court, either through a representative or in any other way provided by law. If necessary, the hearing may be held at the location where the convicted person is serving the sentence or the court hearing the case may instruct the court having territorial jurisdiction over the correctional colony to obtain the applicant’s submissions or carry out any other procedural steps (decisions no. 478-O of 16 October 2003, no. 335-O of 14 October 2004, and no. 94-O of 21 February 2008). | 1 |
train | 001-60781 | ENG | GBR | CHAMBER | 2,002 | CASE OF E. AND OTHERS v. THE UNITED KINGDOM | 2 | Violation of Art. 3;No separate issue under Art. 8;Violation of Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award | Nicolas Bratza | 8. The applicants, E., H., L. and T. were born in 1960, 1961, 1963 and 1965 respectively and live in Scotland. E., L. and T. are sisters and H. is their brother. 9. The applicants’ mother had six children by her husband. After the death of the applicants’ father in 1965, their mother cohabited with W.H. Two further children were born in that relationship. 10. The family, living in a local authority flat in Dumfries, were known to the social services of Dumfries and Galloway Regional Council (“the local authority”). The records provided by the Government show that they were principally concerned from 1970 onwards in relation to the mother’s severe financial difficulties. The mother suffered from bad health and it was noted in 1973 that when she had a broken arm she always kept one of the children off school (presumably to help in the home) and was likely to be summoned before the Education Sub-Committee. Problems with rent and electricity arrears were noted as recurring through 1975 and 1976, as well as continuing health difficulties suffered by the mother. An entry on August 1976 noted that the eight children were all happy though overcrowded and that there were no behavioural problems. 11. On 16 November 1976, it was recorded however that E., the first applicant, who had been causing concern as she had been staying out at night, was found semi-conscious at a nearby flat, having taken an overdose. It was noted that the mother was to take her to attend a psychiatric clinic. The medical notes recorded that E. complained that she disliked intensely her mother’s cohabitee W.H. who hit her, shouted and upset her so much that she ran away with intent to kill herself. 12. A social work report dated 25 November 1976 noted that the family consisted of six daughters and two sons living with their mother. W.H., the father of the two youngest children, was recorded as not cohabiting and the mother had stated that she would not marry him as she would be worse off financially. The state of the home was said to fluctuate according to the mother’s health but was considered to be adequately furnished with a warm, friendly atmosphere. The mother had always demonstrated a great deal of concern for her children and had perhaps overindulged them at times. In spite of the fact that there was much juvenile delinquency in the area, this was noted as being the first time that any of her children had given cause for concern. The mother’s ambivalent attitude to school attendance was commented on. 13. In December 1976, E. left school and the social services gave assistance in finding employment. 14. On 7 January 1977, L., the third applicant, then aged 13, ran away from home, following an incident in which she claimed that W.H. had attempted to rape her. She was referred as an emergency by the police to the social services. The police interviewed all the family. It is not apparent that the family, in particular the children, were interviewed by social workers concerning the implications of L.’s disclosures. No steps were taken to refer them to the Reporter of the Children’s Hearing. 15. On 7 January 1977, W.H. was arrested by the police and charged with indecently assaulting E. and L. 16. On 8 January 1977, W.H. entered a guilty plea concerning charges involving offences of indecent behaviour against E. and L. before Dumfries Sheriff Court. The pleas were accepted by the prosecution and the case proceeded on the basis that W.H. had committed one act of indecency against E. between 20 October 1972 and 31 August 1976, and two acts of indecency against L. between 1 January 1975 and 7 January 1977. The Sheriff requested the social services to prepare social enquiry and psychiatric reports. W.H. was not detained pending sentence. According to the applicants, he returned to live at the applicants’ home. 17. On 11 January 1977, the applicants stated that the police submitted a report to the children’s social worker, S., expressing concern that the children should be protected from further abuse. The Government have found no trace of any such report in existence. 18. On 28 January 1977, W.H. appeared before the Sheriff for sentencing. The social enquiry report dated 18 January 1977 stated inter alia that the family lived in a four room local authority flat in an area where there was a high incidence of social problems. The home was adequately furnished and maintained to a reasonable standard. The mother was described as a caring woman who did not enjoy good health but who put her childrens’ interests first. The family was considered as appearing a happy well-adjusted group though they were well known to the social services as they had been given assistance from time to time. The children attended school regularly and appeared happily settled. W.H. was recorded as admitting the offence and as being more than ashamed of his conduct, though he could offer no explanation for these actions. It was noted that he did not appear to realise fully the serious nature of these charges. Since the alleged offence he had obtained accommodation outside the applicants’ home - it indicated an address in the same apartment block. It was further noted that the mother was not prepared to accept the charges relating to this man and stated that they had plans to marry in the Spring as they had had a close relationship for many years. It was concluded that, in view of the serious nature of the offences, it would be necessary for firm control to be exercised over the accused for a period of time. 19. The psychiatric report found that W.H. did not show any psychiatric abnormality. His criminal record showed one prior minor offence of dishonesty. 20. W.H. was sentenced by the Sheriff to two years’ probation. The applicants state that this was with a condition that he cease to reside at the applicants’ address. The Government have found no record of that condition attaching to the probation order and stated that the probation file cannot now be found. They accepted however that it was the social services’ responsibility to supervise W.H.’s probation. According to the recollection of Mr M., who was the supervising officer for part of that period (after June 1977), he would have made it clear to W.H. that he was not permitted to live in the family home due to the nature of the offences. He recalled visiting W.H. at a separate address in Dumfries during this period and sending mail to that address. He believed that W.H. was living there and not at the applicants’ home. In the precognition annexed to the Government’s observations, Mr M., who was also probation officer for E. and acted as replacement for the family social worker, recalled however that he did have suspicions that W.H. might still be living at the family home and that on visiting the family home two or three times unexpectedly he found W.H. “just leaving”. He did not consider that there was sufficient evidence of W.H. breaching the conditions attached to his probation order to justify taking the matter further. 21. The social worker, Mr R., visited the home on 22 occasions between 24 January and the end of June 1977 and did not see W.H. However, his notes recorded in March 1977 a suspicion that the mother was still cohabiting with W.H. When Mr M. took over the case, he noted that W.H. was not living there (social work case notes entry of 6 August 1977) and that W.H. was not contributing financially to his children. In his later affidavit, he stated that this entry was based on information from the mother. Entries indicated concerns about school attendance and that the mother had been repeatedly told that she should not keep the girls off school. In September 1977, it was noted that the school had expressed concerns about the welfare of T., the fourth applicant, which was attended to by a senior social worker. A school meeting concerning the children’s attendance was arranged but the mother and H., the second applicant, failed to attend. In November 1997, the social worker paid an unexpected visit to the home and found that W.H. was there. Both he and the mother denied that he was living there. 22. According to a social enquiry report of 1 June 1977 drawn up by Mr R. when E. was charged with criminal damage before the Sheriff Court, she had left home in about February 1977. No reference was made to the past history of sexual abuse in the home though it was stated that she had left home after a scene with the man who was at that time co-habiting with her mother. E. was found guilty of malicious mischief on 15 June 1997 and sentenced to two years’ probation. Social work case notes also recorded that by March 1977 she had left home. According to her claims lodged in later proceedings, E. finally left home on her 17th birthday, in October 1977. 23. School attendance was still recorded as a problem in December 1977 for the remaining girls at home. H., the second applicant, had now left school officially. In her later statements, L. recalled that during 1977 she was on occasion taken into temporary local authority care in connection with problems of running away. 24. In January 1978, the mother was recorded as giving her various health problems as the reason for keeping L. and T. off school. It was noted that her speech was slurring, among other symptoms, but that she had shown reluctance in going to see her doctor or in allowing the social workers to approach her doctor. In February 1978, she was keeping one or both girls off school to help her at home or to run messages. 25. In March 1978, it was noted that the house was becoming even more disordered and the younger children and the mother were becoming more unkempt. The mother gave the impression of having given up. In June 1978, the mother was finally referred through her doctor for hospital tests, though she failed to attend the appointments set. In October 1978, it was noted that the house stank and that the carpet was matted. The mother informed the social worker that W.H., who lived in Derbyshire, had invited her to go and live with him there. She gave up that idea shortly afterwards. 26. In January 1978, L. was referred to a Children’s Hearing for failure to attend school. In the background report drawn up by Mr M. for the hearing, explanation was given of the financial and health difficulties of the mother and it was stated that it was the mother who kept L. from school to help in the home. There was no reference to the history of sexual abuse in the home. In April 1978, L. was living temporarily in a social work establishment known as the Closeburn Assessment Centre. On 22 April 1978, she ran away from the home and was returned. At a date unspecified, she went back to live at home. 27. H., aged 17, left the family home in or about 1978. 28. On or about 15 January 1979, L. left home after an argument with her mother about going out at night and was brought back by the police who referred the matter to the social services. After discussion with the mother, L. was taken into care by the social services until 20 February 1979. 29. On 16 March 1979, the school attended by L. called a multi-disciplinary meeting to discuss the problems of non-attendance of a number of the children of the family. Though a social worker was invited to attend, none was present. 30. On 28 March 1979, L. was transferred to a residential centre but left the following day to return home. At about the same time, the applicants’ mother changed address. L. lived with her there for about a week and then left to live with a friend. She took an overdose and was admitted to hospital. A letter dated 11 April 1979 from the psychiatric registrar to L.’s G.P. noted that “... she doesn’t get on well with her mother’s cohabitee. The relationship with Mum’s cohabitee seems a bit peculiar”. 31. After being discharged from hospital on 9 April 1979, L. went to live with a 50 year old man with whom she had a sexual relationship. On 17 April 1979, the police picked up L. who told them about the relationship. The mother agreed that L. was beyond her control and agreed that she be put in a place of safety. An order lasting one month was made to that effect. From 18 April 1979, she was made the subject of compulsory care measures by the local authority which brought her before the Children’s Hearing. In the background report drawn up by the social worker Mr E. for the hearing, details were given of the mother’s financial difficulties and ill-health and comment was made that, apart from truancy, the family had not been in any trouble. No reference was made to the past sexual abuse. The hearing extended the place of safety order. L. was sent to Closeburn Assessment Centre from 18 April to 18 June 1979. She appears to have remained there for most of the period until her 16th birthday on 28 July 1979, at which date she ceased to be subject to the legislation governing the compulsory education of children. Efforts were then made to find employment for her. Social work notes of 1 August 1979 concerning L. recorded that, when the social worker accompanied her to the mother’s home for a visit, a man described as L.’s stepfather was present in the living room. 32. Entries in the social work notes for the family during 1979 continued to emphasise financial difficulties. An entry in February 1979 referred to problems of school attendance of ten years’ standing and the mother’s frequent summoning before the school council. 33. On 7 April 1979, it was noted that the family had moved to a larger home, a self-contained house provided by the local authority. 34. Through 1979-1981, financial difficulties were noted as continuing, and the mother’s health and general state deteriorating to such an extent that she rarely got out of bed. 35. The applicants’ mother died in 1981. It appeared that she had been suffering, inter alia, from undiagnosed multiple sclerosis. The applicants’ elder sister (aged 22) took on the mothering role in the family home. 36. T. left home in November 1984, after she had become pregnant and had a child. By January 1988, she was living at an address with her 3 year old daughter and was in contact with the social services concerning her financial problems. In February 1988, she indicated to her social worker that she had been subject to sexual abuse in the past. In April 1988, she disclosed that this had involved her step-father W.H. as well as other men, one of whom had been convicted of rape. As at the time she was in regular contact with W.H., whom she considered had reformed, she was counselled concerning the risk to her own child. 37. Following counselling, E., L. and T. reported the history of abuse by W.H. to the police in or about November 1988. In her statement of 13 January 1989, L. stated that after W.H. had been arrested in 1977, various social workers used to come around and she and the others had had to tell them that W.H. was not living with them anymore. When they came to the house, W.H. used to hide and her mother used to keep the children out of their way if possible. She recalled wanting to tell a social worker what was happening but was so petrified of W.H. that she did not. W.H. continued to interfere with her and had sex with her a couple of times after the court case. 38. Charges were brought against W.H. of committing sexual offences against E., L. and T. 39. At his trial before the High Court on 20 July 1989, W.H. pleaded guilty to four charges and not guilty to two charges. The prosecution accepted his pleas. W.H. was duly convicted of serious acts of indecency against E. between 19 October 1967 and 18 October 1972 and of further such acts against her between 1 September 1976 and 18 October 1976; of serious acts of indecency against L. between 28 July 1968 and 31 December 1974; and of similar acts against T. between 28 August 1974 and 27 August 1978. Only part of the latter charge concerned the period after W.H.’s earlier conviction on 8 January 1977. 40. The trial was adjourned for sentencing reports to be obtained. On 20 July 1989, the High Court sentenced W.H. to a two year suspended sentence of imprisonment, having regard to the reports which indicated that he now lived in Yorkshire and that most of the offences predated his earlier conviction in 1977. However, it was only at this time that the applicants alleged that they became aware that W.H. had been subject to criminal proceedings in 1977 and that he had been placed on probation on the condition that he did not reside in their home. 41. On 18 June 1992, the four applicants brought proceedings against the local authority seeking damages on the basis that the local authority had failed to carry out its statutory duties, in particular, that W.H. had breached his probation order by residing at the family home and that the social services had, or ought to have, known this and had failed to report the breach to the court or to take the children into care. 42. On 4 January 1996, following the decision of the House of Lords in X. and Others v. Bedfordshire County Council ([1995] 3AER 353) and in the light of counsel’s advice that their case was indistinguishable, the applicants consented to an order that their action be dismissed. 43. In or about 1992 to 1993, the applicants applied for compensation to the Criminal Injuries Compensation Scheme in respect of the abuse suffered. In their applications, they alleged as follows: (i) E. stated that from about 1967 she suffered 10 years of abuse from W.H. The first incident which she recalled was when she was 6 or 7 when he struck her, sending her flying into the wall. Soon after, he began coming into her room at night and doing things to her, requiring her to masturbate him. If she cried, he would punch her in the face. From the age of 12, he used to make the girls have a bath together and would touch them all over their bodies, inserting his finger into them. Often he would keep her off school and would abuse her sexually. He assaulted her often, coming up behind her to hit her on the back of the head. He also used to stand on her naked feet with his shoes on and twist, pinch her with his nails and punch her. This physical abuse happened on a daily basis. He would also get her and the others to strip to the waist and hit each other with dog chains. This conduct continued regularly until she left home on her 17th birthday (19 October 1977). She recalled going to the social services when she was aged 14 and telling them that W.H. was living with them when he was not supposed to. Nothing happened as a result. While the social services were coming to the house, she did not remember them talking to her. She recalled that this period was before she was 14 or 15, before 1974 or 1975. When she was 15, she started running away from home. On one occasion she took pills. When she was visited by the police in hospital, she told them that W.H. was interfering with her. She also told this to a psychiatrist whom she saw soon after. However, W.H. continued interfering with her. W.H. was only arrested after L. had run away from home in January 1977. E. had suffered serious problems since that time, having made several suicide attempts and having developed a severe drink problem. A psychiatric report of 24 April 1992 concluded that her symptoms accorded with a diagnosis of severe post traumatic stress disorder. (ii) H. stated that he suffered from physical abuse, assaults and threats of violence from W.H. from about 1967. From about the age of 6 or 7, W.H. used to punch him in the stomach and bash him against the wall. He also made him and the others strip to the waist and punch and hit each other with chains. These relentless assaults went on regularly until he left home during 1978. A psychiatric report of 9 June 1992 concluded that he had long term relationship problems, poor self confidence and long standing personality difficulties. (iii) L. stated that she had suffered sexual and physical abuse from W.H. from 1969 until she left home in about 1979 and on occasion after that. W.H. had started interfering with her when she was about 5 or 6. The first thing she remembered was him bathing her with her sister E. and rubbing her private parts. Hardly a day went past when he did not do something of a sexual nature to her (e.g. touching her breasts or private parts) or batter her. When she was older, he made her touch him on his private parts and perform oral sex. He made her and the other children hit each other with chains and whips and would sometimes join in. She was often left with bad bruises and a bleeding nose. From the age of 11 or 12, he had sexual intercourse with her several times. When she ran away in January 1977, she told the police and he was arrested. However, he returned home and started interfering with her again, having intercourse with her and punching or kicking her if she refused. She ran away again in Spring 1977 and was put into a home, first in Dumfries, then Annan and finally Closeburn, which she eventually left in 1979 when she was 16. At that point, she did not return home but went to stay with her sister and then embarked in a series of relationships. When she visited her mother on 1 January 1980, W.H. put his hands up her skirt but let her go when she threatened to tell her boyfriend. On another occasion in 1981, W.H. tried to fondle her but she got up and left. She had never been able to tell anyone about these things as she was scared of him and thought that he would severely assault her. A psychiatric report of 24 April 1992 concluded that her symptoms, including nightmares and sleep disturbance, accorded with a diagnosis of severe post traumatic stress disorder. (iv) T. stated that she had suffered sexual and physical abuse from W.H. from about 1971 to 1989. Though she did not remember anything specifically before the age of 9, she slept in the same bed as L. and remembered him coming naked into the bed with them. From an early age, he used to stand on her naked feet in his shoes and twirl round, nip her and punch her in the stomach. She had black eyes occasionally. When she was 9, she remembered him making her touch him and masturbate him. She had to do that to him two or three times a week when he came home from work. He then started keeping her off school and would lie down on the bed naked, making her take her clothes off and masturbate him. This occurred two or three times a week. When she was 10 or 11, he began to touch her breasts and rub his penis over her until he ejaculated. When she was 14, he forced her to have sexual intercourse with him. He did not repeat that but continued touching her and making her masturbate him or have oral sex. This continued until 1984 when she was able to leave home – she deliberately got pregnant by having sex with someone she knew, so that the local authority would provide her with accommodation away from home. In 1987, W.H. started coming to her house and would try to touch and grab her. She became very depressed and suicidal. She then told the Family Centre about the abuse. A psychiatric report of 24 April 1992 concluded that her symptoms, including low self-esteem, fear, mistrust and depression, accorded with a diagnosis of severe post traumatic stress disorder. 44. Though the applicable provisions did not permit claims for injuries from violence arising before 1 October 1979 where the victim and assailant were in the same household, the Criminal Injuries Compensation Board (“CICB”), in an apparent oversight, made an assessment awarding 25,000 pounds sterling (GBP) to E., L. and T. for general damages. They appealed against the failure to award damages for loss of earnings. As it was noted that in the proceedings for the fourth applicant T. that most of her injuries had arisen before 1979, the applicants E. and L. withdrew their appeals to prevent their awards being reconsidered altogether. In deciding T.’s appeal, the Board decided that as she had sustained some damage post-October 1979 it would not disturb the award but made no award for alleged loss of earnings or damage to employment prospects. H. did not receive any award. A letter dated 23 July 1992 from the CICB indicated that his application had been rejected in that his claim had not been made within three years of the incident giving rise to the claim and the Chairman had decided not to waive the requirement in his case. 45. On 30 January 1996, the applicants requested the Commissioner for Local Administration in Scotland to undertake an investigation into their allegations of negligence and maladministration by the local authority. By letter dated 8 February 1996, the Ombudsman stated that he had no jurisdiction pursuant to section 24(6)c of the Local Government (Scotland) Act 1975, which precluded investigations where the complainants had a remedy by way of proceedings in a court of law, and that, even if he had jurisdiction, he would not have undertaken an investigation due to the lapse in time since the events occurred. By letter of 22 February 1996, he declined to reconsider his decision. 46. The Government submitted two reports by Ms Black, a social work consultant who has worked for more than 30 years in the field of child care, principally in Scotland. 47. In her first affidavit dated 26 March 2002, Ms Black stated that with the exception of cases of incest there was in the 1970s no real appreciation of the incidence of, and consequences for victims of, child sexual abuse within families. Circulars referred to non-accidental injury without specific reference to sexual abuse which was not recognised as a particular issue. It was only in the 1980s that literature began to arrive in the United Kingdom from the United States on the subject of child sex abuse and initially this was regarded as controversial. The first real recognition of the problem in the United Kingdom was a CIBA publication “Child Sexual Abuse in the Family” published in 1984. A Working Group on the topic was set up by the Social Work Services Group of the Scottish Office in which she was involved and which reported in 1985. 48. According to her experience, during the 1970s and before, where a case of incest or sexual abuse had been identified, the focus would be on ensuring that the perpetrator was punished. Little or no attention was given to the needs of the victim and once the perpetrator was convicted that would be seen as the end of the matter. There was no real appreciation of the extent to which abusers might continue to abuse their victims over many years or of the skills of abusers in avoiding detection. Social workers were not given any specific training about child sex abuse. There was also the practice at the time of local authorities keeping their probation and child care functions separate, with social workers working separately rather than as part of a team and there was a tendency for there to be relatively little interaction between schools and social work departments. 49. In her view, after W.H. had been convicted and sentenced to probation in January 1977, it would have been generally assumed that any continuing problem would have been resolved, particularly if a condition in his probation was that he was not allowed to live in the family home. No work would have been envisaged with the victims unless they were showing obvious distress or problems. A mere suspicion that the W.H. was in breach of the probation order, and his presence found in the house during the day, would not have been sufficient proof of breach. He was the father of two of the mother’s youngest children, contact with the family was not prohibited and his presence in the house would have even been seen as positive. Even if they had considered the possible breach of probation further, they would not have gone on to consider possible harm to the children. It would have been standard practice to make specific appointments to visit the home in order to avoid wasted time and she would not have expected the social worker to make spot checks or call at unexpected times to check on W.H.. As was the practice, social services provided support for the mother who had considerable problems in running the home, and would have had a tendency not to investigate the causes of any running away or of truancy, particularly where the child was close to school leaving age. Nor would it have been expected at the time for the social workers to make a point of talking individually to the children, unless for the purpose of a specific report. 50. In her additional comments of 20 May 2002, added in the light of the examination of further documents, Ms Black noted that at the meeting convened by the school in March 1979 concerning L. the social work department had not sent a participant though invited to do so. The school problems drawn to the attention of the social services did not appear to have prompted the social worker to suggest a meeting to try to draw together the issues for the family and this meant that the full extent of the problems that L. and the others in the family faced were not discussed by the wider group of professionals who knew the family. By this time, the use of case conferences was well established in social work practice. 51. She also noted that following E.’s overdose of pills in November 1976, the social services did not appear to react to E.’s dislike of W.H. and her allegations of an earlier sexual assault and his shouting and hitting. Nor was there any social work follow-up when L. ran away in January 1977, beyond a visit of the emergency social worker, or any discussion with E. and L. after W.H. had been sentenced. Even if social workers at the time were not aware of the incidence of sexual abuse, the incidents with the two girls and the evident distress shown by them should have usefully led to an attempt to discuss with them individually how things were at home, in particular to establish the severity of past incidents and whether any other children in the house were at risk of sexual or physical abuse. 52. Further, in the light of Mr R’s report to the court which commented on the need for firm control of W.H. and the mother’s refusal to accept that he had committed the offences, this made the assurances given by W.H. and the mother that W.H. was not living in the home much less safe to rely on. Mr R. did not appear to have issued any warning to them about the consequences of breaching the probation order. When the report was made on E. in June 1977 there was no reference to the sexual abuse or home difficulties. Also the report to the Children’s Hearing on L. in January 1978 failed to give a full picture of her difficulties. Throughout the case there was an emerging pattern of different people not using the information available to assess the safety of the girls and W.H.’s adherence to the probation conditions. After the report on E. in June, it could have been expected that the workers involved in the family would have increased their scrutiny of the living arrangements in the family. The lack of detail in the reports on L. deprived the Children’s Hearing of vital information which could have led them to place L. on supervision and afforded more opportunity for her to speak about the home situation. 53. Though by January 1977 E. was too old to be referred to the reporter of the Children’s Hearing, grounds existed for referring L. at that time. Given the abuse, her level of truancy, the poor financial and material circumstances in the family and the offence of W.H., coupled with allegations by E. as to shouting and hitting in the family home, she considered that a referral of L. ought to have been made. This would have given an opportunity for all the different agencies involved with the family to contribute to the discussion and for the Hearing to appreciate the full extent of the problems. Though L. might not have been removed in the first instances, a supervision requirement would have allowed closer contact and more individual work. The Reporter would also have had the opportunity to consider whether any other children in the household were in need of compulsory measures of care. 54. She concluded that the failure to share significant issues with the Children’s Hearing about L., the failure to work collaboratively with the school, the lack of attention to the assessed need for firm control of the situation after W.H. was placed on probation and the lack of attention to the significance that the mother did not believe her daughters’ complaints against W.H., all contributed to a failure to help get the girls the support they were likely to need after the conviction of W.H. and disclosed a failure in the approach taken to the family by the social work department. 55. The applicants provided three reports dated 20 March, 13 May and 10 June 2002 by Mr Richard Jack, a consultant in social work with experience in social work practice over 28 years. 56. He stated that from 1975, when circular SW1/75 was issued, a mult-disciplinary approach by professionals was promoted in respect of neglect and child protection, though sexual abuse was not explicitly referred to. While public and professional acknowledgement of a significant child abuse problem did not emerge until the mid-1970’s, in this case E. and L. had made disclosures which were believed and not in doubt. Literature as to the nature of the problem was available to practitioners, in particular with Kempe and Kempe’s work published in 1978, inter alia, identifying clear indicators as to the behaviour exhibited by abused children. 57. Despite long-term problems with the family and notes of truanting dating back to 1973, there was minimal reference to dialogue between the social services and the education authority. There was no reference in the social work records to the disclosures made by E. to medical personnel or to a visit to her in hospital by an emergency social worker, disclosing a significant breakdown in communication. The family social worker Mr E. appears to have had no clear knowledge as to the situation, while Mr M., who later supervised probation of W.H., was not a qualified social worker and did not appear to have proper knowledge of the seriousness and persistence of the offences in issue. 58. Once disclosures had been made by E. and L. in 1977, it would have been reasonable, given the ages of the children, to discuss W.H. with them outwith the presence of the mother. A serious discussion ought to have taken place in the social services as to the potential risks to the children in the household and at the very minimum a report should have been prepared for the Reporter to the Children’s Hearing. In fact there was nothing to suggest that the social services explored W.H.’s impact on the children in the family at all. 59. The social service records noted clear suspicions that W.H. continued to live in the household. Though it was stated in the context of the probation order that firm control was needed, no steps were taken such as further enquiries from neighbours or the local police as to W.H.’s actual place of residence. Breach of the probation order was a very serious matter and should have triggered a referral of his case back to the court and of the children to the Reporter. 60. When L.’s truancy was referred to the Children’s Hearing in 1978, there was no reference to the background of her running away in January 1977 or to the history of neglect and turbulent dynamics in the family. It was negligent of the social services not to provide the panel with full information. Nor when there was a case study meeting at the school in March 1979 did any social worker attend. There was never any multi-disciplinary case conference which reviewed in a full, objective and accurate manner the history and circumstances of the family. 61. Imprisonment is used in Scotland only where there is no alternative. One alternative is probation, which was at the relevant time imposed under section 384 of the Criminal Procedure (Scotland) Act 1975. When an offender is placed on probation he is allowed to retain his liberty during the period of probation but must comply with the requirements of the probation order. In all cases the order requires the offender to be of good behaviour, conform to the directions of the supervising officer and to inform the supervising officer if he changes residence or employment. Other requirements may be imposed, such as conditions as to the place of residence. If the offender fails to comply with requirements of the probation order, that failure may be reported to the sentencing court by the supervisory officer or other responsible officials of the Social Work Department. The supervising officer has a degree of discretion where there is an apparent breach of the order. He may warn the probationer about the conduct if he considers a warning is likely to alter the probationer’s behaviour. If he reports the matter to the court, the court then investigates the matter. If the failure is proved to its satisfaction, the court can impose a variety of penalties including sentencing the probationer to imprisonment for the offence for which he was placed on probation. 62. The care and protection of children in Scotland was governed for most of the relevant period by the Social Work (Scotland) Act 1968 (the “1968 Act”). 63. There was a duty on local authorities under section 15(1) of the 1968 Act to receive a child under 17 into care when it appeared to an authority that his parent or guardian was unable, by reasons of illness, mental disorder or other circumstance, from providing proper accommodation, maintenance and upbringing. The test was whether the intervention was necessary in the interests of the welfare of the child. Compulsory measures of care were also required under section 32 for children in need, including those who were suffering unnecessarily or were the victims of cruelty. Under section 37(1), anyone with reasonable cause to believe a child fell into this category could inform the Reporter to the Children’s Panel of the matter. 64. The Children’s Panel was a tribunal specifically designed to cope with cases involving children. The Reporter had investigative powers to establish the condition of the welfare of the child and had three options: to take no further action, to refer the case to the Social Work Department for them to give guidance or support, or to convene a Children’s Hearing. The Children’s Panel had the power to order the child to submit to a supervision requirement in accordance with such conditions as it saw fit or to reside in a special establishment. 65. After the entry into force of the Children Act 1975, the local authority had a duty to cause inquiries to be made, unless it did not deem them necessary. 66. Under section 37(2) of the 1968 Act, a police constable or other person authorised by a court or justice of the peace could take a child to “a place of safety”, e.g. if offences had been committed in relation to the child, including cruelty or the infliction of unnecessary suffering. 67. Physical or sexual abuse of a child will generally constitute a civil wrong (such as assault), as well as a criminal offence, and give rise to an action for damages by the perpetrator. 68. Actions in civil damages may also lie against the social work department (local authority) either in respect of alleged wrongdoing (e.g. negligence, or wilful abuse of power) for its own actions or vicariously for the actions of its staff. 69. Under Scots law, a body carrying out statutory functions will be liable in damages to a person affected by its performance or non-performance of those functions (in the absence of a wilful disregard of its duties) only if the statute expressly or impliedly provides for such a liability, or the relationship between the statutory body and the person in question is of such a nature as to create a common law duty of care, and the statutory body violated that duty (i.e. was negligent). 70. As set out in Z. and Others v. the United Kingdom [GC], (no. 29392/95, ECHR 2001-V), negligence arises in specific categories of situations. These categories are capable of being extended. There are three elements to the tort (delict) of negligence: a duty of care, breach of the duty of care and damage. The duty of care may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly. To show a duty of care, the claimant must indicate that the situation comes within an existing established category of cases where a duty of care has been held to exist. In novel situations, in order to show a duty of care, the claimant must satisfy a threefold test, establishing: – that damage to the claimant was foreseeable; – that the claimant was in an appropriate relationship of proximity to the defendant; and – that it is fair, just and reasonable to impose liability on the defendant. The leading case is Caparo Industries v. Dickman ([1990] 2 AC 605). 71. If the courts decide that as a matter of law there is no duty of care owed in a particular situation, that decision will (subject to the doctrine of precedent) apply in future cases where the parties are in the same relationship. 72. The decision in X and Others v. Bedfordshire County Council ([1995] 3 AER 353) is the leading authority in the United Kingdom in this area. The House of Lords there held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children. The children in that case had suffered severe neglect and abuse from their parents and had alleged that the local authority had failed to protect them, inter alia, by not exercising their power to take them into care at an earlier stage. As regards the claims that the local authority owed a duty of care to the applicants pursuant to the tort of negligence, Lord Browne-Wilkinson in his leading judgment found that no duty of care arose as it was not fair, just or reasonable to impose one on the local authority in their exercise of this aspect of their duties. 73. More recently, in the case of W. and Others v. Essex County Council ([1998] 3 AER 111) in a case concerning the claims of a family, parents and children, that they had suffered abuse and damage due to the foster placement in their home by the local authority of a 15 year old boy who was a suspected sexual abuser, the Court of Appeal held that a duty of care lay towards the children of the family, while the House of Lords on 16 March 2000 ([2000] 2 WLR 601) held that the parents could also arguably claim that they were owed a duty of care. The House of Lords had also given judgment on 17 June 1999 in Barrett v. the London Borough of Enfield ([1999] 3 WLR 79). That case concerned the claims of the plaintiff, who had been in care from the age of ten months to seventeen years, that the local authority had negligently failed to safeguard his welfare causing him deep-seated psychiatric problems. The local authority had applied to strike out the case as disclosing no cause of action. The House of Lords, upholding the plaintiff’s appeal, unanimously held that the case of X and Others v. Bedfordshire County Council did not in the circumstances of this case prevent a claim of negligence being brought against a local authority by a child formerly in its care. 74. The Criminal Injuries Compensation Authority (known at the relevant time as the Criminal Injuries Compensation Board – CICB) may make an award where it is satisfied on the balance of probabilities that an applicant is a victim of a criminal offence and suffered the harm alleged. Payments of some 210 million GBP are paid out each year. However, under the rules in force until 1 October 1979, there was a complete bar on claims where the victim and the assailant were living together at the same time as members of the family. 75. The acts, omissions and decisions of social work agencies carrying out statutory functions in connection with the welfare of children in Scotland are subject to judicial review by the Court of Session. Decisions by the local authority, for example, concerning the place of residence of children or recording the name of an abuser on a register have been quashed. Damages may be awarded in such proceedings. 76. Persons aggrieved by the actions or omissions of social work agencies may complain to the Commissioner for Local Administration in Scotland whose functions include investigation of written complaints by persons who claim to have suffered from the maladministration of local authorities (Part II of the Local Government (Scotland) 1975 as amended). The Local Government Ombudsman may recommend an appropriate remedy, including the payment of compensation. Though the local authority is not legally obliged to pay the compensation recommended, it is the general practice to do so. 77. There are restrictions on the investigations which may be conducted. Section 24(4) of the 1975 Act above requires a person to bring a complaint within 12 months from the day on which the complainant had notice of the matters concerned, though there is a discretion to consider complaints outside this time-limit if the Ombudsman considers it reasonable to do so. He may not investigate any matter in which the person aggrieved has or had a remedy by way of proceedings in any court of law (section 24(6)c). | 1 |
train | 001-121828 | ENG | UKR | COMMITTEE | 2,013 | CASE OF TSIBULKO AND OTHERS v. UKRAINE | 4 | Inadmissible (Article 35-3 - Manifestly ill-founded);Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Ann Power-Forde;Helena Jäderblom | 5. On the dates set out in the appended tables domestic courts delivered decisions according to which the applicants were entitled to various pecuniary amounts or to have certain actions taken in their favour. The decisions became enforceable. However, the applicants were unable to obtain the enforcement of the decisions in due time. 6. Some of the applicants also made submissions concerning factual and legal matters unrelated to the above non-enforcement issues. | 1 |
train | 001-58448 | ENG | ROU | CHAMBER | 2,000 | CASE OF IGNACCOLO-ZENIDE v. ROMANIA | 1 | Violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Elisabeth Palm;Gaukur Jörundsson | 9. On 7 May 1980 the applicant married D.Z., a Romanian national. The couple had two children, Maud and Adèle, who were born in 1981 and 1984 respectively. 10. In a judgment of 20 December 1989 the Bar-le-Duc tribunal de grande instance granted the spouses a divorce and approved the agreement they had concluded to deal with the consequences of the divorce, whereby parental responsibility was given to the father and the applicant was granted access and staying access. 11. During 1990 D.Z. moved to the United States with his daughters. 12. On 3 September 1990 the applicant lodged a complaint against him for failure to hand over the children to her. She asserted that at the beginning of September D.Z. had breached her right of access as, without informing her, he had kept them in the United States beyond the midway point of the school holidays. 13. On 4 September 1990 the applicant brought urgent proceedings against D.Z. in the Metz tribunal de grande instance, applying for parental responsibility and a residence order in her favour, together with an order prohibiting D.Z. from removing the children from France without her consent. 14. The matrimonial causes judge of the Metz tribunal de grande instance dismissed her application in an interim order dated 11 September 1990. 15. The applicant appealed against that order to the Metz Court of Appeal, which set it aside in a judgment of 28 May 1991. The Court of Appeal gave parental responsibility to both parents, ordered that the children should live with their mother and granted D.Z. access and staying access. 16. D.Z. did not comply with the judgment and did not hand the children over to their mother. 17. On an application by D.Z., who had been living in Texas for over a year, the Harris County Court of the State of Texas set aside the judgment of the Metz Court of Appeal in a judgment of 30 September 1991 and awarded custody of the children to the father. The applicant, who was neither present nor represented before that court, was granted only access. After consulting a psychologist, who found that the children had no distinct memory of their life with their mother before the divorce and were delighted to live with their father and stepmother, the court held that the children were happy and well integrated in Texas, where they were receiving special protection and attention from the authorities. 18. In December 1991 D.Z. moved to California with his two children. 19. In a decision of 24 February 1992 the investigating judge of the Metz tribunal de grande instance committed D.Z. for trial on a charge of failure to hand over a child to the person entitled to its custody, an offence under Article 357 of the French Criminal Code. The applicant joined the proceedings as a civil party. 20. On 18 September 1992 the Metz tribunal de grande instance, having tried D.Z. in absentia, convicted him and sentenced him to a year's imprisonment for failure to hand over the children and issued a warrant for his arrest. 21. The warrant could not be executed as D.Z. was not on French territory. 22. On an unknown date D.Z. lodged an appeal on points of law with the Court of Cassation against the Metz Court of Appeal's judgment of 28 May 1991. 23. In a judgment of 25 November 1992 the Court of Cassation pointed out that the jurisdiction of the tribunals of fact to assess the weight and effect of the evidence was exclusive, dismissed D.Z.'s appeal and sentenced him to pay a civil fine of 10,000 French francs. 24. The applicant, who had started proceedings in the United States for the recognition and execution of the judgment of 28 May 1991, obtained five judgments between 1993 and 1994 from California courts ordering D.Z. to return the children to her. Thus on 10 August 1993, for instance, the Superior Court of the State of California granted authority to execute the judgment of the Metz Court of Appeal and ordered D.Z. to return the children to their mother. 25. In a report of 17 August 1993 an expert in family psychology registered with the California courts, L.S., stated after interviewing the girls that they did not want to go back to live with their mother and were happy with their father and his new wife. While Maud did not seem to have any particular feelings towards her mother, Adèle told L.S. that her mother was “ugly and nasty” and did not love them but only wanted to show them off to others and buy them toys. 26. In a judgment of 1 February 1994 the California Court of Appeals held that the Harris County Court in Texas had no jurisdiction to set aside the Metz Court of Appeal's judgment of 28 May 1991. In a judgment of 29 April 1994 the Superior Court of the State of California once again affirmed the judgment of the Metz Court of Appeal, holding that the children should reside with the applicant and that their removal from the State of California without the court's express permission would be illegal. 27. D.Z. did not comply with the California judgments. In March 1994 he left the United States and went to Romania with his children. 28. In July 1994, relying on the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”), the applicant applied to the French Ministry of Justice – France's Central Authority for the purposes of that instrument – for the return of her daughters. 29. In November 1994 the United States' Central Authority requested the Romanian Ministry of Justice (Romania's Central Authority) to return the children pursuant to Articles 3 and 5 of the Hague Convention. 30. In December 1994 France's Central Authority requested Romania's Central Authority to return the children pursuant to Articles 3 and 5 of the Hague Convention. 31. Relying on Article 2 of the Hague Convention, the applicant made an urgent application to the Bucharest Court of First Instance for an order requiring D.Z. to comply with the court decisions in which a residence order had been made in her favour and the children's return ordered. 32. The court delivered its judgment on 14 December 1994. It noted, firstly, that the Metz Court of Appeal, in its judgment of 28 May 1991, had ordered that the children should live with their mother and that the California courts had ordered the return of the children. It went on to note that D.Z. had abducted the children in breach of those judgments and that he had been sentenced to a year's imprisonment for failure to hand over a child. It held that the applicant's application satisfied the requirement of urgency, as her right might be irreparably affected in the event of delay. Moreover, the measure sought was a precautionary one, which did not prejudge the merits of the case but was designed to protect the applicant's right, which any delay would have jeopardised. Lastly, a prima facie case, which was a requirement for urgent proceedings to be admissible, had clearly been made out. As to the merits, the court held that the provisions of the Hague Convention were applicable to the case, as that convention had been incorporated into Romanian law by Law no. 100/1992 providing for Romania's accession to that instrument, and in particular, Article 14 of this convention, which enabled the court to rely on foreign court judgments directly without any need for a registration procedure. In a judgment enforceable without notice the court therefore ordered that the children should be returned to the applicant. 33. That judgment could not be executed as D.Z. had hidden the children. 34. On an unknown date in December 1994 D.Z. removed the children from school and took them to an unknown location. 35. D.Z. appealed against the judgment of 14 December 1994. On 9 June 1995 the Bucharest County Court adjourned the case to 30 June 1995 and ordered that the children be heard. 36. On 30 June 1995, in the absence of the representative of the Ministry of Justice, which was intervening, and of that of the District Council of the second district of Bucharest, which was responsible for monitoring and ensuring compliance with the obligations of divorced parents, the court adjourned the case. It also granted an application by D.Z. for a stay of execution of the judgment pending the outcome of the appeal. No reasons were given for the latter decision. 37. On 23 August 1995 the Ministry of Justice asked Bucharest City Council to carry out a social inquiry at D.Z.'s home. 38. On an unspecified date the mayor of Bucharest informed the Ministry of Justice that a social inquiry had been carried out by the District Council of the second district of Bucharest in September 1995. The mayor of that district submitted the findings of the inquiry, signed by him, the town clerk and an inspector. They read as follows: “The children Maud and Adèle ... live with their father and his wife in an eight-room house, and each girl has a room of her own. Their father looks after them very well, as regards both their physical and their mental welfare, providing the best conditions for their upbringing. It is evident from conversations with the girls in Romanian – they have a command of the language – that they are intelligent, sociable and at ease and that they lead a normal life, read, write and work hard at school. There is an atmosphere of harmony and friendship and plenty of affection between the girls, their father and his wife. The girls do not want to go and live with their mother in France, whom they remember as a cold and indifferent person. They say that they have always found their father understanding, warm and affectionate. They are very impressed by Romania and the Romanians, among whom they have made many friends. During the holidays they went to the countryside and they felt wonderfully well there. When asked to say whether or not they wanted to see their mother or go and live with her, they replied categorically 'no' and insisted that any decision concerning them should take their wishes into account. In conclusion, we consider that in Romania the children Maud and Adèle have the best conditions for their upbringing.” 39. In a decision of 1 September 1995 the Bucharest County Court dismissed D.Z.'s appeal against the judgment of 14 December 1994. 40. D.Z. appealed to the Bucharest Court of Appeal, which in a final judgment of 14 March 1996 dismissed the appeal for lack of grounds. 41. On an unknown date D.Z. lodged an objection to the execution (contestaţie la executare) of the judgment of 14 December 1994. After having taken evidence from the children, who reiterated their wish to stay with their father, the Bucharest Court of First Instance dismissed the objection on 7 April 1995. 42. On an appeal by D.Z. against that decision, the Bucharest County Court affirmed it on 9 February 1996. 43. On 27 October 1995 D.Z. lodged an application with the Bucharest Court of First Instance to be given exclusive parental responsibility. He argued that since 1994 he had been living in Bucharest in a spacious eight-room house which afforded the children exceptional conditions. They did not want to go to live with their mother, who belonged to a sect. The court, informed by D.Z. that the applicant's address for service was the address of Ştefan Constantin, caused the date of the hearing to be served only on him. It is clear from documents available to the Court that neither at that stage of the proceedings nor later was the applicant informed that she had been summoned to appear before the Bucharest Court of First Instance. 44. On 26 January 1996, at the request of the Bucharest Court of First Instance, the District Council of the second district of Bucharest carried out a social inquiry. Following that inquiry, the mayor of Bucharest informed the court that the two girls were well developed, both physically and psychologically, that they led normal lives, had friends at school and in the neighbourhood and were very attached to their father and his wife, who both looked after them very well and with whom they wished to live. 45. After holding two hearings in the absence of the applicant on 8 and 29 January 1996 and interviewing the children in private on 16 January 1996, the court delivered its judgment on 5 February 1996, likewise in the applicant's absence. Emphasising that the children's interests were paramount and basing its judgment on documents drawn up by the children's teachers attesting to their good performance at school, on a letter from the Ministry of Religious Affairs to the effect that the sect to which the applicant belonged was not recognised in Romania, and on the social inquiry carried out by the Bucharest District Council, the court allowed D.Z.'s application, holding that he was providing the best living conditions and upbringing for the children, whom he had, moreover, brought up on his own since the divorce. 46. On 16 October 1996 the Bucharest County Court set aside that judgment on appeal because of an irregularity in the service of notice on the applicant, and remitted the case to the Court of First Instance. It noted that the applicant lived in France, that she had given Ştefan Constantin special authority to represent her in another set of legal proceedings and that consequently, in the absence of special authority in the case before the court, the summons should have been served at her permanent address in France. 47. D.Z. challenged that decision on the ground that the applicant had given Ştefan Constantin general authority to act for her and that consequently the service of the court documents at his address was valid. 48. In a judgment of 9 April 1997, delivered in the absence of either the applicant or any representative of hers, the Bucharest Court of Appeal allowed the appeal on the ground that the applicant had given Ştefan Constantin general authority to act on her behalf. It set aside the decision of 16 October 1996 and remitted the case to the County Court for reconsideration of the appeal. 49. The case was set down for hearing in the County Court on 23 January 1998. According to the record of the hearing made on that date, the hearing was attended by D.Z., his lawyer and the assistant of Florea Constantin, the lawyer who, according to the court, was supposed to be acting on behalf of the applicant. The Court cannot determine from the documents submitted to it which of Florea and Ştefan Constantin was regarded by the County Court as having been appointed by the applicant. The assistant pointed out that Florea Constantin was absent and sought an adjournment of the hearing. That application was refused after the court had heard the submissions of counsel for D.Z. It gave its decision on 30 January 1998, in the absence of the applicant or a representative. Without mentioning the issue of the applicant's representation, the court dismissed the appeal and thus upheld the judgment of 5 February 1996, noting that the children wished to stay with their father, who was affording them the best living conditions. 50. It appears that an appeal against the decision of 30 January 1998 was lodged on behalf of the applicant. It cannot be determined from the documents submitted to the Court whether the applicant herself entered the appeal. However that may have been, the Bucharest Court of Appeal dismissed the appeal for lack of grounds on 28 May 1998. As was apparent from that decision, which the Government did not file with the Registry until 13 September 1999, only D.Z. attended the hearing on 28 May 1998. 51. In an application dated 5 January 1995 D.Z. applied to the family judge of the Metz tribunal de grande instance for an order transferring the children's residence to his address and granting him exclusive exercise of parental responsibility. 52. After many adjournments the tribunal de grande instance delivered a judgment on 22 February 1996. It held firstly that it was unnecessary to take account of the judgment of the Bucharest Court of First Instance of 5 February 1996 because that court had no jurisdiction to deal with the merits of the custody of the children, since the Romanian courts could only deal with an application for the return of the children under the Hague Convention. The tribunal de grande instance then declined to take evidence from the children. It found that since 1991 D.Z. had prevented them from seeing their mother and that he had brought them up to feel hatred for her. In letters of 1 and 3 August 1994, in which they spoke of their mother, the girls had used terms such as “idiot” and “my ex-mother” and had hoped that “her house or her flat [would catch] fire and that she [would be] in it when it happen[ed]”, terms which the tribunal de grande instance found particularly shocking coming from children of 10 and 14. The tribunal de grande instance concluded that the intolerance, intransigence and hatred found in those letters adequately demonstrated that the upbringing the children had received and the surroundings in which they lived had deprived them of all judgment. 53. The application for transfer of residence was dismissed by the tribunal de grande instance in the following terms: “The Family Judge must rule in the interests of the children when determining their place of residence. The Metz Court of Appeal held in a judgment of 28 May 1991 that it was in the children's interests to live with their mother, in France, in their native Lorraine, both their parents having opted for French nationality. Since that date the mother has had no further contact with her children because of the father's actions. Mrs Ignaccolo filed with the Court the various records of proceedings drawn up in Romania when attempts were made to obtain execution of the decision to return the children, letters from the Romanian Ministry of Justice to the Office for International Judicial Mutual Assistance, from which it appears that Mr Zenide is hiding the children, has acquired a dog which he has trained to attack anyone who approaches the children, and removed the children from school in December 1994 to avoid their whereabouts being discovered. He maintained that his behaviour was justified because Mrs Ignaccolo belonged to a sect and had not looked after the children when they cohabited. However, he did not in any way substantiate his complaints but did no more than make allegations or produce testimony from persons living in the United States or Romania who did not personally know the children's mother. The educative abilities of a father who totally denies the image of the mother, who brings the children up to hate their mother and does not even allow them to form their own opinion by affording them the opportunity to meet her and who has not hesitated, in order to evade enforcement of court decisions, to completely uproot the children for a second time in order to settle in a country whose language they are not familiar with are seriously in doubt. The children's interests in such a situation are intangible and indefinable, regard being had, firstly, to the pressure and conditioning they undergo with their father and, secondly, to the fact that for five years they have been away from their mother, whom they no longer know. The children's wish to stay and live with their father, as expressed both in their letters and when they were interviewed by the Romanian court, cannot on its own determine their interests since, if it did, that would amount to laying upon children of 10 and 14 the responsibility of deciding where they should live. Mr Zenide cannot secure ratification of a factual situation that has arisen from the use of force by merely relying on the passing of time. That being so, his application must quite simply be dismissed ...” 54. Since 1994 the applicant has gone to Romania eight times in the hope of meeting her children. 55. Several attempts were made to execute the decision of 14 December 1994 but without success. 56. On 22 December 1994 a bailiff went to D.Z.'s home, accompanied by the applicant, her lawyer, a locksmith and two policemen. Only D.Z.'s wife O.Z. and a guard dog were at the house. O.Z., a French national, indicated that she would only allow the bailiff to inspect the house if a representative from the French embassy was present. The applicant and her lawyer therefore went to the French embassy, where the French consul, T., and an interpreter agreed to accompany them to D.Z.'s home. 57. During the applicant's absence, but while the policemen and the bailiff were still on the spot, D.Z. and an uncle of his, S.G., entered the house. When the applicant returned, accompanied by T. and the interpreter, O.Z. allowed those present, with the exception of the applicant, to search the premises. As the dog was very fierce, the search was carried out hastily and the girls were not found. D.Z. remained out of sight during the search. 58. On 23 December 1994 the applicant wrote to the Romanian Minister of Justice to complain of the course of events on 22 December. She requested the Minister to lodge a criminal complaint against O.Z. for failure to comply with a court decision. Asserting that she had no news of her daughters, she also asked him to institute criminal proceedings against D.Z., O.Z. and S.G. for ill-treatment of minors, false imprisonment and, if applicable, homicide. 59. On 27 December 1994 a bailiff, the applicant, her lawyer and two police officers again went to D.Z.'s home. Finding no one there, they spoke to a neighbour, who told them that D.Z. had left with the children on 22 December 1994. The group then went to the home of G.A., an uncle of D.Z.'s, with whom D.Z. and the children sometimes lived. There they found G.A. and the same guard dog. G.A. told them that he had not seen either D.Z. or the children since 20 December 1994. As to the dog, he told the bailiff that D.Z. had bought it to protect his daughters. 60. In a letter of 7 February 1995 the French Ministry of Justice informed the applicant that the Romanian Ministry of Justice had lodged a criminal complaint against D.Z. with the appropriate public prosecutor's office. 61. In a letter dated 5 May 1995 the Romanian Ministry of Justice informed the French Ministry of Justice that numerous approaches had been made to the police to locate the children, but to no avail, as D.Z. had withdrawn the children from school. The letter also stated that the Romanian authorities had lodged a criminal complaint against D.Z. for ill-treatment of minors. Lastly, the Romanian Ministry of Justice acknowledged that D.Z.'s bad faith was obvious and gave an assurance that it would continue to support the applicant in her endeavours. 62. On 10 May 1995 a group composed of the applicant, her lawyer, a representative from the Romanian Ministry of Justice, two bailiffs, three police officers and an official from the French embassy in Bucharest went to D.Z.'s home. The group was able to inspect the house but did not find the children there. During the four-hour discussion which followed, D.Z. stated that the girls were in Romania, but he refused to say more. He nevertheless promised to produce them to the Ministry of Justice on 11 May 1995. 63. A report drawn up by the French embassy in Bucharest on the visit of 10 May 1995 states: “Contrary to what had been announced by Mrs F. [of the Romanian Ministry of Justice] before this search, D.Z. was not arrested by the police for failure to return the children. In the course of the intervention the public prosecutor's office, with which Mrs. F. was in touch by telephone, reconsidered its position and refused to have D.Z. brought before it. This change of mind was probably due to an intervention by Mr. G., a very influential lawyer, after he had been alerted by his client D.Z. ...” 64. Neither D.Z. nor the children kept the appointment on 11 May 1995. 65. As a consequence, D.Z. received an official request to report to the Ministry of Justice with his children on 15 May 1995, with a view to interviewing the children in the presence of their mother. On 15 May 1995 only Mr G., D.Z.'s lawyer, went to the Ministry and reiterated his client's refusal to produce the children. 66. On 4 December 1995 a fresh attempt to execute the judgment was made. The applicant, her lawyer and a bailiff went to D.Z.'s home. Only the bailiff and the applicant's lawyer were allowed in by the two policemen from the sixth district who were already on the spot, the applicant being requested to stay outside. According to D.Z. and the policemen, the children were not in the house. The bailiff, however, was not allowed to check those assertions for himself. Shortly afterwards a police inspector whom neither the two police officers nor the bailiff knew arrived and asked D.Z. to produce the children to him on the following day. D.Z. finally accepted a proposal from the applicant's lawyer that he should produce the children at 10.30 a.m. the following day at the bailiffs' office at the Bucharest Court of First Instance. 67. On 5 December 1995 the bailiff, the applicant and her lawyer waited for D.Z. in vain. A report was drawn up on that occasion. 68. In a letter of 10 May 1996 the French Minister of Justice informed his Romanian counterpart of the applicant's fears that the Romanian police were turning a blind eye to D.Z.'s conduct. He therefore asked him to intervene with the Romanian police to ensure that they did everything possible to secure the children's return to their mother. 69. On 29 January 1997 the applicant met her daughters for the first time for seven years. The meeting lasted ten minutes and took place in Bucharest in the staffroom of the children's school, where D.Z. was himself a teacher. 70. The meeting was attended by a bailiff, two senior officials from the Romanian Ministry of Justice, the French Consul-General in Bucharest, two officers from police headquarters, the headmaster and deputy headmaster of the school and the girls' two form teachers. According to the report drawn up by the bailiff on that occasion, the purpose of the meeting was to convince those present of the girls' refusal to return to their mother. 71. When she saw the applicant, Maud tried to run away and threatened to throw herself out of the window if she was compelled to have dealings with her mother. There followed, without the applicant being present, a discussion in which Maud stated that her mother had lied to them and done a great deal of harm. She reiterated her wish to stay with her father and never to see her mother again. 72. As to Adèle, she began to cry and shouted to the applicant to go away, saying that she never wanted to see her again. Her form teacher took the initiative of terminating the interview so as not to traumatise the girl. Once the girls had been removed by the form teachers, the applicant said she no longer insisted on execution of the order of 14 December 1994 and asked the headmaster to keep her regularly informed of her daughters' performance at school. 73. In a letter of 31 January 1997 the Romanian Ministry of Justice, Romania's Central Authority, informed the French Ministry of Justice, France's Central Authority, of its decision to order that the children should not be returned. The reason for that decision was the children's obstinate refusal to see their mother again, which had been apparent at the meeting of 29 January 1997. 74. In a letter of 17 June 1997 the Romanian Ministry of Justice sent the applicant the girls' average marks for the school year 1996/97. 75. In a letter of 7 July 1997 to the Romanian Ministry of Justice the applicant complained that the headmaster had not honoured his promise to keep her regularly informed of her daughters' school results and expressed her disappointment at the paucity of the information supplied on 17 June 1997. She said she could not accept such a “farce”. 76. The relevant provisions of the 1991 Constitution provide: “Treaties lawfully ratified by Parliament shall form an integral part of the domestic legal order.” “(1) The constitutional provisions on citizens' rights and liberties shall be interpreted and applied in accordance with the Universal Declaration of Human Rights and with the covenants and other treaties to which Romania is a party. (2) In the event of conflict between the covenants and treaties on fundamental human rights to which Romania is a party and domestic laws, the international instruments shall prevail.” 77. The relevant provisions of the Hague Convention read as follows: “Central Authorities shall cooperate with each other and promote cooperation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention. In particular, either directly or through any intermediary, they shall take all appropriate measures: (a) To discover the whereabouts of a child who has been wrongfully removed or retained; (b) To prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures; (c) To secure the voluntary return of the child or to bring about an amicable resolution of the issues; (d) To exchange, where desirable, information relating to the social background of the child; (e) To provide information of a general character as to the law of their State in connection with the application of the Convention; (f) To initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access; (g) Where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers; (h) To provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child; (i) To keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.” “The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ...” 78. Article 108 of the Family Code provides: “The supervisory authority [autoritatea tutelară] must continuously and effectively supervise the manner in which the parents discharge their obligations concerning the person and property of the child. The delegates of the supervisory authority shall be entitled to visit children in their homes and to inform themselves by all available means about the manner in which the persons in charge of them look after them, about their health and physical development, their education ...; if need be, they shall give the necessary instructions.” 79. Article 307 of the Criminal Code provides: “It shall be an offence punishable by one to three months' imprisonment or a fine for one of the parents of an under-age child to detain it without the permission of the other parent ... who lawfully has responsibility for the child. The same penalty shall be incurred by a person to whom parental responsibility has been given by a judicial decision who repeatedly prevents one of the parents from having personal relations with an under-age child on the terms agreed by the parties or laid down by the appropriate body. Criminal proceedings may only be instituted if a criminal complaint has first been lodged by the victim. No criminal liability shall be incurred where there has been a reconciliation between the parties.” 80. The relevant provisions of the Code of Criminal Procedure read as follows: “As regards the offences in respect of which the law requires a criminal complaint to be lodged beforehand, proceedings may only be instituted after a complaint by the victim. The complaint shall be lodged: ... (b) with the body in charge of criminal investigations or with the public prosecutor, in respect of offences other than those referred to in sub-paragraph (a). ...” “Where the law requires a criminal complaint to be lodged beforehand, that complaint must be lodged within two months from the date on which the victim discovered the identity of the person who committed the offence...” “Where a preliminary criminal complaint is improperly lodged with the public prosecutor's office or the court, it shall be forwarded to the appropriate body. In that event, it shall be regarded as valid if it was lodged with the wrong body within the time allowed by law.” 81. The relevant provisions of the Code of Civil Procedure read as follows: “The parties may exercise their procedural rights in person or through a representative. A representative with general authority to act may only represent the person for whom he acts before a court if he has been expressly given the right to do so. If the person who has given the authority to act has no permanent or temporary home in Romania ..., he shall be presumed to have also given authority to represent him in the courts.” “... 8. Unless otherwise provided in a treaty, international convention or special law, persons who are abroad and whose home address abroad is known shall be summoned to appear by registered mail... In all cases in which those who are abroad have a known representative in Romania, the latter shall be summoned...” “Whenever the presiding judge finds that an absent party has not been lawfully summoned, he must adjourn the case, failing which the proceedings will be null and void.” 82. The relevant provisions of Law no. 142 of 24 July 1997 amending the Administration of Justice Act (Law no. 92/1992) read as follows: “The interests of the State shall be represented by State Counsel organised in departments at each court, under the authority of the Minister of Justice. The work of State Counsel shall be organised in accordance with the principles of the rule of law, impartiality and hierarchical supervision. ...” “State Counsel's Office shall have the following duties: ... – defending the rights and interests of minors and persons deprived of legal capacity.” “The Minister of Justice shall supervise all State Counsel through State Counsel inspectors attached to the Supreme Court of Justice and the courts of appeal or through other, delegated State Counsel. Where he considers it necessary, the Minister of Justice, either of his own motion or at the instance of the National Judiciary Council, effects his supervision through inspectors-general or State Counsel on secondment... ... The Minister of Justice may ask Principal State Counsel at the Supreme Court of Justice for information about the work of State Counsel's offices and may give advice on measures to be taken to combat crime. The Minister of Justice is empowered to give State Counsel written instructions, either direct or through Principal State Counsel, to institute, in accordance with the law, criminal proceedings for offences that have come to his knowledge; he may also have actions and proceedings brought in the courts that are necessary for the protection of the public interest. ...” 83. In decision no. 87 delivered in 1993 the Supreme Court of Justice again confirmed its settled case-law on summoning persons resident abroad, which requires service to be effected at the foreign home but also at the Romanian home of any representative. Legal writers, for their part, highlight the compulsory requirement of serving a summons on the person concerned at his foreign home, even where he has a representative in Romania (Viorel Mihai Ciobanu, Tratat Teoretic şi Practic de Procedură Civilă (“Theoretical and Practical Treatise on Civil Procedure”), vol. II, p. 94, Bucharest, 1997). 84. The courts have consistently held that the legal provisions governing summonses are mandatory as they are designed to ensure compliance with the adversarial principle and due process. If these provisions are not complied with, the decision will be null and void and it will be quashed and the case remitted to the tribunal of fact (Bucharest County Court, Third Civil Division, decision no. 226/1990, Culegere de Jurisprudenţă Civilă a Tribunalului Judeţean Bucureşti (“Reports of Criminal Cases in the Bucharest County Court”), no. 155, p. 123, Bucharest, 1992; Supreme Court of Justice, Civil Division, decision no. 779 of 6 April 1993, Buletinul de Jurisprudenţă al Curţii Supreme de Justiţie (“Supreme Court of Justice Case-Law Bulletin”) for 1993, p. 126, Bucharest, 1994). | 1 |
train | 001-57424 | ENG | ITA | CHAMBER | 1,980 | CASE OF ARTICO v. ITALY | 2 | Preliminary objection rejected (ratione temporis);Preliminary objection rejected (non-exhaustion);Preliminary objection rejected (six month period);Violation of Art. 6-3-c;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed | null | 8. Mr. Ettore Artico, an Italian citizen born in 1917, is an accountant by profession. On 27 January 1965, Mr. Artico was sentenced by the Verona District Judge (pretore) to eighteen months’ imprisonment and a fine for simple fraud (truffa semplice). A further sentence of eleven months’ imprisonment and a fine for repeated fraud (truffa con recidiva), impersonation (sostituzione di persona) and uttering worthless cheques was imposed on him by that Judge on 6 October 1970. These various offences had been committed in May/June 1964. Appeals lodged by the applicant on 28 January 1965 and 11 December 1970 were rejected on 16 December 1969 and 17 April 1971, respectively, by the Verona Criminal Court; it dealt with both cases in Mr. Artico’s absence. On 11 October and 13 November 1971, the pretore issued committal warrants to enforce the two prison sentences. The warrants were served on the applicant on 22 December 1971; he had, in fact, been arrested on 8 December in connection with other offences. 9. On 25/26 December 1971, Mr. Artico, who was then in Brindisi prison, appealed once more to the Criminal Court against both of the decisions of the pretore. He claimed to be unaware of the Criminal Court’s judgments and accordingly filed with the appeals applications to quash (ricorsi per cassazione), inter alia, "any decision given on appeal" ("la eventuale sentenza di secondo grado"). The fact that the cases had been dealt with in Mr. Artico’s absence was the basic target of these applications: they challenged in particular the regularity of both the procedure followed as regards the service of various documents and declarations to the effect that the applicant was untraceable (decreto di irreperibilità; Article 170 of the Code of Criminal Procedure). By two Orders of 6 March 1972, the Criminal Court declared the appeals inadmissible on the ground that they were directed against decisions that had already been the subject of appeals. At the same time, the Criminal Court, for reasons of jurisdiction, transmitted the applications to quash to the Court of Cassation. 10. On 10 and 14/15 March, Mr. Artico, who was then in Venice prison, filed declarations with the latter Court setting out his further arguments. Although this was not mentioned amongst the principal grounds invoked, the declarations concluded with a new request: the offences covered by the decisions of the pretore should be declared to have been extinguished as a result of statutory limitation (prescrizione; Articles 157 et seq. of the Criminal Code) in November/December 1971, since by that date the statutory period of seven years and six months had elapsed. In pleadings dated 3 and 10 July 1973, which dealt only with the alleged procedural irregularity and not with the issue of statutory limitation, the public prosecutor (pubblico ministero) submitted that Mr. Artico’s applications were manifestly ill-founded. By two Orders (ordinanze) of 12 November 1973, the Court of Cassation, sitting in chambers, declared the applications inadmissible on the ground that there had been no procedural irregularity; it dit not, however, advert to the question of statutory limitation. 11. During 1975, Mr. Artico, relying once more on the issue of statutory limitation, filed with the Court of Cassation an appeal (istanza di revisione) against the decisions of 27 January 1965 and 6 October 1970 which had been confirmed by the Criminal Court on 16 December 1969 and 17 April 1971. By judgment of 5 August 1975, the Court of Cassation held that the offences of simple fraud, impersonation and uttering worthless cheques had been extinguished by statutory limitation. Accordingly, the Verona Criminal Court’s judgments were quashed but not, in the case of that of 1971, as regards the offence of repeated fraud. At the same time, the Court declared a request by the applicant for provisional release to be inadmissible on the ground that it had not been established that his detention stemmed from the decisions that were under appeal. 12. Mr. Artico was, however, released on 23 August 1975 pursuant to a directive (provvedimento) issued on the same date by the Milan public prosecutor’s department (procura della Repubblica). The directive, after referring to the 1975 judgment of the Court of Cassation, re-calculated at two years and eight months the total period of imprisonment due to be served in respect of the offence of repeated fraud and various other offences; as the applicant had been in prison since 8 December 1971, the period had already expired on 7 August 1974. An application by Mr. Artico for compensation for wrongful detention was dismissed by the Court of Cassation on 4 November 1977 on the ground that it had been lodged out of time. In a directive issued by the Ferrara public prosecutor (procuratore della Repubblica) on 15 March 1978, another re-calculation was made of the period of imprisonment due to be served by the applicant for various offences; the detention which he had undergone "unduly" ("indebitamente") from 8 August 1974 to 23 August 1975 was set off against other sentences. 13. Mr. Artico, who had originally been represented by a lawyer of his own choice, Mr. Ferri, included in his declaration of 10 March 1972 to the Court of Cassation a request for free legal aid in connection with the applications to quash. This request was granted on 8 August 1972 by the President of the Second Criminal Section ("the Section President") who appointed for the purpose Mr. Della Rocca, a lawyer from Rome. 14. On 4 September, Mr. Artico wrote to the Section President and the public prosecutor (procuratore generale) attached to the Court of Cassation ("the Cassation prosecutor") to inform them that he had heard nothing from Mr. Della Rocca and to request that steps be taken to provide effective assistance. By letter of 8 September, Mr. Della Rocca advised the applicant that it was only on his return from holiday that he had learned of the appointment, stated that other commitments prevented him from accepting it and gave the name of a colleague whose services he strongly recommended the applicant to utilise. On 10 October, Mr. Artico asked Mr. Della Rocca to apply for the appointment of a substitute in accordance with the procedure laid down by law. In a letter of 18 January 1973 to the applicant, the lawyer said that on 17 October he had submitted to the Section President a formal request (istanza) to that effect, indicating therein that for health reasons he was unable to undertake a task which he described as very demanding and onerous (molto impegnative e gravi); he considered that in this way he had fulfilled his obligations and expressed the wish to be left in peace. On 30 January 1973, the applicant wrote to the Section President and the Cassation prosecutor requesting Mr. Della Rocca’s replacement and enclosing a copy of the latter’s letter to him of 18 January. The registry of the Court of Cassation apparently replied on 26 February with a note to the effect that Mr. Della Rocca was still acting since a lawyer appointed for legal aid purposes was not in law entitled to refuse the appointment. On 6 March, Mr. Artico – who referred as on subsequent occasions to various statutory texts - sent to the Cassation prosecutor a complaint requesting, in addition to Mr. Della Rocca’s replacement, the imposition on him of criminal and disciplinary sanctions; no action seems to have been taken on this complaint, a copy whereof had been sent to the Section President. On 12 March, the applicant wrote to the Senior President of the Court of Cassation, inter alia, to draw his attention to the lack of legal assistance and to seek his intervention. By a telegram of 4 May the registry advised the applicant that Mr. Della Rocca had not been replaced and that the applications to quash were still with the public prosecutor’s department. Three days later Mr. Artico wrote again to the Cassation prosecutor to complain, amongst other things, of the absence of a substitute counsel and, on 6 June, the registry sent to the applicant a telegram worded similarly to the previous one. By letter of 19 June to the Cassation prosecutor, a copy of which was sent to the Section President, Mr. Artico emphasised the situation’s serious consequences for the defence and once more requested the appointment of another lawyer. 15. By notification dated 25 September, the registry of the Court of Cassation informed Mr. Della Rocca that the case was due to be heard on 12 November 1973. On 5 October, the registry sent to Mr. Artico, in reply to his telegram, a telegram advising him of the date of the hearing and that the lawyer had not been replaced. Letters dated 6 October from the applicant to the Section President and the Cassation prosecutor, which referred to several earlier communications of a similar nature, complained of Mr. Della Rocca’s attitude and of the authorities’ failure to act and contained a further request for replacement. On 2 November, Mr. Artico submitted to the Section President, with a copy to the Cassation prosecutor, the last of such requests, alleging a violation of the rights of the defence and asking for an adjournment of the hearing; however, this request did not reach the Court of Cassation until 20 December whereas it had already declared the applications to quash inadmissible on 12 November (see paragraph 10 above). 16. Under Article 524 of the Code of Criminal Procedure: "An application to quash may be made to the Court of Cassation on the following grounds: 1) failure to observe or erroneous application of the criminal law ...; 2) exercise by a court of a power reserved by law to legislative or administrative bodies or not granted to the State authorities; 3) failure to observe the rules of the present Code in cases where it is stipulated that non-observance shall result in nullity, inadmissibility or estoppel. ... An application shall be inadmissible if made on grounds which are not prescribed by law or are manifestly ill-founded." 17. Article 531 provides as follows: "When a ground on which the application would be inadmissible is pleaded by a party or is raised ex officio, the question shall be decided as a preliminary point by the Court of Cassation sitting in chambers ... ... In all the aforesaid cases, the Court shall rule on the matter, having regard to the public prosecutor’s written pleadings, without the intervention of defence lawyers. However, in the cases contemplated in the final paragraph of Article 524, the public prosecutor’s pleading shall be filed at the registry of the Court and notice of the said filing shall be given forthwith to the applicant’s lawyer. The latter shall be entitled to submit, within fifteen days of the notification, to the President of the Section seised of the matter a written request that the application be heard in open court. If such a request is presented, the Court shall sit in public. If the applicant has not appointed a lawyer, the aforesaid notice shall be given to the lawyer officially appointed for that purpose by the President." 18. Free legal aid is governed, inter alia, by the provisions of Royal Decree (Regio Decreto) no. 3282 of 30 December 1923. In criminal matters, legal aid is available as of right to anyone who is in a "state of poverty" ("stato di povertà"; Article 15), which phrase is to be interpreted as meaning inability to meet the expenses involved (Article 16). The decision affording legal aid is taken by the president of the trial court (Article 15; see also Article 3 of Royal Decree no. 602 of 28 May 1931). Once granted, it is the judicial authority seised of the case which nominates the lawyer who is to act for the person concerned (Article 29 of the 1923 Decree). The prosecuting authorities or the court president may cause a substitute lawyer to be designated either on their own initiative, where there are serious reasons, or if the original lawyer "establishes legitimate grounds which oblige him to abstain, or entitle him to be excused, from acting" (Article 32). Similarly, Article 128 of the Code of Criminal Procedure provides that an officially appointed lawyer may be replaced "for a justified reason". Article 5 of Royal Decree no. 602 of 28 May 1931 stipulates that any defence lawyer who is unable to act must supply a written statement of the reasons therefore; even after such a declaration has been made and for so long as he has not been replaced, the lawyer must fulfil the obligations of his office. An assisted party loses the benefit of legal aid if he instructs a lawyer of his own choice (Article 128 of the Code of Criminal Procedure). In general, legal aid comes under the supervision of the prosecuting authorities; they can take such measures as may be necessary to ensure that the case of an assisted person is properly attended to and, without prejudice to the latter’s action for damages, may request the imposition of disciplinary penalties on lawyers who neglect their duties (Article 4 of the 1923 Decree). 19. By virtue of Article 152 of the Code of Criminal Procedure, a court is obliged, at any stage of the proceedings, to take notice of its own motion of the extinction of an offence; statutory limitation takes effect by operation of law, even where an appeal is otherwise inadmissible. The Government conceded that in the present case the Court of Cassation should itself have raised this question in its decisions on the applications to quash. | 1 |
train | 001-101817 | ENG | RUS | CHAMBER | 2,010 | CASE OF ROMAN KARASEV v. RUSSIA | 3 | Violation of Art. 3;Violation of Art. 6-1;Violation of Art. 13+3;Remainder inadmissible;Non-pecuniary damage - award | Anatoly Kovler;Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva | 5. The applicant was born in 1977 and lives in the town of Kaliningrad. 6. In April 1999 the applicant was arrested on suspicion of murder. On 15 June 2000 the Nesterovskiy District Court of the Kaliningrad Region discontinued the criminal proceedings against the applicant on the charge of acquisition of stolen goods in connection with an act of general amnesty adopted by Parliament. The applicant was released. 7. On 4 May 2001 the applicant was arrested and charged with armed robbery and unlawful possession of weapons. By a judgment of 22 October 2001 the District Court convicted the applicant as charged and sentenced him to twelve years' imprisonment. On 18 December 2001 the Kaliningrad Regional Court upheld the conviction on the charge of robbery but ordered a new trial on the charge of unlawful possession of weapons. The proceedings were then discontinued because the prosecution dropped the case. 8. In relation to the above proceedings, the applicant was detained in Kaliningrad remand centre no. 39/1 from 25 April 1999 to 15 June 2000, from 24 May 2001 to 16 January 2002, and from 23 January to 8 August 2002. On this last date the applicant was transferred to colony no. 13 in the Kaliningrad Region to serve his prison sentence. 9. The applicant provided the following description of the conditions of his detention in the remand centre. During the first period he was held in a cell measuring ten square metres. The cell was equipped with twelve beds but housed up to twenty-four inmates who took turns to sleep. There was constant noise and movement within the cell. The windows were covered with metal blinds blocking access to daylight and fresh air. There was no sink and the water tap was positioned above the toilet pan, which gave off a fetid smell. Inmates were allowed no more than one hour of outdoor exercise per day. The cell was infested with bugs and cockroaches. In support of his description of the conditions the applicant submitted an affidavit by his former cellmate, Mr B., who had been held in the same cell between February and June 2000. B. stated that the cell measured twelve square metres and had housed between twenty-one to twenty-seven persons, while it had had only twelve beds. 10. During the second and third periods applicant was held in a sixsquare-metre cell that contained three two-tier bunks and housed seven inmates. The windows were covered with metal blinds blocking access to natural light and air. There was no ventilation in the cell and in summer, the temperature peaked at 45ºC. In the absence of a sink the water tap was positioned directly above the toilet pan, which was not separated from the rest of the cell. The dining table was only 50 cm away from the toilet. The cell was infested with bugs and cockroaches. The applicant contracted chronic bronchitis. In support of his submissions the applicant produced a written affidavit by his former cellmate, Mr R., who had been held in the same cell from 7 June 2001 to 6 July 2002. 11. The applicant also submitted a copy of a letter dated 28 June 2001 sent by the Kaliningrad Regional Ombudsman to a Mr G., who was detained in remand centre no. 39/1 at the time. As follows from this letter, an inquiry carried out by the Office of the Ombudsman disclosed that detainees in that remand centre were provided with less than one square metre of space per person in the cells. The inquiry also disclosed unspecified deficiencies in the sanitary installations and medical services in the remand centre. 12. The Government affirmed, with reference to a certificate dated 27 April 2007 issued by the administration of the remand centre, that from 25 April 1999 to 15 June 2000 the applicant was held in cells nos. 67, 150, 143, 10, 54, 86, 140, 17, 15, 4/12, 4/8 and 76. These cells measured from seven to twenty-one square metres. Between 24 May 2001 and 8 August 2002 the applicant was held in cells nos. 15, 54, 129, 22, 55, 111, 4/20, 18, 109, 17, 4/11, 158, 14, 155 and 4/19. These cells measured from seven to eighteen square metres. The certificate indicated that it was impossible to supply data about the number of detainees in each cell during the relevant periods because the logbooks for 1999-2002 had been destroyed. According to a certificate dated 20 February 2007, the logbook for the year 2002 was destroyed on the same date in compliance with the five-year storage limit. 13. With reference to a number of other certificates issued by the national authorities in April 2007, the Government affirmed as follows. In all cells the applicant had been provided with a bed and bedding. Each cell had a table situated at a suitable distance from the toilet, benches and a tap with running water. Each cell had a toilet with a functional flushing system; each toilet was separated from the main area by a screen of one metre in height. Ventilation was provided through openings in the windows; the metal shutters/blinds on the windows did not block the normal flow of air. Each cell also had a functional ventilation system. The shutters/blinds were removed between December 2002 and March 2003. The cells were properly heated to no less than 18ºC. All the necessary sanitary measures were carried out. The remand centre had twenty courtyards, each measuring twelve square metres. The applicant was allowed a one-hour outdoor walk per day. The artificial night light was not strong, but was left on for suicide watch. The applicant was given three meals per day. The applicant had access to medical services and was not intentionally placed with anyone suffering from tuberculosis. 14. From August 2002 the applicant served his sentence of imprisonment in a colony in the Kaliningrad Region. In January and February 2003 he brought civil proceedings against the Ministry of Finance, claiming compensation for unlawful deprivation of liberty from October 2001 to August 2002 and appalling conditions of detention during that period. The case was submitted to the Tsentralniy District Court of Kaliningrad, which indicated remand centre no. 39/1 and the Prisons Directorate of the Kaliningrad Region as co-defendants of the Ministry of Finance. 15. By letter of 5 March 2003, the District Court advised the applicant that a hearing on his claim was listed for 27 March 2003 and explained his procedural rights to him. As regards the applicant's participation, the judge wrote: “Civil law does not make a provision for transporting detained convicts to a civil court hearing. Thus, the court has no right to bring you to the hearing because that would breach the detention regulations. You have the right to appoint a representative to take part in the examination of your case ... You may also submit a written statement giving your consent to the case being examined in your absence.” 16. Following complaints by the applicant, who insisted on his right to be present at the hearing, on 25 March and 15 April 2003 the deputy President of the Kaliningrad Regional Court reiterated that the refusal to bring him to the hearing had been lawful and that he could make written submissions or appoint a representative. 17. On 22 April 2003 the District Court held a hearing. The representative of the Ministry of Finance waived his right to be present and made written submissions. It appears that the representative of the other two defendants was present at the hearing. The court considered that the applicant had been afforded an opportunity to appoint a representative and that in any event the written submissions were sufficient. The court held that the applicant's detention had been lawful because he had been ultimately convicted of a criminal offence. As regards the conditions of detention, the District Court held that the applicant had not proved the presence of bugs and cockroaches, that the one-hour outdoor exercise allowance was compatible with the detention regulations, and that there was no credible evidence that the applicant had contracted bronchitis. Although the overcrowding of the remand centre was undisputed, the District Court found that it had been caused by (unspecified) objective factors unrelated to the defendants' actions. 18. The applicant lodged an appeal. He submitted, in particular, that he had been denied the right to take part in the hearing. 19. On 23 July 2003 the Regional Court upheld the judgment, endorsing the reasoning of the District Court. It interpreted the applicant's failure to appoint a representative as a valid and lawful ground for examining the case in his absence. 20. In the meantime, the applicant filed another claim against the Ministry of Finance, seeking compensation in respect of pecuniary and non-pecuniary damage incurred through unlawful detention in 1999 and 2000 and appalling conditions in the remand centre. 21. The Tsentralniy District Court indicated the Kaliningrad Regional Prosecutor's Office, remand centre no. 39/1 and the Regional Prisons Directorate as co-defendants. 22. The judge advised the applicant, by the same standard letter, of the hearing date. She indicated that it would take place in his absence because he was a detainee but that he could appoint a representative. 23. The administration of the remand centre provided the court with the following information. The cell space of two hundred and forty-eight cells amounted to 1,630 square metres. Between April 1999 and May 2000 the population of the remand centre varied from 1,682 to 1,945 detainees. 24. On 24 June 2003 the District Court gave its judgment. It dismissed all the claims, finding that the detention had been lawful because the proceedings had been discontinued not by an acquittal but by an act of general amnesty. It also held that the employees of the detention centre had not been responsible for the overcrowding. 25. On 24 September 2003 the Regional Court upheld the judgment on appeal. The applicant was not present or represented. 26. Section 22 of the Custody Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy the sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell. 27. Order no. 7 issued on 31 January 2005 by the Federal Service for the Execution of Sentences deals with implementation of the “Remand centre 2006” programme. The programme is aimed at improving the functioning of remand centres so as to ensure their compliance with the requirements of Russian legislation. It expressly acknowledges the issue of overcrowding in pre-trial detention centres and seeks to reduce and stabilise the number of detainees in order to resolve the problem. The programme mentions Kaliningrad remand centre no. 39/1 as one of the detention centres affected. As of 1 July 2004, its design capacity was 524 detainees, but it actually housed 830 inmates. 28. Article 1064 § 1 of the Civil Code of the Russian Federation provides that damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor. Pursuant to Article 1069, State agencies and State officials shall be liable for damage caused to an individual by their unlawful actions or failure to act. Such damage is to be compensated at the expense of the federal or regional treasury. Articles 151 and 1099-1101 of the Civil Code provide for compensation for non-pecuniary damage. Article 1099 states, in particular, that non-pecuniary damage shall be compensated irrespective of any award for pecuniary damage. 29. The Code of Civil Procedure of the Russian Federation (CCP) provides that individuals may appear before a court in person or act through a representative (Article 48 § 1). The court may appoint an advocate to represent a defendant whose place of residence is not known (Article 50). The Advocates Act (Law no. 63-FZ of 31 May 2002) provides that free legal assistance may be provided to indigent plaintiffs in civil disputes concerning alimony or pension payments or claims concerning damage to health in employment-related disputes (section 26 § 1). In 2005 the Russian Government launched a test project in a number of regions concerning provision of free legal assistance in civil-law matters (decree no. 534 of 22 August 2005). 30. The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses, victims or suspects in connection with certain investigative measures (Article 77 § 1). The Code does not mention any possibility for a convicted person to take part in civil proceedings, whether as a plaintiff or a defendant. 31. On several occasions the Constitutional Court has examined complaints by detainees whose requests for leave to appear in civil proceedings were refused by the courts. It has consistently declared the complaints inadmissible, finding that the impugned provisions of the Code of Civil Procedure and the Penitentiary Code did not, as such, restrict the convicted person's access to court. It has emphasised, nonetheless, that the convicted person should be able to make submissions to the civil court, either through a representative or in any other way provided by law. If necessary, the hearing may be held at the location where the convicted person is serving his or her sentence, or the court hearing the case may instruct the court with territorial jurisdiction over the correctional colony to obtain the applicant's submissions or carry out any other procedural steps (decisions no. 478-O of 16 October 2003, no. 335-O of 14 October 2004 and no. 94-O of 21 February 2008). 32. Articles 57 and 149 of the CCP provide that the parties can seek the court's assistance in obtaining evidence. The relevant party should indicate the circumstances impeding the access to such evidence and its relevance to the case, as well as the location such evidence should be collected from. An unjustified failure to comply with the court order can lead to a fine on the person or official in possession of the relevant evidence. 33. In a given civil case a civil court can request a court in another location to take specific measures in relation to evidence situated in that location (Article 62 of the CCP). Carrying out such a request is mandatory and must be done within one month of its receipt. 34. Under Articles 58 and 184 of the CCP, a court may hold a session outside the courthouse if, for instance, it is necessary to examine evidence which cannot be brought to the courthouse. 35. Article 392 of the CCP contains a list of situations which may justify a reopening of a finalised case on account of newly-discovered circumstances. By a ruling of 26 February 2010 the Constitutional Court of Russia indicated that this Article should be interpreted as, in principle, allowing the launching of a procedure to have a final judgment re-examined on account of newly-discovered circumstances, such as the finding of a violation of the European Convention in a given case by the European Court of Human Rights. | 1 |
train | 001-100393 | ENG | DEU | CHAMBER | 2,010 | CASE OF BREILER v. GERMANY | 4 | No violation of Art. 6-1 | Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger | 4. The applicant was born in 1939 and lives in Berlin. He studied educational science and aircraft engineering and piloting in the former German Democratic Republic (GDR). From 1969 until 1990 he worked for the GDR airline Interflug. 5. On 4 December 2000 he applied for the transfer of alleged future pension rights under one of the additional pension schemes for certain professions or groups (Zusatzversorgungssysteme). On 20 February 2002 the applicant's request was dismissed. His subsequent administrative appeal, submitted on 13 March 2002, was rejected on 26 July 2002. 6. On 30 August 2002 he brought an action in the Social Court, which, following a hearing on 20 January 2003, dismissed the action, finding that the applicant did not qualify for any of the additional pension schemes. The judgment was served on the applicant on 20 February 2003. On 18 March 2003 he appealed the judgment. 7. On 18 June 2003 the Federal Social Court rendered a decision concerning a similar subject-matter, which was consistent with the Social Court's decision in the instant case. On 28 August 2003 the Social Court of Appeal advised the parties of the Federal Social Court's decision and classified the case as ready for decision. 8. During the course of the appeal proceedings the applicant's representative declared that he was seeking fundamental clarification of the subject-matter before the Federal Constitutional Court. The Social Court of Appeal therefore awaited a decision of that court. 9. On 24 April 2006 the judge rapporteur enquired whether the appeal was to continue after the Federal Constitutional Court on 1 March 2006 (file no. 1 BvR 320/06) had declined to admit for examination a constitutional complaint in a similar case. 10. On 8 May 2006 the applicant's representative announced that he would submit further observations until 30 June 2006. After a reminder of the Social Court of Appeal on 15 August 2006 these observations were submitted on 20 December 2006. 11. On 16 February 2007 the Social Court of Appeal dismissed the applicant's appeal and refused to grant leave to appeal on points of law. On 15 March 2007 the judgment was served on the applicant's representative. 12. Within the statutory time limit the applicant's representative objected to the refusal to grant leave to appeal on points of law and reasoned the objection on 15 June 2007. On 22 January 2008 the Federal Social Court dismissed the objection as inadmissible. This decision was served on the applicant's representative on 1 February 2008. 13. Section 88 of the Social Courts' Act exempts applicants from the requirement to await the outcome of the preliminary administrative proceedings and allows them to lodge a court action directly with the Social Court if the administrative authorities fail without sufficient justification to decide the administrative appeal within a reasonable time, in general three months. 14. Further relevant domestic law and practice is described in the Court's decision of Klose and Others v. Germany (see Klose and Others v. Germany (dec.), no. 12923/03, 25 September 2007) and Ritter v. Germany (see Ritter v. Germany (dec.), no. 31102/04, 20 November 2007). | 0 |
train | 001-72093 | ENG | BGR | CHAMBER | 2,006 | CASE OF THE UNITED MACEDONIAN ORGANISATION ILINDEN AND OTHERS v. BULGARIA | 3 | Violation of Art. 11;Not necessary to examine Arts. 6-1 and 14;Costs and expenses partial award - domestic and Convention proceedings | Christos Rozakis | 8. Ilinden is an association based in southwest Bulgaria, in an area known as the Pirin region or the geographic region of Pirin Macedonia. 9. Ilinden was founded on 14 April 1990. Its aims, according to its articles of association and programme, were to “unite all Macedonians in Bulgaria on a regional and cultural basis” and to achieve “the recognition of the Macedonian minority in Bulgaria”. Clauses 8 and 9 of the articles stated that the organisation would not infringe the territorial integrity of Bulgaria and “would not use violent, brutal, inhuman or unlawful means”. 10. In 1990 Ilinden applied for, but was refused, registration. In the proceedings for registration, the Blagoevgrad Regional Court and the Supreme Court examined its articles of association, its programme and other written evidence. 11. In their decisions of July and November 1990 and March 1991 the courts found that Ilinden’s aims were directed against the unity of the nation, that it advocated national and ethnic hatred and that it was dangerous for the territorial integrity of Bulgaria. Therefore, its registration would have been contrary to Articles 3, 8 and 52 § 3 of the Constitution of 1971, as in force at the time. In particular, the aims of the association included the “political development of Macedonia” and the “united, independent Macedonian State”. Moreover, in its appeal to the Supreme Court, the association had stated that “the Macedonian people [would] not accept Bulgarian, Greek or Serbian rule”. The formal declaration in its articles of association that it would not imperil the territorial integrity of Bulgaria appeared inconsistent with the remaining material. 12. The judgment of the Supreme Court of 11 March 1991 stated, inter alia: “[T]he lower courts have correctly established that the aims of [Ilinden] under its articles of association and programme were directed against the unity of the nation... [The material in the case] demonstrates that [Ilinden] seeks to disseminate the ideas of Macedonianism among the Bulgarian population, especially in a particular geographical area. [Those ideas] presuppose the ‘denationalisation’ of the Bulgarian population and its conversion into a Macedonian population... It follows that [Ilinden] is directed against the unity of the nation and is therefore prohibited under Article 35 § 3 of the [1971] Constitution...” 13. Throughout the period 19902003 Ilinden tried to organise commemorations of historical events every year on certain dates in April, August and September, on various sites in Pirin Macedonia. Almost all of the commemoration gatherings were banned by the authorities, often on the basis of the organisation not been registered. In some instances the courts refused to examine appeals against such bans on the same ground (for the period 199497 see Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, §§ 21, 25, and 2930, ECHR 2001IX; for the period 19982003 see The United Macedonian Organisation Ilinden and Ivanov v. Bulgaria, no. 44079/98, §§ 1271, 20 October 2005). 14. On 26 October 1997 the applicants, together with seven, eight or nine other persons, held a meeting in Petrich. There are two versions of the minutes of this meeting. The first one states that eighteen persons adopted a resolution to reapply for registration of Ilinden. The second one states that seventeen persons decided to found a nonprofitmaking association named Ilinden. Both versions state that the persons present adopted the articles and elected the management committee and the chairman of the association. 15. The relevant clauses of the articles of association of Ilinden adopted at that meeting read: “1. [Ilinden] is a national Macedonian organisation, on ethnical basis and origin ... which is the successor and continuer of the national liberation struggle of the Macedonian nation ... and of the Macedonian fighters who have fallen victim to the Bulgarian State terrorism and genocide. 2(1). Ilinden recognises and respects the territorial integrity of the Republic of Bulgaria and its laws and Constitution, provided they are consistent with the international law and the international agreements on human rights, fundamental freedoms and the rights of minorities. 2(2). [Ilinden] supports the international law [rules providing that] borders between countries may be altered peacefully through negotiations. 3. The goals and objects of [Ilinden] ... [are] to express and defend the civil, political, national, social, and economic rights of Macedonians living on Macedonian land under Bulgarian occupation (jurisdiction) and of the Macedonians living in Bulgaria. 4(1). [Ilinden] will protect the Macedonians subjected to assimilation by the Bulgarian nationalistic policies. 4(2). [Ilinden will seek the r]ecognition of a status of cultural autonomy of Pirin Macedonia [in order to] halt the process of assimilation of the Macedonians. ... 4(5). [and the g]iving of autocephalous status of the Macedonian church in Pirin Macedonia with a view to cutting off the assimilation activities of the Bulgarian priests. ... 5. [Ilinden] will strive towards ... liberating the Macedonians from the feelings of fear of the discrimination and assimilation policies of the [Bulgarian State]. ... 7(2). [The means employed by Ilinden for achieving its goals shall be] ... the holding of peaceful assemblies, meetings, marches and demonstrations... 7(3). Participation in elections through nomination of independent Macedonians candidates. ... 8(2). Every Macedonian, as well as a citizen of another ethnicity, may become a member of the organisation.” 16. On 16 March 1998 the applicants lodged an application for the registration of Ilinden with the Blagoevgrad Regional Court. They submitted to the court a copy of the first version of the minutes of the 26 October 1997 meeting (see paragraph 14 above). Finding that one member of the management committee had not signed the application for registration and that the filed copy of the articles of association had not been signed either, the court invited the applicants to submit duly signed copies of the application and the articles. On 6 April 1998 one of the applicants filed a signed application and an unsigned copy of the articles. The court also instructed the applicants to produce a copy of the resolution for the founding of Ilinden. On 2 June 1998 an unsigned copy of the second version of the minutes of the October 1997 meeting (see paragraph 14 above), containing a resolution for the founding of Ilinden and the names of eighteen purported founders, was filed with the court. A hearing was held on 19 June 1998. On 10 July 1998 a copy of the second version of the minutes (see paragraph 14 above), signed by fifteen persons, was filed with the court. At a hearing held on 29 September 1998 the applicants stated that this second version had been drafted by an attorney and had been signed by the founders before the first hearing on 19 June 1998. The court admitted the document in evidence. 17. The Blagoevgrad Regional Court gave judgment on 2 November 1998. It rejected the application in the following terms: “By section 136(1) of the Persons and Family Act [of 1949], the application for registration of a nonprofitmaking association must be accompanied by a resolution for its founding [and] its articles of association, signed by the founders... In their application for registration the members of the management committee state that in 1990 the organisation was denied registration ..., which may lead to the conclusion that the resolution for the founding of Ilinden was adopted ... at the latest in 1990. This conclusion is supported by the first version of the minutes of 26 October 1997. This version states that at a meeting held on 26 October 1997 in Petrich, with eighteen persons present, the question of the reregistration of Ilinden was discussed... In a letter of 30 April 1998 the court instructed the applicants to present a resolution for the founding of the association. Following this instruction the applicants submitted unsigned minutes dated 26 October 1997, which reflect a different agenda and different decisions. These new minutes contain an express resolution for the founding of Ilinden, for the adoption of its articles of association and the electing of a management committee. The heading of these minutes indicates that seventeen persons were founders. An additional, signed version of these minutes bears the signatures of fifteen persons. Three of the alleged founders ... have not signed the minutes of 26 October 1997, while the minutes state that the resolution for the founding of the association was adopted by unanimity. However, these persons have signed the [first version of the minutes], which contain the resolution to re-register Ilinden. [During the hearing] on 29 September 1998 the members of the management committee averred that there had only been one meeting, [which took place] on 26 October 1997. In view of these circumstances, the court considers that it has not been categorically established that a resolution for the founding of Ilinden was adopted on 26 October 1997. It is unclear who the founders were, because there are two versions of the minutes of the same date, signed by different persons and having different contents. Thus, one of the absolute prerequisites of section 136(1) of the [Persons and Family Act of 1949] – a resolution for the founding the association – is missing. The second mandatory attachment to the application for registration – articles of association signed by the founders – is likewise missing. When the applicants first applied for registration on 16 March 1998..., they were instructed to submit articles of association signed by the founders. This instruction has not been complied with. The articles ... dated 27 September 1997 are not signed. Alongside the articles the applicants have submitted a separate sheet, stating: ‘The articles of association of Ilinden were discussed and adopted at the founding meeting on 26 October 1997’. Only the signatures of the members of the management committee follow. The presentation of articles of association signed by the founders is an absolute prerequisite for [registration]. On this ground alone – the failure to comply with the requirements of section 136(1) of the [Persons and Family Act of 1949] – the registration of [Ilinden] must be refused. The court considers it necessary to note that, alongside the above-mentioned [reasons to refuse registration], there are a number of serious discrepancies between the submitted articles of association and the laws of [Bulgaria], which render the registration inadmissible. In clause 1 of its articles of association [Ilinden] defines itself as a ‘Macedonian national organisation on ethnical basis and origin ... which is the successor and continuer of the national liberation struggle of the Macedonian nation ... and of the Macedonian fighters who have fallen victim to the Bulgarian State terrorism and genocide’. This text clearly shows that the association considers itself a ‘successor’ and continuer of ... the ‘national liberation struggle of the Macedonian nation’... The evoking of historical events in which the Bulgarian people fought for the protection of its national interests [and] for the restoration of the Bulgarian State is puzzling in the context of an activity which is to be carried out against this same State. It is not clear how an association may be a ‘successor’ of ‘fighters fallen victim’ but probably the applicants wanted to underscore that they intend to lead a ‘national liberation struggle’ on the territory of the Republic of Bulgaria through uprisings, which process is expected to lead to victims. Read this way, clause 1 of the articles raises serious doubts as to the peaceful means for the achievement of the goals of the association declared in clause 7. Clause 2(1) of the articles recognises the territorial integrity of the country, its laws and Constitution, but under a condition: ‘if they are consistent with the international law and the international agreements on human rights, fundamental freedoms and the rights of minorities’. The reservations relating to respect for the territorial integrity of the country continue in clause 2(2) of the articles, which introduces the concept of modification of the borders through ‘negotiations’. The association’s goal – to achieve a modification of the borders of Bulgaria through taking of territory away – is clearly spelled out in clause 3 of the articles, which indicates that [Ilinden] ‘expresses and defends the civil, political, national and social and economic rights of Macedonians living on Macedonian land under Bulgarian occupation (jurisdiction) and of the Macedonians living in Bulgaria’. The use of the term ‘occupation’ indicates that, according to the applicants, the Republic of Bulgaria includes forcibly annexed ‘Macedonian’ lands, for the liberation of which they will lead a ‘national liberation struggle’. This idea is underscored in several other provisions of the articles. Thus, clause 4 speaks of protection against Bulgarian ‘assimilation’ through cultural autonomy of Pirin Macedonia, which takes as a given that the population there is not Bulgarian, clause 5 [speaks of] ‘taking the Macedonians out’ of the state of [being subjected to] ‘discrimination and assimilation’ by the Bulgarian State. Clause 7 of the articles indicates that the association will organise peaceful assemblies, meetings, marches and demonstrations with demands for political rights, and that it will participate in elections through the nomination of candidates. Therefore, even though it claims to be a non-profitmaking association, Ilinden proclaims that it will carry out a political activity within the meaning of Article 11 § 3 of the Constitution [of 1991] and section 13(3) of the Political Parties Act [of 1990]. Article 12 § 2 of the Constitution [of 1991] provides that associations may not pursue political goals and carry out political activities that are characteristic solely of political parties. This prohibition is developed in section 13(1) and (5) of the Political Parties Act [of 1990]. An association which pursues political goals such as those clearly designated by the applicants here may not be registered [as such]. Apart from the political character of the goals and of the future activity [of the association], the aforesaid leads to the conclusion that [Ilinden] is an organisation directed against the sovereignty, the territorial integrity and the unity of the nation and towards the incitement of national hatred, and is not categorically excluding the use of violence. Clauses 1, 2, 4, 6, and 7 of the articles of the association contain suggestions [that there exists] a Macedonian ethnos [constituting a] minority and deprived of the rights that the Constitution [of 1991] bestows upon all Bulgarian citizens. There is no Macedonian minority in Bulgaria. There are no historical, religious, linguistic, or ethnical grounds for such an assertion. [Such an assertion], coupled with the declarations alleging ‘assimilation, discrimination and xenophobia’ in respect of the ‘Macedonians’, is in reality directed against the unity of the nation. Every organisation committed to such a political platform is prohibited by virtue of Article 44 § 2 of the Constitution [of 1991]. ...” 18. The management committee of Ilinden appealed to the Sofia Court of Appeals. They argued that the Blagoevgrad Regional Court had deliberately misconstrued the articles of association. Ilinden had no political goals and had never intended to dispute the territorial integrity and the sovereignty of Bulgaria, nor to incite violence or ethnic hatred. The court had refused registration because of its mistaken finding that the articles insinuated the existence of a Macedonian ethnos having a minority character. Also, as there had apparently been doubt about technical problems with the registration documents, the management committee submitted a fresh copy of the minutes of the association’s founding meeting. It also submitted a list of signatures of the founders of Ilinden who were not members of the management committee, apparently with the purpose of remedying the deficiency noted by the Blagoevgrad Regional Court – that the articles of association bore the signatures of the members of the management committee only, not of all founders. 19. The Sofia Court of Appeals dismissed the appeal in a judgment of 28 April 1998. The relevant part of its opinion read: “...this court finds that the prerequisites for entering [Ilinden] in the register of nonprofitmaking legal persons are missing. The first irregularity of the association is that the submitted articles are not signed by the founders, as required by section 136 of the Persons and Family Act [of 1949]. Furthermore, the articles contain a number of clauses which do not allow the registration of the association. Clause 1 indicates that [Ilinden] shall be ‘a Macedonian national organisation [based] on ethnicity and origin’, and clause 8 provides that ‘only a Macedonian’ may be a member of the organisation; such type of association is inadmissible and contrary to Article 6 § 2 of the Constitution [of 1991], which prohibits privileges based on ‘nationality, ethnicity, origin’... In clause 7 of its articles the association sets itself political goals, which it may pursue only if registered [as a political party]. The formulated aims, such as ‘participation in elections’ [and] the holding of ‘meetings, marches and demonstrations’ run also against Article 12 § 2 of the Constitution [of 1991], which does not allow associations to perform political activities. The legal definition of the term ‘political activity’ set out in section 13(3) of the Political Parties Act [of 1990] indicates that it comprises precisely the holding of meetings, demonstrations, assemblies and other forms of public campaigning. Clause 4 of the articles provides that the association will carry out activities that are characteristic of a denomination ... : ‘struggling to achieve an autocephalous status of the Macedonian church and cutting off the assimilation activities of the Bulgarian priests’ [; such activities] may be carried out only by nonprofitmaking organisations registered under section 133a of the Persons and Family Act [of 1949] and the Denominations Act [of 1949]. The proposition of the applicants is that the association should be registered because its articles do not set forth political aims and the association is not established on an ethnical or a national basis. These assertions are unfounded. On the one hand, the submitted articles of association have not been signed by the founders, which precludes the possibility of registration ... On the other hand, the activities the articles envisage ... may not be carried out by such a type of association. This indicates that the irregularities in the founding of the association may not be rectified through the additional presentation of evidence; the registration is therefore impossible.” 20. The management committee of Ilinden appealed on points of law to the Supreme Court of Cassation. They argued that the Sofia Court of Appeals had erred in holding that the formation of an association could lead to discrimination. On the contrary, it was the exercise of a fundamental right. Also, Ilinden did not pursue any of the activities proscribed by Article 44 § 2 of the Constitution of 1991. As regarded the alleged political goals and activities of the association, they submitted that the Sofia Court of Appeals had misconstrued the term “political activity”: the holding of meetings and marches was not the prerogative of political parties – they could be organised by any organisation or person. The statement of the court that the meaning of clause 4 of its articles of association was that Ilinden intended to engage in religious activities was tendentious and untrue. In addition, the applicants complained that the Sofia Court of Appeals had repeated the conclusion of the Blagoevgrad Regional Court that they had not submitted a duly signed copy of the articles of association, apparently disregarding the fresh documents they had presented together with their appeal from the latter’s judgment. 21. The Supreme Court of Cassation gave judgment on 12 October 1999. It dismissed the appeal in the following terms: “...The appeal is illfounded. The [Sofia] Court of Appeals found that the submitted articles of association have not been signed by the founders, as mandated by the imperative rule of section 136 of the [Persons and Family Act of 1949]. Secondly, the articles contain a number of clauses precluding the registration of the association. Clauses 1 and 8 contravene Article 6 § 2 of the Constitution [of 1991], clause 7 [contravenes] Article 12 § 2 of the Constitution [of 1991] in conjunction with section 13(3) of the [Political Parties Act of 1990], [and] clause 4 [runs counter to] section 133a of the [Persons and Family Act of 1949]. The judgment of the [Sofia] Court of Appeals is correct. The finding that the legal requirements for the registration of the association have not been met corresponds to the documents in the case file and more specifically to the articles of association [of Ilinden]. An association is registered pursuant to an application by its management committee which must be accompanied by a resolution for its founding and its articles, signed by the founders. This means a signed copy of the articles and not separate lists and minutes. [In addition,] Article 6 § 2 of the Constitution [of 1991] does not allow privileges on the basis of nationality, ethnicity, origin, etc. By Article 12 § 2 of the Constitution [of 1991], associations may not pursue political goals and carry out political activities characteristic solely of political parties. Account should also be taken of section 13 of the [Political Parties Act of 1990].” 22. On 21 October 2002 Ilinden lodged another application for registration with the Blagoevgrad Regional Court. In a judgment of 18 November 2002 the court refused to register the association. Its opinion read, as relevant: “The evidence ... indicates ... that the activities of the organisation which seeks registration are directed against the sovereignty and the territorial integrity of the country and the unity of the nation. This is apparent from the main goals of the association ... and the means for their achievement... The way they are formulated ... indicate[s] their political character. ...The organisation states that it is a successor and continuer of the ‘national liberation struggle of the Macedonian nation’, including the ‘Macedonian fighters who have fallen victim to the Bulgarian State terrorism and genocide’[. Its articles of association] specify that [the organisation] will respect the territorial integrity of the Republic of Bulgaria, but only if ‘[it is] consistent with the international law and the international agreements on human rights, fundamental freedoms and the rights of minorities’; [that the organisation] will ‘voice and protect the civil, social and economic rights of the Macedonians who live on Macedonian soil under Bulgarian occupation (jurisdiction) and of the Macedonians who live in Bulgaria’[. The articles also] insist that ‘the process of assimilation in Pirin Macedonia must be stopped’. Obviously, the aim is to distort the historical truth and to ignore the Bulgarian character of certain geographical regions [and] to cause overt opposition of one part of the population to another. This also threatens the territorial integrity of the country, while Article 44 § 2 of the Constitution [of 1991] prohibits organisations engaging in such an activity. Even if, despite [what was found] above, it is assumed that the activities of [Ilinden] do not run counter to the Constitution [of 1991], by Article 12 § 2 thereof associations may not pursue political goals and carry out political activities that are characteristic solely of political parties. The political character of the aims [of Ilinden] is clearly indicated by [its articles of association], while the [applicable law] provides that organisations seeking to engage in political, trade union or religious activities shall be regulated in a separate statute. All this leads to the conclusion that what is sought is the registration of an association whose aims are illegal. It cannot be accepted that what is at issue is an organisation seeking to preserve the historical traditions and the cultural riches of a specific community. ... The realisation of the true aims [of Ilinden] would no doubt be at the expense of the unity of the Bulgarian nation [and] the sovereignty and the territorial integrity [of the country], which is declared inviolable by Article 2 § 2 of the Constitution [of 1991].” 23. Ilinden’s ensuing appeal was dismissed by the Sofia Court of Appeals in a judgment of 11 July 2003. The court held that the aims of Ilinden were political, which was impermissible for a nonprofitmaking association. It further held that the aims of Ilinden were directed towards a “twisting of the historical truths and towards ignoring the Bulgarian character of certain geographical regions, with a view to causing overt opposition of one part of the Bulgarian citizens against another, which imperil[ed] the territorial integrity of the country and the unity of the nation, in breach of the imperative rule of Article 44 § 2 of the Constitution [of 1991]”. Finally, the court held that there had been an irregularity in the number of elected members of the association’s management committee. 24. Ilinden’s appeal on points of law to the Supreme Court of Cassation was likewise dismissed, in a final judgment of 12 May 2004. The court held that Ilinden’s activity, which would include protecting the ‘civil, social and economic rights of the Macedonians living on Bulgarian soil and of the Macedonians living in Bulgaria’ ran counter to Article 44 § 2 of the Constitution of 1991. Even assuming that this was not the case, registration was impossible, because Ilinden’s aims were in reality political, as indicated by its declarations that it was a continuer of the “national liberation struggle of the Macedonian nation” and that its founders were “spiritual successors of ‘the Macedonian fighters which had fallen victim of the Bulgarian state terrorism and genocide’”, which was impermissible for a nonprofitmaking association. Finally, the court endorsed the Sofia Court of Appeals’ finding that there had been an irregularity in the number of elected members of the management committee. 25. The relevant provisions of the Constitution of 1991 read as follows: “The territorial integrity of the Republic of Bulgaria shall be inviolable.” “All citizens shall be equal before the law. There shall be no privileges or restriction of rights on the grounds of race, nationality, ethnicity, sex, origin, religion, education, opinion, political affiliation, personal or social status, or property status.” “Parties shall facilitate the formation of the citizens’ political will...” “Associations ... may not pursue political goals or carry out political activities that are characteristic solely of political parties.” “Everyone shall have the right to peaceful and unarmed assembly at meetings and marches.” “1. Citizens may freely associate. 2. Organisations whose activities are directed against the sovereignty [or] the territorial integrity of the country and the unity of the nation, towards the incitement of racial, national, ethnical or religious enmity ... as well as organisations which seek to achieve their goals through violence are prohibited. 3. The law shall specify the organisations which are subject to registration, the manner of their dissolution, as well as their relations with the State.” 26. At the material time this Act, the relevant provisions of which were subsequently superseded by the NonProfitMaking Legal Persons Act of 2000 (see paragraph 29 below) and some other statutes, regulated the formation, status and dissolution of nonprofitmaking legal persons. Its pertinent provisions were: “Nonprofitmaking legal entities carrying out an activity characteristic of a denomination or performing a religious or a religious educational activity shall be registered ... after assent being given by the Council of Ministers.” “An association shall acquire legal personality after its entry in the register [kept by] the Regional Court.” “An association shall be registered pursuant to an application by [its] management committee [to which shall be enclosed] a resolution for its founding and its articles of association, signed by the founders...” “Associations shall be managed in accordance with [their] articles of association, which must contain provisions in respect of [their] name, goals, means...” “...An association may be dissolved by decision of the Regional Court if ... its functioning is contrary to law, its articles or the state and public order...” 27. This act, which was superseded by new legislation in 2001, regulated the formation, registration, functioning and dissolution of political parties. Its relevant provisions read as follows: “1. A public organisation which has not been registered as a political party may not carry out the activity of a political party. 2. A [public organisation] which has not been registered as a political party may not carry out organised political activities [on the premises of] enterprises, government agencies and organisations. 3. ’Organised political activities’ shall mean the holding of meetings, demonstrations, assemblies and other forms of campaigning in favour of or against a political party or an election candidate. 4. If a public organisation ... clearly carries out the activity of a political party, the regional prosecutor shall offer that it be dissolved or register as a political party within one month. 5. If the organisation under the foregoing subsection does not cease its political activity or register as a political party, it shall be dissolved...” 28. The relevant provisions of this Act read as follows: “Meetings, rallies and marches may be organised by individuals, associations, political or other civic organisations.” 29. Under section 13(1)(3)(b) of this Act, which came into force on 1 January 2001 and at present regulates, inter alia, nonprofitmaking associations, the competent regional court may dissolve any association which carries out an activity which is contrary to the law, the public order or morality. By section 13(2) of the Act, the court may act pursuant to the request of any interested person or the public prosecutor. | 1 |
train | 001-79905 | ENG | TUR | CHAMBER | 2,007 | CASE OF ASFUROGLU AND OTHERS v. TURKEY | 4 | Violation of P1-1 | null | 4. The applicants were born in 1937, 1954, 1944, 1944, 1920, 1964, 1959, 1928, 1958 and 1958, respectively, and live in Hatay. 5. On various dates, the applicants bought plots of land, near the coast, in Hatay. Some of the applicants constructed houses, others built restaurants and hotels on this land. 6. In 1995 the Samandağ Municipality, acting on behalf of the Treasury, requested the Samandağ Court of First Instance to determine whether the applicants' land was located within the coastline area. A group of experts, composed of a geomorphologist, a cartography engineer and an agricultural engineer, appointed by the court, inspected the applicants' land and concluded that it was located within the coastline area. 7. Following the conclusion of the experts' report, the Treasury filed actions before the Samandağ Court of First Instance requesting the annulment of the applicants' title-deeds to the plots because of their coastal area location. 8. On various dates, the Samandağ Court of First Instance, after having obtained additional expert reports, upheld the request of the Treasury and decided to annul the title-deeds of the applicants. In its decisions, the court held that, pursuant to domestic law, the coast could not be subject to private ownership and that, therefore, the applicants could not rely on the argument that they had acted bona fides or on the fact that they had constructed buildings on the land. 9. The applicants' appeals against the judgments of the first-instance court were dismissed by the Court of Cassation. The applicants' requests for rectification of these decisions were also rejected by the Court of Cassation. The details are indicated in the table below: 10. The relevant domestic law is set out in the Court's judgments in the cases of N.A. and Others v Turkey (no. 37451/97, § 30, 11 October 2005) and Doğrusöz and Aslan v. Turkey (no. 1262/02, § 16, 30 May 2006). | 0 |
train | 001-86863 | ENG | ROU | CHAMBER | 2,008 | CASE OF GALLIANI v. ROMANIA | 3 | Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 5-1-f;No violation of Art. 5-2;Violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - claim dismissed | Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra | 4. The applicant was born in 1952 and lives in Savona, Italy. 5. On 19 January 1998 the applicant entered Romania with a tourist visa valid until 2 February 1998 and started business activities. In February 1998, when the applicant requested extension of the visa, the authorities asked for proof of residence in Romania that she could not provide. 6. In February-March 1999 the authorities refused the applicant’s request for extension of her visa as out of time. They told her that she needed to “know people” who could help her receive a new visa. 7. On 29 April 2000 the applicant was questioned by two officers from the Bucharest police to whom she claims she gave a bribe of 100,000 Old Romanian Lei (ROL) to let her go. 8. On 4 May 2000 at 8.30 a.m. the applicant was again stopped by officers from the Bucharest police when she was on her way to the Italian consulate. The officers took her identity papers and verified her data. After a one-hour wait the applicant was taken to Police Precinct no. 19 for additional checks. 9. From Precinct no. 19 she was taken by three officers to the Passport Bureau, where she explained that her visa had not been extended before its expiry because she had not had a valid residential tenancy contract. The person in charge asked her to return the next day to have her situation regularised. 10. The applicant was made to wait in the police car with one of the officers while the other two officers checked her passport. After the check they returned to Precinct no. 19, where after a one-hour wait the applicant was taken to the basement and body-searched by a female police officer while her bag was searched by another officer. She was informed that that was the standard procedure for any person who entered the police headquarters. 11. After the search, the applicant was questioned by two officers from the Passport Bureau and then taken again to their headquarters. Her fingerprints and photograph were taken and she was put in a room where the commander of Precinct no. 19 was writing on a paper that he was hiding from the applicant with his hands. 12. The commander informed the applicant, who requested an explanation, that she was not allowed to ask questions, to read or to know anything, and that she had to sit in a corner and wait. He then told her to stop crying, because the treatment she was subjected to was not even comparable to that inflicted on Romanians arrested by the Italian police. The applicant replied that, unlike the great majority of Romanians in Italy, she had come to invest money in Romania and not to steal or commit crimes. She also said that the Italian police respected procedures, human rights and in particular the presumption of innocence, which was not the case in Romania, where foreigners were badly treated. 13. The applicant’s bag was searched again by another officer who entered the room. He took ROL 750,000 from her purse, the cost of a visa stamp that was applied on the applicant’s passport valid from 5 to 12 May 2000. He made an inventory of the bag and reported that the applicant had a mobile phone and ROL 2,250,000. 14. At around 4.30 p.m. the same day the applicant was taken for questioning to a different passport bureau. After a one-hour wait in the police car outside the building, she was informed that the questioning could not take place as the person in charge was absent, but that she would be taken to a hotel in Otopeni for the night. 15. Instead of being taken to a hotel as informed the applicant was placed in police custody. Her fingerprints were taken again and her money confiscated by the police officers, except for ROL 500,000 that she was allowed to keep for personal expenses. 16. The wardens informed her that she was to be repatriated the next day because she did not have a valid residence permit, but that since she had not committed any crimes in Romania she was free to return immediately. 17. On 5 May 2000 at 12 midday the applicant called the Italian consulate in Bucharest to ask the reasons for her arrest. The consulate was not aware of her situation. Later that day someone from the consulate staff informed the applicant that she was going to be repatriated to Italy on 7 May by the 9.10 a.m. Tarom flight but that they still did not know the reason for her arrest. 18. On 7 May 2000 the applicant was taken by a police officer to the airport where she was taken on to the flight by a Romanian intelligence officer who accompanied her throughout her journey to Italy. Asked by the applicant about the reasons for her repatriation, the officer told her that if she had not committed a crime it must be because of a quarrel with the police. He confirmed that the incident with the commander of the passport police team could have been the real reason for her repatriation. He also informed the applicant that she was under a prohibition on returning to Romania for two years. 19. In Rome the applicant was taken to the Italian police, who were not aware of her arrival. The police returned her passport and released her. 20. On 16 May 2000 the applicant’s husband, who was living in Romania in the same situation as the applicant, returned to Italy of his own free will. 21. The applicant’s residence permit was granted for the periods 29 April-29 October 1993 and 2 August 1997-2 February 1998. 22. According to the official records, the applicant was not arrested or remanded in police custody between 4 and 7 May 2000. 23. On 4 May 2000 the applicant was stopped by officers from Police Precinct no. 19 and taken to the Office for Foreigners in the Ministry of Interior, which was aware of the applicant’s irregular situation. 24. The Office for Foreigners filled in a standard form on the applicant’s situation under Law no. 25/1969. It recorded therein the dates of validity of her visa, the fact that she had been unlawfully resident for two years and three months and that she could not give reasons for her situation. It also noted that she was not married to a Romanian national nor did she have children of Romanian nationality and that she owned a company in Romania which had ceased trading. The Office for Foreigners recorded on the standard form that the applicant was not under criminal investigation in Romania, that no expulsion order had been made against her and that she had not asked for asylum. It also noted that the applicant had ROL 2,250,000 at her disposal. For these reasons, the Office decided that the applicant should be placed in the Otopeni Centre for Reception, Selection and Accommodation for Foreigners (“the Otopeni Centre”) with a view to her repatriation on the next flight to Rome. It ordered the purchase of a ticket to that end, at the authorities’ expense, and issued a prohibition on the applicant entering Romania for two years. It stamped on the applicant’s passport an exit visa valid from 5 to 12 May 2000. 25. She arrived at the Otopeni Centre on 4 May 2000 at 5 p.m. On arrival she was body-searched and the record indicated that she had ROL 1,160,000 at her disposal. 26. On 7 May 2000 the applicant was repatriated. An employee from the Airport Security Service accompanied her throughout her journey. This measure was taken in order to ensure security on the flight, given the applicant’s aggressive behaviour and her continual refusals to embark on the aeroplane. 27. On 8 June 2000 the applicant sent a letter to the Chamber of Deputies of the Romanian Parliament protesting against her repatriation. The letter was transmitted to the Border Police Department which informed the Chamber of Deputies of the irregularity of the applicant’s stay in Romania and the decision to repatriate her and the prohibition on her entering Romania for two years under Law no. 25/1969. 28. On 21 August 2000 the applicant sent a similar letter to the border police. 29. On 10 December 2001 the Romanian embassy in Rome, answering a letter sent by the applicant, congratulated her on her good command of the Romanian language, expressed regret for her distress, informed her that the prohibition had been lifted and advised her to contact the Italian embassy in Bucharest to assist her with the formalities in Romania. 30. The relevant provisions of Law no. 29/1990 on administrative litigation at the date of the facts are described in Sabin Popescu v. Romania, no. 48102/99, § 46, 2 March 2004. 31. Law 25/1969 on the status of foreigners provides as follows: “(1) A foreigner who resides temporarily in Romania has the obligation to leave the country when the residence permit expires. (2) The residence permit can be extended by the Ministry of Interior. A request for extension shall be made at least 24 hours before the expiry of the permit...” “The Minister of Interior may cancel or limit the right to reside in Romania to a foreigner who has breached Romanian law...” “(1) A foreigner temporarily residing in Romania whose right of residence has been cancelled shall leave the country within 48 hours of the time when the interdiction is communicated to him... (3) If he does not comply with the obligation above, he may be expelled by order of the Minister of Interior.” 32. The legislation has changed several times since 2001. Nowadays, under Emergency Ordinance no. 194/2002 as amended by Law no. 56/2007 and Emergency Ordinance no. 55/2007, a decision to expel a foreigner drafted in Romanian and in an international language is served on the person concerned, who may appeal against it before the court of appeal; the expulsion is suspended during the proceedings (see Hussain v. Romania, no. 12338/02, §§ 51-55, 14 February 2008). | 1 |
train | 001-108845 | ENG | UKR | ADMISSIBILITY | 2,012 | BABENKO v. UKRAINE | 4 | Inadmissible | André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska | The applicants, Mr Andrey Grigoryevich Babenko and Mr Andrey Andreyevich Babenko, are Ukrainian nationals who were born in 1924 and 1956 respectively and live in the town of Feodosiya, Ukraine. They were represented before the Court by Mr V. Kapitsyn, a lawyer practising in the same town. The facts of the case, as submitted by the parties, may be summarised as follows. The first applicant is a Second World War veteran. Since April 2004 he has been on a housing waiting list of the Feodosiya Town Council Executive Committee as he required an improvement of his housing conditions. The first applicant requested to be provided with an apartment for his family of three (the first applicant, his wife and his son, who is the second applicant). The first applicant’s position on the main waiting list was no. 3068 and no. 109 on the special waiting list for Second World War veterans. In February 2007 the first applicant instituted proceedings in the Feodosiysky Town Court against the Feodosiya Town Council and the Feodosiya Town Council Executive Committee asking to be provided with an apartment in accordance with Article 46 of the Housing Code of Ukraine. On 19 June 2007 the court allowed the first applicant’s claim and ordered the local authorities to provide him with an apartment. On 7 August 2007 the Court of Appeal of the Autonomous Republic of Crimea (the ARC) quashed this decision and remitted the case for fresh consideration. In September 2007 the applicants lodged an amended claim. On 19 May 2008 the Feodosiysky Town Court rejected the applicants’ claim. The court found that in 2007 the first applicant’s position on the main waiting list was no. 2087 and no. 71 on the special waiting list for Second World War veterans. According to the Housing Code, citizens who are registered as needing improved living conditions are provided with housing in order of precedence. The applicant could thus not be provided with an apartment out of turn and before those persons who were above him on the list. Moreover, the local authorities did not have financing for housing construction from the State Budget. On 16 September 2008 the Court of Appeal of the ARC upheld this decision. On 21 January 2009 the Supreme Court of Ukraine dismissed the applicants’ appeal on points of law. Relevant provisions of the Housing Code in force at the material time read as follows: “Citizens who need improvement of housing conditions shall have right to be provided with housing for use in buildings of State or municipal residential stock according to procedures envisaged [by law]...” “Citizens who are registered as needing improved living conditions are provided with housing in order of precedence. The order of precedence for being provided with housing is set out in ... this Code and other legal acts ... From those citizens registered as needing improved housing, lists of those who have a priority right for housing are formed. The order of precedence depends on the date of registration (on the list of those, who have a priority right for housing). ...” “Special priority for housing is given to: - Second World War veterans [...] within two years from the date of their registration on the list for priority housing ... Second World War disabled persons [...] shall receive housing prior to all other persons eligible for priority housing” “ Executive bodies of [...] town councils have: ... b) delegated powers: ... 6) to provide, in accordance with the law, housing which is free or accessible in price, to citizens who are in need of social protection ...” | 0 |
train | 001-67917 | ENG | TUR | CHAMBER | 2,005 | CASE OF HALIS v. TURKEY | 3 | Violation of Art. 10;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 7. The applicant was born in 1969 and lives in Istanbul. 8. The applicant worked as a journalist for the Turkish daily newspaper “Özgür Gündem”. 9. On 2 January 1994 “Özgür Gündem” published an article with the title “Four New Books by Zagros Publications”, written by the applicant. On the same day, the copies of the newspaper were confiscated by an order of the Istanbul State Security Court. 10. In the impugned article, the applicant reviewed four books written by four different authors who discussed problems related to Turkey's southeastern region. The first book reviewed in the article, “Tasfiyeciliğin Tasfiyesi” (“Liquidation of Liquidators”), was written by Abdullah Öcalan, the leader of the PKK. 11. Under this heading the author expressed his views in the following terms: “Combating 'liquidation' (tasfiye) is of paramount importance for every revolutionary movement. There is hardly any great movement in which 'liquidation' (tasfiye) does not exist. Abdullah Öcalan, the General Secretary of the PKK, examined the characteristics of the liquidators and the destructive damage they caused in the struggle. He reveals his determination on this issue by declaring: 'I will not hesitate even if I have to sacrifice the whole party in order to liquidate one of them'. In this connection, a further success of the PKK is its never ceasing firm struggle against 'liquidation' (tasfiye). The PKK has revealed facts that almost no other revolutionary movement managed to do. This discipline and determination of the PKK may give an idea about its prospective system and the characteristics of its creators. The PKK has, in this sense, diagnosed at the right time the 'liquidation' (tasfiye) tendencies which would lead the revolution to defeat, took measures against possible damage, organised the struggle to save the revolution's origins and thus has carried the revolution further to victory. These issues are explicitly taken up and evaluated in the book. 'Liquidation of Liquidators' (Tasfiyeciliğin Tasfiyesi) is not a theoretical work, nor a book written after examination of the relevant literature. On the contrary, it is a book that collects in chronological order the evaluations on the problem of 'liquidation' (tasfiye), encountered in practice during a long and hard struggle. The book is in this respect a documentary, including information and instructive lessons not only for The National Liberation Struggle for Kurdistan but also for all class or national liberation movements in the world.” 12. The titles of the other books reviewed in the same article are “History of Colonisation” and “From the nineteenth century to this day, the national problem and Kürdistan” and “The Cease-fire declared by the PKK and its Effects”. Under the last article, the applicant stated: “... [the] Cease fire, which was declared on 20 March 1993 by the PKK did not reach its goal, on the contrary, [it] continued the dirty war in Kürdistan. In fact, the guerrillas blocked the Elazığ-Bitlis highway on 25 May 1993 killed twenty-nine soldiers and the cease fire, which had not been responded to, ended.” 13. On 1 June 1994, the public prosecutor at the Istanbul State Security Court charged the applicant with disseminating propaganda about an illegal separatist terrorist organisation. The charges in the indictment were brought under Article 7 § 2 of Prevention of Terrorism Act (Law no. 3713). 14. The public prosecutor based his indictment on the following sentences from the applicant's article: “...In this connection, a further success of the PKK is its never ceasing firm struggle against liquidation. The PKK has revealed facts that almost no other revolutionary movement managed to do. This discipline and determination of the PKK may give an idea about its prospective system and the characteristics of its creators. The PKK has, in this sense, diagnosed at the right time the liquidation tendencies which would lead the revolution to defeat, took measures against possible damage, organised the struggle to save the revolution's origins and thus has carried the revolution further to victory...” 15. On 20 March 1995 the Istanbul State Security Court found the applicant guilty of the offence under Section 7 § 2 of Prevention of Terrorism Act and sentenced him to one year imprisonment and to a fine of four hundred million Turkish liras (TRL). 16. In its reasoning the court pointed out the following passage in the article: “...In this connection, a further success of the PKK is its never ceasing firm struggle against liquidation... The PKK has, in this sense, diagnosed at the right time the liquidation tendencies which would lead the revolution to defeat, took measures against possible damage, organised the struggle to save the revolution's origins and thus has carried the revolution further to victory...” 17. The court, taking into consideration the above-mentioned remarks of the author and the impugned article as a whole, held that the applicant had disseminated propaganda about the PKK while reviewing books written by the leader and leading members of the PKK. 18. On 10 October 1995, the Court of Cassation upheld the judgment of the Istanbul State Security Court. 19. Following the judgment of the Court of Cassation the applicant disappeared in order to avoid imprisonment. He was apprehended on 2 March 2002 and taken into custody. On 4 March 2002 the applicant was released from custody. On 25 July 2002 Istanbul State Security Court suspended the execution of his sentence pursuant to Law no. 4454. 20. The relevant domestic law and practice in force at the material time are outlined in the following judgments and decision: İbrahim Aksoy v. Turkey, nos. 28635/95, 30171/96 and 34535/97, §§ 41-42, 10 October 2000, Özel v. Turkey no. 42739/98, §§ 20-21, 7 November 2002, Gençel v. Turkey, no. 53431/99, §§ 11-12, 23 October 2003, and Halis v. Turkey (dec.), no. 30007/96, 23 May 2002. 21. By Law no. 5190 of 16 June 2004, published in the official journal on 30 June 2004, the State Security Courts have been abolished. | 1 |
train | 001-96101 | ENG | FIN | CHAMBER | 2,009 | CASE OF JANATUINEN v. FINLAND | 4 | Violation of Article 6 - Right to a fair trial | Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | 5. The applicant was born in 1971 and lives in Vierumäki. 6. The applicant was suspected of having supplied large amounts of illegal drugs to other persons for distribution. The pre-trial investigation against the applicant and other suspects was concluded on 24 September 2003. 7. During the pre-trial investigation, the applicant had been represented by a court appointed counsel, J.T. On an unspecified date prior to the trial J.T. informed the Kuopio District Court (käräjäoikeus, tingsrätten), which was the court of jurisdiction, of the dates when he would not be available due to other engagements. According to the applicant, the court had then informed J.T. that the trial dates had already been fixed. On 28 October 2003 J.T. was informed that in such a large case the court would not be able to arrange the trial dates to suit the lawyers' requests and that a representative should arrange for a substitute to deal with other pending cases. The court asked J.T. whether he would prefer that the applicant be appointed another representative. 8. On 31 October 2003 the public prosecutor brought charges against the applicant and twelve other defendants in the Kuopio District Court. The prosecution evidence comprised, inter alia, recordings of telephone conversations obtained through police interception. 9. The court's oral hearing was held in nine sessions between 11 and 21 November 2003. The applicant appeared in person at six of those sessions. At four of them he was represented by J.T. and at the other two by a different lawyer. 10. During the session of 13 November 2003 the applicant and two other defendants requested access to certain recordings in the possession of the police but not included in the case material. They contended that those recordings concerned business arrangements other than the alleged drugs trading, and other material supporting their innocence. The prosecutor opposed the request, stating that a number of recordings, to the necessary extent, had been included in the case file. He further maintained that recordings of such telephone conversations which did not support the charges had also been included in the file. 11. In order to provide the court with further evidence in the matter, the prosecutor called the investigating police officer to the stand. In its minutes, the court summarised his statement as follows: “All recordings of telephone conversations pertaining to the offences in question have been included in the pre-trial investigation material available to the parties. Recordings not related to the matter were either destroyed at once or removed later. The threshold for including recordings to the case material has been low. In case of doubt as to whether a given recording was related to the matter or not, it has been attached to the case material. As far as the witness could recall, there had been 55 conversations between [the applicant] and [another defendant], of which 23 had been attached to the case material.” The witness had also explained that the recordings gathered during the investigation had indeed disclosed a number of other dealings between the defendants concerning, inter alia, procuring and trading in cars and car parts. 12. Relying on the above witness testimony the court rejected the defendants' request finding that all relevant recordings had been included in the pre-trial investigation material, submitted at the disposal of the court and the parties. The court noted that the police had operated under the duty to include in the case file recordings both for and against the suspects. The court detected no evidence of misconduct by the police. Nor did the evidence support the alleged necessity of gaining access to the remaining recordings. 13. On 11 December 2003 the court found the applicant guilty of drugs offences and sentenced him to five years' imprisonment. In its assessment, the court relied mainly on recordings of telephone conversations, telephone metering information concerning telecommunications between the defendants and police observations recorded in the pre-trial investigation report. 14. The applicant appealed to the Itä-Suomi Court of Appeal (hovioikeus, hovrätten) claiming that the lower court had refused him the right to submit as fresh evidence recordings of telephone conversations concerning procuring, trading in cars and car parts and attempts by one of his co-defendants, R.V., to purchase drugs from sources other than the applicant. Those recordings, favourable to his defence, had not been included in the prosecution evidence. The applicant therefore requested that the police be ordered to provide the court with all the remaining recordings. Later he limited his request to only those recordings involving himself and R.V. He also asked for a chronological list of recordings destroyed by the police. 15. In his letter of appeal, the applicant also argued that he had not been given adequate time and facilities for the preparation of his defence as the District Court had fixed the dates for its oral hearing without consulting J.T., who had been forced to send a substitute for two sessions. The applicant also criticised the lower court's assessment of evidence specifying several telephone conversations which the court had allegedly interpreted to his disadvantage in breach of the presumption of innocence. He further maintained that the District Court had not given sufficient reasons for its conclusions. 16. On 28 May 2004 the Court of Appeal decided to grant the applicant's request concerning the remaining recordings, referring to Article 6 § 1 of the Convention in that connection. The court found that an opportunity to have access to those recordings still in the possession of the police was important for building a proper defence. The Court of Appeal refused, however, the applicant's request concerning a list of the destroyed recordings. It found that the applicant had not presented sufficient reasons in support of that request and that the fairness of the proceedings would not be compromised if he did not receive such a list. 17. In the subsequent oral hearing, held in eleven sessions between 24 August and 9 September 2004, the Court of Appeal was presented with the same evidence as the District Court. It also received fresh evidence, including recordings of telephone conversations submitted by the applicant. 18. During the oral hearing the applicant contested the fairness of the proceedings. He asserted that the evidence included in the pre-trial investigation material, and presented by the prosecution, was neither reliable nor sufficient as the telephone metering information was erroneous and a number of recordings of telephone conversations had been destroyed. He claimed that the pre-trial investigation had been insufficient in other aspects as well, for instance, not all of R.V.'s relevant drug dealings had been investigated. The court was also presented with the argument that part of the evidence had been obtained illegally through unlawful house searches. 19. On 7 October 2004 the Court of Appeal dismissed the applicant's appeal, upholding the District Court's judgment. 20. As to the arguments concerning the alleged unfairness of the proceedings, the court observed that the applicant had been given access to a number of fresh recordings, according to his request. The court noted that, pursuant to the Coercive Measures Act (pakkokeinolaki, tvångmedelslag, Act No. 450/1987) as in force at the time of the investigation, the police had been obliged to destroy any information not related to the suspected offence. 21. The court went on to state that the facts of the case did not give any reason to believe that the destroyed recordings had been relevant to the case. As to those recordings submitted by the applicant at the appellate stage the court stated that, firstly, they had not contained any relevant new information and, secondly, they had been irrelevant to the case. Having also received testimony from the investigating police officer, the court did not subscribe to the argument about the alleged insufficiency of the pre-trial investigation. Nor did the court find any other reason to suspect that the fairness of the proceedings had been jeopardised. 22. As to the subject matter, the Court of Appeal firstly referred to the District Court's reasoning and stated that the fresh evidence produced on appeal did not contradict the evidence already presented in the case. The court concluded that, while no single piece of evidence as such was sufficient for a conviction, the evidence as a whole was enough for the guilty verdict. It went on to give more specific reasons of its own reflecting the evidence produced before it. The court stated, inter alia, that in assessing the evidence it had taken into account the arguments made against the charges and the fact that the applicant had not been the only person to have supplied drugs to R.V. 23. The applicant sought leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen) relying to a large extent on his previous arguments. He maintained that the police had destroyed relevant information which would have shown that he had not been the person supplying drugs to his co-defendants. He also contended that the Court of Appeal had failed to comment on his arguments concerning inadequate time and facilities for the preparation of his defence, the errors in and unreliability of the telephone metering information, and the lower court's insufficient reasoning. He further claimed that the Court of Appeal had not allowed him to submit telephone metering information as fresh evidence but had permitted the prosecution to do so. 24. On 27 May 2005 the Supreme Court refused leave to appeal. 25. In a decision given on 23 November 2005 the Deputy Parliamentary Ombudsman (eduskunnan apulaisoikeusasiamies, riksdagens biträdande justitieombudsman) found that, during the pre-trial investigation of the above case, the police had searched an apartment occupied by the applicant's co-defendant four times without following the lawful procedure, that is without informing the occupant about the search. During those searches a certain amount of drugs had been found. The Deputy Parliamentary Ombudsman issued a reprimand for unlawful conduct to the police officials involved. 26. Chapter 5a, section 2 of the Coercive Measures Act, as in force at the relevant time, provided that an authority investigating a crime could be granted permission to intercept and record telephone calls made by a suspect using an extension in his possession or another extension presumably used by him, or calls received by a suspect through such an extension, if the information thus obtainable could be assumed to be of vital importance for solving a crime. This permission could only be granted for serious offences listed in the provision, including aggravated drugs offences. 27. Chapter 5a, sections 12 and 13 of the said Act provided that the head of the investigation or another official by his order was to check the recordings at the earliest convenience and that recordings containing information which was not related to the offence covered by the authorisation had to be destroyed after they had been checked. Recordings which were not to be destroyed were to be retained for five years after the case had been resolved with legally binding effect or removed from the docket. 28. Chapter 5a, section 13 of the Coercive Measures Act was amended by Act no. 646/2003, which came into force on 1 January 2004. The current provision states that superfluous information obtained through interception of telecommunications but not related to the offence, or pertaining to an offence other than the one covered by the authorisation, is to be destroyed after the case has been resolved with legally binding effect or removed from the docket. The Government Bill (hallituksen esitys, regeringens proposition, no. 52/2002) concerning the amendment stated that, according to the provision in force at the time, superfluous information was to be destroyed as soon as it had been checked. Information supporting the innocence of the suspect could thus also be destroyed as superfluous information. The provision was thus proposed for amendment in order to ensure that all the material would be available for the [subsequent] proceedings, where necessary. 29. Section 1 of the Act on Public Prosecutors (laki yleisistä syyttäjistä, lag om allmänna åklagare, Act no. 199/1997) provides, inter alia, that it is the duty of a prosecutor to see to the realisation of criminal liability in the consideration of a criminal case, the assessment of the charge and the trial in a manner consistent with the public interest and the legal safeguards of the parties. 30. The same principle applies to the conduct of the police, who have the duty, under section 7 (1) of the Criminal Investigations Act (esitutkintalaki, förundersökningslag, Act no. 449/1987) to investigate and take into consideration the facts both for and against the suspect. 31. Section 40 of the Criminal Investigations Act, as in force at the relevant time (Act No. 449/1987), obliged the police to draw up a report of the pre-trial investigation, if this was necessary for subsequent proceedings. Among other things, the report was to include all documents and recordings obtained during the investigation, if they were deemed relevant to the case. The report was also to include a list of any material obtained in the investigation but not included in the report. | 1 |
train | 001-109288 | ENG | SWE | ADMISSIBILITY | 2,012 | NIYITEGURE v. SWEDEN | 4 | Inadmissible | André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska | The applicant, Marie Antoinette Niyitegure, is a Burundian national who was born on 25 October 1975. The applicant entered Sweden on 24 May 2007 and applied for asylum the following day. She stated, inter alia, that she was Hutu and Catholic and had studied psychology at the University in Bujumbura for three years, until 2001. Thereafter, in 2004 she had joined the human rights association JDPDH (Jeunesse pour la Défense et la Promotion des Droits de l’Homme) as psychologist in charge at a refugee camp. She also investigated and wrote reports on human rights abuses of which people in the camp had been the victims. In August and September 2004 she investigated a massacre in a refugee camp in Gatumba and found that the FNL (Forces Nationales de Libération) and other political parties had been involved in the massacre. The parties denied any involvement and in October 2004 the applicant received threats that she would be killed if she did not stop accusing the FNL. In May 2006 the applicant’s home town was attacked. Her father and brother were killed and she was raped by four men. In January 2007 the applicant finalised a report in which she concluded that a massacre in July and August 2006 of thirty-one prisoners in Muyinga had been committed by the intelligence service. As a consequence, its chief Dominique Surwayuba was arrested, also in January 2007. On 22 February 2007 a group of men came to her home but the applicant and her husband had managed to escape. However, their maid was stabbed to death and her husband’s daughter was injured. On 20 March 2007, the applicant sought protection at the home of the director of the JDPDH. During the night, the military attacked them. The director and the applicant were threatened that they would be killed unless they changed the report so that Dominique Surwayuba could be released. In May 2007 she was arrested by the FNL or by the intelligence service for three days and ill-treated. Her husband found out where she was and contacted a priest who helped her to obtain travel documents. She was released on 23 May 2007 and left the country the same day with a smuggler via the airport in Bujumbura. On 25 February 2008 the Migration Board (Migrationsverket) rejected the application, finding that the applicant had given vague and contradictory information and that she lacked credibility. On appeal, the Migration Court (Migrationsdomstolen) upheld the decision by a judgment of 19 June 2008. On 1 September 2008, represented by legal counsel, the applicant appealed against the judgment. On 12 September 2008 the Migration Court rejected the appeal because it had been lodged out of time. In order to comply with the procedural timelimit the applicant should have appealed before 10 July 2008, which was three weeks after the disputed judgment. Thereafter the applicant requested a new assessment by the Migration Board, which was refused on 26 September 2008. On appeal, the decision was upheld by the Migration Court in a judgment of 14 May 2009. The applicant failed to apply for leave to appeal against that judgment to the Migration Court of Appeal (Migrationsöverdomstolen). Instead, she reapplied to the Migration Board, which on 7 July 2009 upheld its decision to refuse to grant the applicant asylum. On 19 October 2009 the Court decided to apply Rule 39 of the Rules of Court and to stay the applicant’s deportation to Burundi for the duration of the proceedings before it. Despite specific requests by the Court, the applicant has not submitted any domestic decisions taken after 7 July 2009. Relevant domestic law and practice can be found in Hussein v. Sweden (dec.), no. 18452/11, 20 September 2011. Relevant recent information about Burundi can be found in Hussein v. Sweden, cited above. | 0 |
train | 001-108681 | ENG | ROU | ADMISSIBILITY | 2,012 | BUTAN AND DRAGOMIR v. ROMANIA | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Mihai Poalelungi;Nona Tsotsoria | The applicants, Mr Traian Nicolae Butan and Mrs Constanţa Dragomir, are Romanian nationals who were born in 1977 and 1946 respectively and live in Bucuresti. The first applicant is the son of the second applicant. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu, of the Ministry of Foreign Affairs. 1. On 15 May 2006 the applicants lodged an application with the Court (application no. 40067/06) against Romania under Article 34 of the Convention. They alleged that Articles 3, 6 § 1, 8, 13, 14 and Article 1 of Protocol No. 1 to the Convention had been violated as a result of the non-enforcement of a final judgment of 22 November 2005 obliging the local water supply company to conclude a contract for water supply with the second applicant, distinctive than the one concluded with the association of all landlords living in the same building. 2. In a judgment of 14 February 2008 the Court analysed all the complaints raised by the applicants only under Article 6 § 1 and held that there had been a violation of this article due to the non-enforcement of the final judgment in the applicants’ favour. As to the application of Article 41, the Court ordered the Romanian Government to pay the applicants jointly 10,000 euros in respect of pecuniary and non-pecuniary damages. On 21 August 2008 the Romanian Government paid the damages as ordered by the Court. At their 1100th meeting held on 30 November 2010, the Deputies decided to postpone the examination of this case at their next meeting in view of the fact that bilateral contacts were under way in order to assess new information received from the Government on the issue of the continuing non-enforcement of the domestic court judgment of 22 November 2005. The adoption of a resolution is still pending in this case. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. Following the adoption of the Court’s judgment of 14 February 2008, the water supply company sent several letters to the applicants expressing its willingness to conclude a contract with them. Hence, by letters sent on 21 February, 3 March, 14 April and 3 June 2008, the company informed the applicants that in order to conclude a distinctive water supply contract a new branching was necessary with the purpose to separate the supply to their apartment from the common supply of the entire building. On two occasions, on 28 February and 9 April 2008, representatives of the water supply company came to the applicants’ building in order to perform the necessary works but did not find them at home. 6. By a letter of 7 March 2008 addressed to the water supply company the applicants expressed their disagreement for the construction of a separate branching invoking both the domestic judgment as well as the Court’s judgment which made no express order in this respect. 7. According to the parties’ submissions, the judgment of 22 November 2005 remained non-enforced to date. 8. The relevant domestic law concerning the execution of final judgments, namely excerpts of the Civil Procedure Code and Law no. 188/2000 on the powers and functions of bailiffs, is summed up in the Court’s judgment in the case of Topciov v. Romania ((dec.), no. 17369/02, 15 June 2006). | 0 |
train | 001-108875 | ENG | MDA | ADMISSIBILITY | 2,012 | CASE OF CIUBUC AND OTHERS v. MOLDOVA | 4 | Inadmissible | Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Mihai Poalelungi;Nona Tsotsoria | 1. The applicants, Mr Gheorghe Ciubuc, Petru Ciubuc and Victor Lipovoi, are Moldovan nationals who were born in 1958, 1953 and 1946 respectively and live in Chişinău. They were represented before the Court by Mr F. Nagacevschi from “Lawyers for Human Rights”, a non-governmental organisation based in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. In 1942 A. Lipovoi, the mother of one of the applicants, bought part of a house in Chişinău, together with the land surrounding it (2.5 hectares). On 19 June 1950 the Soviet State nationalised most of the land, leaving 17.02 acres of land adjacent to the house for the family’s use, which has been used accordingly ever since. The applicants eventually became coowners of the house, which is currently registered in their name. 4. On 19 March 1973 the Government decided to create a dendrology park named “Dendrarium” and allocated 69 hectares of land in Chişinău for that purpose (“the 1973 decision”). The land included, inter alia, twenty-one private houses standing on it. According to the decision, the inhabitants of those houses were to be allocated alternative accommodation and the houses were to be demolished. The developer of the park was also obliged to pay the families living in those twenty-one houses compensation for any orchards and for the work carried out on the plots of land to be expropriated. 5. By a decision of 14 November 1978 the Government decided that the Dendrarium park was to become a separate institution managed by the Chişinău local authority. It also ordered the local authorities in Chişinău to offer the inhabitants of the houses concerned by the earlier decision alternative accommodation and to demolish their houses, situated on the reserved territory, in 1979-1980. The Government also decided to prohibit any private construction works within the boundaries of the Dendrarium park and to ensure the strict enforcement of the protective park regulations. However, the applicants and several other families were not offered alternative accommodation and have remained in their houses. 6. On 23 May 1990 the Chişinău local authority decided to allocate to the State Theatre-Park of National Culture 74.4 hectares of land, including the land on which the applicants’ house was situated. It also decided that the people living in the houses to be demolished, which included the applicants, were to be offered alternative accommodation. 7. On 14 July 2000 the State was registered as the owner of the territory of the Dendrarium park, which included the land under and adjacent to the applicants’ house. On 8 July 2005 the Chişinău municipality was registered as the owner of that land. According to the local cadastral office, the land adjacent to the applicants’ house is registered in the applicants’ name. According to an excerpt from the Land Register (cadastru), provided to the applicants on 11 April 2005, the house in question is situated on 17.02 acres of land and is owned by the applicants. 8. On 31 October 2005 the applicants asked the Chişinău municipality to transfer the land adjacent to their house into their ownership free of charge (as part of the process of privatisation). On 18 January 2006 the municipality rejected the applicants’ request. 9. On an unspecified date the applicants lodged a court action in which they claimed the right to become the owners of the land adjacent to their house, in accordance with article 11 of the Land Code (see paragraph 15 below). They noted, inter alia, that no specific decision had been taken to expropriate the land which their family had owned since 1942 and that this was an ongoing problem which the authorities had allowed considerable delay in examining, causing the applicants non-pecuniary damage. The applicant asked the court to order the Chişinău municipality to register the land adjacent to their house in their name and to award them compensation for the non-pecuniary damage incurred. 10. In its written reply submitted to the court, the Dendrarium park administration noted, inter alia, that the applicants did not have access to their house and that to reach it they had to trespass on park property. 11. On 23 October 2006 the Chişinău Court of Appeal found in the applicants’ favour. It found, inter alia, that the applicants’ use and possession of the disputed land had been undisturbed since 1942. The Court also found that the applicants had become the owners of the disputed land before the creation of the Dendrarium park and that no decision for the withdrawal of the applicants’ land from their possession had been adopted. 12. On 24 January 2007 the Supreme Court of Justice quashed the lower court’s judgment and adopted a new one, rejecting the applicants’ claims as unfounded. The court found that the applicants’ house had been registered as their property by the Land Registry. However, the land on which the applicants’ house was situated had been set aside for the creation of a natural reserve since 1973. Under the legislation concerning natural reserves (including Article 7 of the Law on the State-protected natural areas fund, see paragraph 15 below) such land was considered to be public property which could not be privatised, rented out or disposed of in any other way except for in the purposes of preserving and managing the natural reserve. Under the 1973 decision the inhabitants of all the houses within the perimeter of the park, including those in the house owned by the applicants, had to be removed and offered alternative accommodation and their houses demolished. Therefore, their request to obtain ownership of the land adjacent to their house was contrary to legal requirements. 13. On 6 June 2007 the Supreme Court of Justice rejected the applicants’ request for the reopening of the proceedings, which had been grounded on the discovery that some of the applicants’ neighbours who were in a similar situation to that of the applicants had obtained private ownership of the land adjacent to their houses. The court found, inter alia, that the document submitted by the applicants in support of their request had not been numbered or dated and did not therefore constitute a valid document. 14. On 11 February 2008 the Chişinău municipality informed the applicants that at the time of writing that letter the boundaries of the Dendrarium park had not yet been determined and that no title to the land of that park had been issued. The applicants were also informed that the municipality’s competent department was preparing proposals to re-examine the boundaries of the Dendrarium park, including the possibility of excluding the plot of land adjacent to the applicants’ house from the reserved land and the creation of an access road to their house. 15. The relevant part of Article 11 of the Land Code (in force since 4 September 2001) reads as follows: “Article 11. Allocation of land within the city limits for housing, land annexes and gardens. Local public administration authorities shall allocate plots of land to citizens without payment, issuing them ownership certificates which: - transfer into the property of citizens plots of land occupied by houses, annexes and gardens which have been allocated to [those citizens] in accordance with the law; ... Article 56. Land reserved for protecting nature. Land reserved for protecting nature includes ..., dendrology parks, ... ... Land reserved for protecting nature is the exclusive property of the State. Any activity which is incompatible with the special destination of land reserved for protecting nature shall be prohibited. Such land is withdrawn from use, if such use does not correspond to the special protection regime established for such land.” The relevant part of Article 7 of the Law on the State-protected natural areas fund (no. 1538, in force since 16 July 1998) reads as follows: “Article 7. ... 2. Land which is part of entities or complexes within protected natural areas shall be reserved for protecting nature, shall be public property and may not be privatised or rented; the protection and management of such land shall be governed by the applicable legislation.” | 0 |
train | 001-4730 | ENG | GBR | ADMISSIBILITY | 1,999 | HARPER v. THE UNITED KINGDOM | 4 | Inadmissible | Nicolas Bratza | The applicant is a British citizen born in Craigavon, Northern Ireland, and currently detained in HM Prison Maze, Northern Ireland. He is represented before the Court by Mr R. Monteith, a solicitor practising in Northern Ireland. A. The facts of the case, as submitted by the parties, may be summarised as follows. On 14 October 1992 the manager of a factory, Denny and Sons Ltd., received a telephone call from an individual who said that he was speaking on behalf of the Ulster Volunteer Force, an illegal organisation. The manager was instructed to pay a substantial amount of money under threat. The manager informed the police and a surveillance operation was mounted. The police provided the factory manager with green paper towels to be used to simulate bank notes. In accordance with the blackmailer's instructions, the factory manager went to a shop to obtain a white plastic bag in which to put the money. He purchased a packet of cream cracker biscuits to provide a reason for obtaining the bag. He then went to the location specified by the blackmailer and deposited the white plastic bag containing the paper towels and the packet of biscuits in the place agreed. The applicant was seen by a police officer working for the surveillance team approaching the area where the plastic bag had been placed. He was next seen with a white plastic bag containing something that appeared to be green. He was then seen some minutes later without the plastic bag. At 1.25 p.m. on 15 October 1992 the applicant was arrested pursuant to section 14(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1989 (“the 1989 Act”). Following the applicant's arrest a search of the area was carried out in the course of which the box of biscuits was recovered. On subsequent examination of the box, a print of the applicant's left thumb was found on the box. The applicant was taken to Gough Police Office, Armagh, where over a period of 7 days, from 15 October 1992 until 21 October 1992, he was interviewed on 31 separate occasions. It would appear that all 31 interviews were conducted whilst the applicant was under caution pursuant to Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 (“the 1988 Order”). On his arrival at the Gough Police Office, at 2.10 p.m. on 15 October 1992, the applicant indicated that he wished to see a solicitor as soon as practical. The police, pursuant to section 45 of the Northern Ireland (Emergency Provisions) Act 1991 (“the 1991 Act”), deferred access to the solicitor nominated by the applicant (Mr Monteith) until 8.45 a.m. on 16 October 1992. On 16 October 1992 the applicant consulted with his solicitor from 3.25 p.m. to 4.40 p.m. He had further consultations with his solicitor on 17 October from 4.50 p.m. to 5.50 p.m., on 18 October from 9.32 p.m. to 10.33 p.m., and on 19 October from 6.39 p.m. to 6.48 p.m. The applicant was interviewed on 23 occasions in the period from his arrest to the end of Interview no. 23 at 4.02 p.m. on 19 October 1992. Throughout these interviews the applicant denied being involved in any blackmail attempt and refuted the suggestion that he had been in the places in which he had been seen by the police surveillance team. At Interview no. 24, which began at 10.11 p.m. on 19 October 1992, the police confronted the applicant with evidence that his left thumbprint had been found on the box of biscuits recovered from the scene. When asked for an explanation as to how, in the light of his denials, his thumbprint could have been found on the packet, the applicant replied: “I didn't lift them, they were thrown at me”. The interview ended at 12.39 a.m. on 20 October 1992. The interviewing officers recorded in their notes at the conclusion of the interview: “[The applicant] appeared to want to tell the truth but was indecisive about how to approach the matter... [T]he interview laboured between [the applicant] wanting to talk to us but hesitating to do so.” At 8.30 a.m. on 20 October 1992 the applicant requested facilities to consult with his solicitor, Mr Monteith. At 9.02 a.m. an attempt was made to contact Mr Monteith. Mr Monteith was not at his office. It was noted in the Occurrence Book for Gough Police Office: “Mr Monteith's office contacted 9.02 hours. Mr Monteith to ring back later”. No time having been given for Mr Monteith's visit, Detective Superintendent C., pursuant to non-statutory guidelines issued by the Secretary of State relating to the questioning of terrorist suspects, authorised the interview to commence without the applicant first having had an opportunity to consult with his solicitor. Interview no. 25 commenced at 9.24 a.m. on 20 October 1992. In the course of this interview the applicant admitted to the blackmail offence and started to confess to his involvement in various acts of terrorism, including murder and membership of the Ulster Volunteer Force. The applicant went on to make further confessions during the 26th and 27th interviews which commenced at 12.10 p.m. and 2.34 p.m. respectively on 20 October 1992. At 5.17 p.m. on 20 October 1992, Mr H., a solicitor employed by Mr Monteith's firm, contacted Gough Police Office and arranged a consultation with the applicant for 7.30 p.m. In the interim a further interview, the 28th, was conducted in the course of which the applicant made further admissions. The applicant consulted with Mr H. from 7.50 p.m. until 8 p.m. The applicant informed police officers at Interview no. 27 that his solicitor had told him “not to make statements”. At the 29th interview, which was conducted on 20 October 1992 from 8.45 p.m. until 11.30 p.m., the applicant made further admissions of his involvement in various terrorist offences. The 30th and 31st interviews were conducted in the course of the following day, on 21 October 1992. During these final two interviews the applicant made further admissions. On 29 March 1995 the applicant was convicted before a single judge sitting without a jury at Belfast Crown Court on 22 counts alleging various offences of terrorism including murder, blackmail, possession of firearms and membership of the Ulster Volunteer Force. The applicant was sentenced to life imprisonment. The confession evidence obtained in the course of the police interviews sustained the charges against the applicant. The applicant, who did not dispute that the evidence before the court accurately recorded admissions which he made in the course of being interviewed, submitted through his counsel on the voir dire to determine the admissibility of the confession evidence that the evidence should be excluded under section 11(2) of the 1991 Act, on the grounds that it had been obtained by violence and threats of violence; alternatively under section 11(3) of the 1991 Act, in order to avoid unfairness to the applicant or as otherwise being in the interests of justice. It was submitted on behalf of the applicant by his counsel that the confession evidence had been obtained in circumstances where: (1) threats had been made by the police that they would arrest and harass members of his family and put out the word that the applicant was a “tout” if he did not confess, together with express or implied promises that the police would help him if he confessed. The applicant further stated that in the course of being interviewed the police had fed him details of the various offences to which he subsequently admitted; (2) he was suffering from ill-health and confusion which manifested itself, inter alia, in a severe loss of weight, namely 13 pounds; and (3) there were breaches by the police of their duty to permit the applicant to consult with a solicitor. The interviewing officers as well as the applicant gave evidence in the voir dire and were cross-examined on their evidence. The interviewing officers denied that they had threatened the applicant or fed him with information in earlier interviews about the crimes to which he later confessed. They testified that they had confined their questions during the first 23 interviews to the blackmail offence. In respect of (1), the trial judge rejected the applicant's evidence that he had been threatened, or that he had been given promises and inducements to persuade him to confess, or that he had been fed information of crimes which he had then repeated to the police. The trial judge ruled that he was: “... satisfied beyond reasonable doubt ... that [the applicant's] evidence of threats made, and promises and inducements given to him, by the police, and the feeding of information to him about crimes other than the ... blackmail which he then repeated back to the police, are completely untrue.” He gave as his reasons, inter alia, that the evidence of the interviewing officers was to be believed, that the applicant's evidence and demeanour in the witness box showed him to be a completely untruthful witness, and that his version of events was “a concoction”. Further, the trial judge held that the fingerprint evidence was “a very damaging piece of evidence” and that it was that, rather than the alleged threats, which had caused the applicant to confess and “make a clean breast of matters”. In respect of (2), the trial judge found that whilst the applicant probably suffered some weight loss, it was not of the order of 13 pounds and that his weight had probably been inaccurately recorded when he first arrived. Furthermore, the trial judge accepted, in any event, the evidence of the various doctors, who had made routine examinations of the applicant during the period he was being interviewed, that the applicant was not in such a state of ill health or confusion such as to render him unfit to be interviewed. In respect of (3), the applicant's counsel contended that the police had acted unfairly and in breach of section 45 of the 1991 Act, and paragraph 33 of the non-statutory guidelines issued by the Secretary of State, in authorising the continuation of interviewing on 20 October 1992 without the applicant first having had an opportunity to consult with his solicitor. While admitting to having certain misgivings about Detective Superintendent C.'s testimony, the trial judge found that that police officer had reasonable grounds for believing that waiting for the applicant's solicitor to arrive, when no time had been specified for his visit, would cause unreasonable delay to the process of investigation. The trial judge found, accordingly, that in authorising the interviews to continue, Detective Superintendent C. had not acted in breach of the guidelines. The judge further noted that even if Detective Superintendent C. had breached paragraph 33 of the non-statutory guidelines in authorising interviews to continue on 20 October 1992, he would not have excluded the evidence obtained since he considered, with reference to the wording of section 11(3) of the 1991 Act, that “it would not have been appropriate to do so in order to avoid unfairness to the accused or otherwise in the interests of justice”. The trial judge gave as his reasons: “In this case [the applicant] had had the benefit of four consultations with his solicitor between 16 and 19 October. It is therefore clear that he had been fully advised as to his legal rights when being questioned by the police. It is also apparent from the interviews which took place between 15 and 19 October that [the applicant] was fully capable of declining to answer questions from the police and was fully capable of refusing to make admissions. It was common case that this was not the first time that [the applicant] had been interviewed whilst in police custody and it is clear that he was familiar with being interviewed by the police. Moreover the evidence which I heard on the voir dire satisfied me that nothing was said or done in the course of the interviews which was likely to make unreliable the confessions which were made by [the applicant]. A further important consideration is that I am satisfied that [the applicant] began to make confessions, not because of improper behaviour by the police in the course of the interviews, but because the police quite properly put to him a new and very damaging piece of evidence, which was that his fingerprint had been found on the packet of cream crackers. I am satisfied that this was the factor which caused him to begin to confess. Against those considerations and that background I do not consider that considerations of fairness to [the applicant] or other considerations in the interests of justice make it appropriate for the court to exclude his confessions in the exercise of its discretion.” The trial judge's overall conclusion in the light of all the evidence adduced at the voir dire was as follows: “In this case [the applicant] confessed to crimes of the utmost gravity on behalf of a terrorist organisation (including involvement in very brutal murders of a nature which have terrorised and horrified entire communities) in circumstances where: (1) there was no impropriety by the police in the course of the interviews; (2) there was nothing in the course of the interviews to give rise to a concern that the confessions were unreliable; (3) the accused was caused to confess because the police quite properly put to him that they had received new and very damaging evidence against him, namely his fingerprint on the packet of cream crackers; and (4) the accused had already consulted with his solicitor on 16th, 17th, 18th and 19th October and on the 20th the police properly and promptly at 9.02 a.m. informed his solicitor that the accused wished to see him. I consider that having regard to these circumstances neither considerations of fairness to the accused nor the interests of justice operate to cause the court to exclude the confessions in exercise of its discretion on the ground that he did not consult with his solicitor on 20 October before the interviews on that day in which he made confessions.” Following the voir dire the applicant declined in cross-examination to answer any questions as to whether the admissions which he had made of the various terrorist offences with which he was charged were true. The judge, in concluding that the confession evidence was true and reliable and that he could properly act on it in convicting the applicant, drew very strong inferences under Article 4 of the Criminal Evidence (Northern Ireland) Order 1988 from the applicant's refusal to give any evidence that would raise as a possibility that his admissions of involvement in various terrorist offences were untrue. The applicant appealed against conviction. On appeal the applicant challenged, inter alia, the exercise by the trial judge of his discretion in not excluding the confession evidence. In doing so, the applicant relied on each of the three grounds which had been raised before the trial judge. The applicant, through his counsel, disputed the trial judge's findings of fact in respect of each of the first two grounds. In respect of the third ground the applicant's counsel submitted in addition that even if there had been no breach of section 45 of the 1991 Act or paragraph 33 of the non-statutory guidelines issued by the Secretary of State, the judge should have ruled that it was unfair to interview the applicant on 20 October 1992 pending the arrival of his solicitor, as he had every reason to want, indeed need, a solicitor at that stage. Following a review of the transcript of the evidence before the trial judge, the Court of Appeal, upheld the judge's findings of fact in respect of the first two grounds. In respect of the third, the Court of Appeal held that there had not been any breach of the rules covering the conduct of police interviews. As regards the applicant's contention that it was unfair to continue to interview the applicant before he had had an opportunity to consult with his solicitor, the Court of Appeal found: “The reality in the present case was that the police were investigating a serious blackmail case, additional information or admissions might be forthcoming, [the applicant] had already had four visits from his solicitor and had been accompanied by him at the identification parade when R. had not picked him out, he had been interviewed before, he did not demur at the absence of his solicitor, he did not remain silent until he arrived instead he chose to reveal his part in a series of serious crimes which disclosed that he was an active terrorist assisting in the activities of a proscribed organisation – the Ulster Volunteer Force. [The applicant's counsel] submitted that his solicitor might have advised him to say nothing. That is so but equally he might have told his solicitor that he was going to confess – it is idle to speculate what might pass between a solicitor and his client. What we do know is that after he saw his solicitor he repeated his account of his criminal activities and went so far as to sign the notes.” The Court of Appeal accordingly held that the trial judge had properly exercised his discretion in not excluding the confession evidence, that this evidence sustained the charges upon which the applicant had been convicted, and, on 28 June 1996, confirmed the sentences which had been imposed. B. Relevant domestic law and practice 1. Provisions governing inferences which may be drawn from an accused's silence Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 provides in so far as relevant: “Circumstances in which inferences may be drawn from accused's failure to mention particular facts when questioned, charged etc. (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 was 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 ... (c) the court ... 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.” 2. Provisions governing access to a solicitor The relevant provisions at the time of the applicant's trial governing the right of access to legal advice as a terrorist suspect were contained in section 45 of the Northern Ireland (Emergency Provisions) Act 1991 which, in so far as material, provides: “(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.” Section 45 of the Act does not prohibit the police interviewing a terrorist suspect once a request has been made pending the arrival of his solicitor; nor is a person suspected of terrorist offences entitled – as provided for under paragraph 6.5 of Code C of the Criminal Evidence (Northern Ireland) Order 1989 in respect of non-terrorist offences – to have his solicitor present whilst he is interviewed. In this connection, section 66(12) of the 1989 Order provides, in so far as relevant: “Nothing in a code of practice ... applies to the exercise of powers conferred by or under [the Prevention of Terrorism (Temporary Provisions) Act 1989] or to a person arrested or detained under those provisions.” Non-statutory guidelines issued by the Secretary of State for Northern Ireland in respect of the detention of persons suspected of terrorist offences, current at the time of the applicant's arrest, provided, in so far as relevant, at paragraph 33: “A person who asks for legal advice may not be interviewed or continue to be interviewed until he has received it unless: ... (b) an officer of the rank of superintendent or above has reasonable grounds for believing that: (i) delay will involve an immediate risk of harm to persons or serious loss of, or damage to, property; or (ii) where a solicitor has been contacted and has agreed to attend, awaiting his arrival would cause unreasonable delay to the process of investigation; or (c) the solicitor nominated by the person, or selected by him from a list: (i) cannot be contacted; (ii) has previously indicated that he does not wish to be contacted; (iii) having been contacted, has declined to attend; or (d) the person has given his agreement in writing that the interview may be started at once.” The admissibility of confession evidence is governed by section 11 of the Northern Ireland (Emergency Provisions) Act 1991 which provides, inter alia, for the exclusion of confession evidence under section 11(2)(b) where that evidence has been obtained by violence or threat of violence, or under section 11(3): “... in the case of any statement made by the accused and not obtained by so subjecting him as mentioned in subsection (2)(b) above, the court ... has a discretion to [exclude the statement] 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.” | 0 |
train | 001-23952 | ENG | HUN | ADMISSIBILITY | 2,004 | BALOGH v. HUNGARY | 4 | Inadmissible | null | The applicant, Mr Andrej Balogh, is a Hungarian national who was born in 1960 and lives in Budapest. The facts of the case, as submitted by the parties, may be summarised as follows. On 30 September 1992 the applicant was dismissed from work. Subsequently, and before the end of 1992, he filed an action with the Budapest Labour Court to have the dismissal decision annulled. On 21 September 1993 the Labour Court rejected his action. On 24 March 1995 the Budapest Regional Court dismissed his appeal. In the course of subsequent review proceedings, the Supreme Court quashed the Regional Court's decision on 16 January 1996 and remitted the case to the latter court. The Supreme Court held in its ruling that the taking of evidence in the case had been insufficient. In the resumed proceedings, the Regional Court, on 17 June 1998, gave an interim judgment. It amended the Labour Court's judgment and held that the applicant's dismissal had been unlawful. The proceedings concerning the applicant's pecuniary claims were resumed before the Labour Court. On 27 May 1999 the Labour Court awarded the applicant 330,000 Hungarian forints (HUF) plus accrued interest by way of severance pay and HUF 7,181,000 plus accrued interest for outstanding wages. The judgment was served on the applicant on 24 September 1999. In the absence of any appeal, the judgment became final on 11 October 1999. The Government have submitted the avis de réception attached to the letter containing the decision. They maintain that the handwritten date of service on the avis de réception is 24 September 1999. | 0 |
train | 001-75144 | ENG | TUR | CHAMBER | 2,006 | CASE OF AHMET METE v. TURKEY | 4 | Violation of Art. 5-3;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | null | 6. The applicant was born in 1950 and lives in Aydın. 7. The applicant was arrested in Nusaybin on 8 July 2001 by the Prevention of Terrorism Department of the Nusaybin Security Directorate, on suspicion of aiding and abetting the PKK. 8. On the same day the applicant signed a form whereby his rights as a detainee were explained to him. The form included his right to inform one of his relatives about his detention and his right to request the assistance of a lawyer. 9. According to the custody records (nezaret kayıt defteri), the police informed the husband of the applicant’s sister about his detention. Moreover, it was noted in these records that the applicant did not request the assistance of a lawyer. 10. During his interrogation by the police officers at the Nusaybin Security Directorate, the applicant confessed in detail to his involvement in the activities of the PKK. According to the interrogation minutes dated 9 July 2001, drafted by the police and signed by the applicant, he was informed of his right to have access to legal assistance of one or more lawyers at any stage and level of the investigation. 11. On 10 July 2001 the applicant was transferred to the Prevention of Terrorism Department of the İzmir Security Directorate, for further questioning. 12. On 11 July 2001, upon the request of the İzmir Security Directorate, the İzmir Public Prosecutor authorised the applicant’s detention in police custody until 13 July 2001. 13. On 13 July 2001, during his questioning by the İzmir Public Prosecutor at the State Security Court, the applicant described the work that he carried out for the PKK. He confessed that he was working as a courier for the members of the organisation who were in prison. On the same day the applicant was brought before the İzmir Magistrate’s Court. He denied his statement given in Nusaybin Security Directorate, as he alleged that he had signed it under duress. He confirmed his statement given before the public prosecutor. The magistrate’s court ordered his detention on remand. 14. On 14 August 2001 the İzmir Public Prosecutor at the State Security Court filed a bill of indictment charging the applicant with membership of a terrorist organization, the PKK, and with assisting and abetting the said organisation, contrary to Articles 169 of the Turkish Criminal Code and Article 5 of the Prevention of Terrorism Act of 12 April 1991. Before the İzmir State Security Court, the applicant was represented by his lawyer. 15. On 19 September 2002, the court convicted the applicant under Article 168 § 2 of the Criminal Code and sentenced him to twelve years and six months’ imprisonment. The court held that during his questioning by the police and the public prosecutor, the applicant had described his involvement with the activities of the PKK. Moreover, although in his statements given during the hearings he had claimed that he was not a member of the PKK, he had explained in detail his involvement with the activities of the organisation. Moreover, the other accused had also confirmed the fact that the applicant took new members of the organisation to the east of the country to join the guerrilla fight carried out in the mountains and acted as a courier for PKK members who were in prison. 16. On 4 March 2003 the Court of Cassation upheld the decision of 19 September 2002. 17. The fourth paragraph of Article 128 of the Code of Criminal Procedure (as amended by Law no. 3842/9 of 18 November 1992) provides that any person who has been arrested and/or in respect of whom a prosecutor has made an order for his or her continued detention may challenge that measure before the appropriate district judge and, if successful, be released. 18. Section 1 of Law no. 466 on the Payment of Compensation to Persons Unlawfully Arrested or Detained provides: “Compensation shall be paid by the State in respect of all damage sustained by persons: (1) who have been arrested, or detained under conditions or in circumstances incompatible with the Constitution or statute; (2) who have not been immediately informed of the reasons for their arrest or detention; (3) who have not been brought before a judicial officer after being arrested or detained within the time allowed by statute for that purpose; (4) who have been deprived of their liberty without a court order after the statutory time allowed for being brought before a judicial officer has expired; (5) whose close family have not been immediately informed of their arrest or detention; (6) who, after being arrested or detained in accordance with the law, are not subsequently committed for trial ..., or are acquitted or discharged after standing trial; or (7) who have been sentenced to a term of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only...” | 1 |
train | 001-22056 | ENG | NLD | ADMISSIBILITY | 2,001 | KAYA v. THE NETHERLANDS | 4 | Inadmissible | null | The applicant, İbrahim Kaya, is a Turkish national, born in 1962 and living in Sarıkaya (Turkey). He is represented before the Court by Mr J. Groen, a lawyer practising in The Hague. The facts of the case, as submitted by the applicant, may be summarised as follows. Together with his mother and brother, the applicant moved from Turkey to the Netherlands in 1973 where they joined the applicant’s father, who was living there since 1970 and who died in 1978. In 1981, after the death of his brother, the applicant married – obliged by Turkish tradition – his brother’s widow. After the latter’s expulsion from the Netherlands in 1982, the applicant divorced her. In the meantime, the applicant had started a relationship with Ms R., a Dutch national. Two children, K. and S., were born out of this relationship on 23 November 1981 and 8 March 1984, respectively. On 17 February 1984 the applicant was granted a permanent residence permit (vergunning tot vestiging). On 2 February 1985, the applicant was driving a getaway car after an armed robbery. During the car’s pursuit by the police one of the persons in the car driven by the applicant shot and killed a policeman. On 9 July 1985, the Rotterdam Regional Court (Arrondissementsrechtbank) convicted the applicant of participation in a robbery and of being an accessory to the killing of a police officer and sentenced him to six years’ imprisonment. At around the same time his partner lost the care and custody of their children because of her heroin addiction and her incapacity to provide for their care. A childcare organisation was appointed guardian of the children. The oldest child was placed in the care of the applicant’s mother. The youngest child was initially placed in a children’s home and, at the end of 1986, in a foster family. In prison the applicant had regular contacts with his children to the extent that this was possible. He also made arrangements with the childcare organisation in order to enable him to see the children after his release. On 16 June 1986 the applicant’s residence permit was revoked and he was declared an undesirable alien (ongewenste vreemdeling) by the State Secretary of Justice (Staatssecretaris van Justitie). The applicant’s request for revision (herziening) of that decision was rejected on 14 November 1986 by the State Secretary. The applicant lodged an appeal against that decision with the Administrative Jurisdiction Division of the Council of State (Afdeling Rechtspraak van de Raad van State). He argued, inter alia, that his expulsion would constitute a breach of Article 8 of the Convention since he would no longer be able to exercise his family life with his children. The applicant further requested the President of the Hague Regional Court (Arrondissementsrechtbank) in summary proceedings (kort geding) to issue an interim measure allowing him to await the outcome of the appeal proceedings before to the Administrative Jurisdiction Division. This request was rejected by the President of the Regional Court on 31 January 1989. The President, noting that financial difficulties had led the applicant to become involved in the facts of which he had been convicted and that he wished to maintain his relationship with his seriously heroin-addicted partner, held that recidivism could not be excluded. On 10 March 1989 the applicant was expelled to Turkey. He travelled back to the Netherlands on 4 May 1989, allegedly because his mother and his children had difficulties living without him. He further made arrangements with the childcare organisation in order to see his youngest child. On 21 June 1989, the Administrative Jurisdiction Division rejected the applicant’s appeal against the decision of 14 November 1986. It held that the interference with the applicant’s family life with his children was justified under the second paragraph of Article 8, in particular on the ground of prevention of disorder. It found that neither the applicant’s submissions about the interest of himself and his children in his continued stay in the Netherlands nor his personal circumstances should be given an overruling importance by the State Secretary. On 7 March 1990, the applicant was convicted of unlawful residence in the Netherlands as an undesirable alien and sentenced to four months’ imprisonment. On the same day, he requested the State Secretary of Justice to revoke the decision declaring him an undesirable alien. On 12 April 1990, the applicant was expelled to Turkey and, on 19 June 1990, the State Secretary rejected his request of 7 March 1990. After having returned for a second time to the Netherlands, the applicant was expelled to Turkey on 29 October 1990. On 5 December 1990, the applicant was again convicted of unlawful residence in the Netherlands as an undesirable alien. He was sentenced to six months’ imprisonment. After having returned for a third time to the Netherlands, the applicant was expelled to Turkey on 12 November 1992. On 6 June 1994, the applicant filed a new request with the State Secretary of Justice to revoke the decision declaring him an undesirable alien. This request was rejected on 1 December 1994. On 21 April 1995, after having returned to the Netherlands for a fourth time, the applicant was expelled to Turkey. On 31 August 1995 the applicant married a Dutch national, Ms. H., in Turkey. In September 1995, his spouse filed a request for a provisional residence visa (machtiging tot voorlopig verblijf) on behalf of the applicant for the purpose of “stay with spouse”. The Vlaardingen local police issued a positive opinion on the condition that the applicant complied with the requirements for the stated purpose, one of these being no criminal record. After the provisional residence visa had been issued in November 1995, the applicant entered the Netherlands on 8 December 1995. On 18 December 1995, he applied for a residence permit (vergunning tot verblijf) and, for this purpose, signed a declaration in Turkish stating that he had never had any dealings with the police or the criminal justice authorities (antecedentenverklaring). On the same day, he was granted a residence permit. On 10 December 1996 the State Secretary withdrew the applicant’s residence permit, holding that both the provisional residence visa and the residence permit had been issued erroneously, as – pursuant to Article 21 § 1 (b) and (c) of the Aliens Act – persons having been declared an undesirable alien are not eligible for residence permits. In addition and, according to his own statement, hoping that this would remain unnoticed, he had signed a declaration that he had no criminal record. The applicant’s objection (bezwaar) to the decision was rejected by the State Secretary on 23 January 1997. On 18 February 1997 the applicant lodged an appeal against that decision with the Hague Regional Court (Arrondissementsrechtbank) sitting in Haarlem. He also filed a request for an interim measure prohibiting his expulsion pending the appeal proceedings. On 9 April 1997, the President of the Hague Regional Court granted the interim measure on grounds of the State Secretary’s failure to submit necessary documents in time. On 21 November 1997, following a hearing held on 14 October 1997, the Regional Court rejected the applicant’s appeal. It held that the applicant’s residence permit to stay with a Dutch spouse had been withdrawn on correct grounds, since – by signing the declaration on criminal antecedents – the applicant had provided incorrect information. Recalling that the applicant had stated that he had signed this declaration in the hope that it would not be noticed that he had had dealings with the Netherlands criminal justice system and that he had served a six year prison sentence and thus would obtain a residence permit, the Regional Court concluded that he had willingly misinformed the authorities. Insofar as the applicant relied on Article 8 of the Convention in respect of his Dutch spouse and his two children, the Regional Court considered, taking into account the applicant’s conviction in balancing the interests involved as required under Article 8, that the interests of the Netherlands authorities outweighed those of the applicant. The Regional Court held that, after the Administrative Jurisdiction Division’s decision of 21 June 1989, no new facts or circumstances had become apparent prompting a different finding. On an unspecified date, the applicant returned or was expelled to Turkey. Under Article 21 of the Aliens Act (Vreemdelingenwet), an alien can be declared undesirable by the Minister of Justice when he or she has been convicted of an offence punishable by a prison sentence of three years or more. Article 197 of the Criminal Code (Wetboek van Strafrecht) provides that an alien who stays in the Netherlands knowing that he has been declared an undesirable alien commits a criminal offence punishable by up to six months’ imprisonment or a fine of up to 5,000 Netherlands guilders. According to Chapter A5/6.4 of the Aliens’ Circular (Vreemdelingencirculaire), a body of immigration directives drawn up and published by the Ministry of Justice, a decision declaring a person an undesirable alien shall – upon a request thereto from the person concerned –be lifted after ten years residency abroad where the decision declaring this person an undesirable alien has been taken on grounds of a conviction of serious violent crimes or drug dealing. This period is five years where the decision is based on a conviction for other crimes. | 0 |
train | 001-94993 | ENG | MDA | CHAMBER | 2,009 | CASE OF BUSINESS SI INVESTITII PENTRU TOTI v. MOLDOVA | 3 | Violation of Art. 6-1;Non-pecuniary damage - award | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | 5. The applicant company is registered in Moldova. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. In 1987 a State-owned company started construction of an apartment building, with the ground floor reserved for office space. After several changes of ownership of the unfinished building, another State company (L.) was designated as its owner. A subsequent administrative decision allowed a third State company (M.) to become a co-owner of the building. 8. In 1997 L., with the apparent approval of the Department of Privatisation (“the Department”), concluded a contract with a private company (I.). The latter undertook to finish the construction works in exchange for a share of the office space on the ground floor of the building. 9. On 19 October 2000 I. concluded a contract with the applicant company, under which the applicant company would finance the construction work and in exchange become the owner of a part of the office space in the building. 10. On 27 March 2001 M. initiated court proceedings against L., I. and the Department for annulment of the 1997 contract, as interfering with its right to a part of the building. 11. On 19 November 2001 the applicant company initiated court proceedings against I., claiming damages for I.'s failure to fulfil its part of the contract in time. On 29 November 2001 the applicant company requested I. to transfer the office space to which it had rights under the contract concluded in 2000. 12. On 6 February 2003 the applicant company initiated court proceedings against I., M., the Department of Privatisation and the Chişinău municipality, requesting confirmation of its property right over the office space claimed from I. under the contract of 19 October 2000. It noted that it had invested more than a million United States dollars (USD) in the construction of the building under that contract and that it was using the relevant office space, but that it was still unable to exercise all rights over that property as its rightful owner. It added that “due to I.'s actions, [the applicant company] was dragged into court proceedings against M., the Department, etc.” The applicant company asked the court to recognise its property right over specifically identified office space in the relevant building. 13. On 27 April 2004 the applicant company asked the court to discontinue the proceedings it had initiated against I. because the latter had accepted its claims and transferred the relevant office space. On the same day the Chişinău Court of Appeal allowed the applicant company's request. 14. Also on 27 April 2004 the Chişinău Court of Appeal rejected the claims of M. as unfounded. 15. On 8 July 2004 the Supreme Court of Justice quashed that judgment and adopted a new one, allowing M.'s claims in full. 16. The applicant company asked for a revision of the judgment of 8 July 2004. It complained that it had not been joined as a party to the proceedings, even though its property rights had been affected. Moreover, its court action lodged on 6 February 2003 had not been examined and the judgment of 8 July 2004 had prejudged the outcome of those proceedings. The applicant company emphasised that it had withdrawn only its court action against I. and not that against M. and the Department for recognition of its property right over the part of the building which it had been occupying throughout the proceedings. 17. On 16 September 2004 the Supreme Court of Justice rejected the applicant company's request for revision. It found that the applicant company was not the owner of the disputed part of the building. It also found that on 19 October 2000 I. had concluded the contract with the applicant company in bad faith, since it had been aware of the ongoing legal dispute with M. in respect of the building and of the court prohibition on continuing any construction work. The proceedings which had ended with the judgment of 8 July 2004 did not affect the applicant company's right to claim damages from I. for its actions in bad faith. 18. The court also considered that by withdrawing its claims on 27 April 2004 the applicant company had sought to have the proceedings discontinued in their entirety. It added that “since the applicant company had withdrawn the totality of its claims, but the court decided to discontinue the proceedings only in respect of one such claim, the parties have the right to ask for an additional decision discontinuing the proceedings in respect of the recognition of the property right”. 19. Article 37 of the Code of Civil Procedure, in force before 12 June 2003, reads as follows: “... If the legally protected rights and interests of persons not participating in the proceedings may be affected by a court judgment because of the nature of the legal relationship or applicable legal provisions, the court is obliged to join such persons to the proceedings as co-defendants or to inform them of their right to join as co-plaintiffs”. 20. Article 449 of the Code of Civil Procedure reads as follows: “A request for revision shall be granted if: ... (g) the court has adopted a judgment affecting the rights of persons who were not parties to the proceedings; (h) the judgment adopted prevents the taking of a lawful decision in other proceedings; ...”. 21. In the case of Soroca mining company (see Baroul Partner-A v. Moldova, no. 39815/07, § 49, 16 July 2009), the Supreme Court of Justice, after annulling the contract for the privatisation of the mining company, also annulled all subsequent legal acts adopted on the basis of that privatisation such as the issuing of shares. | 1 |
train | 001-68736 | ENG | AUT | CHAMBER | 2,005 | CASE OF JANCIKOVA v. AUSTRIA | 3 | Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic and Convention proceedings | Christos Rozakis | 8. The applicant was born in born in 1961 and lives in Vienna. She is the owner of a plot of land in Vienna. At the time of the events she was building a house on her land. 9. On 16 October 1992 officers of the Regional Vienna Labour Office (Landesarbeitsamt) inspected the construction site and found that four persons of Czech nationality, who were carrying out plaster works, had no permit to work in Austria. 10. On 21 October 1992 the Labour Office submitted a report to the Vienna Municipal Office (Magistrat) alleging that the applicant had illegally employed four foreigners. Thereupon, the Municipal Office opened administrative criminal proceedings against the applicant under the Aliens' Employment Act (Ausländerbeschäftigungsgesetz) and invited her, by letter of 29 December 1992, to comment on the charge against her. As the applicant was out of town, this letter did not reach her prior to 20 January 1993, when the Municipal Office ordered the applicant to pay a fine in the amount of ATS 66,000 (EUR 4,796.41) for having illegally employed four foreigners contrary to the provisions of the Aliens' Employment Act. This order was served on the applicant on 4 February 1993. According to the applicant, this was the first time that she became aware that proceedings had been instituted against her. 11. On 11 February 1993 the applicant, assisted by counsel, filed a request for reinstatement into the first instance proceedings (Wiedereinsetzungsantrag) and lodged an appeal with the Independent Administrative Panel (Unabhängiger Verwaltungssenat, hereafter referred to as “IAP”) against the order of 20 January 1993. 12. On 19 February 1993 the Municipal Office rejected the request for reinstatement into the proceedings. The applicant appealed on 25 March 1993 to the IAP. 13. On 14 February 1995 the IAP summoned the parties to a hearing scheduled for 21 March 1995 and invited the applicant to comment on the charge. The applicant did so on 3 March 1995. 14. On 21 March 1995 the IAP dismissed her appeal concerning reinstatement. It found that the invitation to comment on the charge of 29 December 1992 had been served in accordance with the provisions of the Official Notifications Act (Zustellgesetz) and that therefore the Municipal Office's decision of 19 February 1993 to refuse reinstatement into the proceedings had been lawful. This decision was served on the applicant on 17 May 1995. The applicant's complaint of 21 June 1995 against the IAP's decision was rejected by the Administrative Court (Verwaltungsgerichtshof) on 7 September 1995. 15. On 21 March 1995 the IAP also examined the applicant's appeal of 11 February 1993 against the order of 20 January 1993 to pay the fine in the amount of ATS 66,000. Having deliberated, the IAP rejected the applicant's appeal the same day. 16. On 23 August 1996 the IAP finalised the written version of its decision on the applicant's appeal of 11 February 1993. It found that the applicant had concluded work contracts with foreigners which required a valid work permit under the Aliens' Employment Act. The decision was served on 29 November 1996. 17. On 19 December 1996 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof). 18. By a decision of 30 September 1997 the Constitutional Court refused to deal with the complaint for lack of prospects of success and transferred the case to the Administrative Court. This decision was served on 9 December 1997. 19. On 9 April 1998 the IAP commented on the applicant's complaint and, on 20 May 1998, the applicant submitted observations in reply. 20. On 13 September 1999 the Administrative Court dismissed the applicant's complaint. This decision was served on 30 September 1999. 21. Pursuant to Article 132 of the Federal Constitution, the Austrian law no application may be lodged with the Administrative Court against the administrative authorities' failure to decide (Säumnisbeschwerde) in administrative criminal proceedings. This provision was adopted in 1984 (BGBl. 296/1984). The legislative committee stated in its respective report (AB 345, XVI. GP), referring to the Code of Administrative Offences (Verwaltungsstrafgesetz), that the exclusion of this remedy was justified as the administrative authorities had to decide on appeals within a short time-limit. The provisions to which the legislative committee referred provide as follows: 22. Pursuant to Section 51 § 7 of the Code of Administrative Offences, administrative authorities have to decide on appeals within fifteen months and if they do not comply with this time-limit the proceedings have to be discontinued. This time-limit does not apply to proceedings, in which more than one party has a right to appeal. Periods during which proceedings before the Constitutional Court and the European Court of Justice are pending shall not be counted for the purpose of the fifteen months time-limit. 23. Pursuant to Section 31 §§ 1 and 2 of the Code of Administrative Offences, the prosecuting authority has to institute administrative criminal proceedings against a person suspected of having committed an administrative offence within six months or as regards specific offences - as the offence at issue - within one year after the perpetration of the offence. 24. Pursuant to Section 31 § 3 of the Code of Administrative Offences, the authorities may only sentence a person suspected of an administrative offence within a period of three years after the perpetration of the offence. Periods during which proceedings before the Constitutional Court, the Administrative Court and the European Court of Justice are pending shall not be counted for the purpose of the period of prescription. 25. In administrative criminal proceedings in which more than one party has the right to appeal, e.g. in proceedings where also the Labour Office has locus standi, legal protection against the authorities' failure to decide is only safeguarded by the limitation of the period of three years within which a penal order has to be issued. The public pronouncement of the decision is considered to be sufficient for complying with this time-limit. 26. Pursuant to Section 19 § 2 of the Code of Administrative Offences in connection with Sections 32 to 35 of the Code of Criminal Procedure (Strafprozessordnung), the administrative authorities have to consider an unreasonable length of the proceedings as mitigating circumstance. | 1 |
train | 001-106862 | ENG | SVN | ADMISSIBILITY | 2,011 | LALIC AND OTHERS v. SLOVENIA | 4 | Inadmissible | Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger | The applicants, Mr Rajko Lalič, Mr Roman Tivadar, Mr Drago Prajner, Mr Albin Božičnik, Mr Sašo Tuksar, Mr Jasmin Kostevc, Mr Zoran Dedić, Mr Jože Kac, Mr Nebojša Šegota, and Mr Damir Glavica, whose birthdates are indicated in the annex, are Slovenian nationals. They were represented before the Court by Odvetniška Družba Matoz O.P. D.O.O., a law firm practising in Koper. The Slovenian Government (“the Government”) were represented by their Agent, Mrs T. Mihelič Žitko, State Attorney. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants served, or are currently serving, sentences in the closed section of Dob Prison. This prison, which is the largest in Slovenia, mainly accommodates adult male prisoners who have been sentenced to a term of imprisonment of no less than eighteen months. It has an official capacity of 233 inmates, but held 435 and 412 prisoners in 2009 and 2010 respectively. The closed section of the prison consists of four independent buildings (Blocks 1 to 4). Block 1 contains a reception area for new prisoners, hospital cells and cells subject to a stricter regime. Blocks 2, 3 and 4 contain large and small cells and are very similar in terms of their facilities and regime. A typical large cell measures slightly less than 60 square metres and contains a bed, a wardrobe and a chair for each of the inmates, as well as a table and radiators. After obtaining prior approval, any inmate may also bring in a television, a cooker or other electronic devices, including a computer. The cells also have shades on the windows and a ceiling fan. It transpires from the prison plan that one wing typically contains two large cells. The cells share a hallway measuring about 40 square metres and a TV room measuring about 26 square metres. A lavatory, measuring about 9 square metres, is attached to each cell. It has a window measuring 140 x 80 centimetres. The lavatory contains two washbasins, a foot washbasin, a urinal and a shower with a partition, as well as a toilet, which is screened off in a separated area, the door to which can be locked. A typical large cell has three windows measuring 170 x 170 centimetres each. The TV room and hallway have the same number and size of windows. Inmates are free to open and close the windows. Smoking is prohibited in the cell but not in the hallway, which contains a smoke extraction machine. The applicant was held in Dob Prison between 19 September 2007 and 11 February 2011. He was held in Unit 3 of the prison, in cell no. 6, which measured 59.25 square metres and accommodated fifteen prisoners. The personal space available to him was therefore almost 4 square metres. Other aspects of the conditions in the cell, lavatory and common areas were almost identical to those described above with regard to a typical large cell. The applicant has been held in Unit 4 of Dob Prison since 5 January 2009. His term of imprisonment ends on 5 July 2012. Until 2 August 2010, the applicant was held in cell no 3, which measured 59.57 square metres and held seventeen inmates (3.5 square metres of personal space available to each inmate). Subsequently, he was transferred to cell no. 6, which measures 59.25 square metres and has accommodated fifteen inmates (3.9 square metres of personal space available to each inmate). Other aspects of the conditions in the cells, lavatories and common areas are almost identical to those described above with regard to a typical large cell. The applicant has been held in Block 4 of Dob Prison since 24 July 2007. His term of imprisonment ends on 13 September 2013. He has been held in cell no. 3, which measures 59.57 square metres and has accommodated seventeen inmates (3.5 square metres of personal space available to each inmate). Other aspects of the conditions in the cell, lavatory and common areas are almost identical to those described above with regard to a typical large cell. The applicant has been held in Dob Prison since 25 July 2007. His term of imprisonment ends on 4 November 2012. He has been held in Block 2, in cell no. 1, which measures 59.89 square metres and has accommodated sixteen inmates (3.7 square metres of personal space available to each inmate). However, during the period between 1 July and 7 December 2009 the applicant was placed under a stricter regime in Block 1 in cell no. 34, which measured 32.22 square metres and held four inmates (8 square metres of personal space available to each inmate). As regards cell no. 1 in Block 2, other aspects of the conditions in the cell, lavatory and common areas are almost identical to those described with regard to a typical large cell. As regards cell no. 34 in Block 1, it had four windows measuring 170 x 130 centimetres each and access to a hallway of about 50 square metres. A lavatory, measuring about 6.5 square metres, was attached to the cell. It had a window of the same size as that of the cell and contained two wash basins and a shower with a partition, as well as a toilet in a separate closed area. As with all cells in Block 1, the inmates could upon prior approval bring in a television, a cooker or other electronic devices, including a computer. The applicant was held in Block 4 of Dob Prison between 13 May 2009 and 7 September 2011. He was held in cell no. 8, which measured 58.94 square metres and held seventeen inmates (3.5 square metres of personal space available to each inmate). Other aspects of the conditions in the cell, lavatory and common areas were almost identical to those described with regard to a typical large cell. The applicant was held in Block 2 of Dob Prison in the period between 23 July 2008 and 23 December 2009. Until 23 June 2009, he was held in cell no. 5, which measured 59.25 square metres and held sixteen inmates (3.7 square metres of personal space available to each inmate). Subsequently, he was transferred to cell no. 7/1, which measured 20.67 square metres and held four inmates (5.2 square metres of personal space available to each inmate). As regards cell no. 5, other aspects of the conditions in the cell, lavatory and common areas were almost identical to those described with regard to a typical large cell. Cell no. 7/1 differed in that the inmates shared a lavatory, measuring about 9 square metres, with inmates from two smaller cells situated in the same wing, which also contained a common area of about 10 square metres to which all three cells had access. The cell had one window measuring 170 x 170 centimetres. There was no TV room available to inmates held in cell no. 7/1. The applicant was held in Block 2 of Dob Prison between 9 June 2009 and 31 December 2010. Until 8 June 2010 he was held in cell no. 1, which measured 59.89 square metres and held sixteen inmates (3.7 square metres of personal space available to each inmate). Subsequently, he was transferred to cell no. 8/3, which was designated a special drug-free cell and which measured 20.67 square metres and accommodated four inmates (5.2 square metres of personal space for each inmate). As regards cell no. 1, other aspects of the conditions in the cell, lavatory and common areas were almost identical to those described with regard to a typical large cell. Cell no. 8/3 differed in that the inmates shared the lavatory with inmates from four smaller cells situated in the same wing, which also contained a common area of about 10 square metres to which all five cells had access. The cell had one window measuring 170 x 170 centimetres. There was no TV room available to inmates held in cell no 8/3. The applicant was held in Block 3 of Dob Prison in the period between 3 May 2006 and 3 August 2010. Until 7 August 2009 he was held in cell no. 2, which measured 59.89 square metres and held fourteen inmates (4.3 square metres of personal space for each inmate). Subsequently, the applicant was transferred to cell no. 7, which was designated a special drug-free cell and which measured 59.25 square metres and accommodated eleven inmates (5.4 square metres of personal space for each inmate). Other aspects of the conditions in the cells, lavatories and common areas were almost identical as those described with regard to a typical large cell. The applicant has been held in Block 3 of Dob Prison since 3 July 2008. His term of imprisonment ends on 15 November 2015. Until 2 June 2010 he was held in cell no. 3, which measured 59.89 square metres and held sixteen inmates (3.7 square metres of personal space for each inmate). Subsequently, the applicant was transferred to cell no. 9, which measures 33.23 square metres and has accommodated four inmates (8.3 square metres of personal space available to each inmate). As regards cell no. 3, other aspects of the conditions in the cells, lavatories and common areas were almost identical to those described with regard to a typical large cell. As regards cell no. 9, it is situated in the non-smoking wing, in which smoking is also prohibited in the hallway. It has three windows measuring 160 x 100 centimetres each, access to a hallway of 54 square metres, a lavatory measuring 4.68 square metres and containing a toilet in an area separated by a door, two washbasins and a shower with a partition. The lavatory also has a window measuring 140 x 80 square metres. The applicant has been held in Dob Prison since 23 August 2004. His term of imprisonment ends on 30 January 2013. Until 2 November 2005 he was held in Block 4 in cell no. 7, which measured 58.94 square metres and accommodated fifteen inmates (3.9 square metres of personal space for each inmate). In the period between 3 November and 1 December 2005, he was held in Block 1 in cell no. 20, where he was undergoing detoxification as part of a programme of treatment to which he had agreed. The cell, in which he was detained by himself, measured 7.39 square metres. Subsequently, the applicant was transferred to cell no. 6 in Block 4, which measures 59.25 square metres and has accommodated fifteen inmates (3.9 square metres of personal space for each inmate). As regards cells nos. 6 and 7, other aspects of the conditions in the cells, lavatories and common areas were almost identical to those described with regard to a typical large cell. As regards cell no. 20 in Block 1, it had one window measuring 100 x 130 centimetres and contained a bed, wardrobe, table and a chair, as well as a toilet and a basin. The applicant had access to a shower room measuring about 7 square metres, which he shared with thirteen inmates held in other single-occupancy cells. According to the Prison Rules, detainees are woken at 6 a.m. and lights out is at 9.45 p.m. However, according to the Government, cells are only locked at 11 p.m., remaining so until 6 a.m. in all blocks with the exception of Block 1, where cells are locked all the time. Moreover, the cells in Blocks 2, 3, and 4 remain open longer during the weekend in order to allow inmates to continue watching TV late in the evening. When the cells are unlocked, inmates can freely move around all areas to which they have access, namely the hallway, TV room, lavatory and other cells in the same wing. The inmates in Blocks 2, 3, and 4 may spend two hours per day during the week and three hours per day during weekends in the outdoor yard, which, prior to 10 November 2009, measured 8,000 square metres. Afterwards, due to construction work on new prison facilities, the outdoor area available to inmates has been reduced to 1,880 square metres. However, the prisoners have been, since the aforementioned date, using the yard in shifts. The yard includes, inter alia, football and basketball courts, benches, shower facilities with warm water and a small roof measuring 12 square metres. In Block 1 the cells are locked throughout the day. The inmates are allowed to leave their cells for only two hours a day for outdoor exercise and three hours a week for indoor exercise. The outdoor yard measures 1,379 square metres and is divided into four areas, each of which may be used by two inmates simultaneously. 66 square metres of the yard is covered by a roof. The yard includes a small basketball court, benches and tables. Each block of the prison also has a gym, measuring about 60 square metres. In Block 1 every prisoner may, in principle, use the gym for three hours a week. In other blocks prisoners may use the gym every day upon their request. The prison provides courses for, inter alia, primary education and secondary education, such as food preparation and catering classes. Prisoners also have the opportunity to work at the Pohorje Public Institute (agricultural activities and metal work) or within the prison. If unfit for work, prisoners may attend work therapy sessions. In 2008 and 2009 about 180 prisoners worked in the aforementioned institute and about fifty worked within the prison. About forty and fifty prisoners, respectively, participated in work therapy. According to the information submitted by the Government, the applicants Mr Lalić and Mr Tivadar worked at the Pohorje Public Institute for eight hours per day since 19 November 2007 and 12 January 2009 respectively. Mr Lalić attended food preparation and catering courses since February 2008. Mr Tuksar worked for the aforementioned institute for four hours per day since 5 October 2009 and had taken yoga classes in the prison. Mr Božičnik took part in leisure activities (playing the accordion) every day. Mr Dedić attended primary education classes in the prison for two hours per day since October 2009. Mr Kac worked in the prison bakery for eight hours per day in the period between 13 June 2006 and 3 August 2010. Mr Šegota participated in leisure activities (clay modelling) in the period between 26 November 2008 and 12 January 2009 once a week for three hours. Since the latter date, he has worked for eight hours per day at the Pohorje Public Institute. Mr Glavica has attended work therapy sessions for five hours daily. Prisoners who work or who attend work therapy also earn personal leave, which they are able to spend in special apartments in the prison which include a kitchen and a television. During their personal leave, they are subject to a more lenient regime as regards waking hours and have broader access to leisure activities. Inmates in all blocks, except Block 1, eat their meals in the prison canteen. An infirmary operates in the prison and is subject to the general regime of the national health-care system. It operates four days a week. A dental surgery operates two days a week. A psychiatric clinic operates two days a week. During the relevant time, there had been no waiting period for an appointment at the infirmary or the psychiatric clinic, but there had been, except for urgent cases, a waiting period of two to three months for an appointment with the dentist. All prisoners undergo a medical examination upon their arrival. On the basis of this examination, prisoners may be referred to a hospital to undergo a test to ascertain whether they have been infected with hepatitis B and C and/or HIV. The prison also provides for psychological assistance. Consultations are carried out during the first week upon the arrival of a new prisoner and later depending on need. The waiting period for a consultation is three to four days, except for urgent cases. Drug users are offered medical (including methadone substitution) treatment and therapeutic help in accordance with a specialised drug treatment programme. Prisoners who successfully undergo methadone substitution treatment are able to undergo detoxification, which normally takes three to four weeks. Further rehabilitation of previous drug users is provided in the drug-free sections of the prison, in which only those prisoners who are no longer dependant on drugs and who are no longer undergoing opiate replacement therapy may be allocated. Prisoners are entitled to receive visits from their family members lasting no less than one hour at least twice a week. They are entitled to make telephone calls, lasting ten minutes, twice a week. Until 20 November 2009, when new telephone booths were installed, one telephone was available for use by all the prisoners from one block (namely, up to about 130 prisoners). However, after that date almost every wing of the four blocks has had one telephone booth, which is only used by the prisoners held in that wing (up to about thirty prisoners). For relevant domestic law and practice see paragraphs 33-35 and 38-47 of Štrucl and Others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, 27 September 2011, and paragraphs 34-36 of Mandić and Jović v. Slovenia, nos. 5774/10 and 5985/10, 27 September 2011. In addition, the judgment of the Grosuplje Local Court delivered on 9 September 2010 is relevant to the present case. In that judgment, the aforementioned court rejected a claim under section 179 of the Civil Code concerning damage allegedly sustained due to inadequate living conditions in Dob Prison. The claim was lodged by a prisoner who was held in Block 3 in a cell of about 60 square metres together with 16 inmates. The court, which also heard a number of witnesses from the prison, found as established that the claimant, apart from his cell and the lavatories, also had access to the TV room and hallway during the day, between 6 a.m. and 11 p.m. It also found that chairs and tables were situated in the hallway and that about half of the prison population was working eight hours a day, which reduced the number of those who stayed in the cells during that time. The court acknowledged that the situation as regards overcrowding (number of inmates held in the cells) was in breach of the domestic regulation providing that no more than eight prisoners should be held in one cell, and found that the State, by virtue of paragraph 1 of section 148 of the Civil Code, would be responsible to prisoners for any damage sustained on that account. However, the court, referring to, inter alia, Sulejmanovic v. Italy, no. 22635/03, 16 July 2009, concluded that the situation, though difficult, was not such as to violate the claimant’s personal rights. No legally recognized damage had therefore been sustained by the claimant. The court also assessed the claimant’s allegations concerning sanitary conditions, access to the telephone, nutrition and cohabitation with persons affected by transmissible diseases. These aspects of the prison’s conditions were found not to be in breach of the law. The Ljubljana Higher Court upheld the above judgment on 23 March 2011. It found that the claimant’s claim contained allegations of torture and breach of one’s right to dignity. It endorsed the lower court’s legal qualification and factual findings. The Higher Court also referred to the CPT’s report of 2002, which, in its opinion, did not point to serious violations. Acknowledging that the situation was not perfect and could cause discomfort to the claimant, the Higher Court concluded that, in the aggregate, the conditions did not amount to undignified treatment or torture. The relevant extracts from the general reports by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) are set out in Mandić and Jović, cited above, §§ 38-40. The CPT visited Dob Prison in 1995 and 2001. In 1995 the number of prisoners held in Dob Prison was significantly lower than it currently is. 208 prisoners were held in the closed section of Dob Prison (see document CPT/Inf (96) 18). After the visit in 2001, the following recommendations were made to the Slovenian authorities (CPT/Inf (2002) 36): “i. Dob Prison 56. ... The CPT recommends that efforts be made to reduce the occupancy rate of the 60 m² dormitories, having regard to the new minimum standards for prison accommodation. Further, the Committee wishes to reiterate that smaller accommodation units for prisoner[s] are far preferable to large units such as the 60 m² dormitories seen in Dob Prison. ...” In the chapter concerning the living conditions in Slovenian prisons, Annual Reports by the Administration for the Execution of Prison Sentences include information on prison overcrowding. The rate of overcrowding is calculated on the basis of the domestic statutory requirement for the imprisonment of sentenced individuals, which is 9 square metres for a single-occupancy cell and 7 square metres per person in a shared cell. According to the 2009 and 2010 reports, nationwide prison occupancy exceeded the official capacity by 29 and 23 percent respectively. Almost all closed prison facilities accommodating male prisoners were overcrowded. Dob Prison, with an official capacity of 233 prisoners, held on average 435 and 412 prisoners in 2009 and 2010 respectively. This meant that the level of overcrowding was 187 and 177 percent respectively (2009 Report, pp. 97 and 98; 2010 Report, pp. 98 and 99). According to the 2008 Report, the level of overcrowding in 2007 and 2008 was 170 and 190 percent respectively (p. 98). The 2010 Report also noted (p. 100): “... Poor living conditions are coupled with overcrowding, which is most present in the large prisons in Slovenia: Dob, Ljubljana and Maribor prisons. The urgency of improving living conditions has been stressed by the Human Rights Ombudsman, the CPT and other institutions. ... It is understandable that such living conditions adversely affect prisoners’ hygiene and privacy. Poor living conditions sometimes also obstruct the exercise of prisoners’ rights (work, exercise and recreation, [attending] religious services). In some establishments, prisoners on remand live in worse conditions than sentenced prisoners. The outdated and inadequate furniture in living rooms and other areas presents an additional problem...” On 17 and 18 March 2009 the Ombudsman for Human Rights conducted a visit to Dob Prison under the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and issued a report, which, as far as relevant, reads as follows: “... the official capacity is still 296 prisoners, including 233 prisoners in the closed section, 40 prisoners in the semi-open section and 23 prisoners in the open section. At the time of our visit, the establishment held 497 prisoners, including 433 in the closed section, which is 200 beyond the official capacity. The prison administration has stressed that it has previously been faced with an even higher occupancy rate. During a certain period in 2008, the prison held 526 prisoners... We found that since our last visit the overcrowding has only intensified. This raises concerns. The prison administration has agreed with this finding and stressed that it is of particular concern that the overcrowding cannot be reduced by placing prisoners in other establishments, as the number of prisoners is rising everywhere. On the other hand, we welcome the fact that preparatory work on the renovation and expansion of the prison has finally started. The capacity of the prison should be increased to 522 beds and the inmates should be accommodated in single or three-bed cells. Large multi-occupancy cells should be abandoned. The office [of the Ombudsman for Human Rights] expects and hopes that the progress of the renovation of the prison will lead to an improvement in the living conditions therein. We have again stressed that in most cases the furniture in the rooms was outdated and urgent repairs and replacements were therefore needed The closed section had sufficient outside areas at the time of the visit ... According to the prison administration, illegal drugs present a serious problem. About half of the prisoners are addicted to drugs or alcohol... The prison administration further explained that the operation of the drug-free section, [one of] which was located in every block (except Block 1), was also restricted due to the fact that there was only one therapist responsible for the programme ...” In its 2007 annual report, the Ombudsman for Human Rights noted: “In the closed section of Dob Prison there are still only 31 single cells and only a few cells with two or three beds available. Large multi-occupancy cells are [the norm], in particular those measuring 60 square metres and accommodating up to 17 prisoners. Each inmate has only 3.5 square metres of personal space, which falls short of the standard of 7 square metres.... It is true that this standard was intended for new facilities or renovations, where possible. However, as many years have already passed since the adoption of the Regulation on the Execution of Prison Sentences [providing the aforementioned standard], there should be a commitment that this standard is also complied with in the largest prison in the country. Likewise, one cannot ignore section 42 of the Enforcement of Criminal Sanctions Act, which states that inmates should in principle be accommodated in a single cell, and that shared cells should have eight beds at most. The prison conditions in which the prisoners live are therefore unacceptable and in breach of the law. The shared cell with seventeen beds has only one lavatory.... During the morning rush, this (the facilities in the lavatory) is insufficient for the number of inmates whom it is intended to serve. The number of inmates simultaneously using the lavatory is also restricted by its size. [The ombudsman’s office] was therefore not surprised to hear complaints that inmates had to wait two hours to use the shower and 45 minutes to use the toilet, which we believe is also inhumane.” | 0 |
train | 001-83106 | ENG | MLT | ADMISSIBILITY | 2,007 | SAMMUT AND VISA INVESTMENTS LIMITED v. MALTA | 3 | Inadmissible | Josep Casadevall | 1. The first applicant, Mr John Sammut, is a Maltese national, who was born in 1948 and lives in Sliema (Malta). He is the director of the second applicant, Visa Investments Limited, a limited liability company located in Sliema. The applicants were represented before the Court by Mr I. Refalo and Mrs T. Cachia, both lawyers practising in Valletta (Malta). The respondent Government were represented by their Agent, Mr S. Camilleri, Attorney General. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The second applicant is the owner of a real estate in Sliema. In his capacity as company director the first applicant was given authority to obtain from the administration, the authorisations needed for carrying out building work. 4. On 6 December 1990 the Planning Area Permits Board (the “PAPB”) issued a permit in which it authorised the first applicant “to demolish the existing buildings and to re-erect ground floor and mezzanine shopping arcades with overlying flats and garages at basement level ... Height of building should not exceed eight floors plus underlying basement”. 5. According to the applicants this permit and the plans attached approved one basement car park, a ground floor and mezzanine shopping arcade, and seven levels of flats. According to the Government this permit and the plans attached approved “one basement car park, a ground floor and mezzanine shopping arcade, and six levels of flats”. The Government noted that in the approved plans the seventh level was deleted by shading it in yellow. The parties appear to have become aware of these diverging views only during the proceedings before this Court. 6. This permit was valid for two years, and the work as the first applicant believed it to have been authorised was carried out within that period. 7. On 28 July 1992 a new permit was issued, since an application had been made for a further permit connected to the same development but from a different side of the site (Fawwara Lane). In so far as relevant, the first applicant was authorised “to demolish the existing building and to re-erect three basement/garages for private cars, plus ground floor shopping arcades (double height) ... with overlying flats (six floors) including washrooms ...”. 8. The applicants and the Government agreed that the two permit applications in 1990 and 1992 were substantially identical, except for the development on Fawwara Lane, which was not at issue. Both applications were for a development of a ground floor of a height of two normal floors and seven upper floors of normal height, therefore a total height of nine normal floors. 9. In respect of the permit issued on 28 July 1992, the Government confirmed the wording quoted above and added that in one of the drawings constituting the plans, the seventh floor had been erroneously reinserted while the applicants submitted that the ambiguous deletion of part of the mezzanine floor had been eliminated, but that the sixth floor had been deleted. 10. The applicants alleged that they had developed the site according to the permits and according to the plans approved by the PAPB. The Government contested this on the basis of their exposition of the facts. 11. A few days later, on 14 August 1992, the PAPB issued of its own motion another permit in the name of the first applicant to remedy the situation created by the permit of 28 July 1992. In so far as relevant, this permit of 14 August 1992 authorised the first applicant to develop the site in question in a different manner in particular “to demolish existing building and to re-erect basement garages for private cars, plus three floors shopping arcade (including a ground floor of double height) ... with overlying flats (five floors) and washrooms”. It was also stated that the plans which had been issued with the permit of 28 July 1992 were being replaced. 12. According to the Government, the issue of the permit of 14 August 1992 was meant to correct an oversight which had occurred during the drafting of the permit of 28 July 1992. On that occasion the PAPB had deleted one of the floors, marked as a mezzanine floor, from the plans submitted by the applicants. However, because of a clerical error, this deletion was not reflected in the permit of 28 July 1992. The applicants submitted that it was not possible for them to know whether the authorisation to build a mezzanine floor was due, as the Government stated, to an “oversight”. They later stated that according to them the authorisation to construct apartments on the sixth floor and to build a mezzanine floor had been revoked. 13. The change in the building specifications was not notified to the applicants, who were not informed that the PAPB was reconsidering the permits already issued to them. However, the permit of 14 August 1992 was sent to the applicants’ architect, who on 18 August 1992 requested the Chairman of the PAPB to reconsider the permit in issue. 14. On 29 October 1993 the Malta Environment and Planning Authority (the “MEPA”) replied that the Development Control Commission (the “DCC”) had decided that the permit of 14 August 1992 should stand as issued. 15. The applicants submitted that it was unclear to them and to their architect that the request of 18 August 1992 was being considered by the DCC, which never invited them to present oral or written submissions. 16. On 28 January 1994, when over a year had passed since the DCC’s decision of 1993 holding that the permit of 18 August 1992 should stand as issued, the MEPA issued an enforcement notice (no. 62/94). It observed that the “seventh” floor and the washrooms on the top floor were not covered by a development permit. The applicants were ordered to demolish those parts of the development already completed which were not authorised by the permit of 14 August 1992. 17. In February 1994 the first applicant appealed against this notice before the Planning Appeals Board, which rejected his claim in a decision of 30 June 1995. The Board held that the only valid building permit was that issued on 14 August 1992 and that the plans submitted by the applicants and the permits previously granted on the basis of these plans were not in conformity with the law. 18. The first applicant referred his case to the Court of Appeal. He argued that the original permit had never been validly revoked. However, on 3 June 1996 this appeal was adjourned sine die at the first applicant’s request by reason of the fact that a constitutional claim, having a bearing on the proceedings before the Court of Appeal, had been filed before the Civil Court (First Hall). According to the information provided by the Government in October 2004, at that date the proceedings before the Court of Appeal had not been reactivated. 19. In the meantime, on 3 April 1996, the MEPA had issued against the applicants another enforcement notice (no. 556/96), in relation to an illegal development of the facade of the building, which the applicants did not appeal. 20. The applicants asserted that on the basis of the permits of 6 December 1990 and of 28 July 1992 they had undertaken several obligations vis-à-vis third parties, including leases and sales, and had provided funding for the planned construction work. Due to the partial revocation of these permits, the applicants were unable to honour their obligations, thus suffering a significant financial loss. 21. On 3 June 1996 the first applicant lodged a constitutional complaint with the Civil Court (First Hall). He alleged that the revocation of the permit of 28 July 1992 by means of the issuing of the new permit of 14 August 1992 had violated his right to peaceful enjoyment of possessions, guaranteed by Article 1 of Protocol No. 1. He also requested that the permit of 14 August 1992 be declared null and void. He further alleged that he had been denied a fair hearing since the PAPB had failed to notify him of the changes in the permit and he had had no opportunity to make any submissions before the DCC’s decision. 22. In a judgment of 12 December 1996 the Civil Court rejected the complaint on procedural grounds. It observed that the first applicant had brought his claim against the MEPA; however, this body was not a successor of the PAPB which had issued the permit of 14 August 1992. 23. The first applicant appealed to the Constitutional Court. 24. In a judgment of 30 April 1998 the Constitutional Court observed that the aim of constitutional proceedings was to afford the highest judicial protection against a violation of fundamental rights, with the least formality and the maximum efficiency. Citizens were not obliged to indicate with certainty those responsible for the violation. Therefore, nothing prevented the Civil Court from precisely identifying those who were responsible for the violation alleged and from authorising the first applicant to bring an action against them. The Constitutional Court therefore sent the file back to the Civil Court, ordering that the case be continued according to law. 25. In a judgment of 4 October 2000 the Civil Court refused to exercise its constitutional jurisdiction on the ground that the first applicant had used and was using ordinary remedies in order to protect his fundamental rights. The Civil Court observed that the first applicant had requested the MEPA to reconsider his case. There was still a possibility that this request would be accepted and an appeal was available to the first applicant in case of refusal. Moreover, the first applicant had appealed to the Planning Appeals Board and the Court of Appeal. 26. On 12 October 2000 the first applicant appealed to the Constitutional Court. 27. In a judgment of 27 February 2003 the Constitutional Court rejected the first applicant’s appeal and confirmed the Civil Court’s judgment. It observed that in the interests of the administration of justice, the constitutional courts should not be burdened with cases which might be dealt with by other courts or for which there were other remedies available under the domestic legislation. The first applicant’s claim was that by reason of the issuing of the permit of 14 August 1992 he was obliged to change what he had already developed or had planned to develop according to the previous permits. Therefore, a request for reconsideration of the case and the possibility of being granted a new permit were effective remedies available to the first applicant at the time of the introduction of his constitutional claim before the Civil Court. In respect of his complaint regarding a fair hearing, it held that his complaint was against the DCC and not the PAPB; thus, the remedy he was seeking before the Constitutional Court was different from that sought before the Court of Appeal, and therefore the applicant was still making use of ordinary remedies and the Court could not exercise its constitutional jurisdiction. 28. Meanwhile, on 1 April 1996, the first applicant had submitted a “full development application” to the MEPA, requesting the retention of the mezzanine floor and to be authorised to change the top floor from washrooms to penthouses. This request was refused on 14 August 1998. 29. In a letter of 21 August 1998 the first applicant asked for a reconsideration of his request. His claim was upheld and on 21 July 2001 a new building permit was issued. 30. Until 1 January 1993 building development permits were regulated by Part I of the Code of Police Laws. Section 16(1) of that Code provided: “The Minister responsible for public works may, prior to the preparation, publication or approval of a scheme, order by notice in the Government Gazette the whole or any part of Malta to be a planning area; and from the date of any such order no person shall lay out, construct or close any street, or erect any building or increase the height of or otherwise modify any existing building, or change the use of any land or building in any part of such area (whether or not an approved scheme exists in respect thereof) without a permit from the Minister responsible for public works who may, in his discretion, refuse the grant of a permit or, in granting it, impose such conditions as in his discretion he may deem proper.” 31. The Minister responsible for public works could delegate all or any of his powers to a body known as the Planning Area Permits Board (the “PAPB”). However, this body was abolished by the 1992 Development Planning Act (which entered into force on 1 January 1993), and a new autonomous public authority with the power to issue building permits, the Malta Environment and Planning Authority (the “MEPA”), was set up. According to the Constitutional Court (see judgment of 30 April 1998 in the case of John Sammut v. Planning Authority) the MEPA “enjoyed original powers even in relation to a development which occurred before the coming into force of Act I of 1992, and not continuing powers as a successor of the PAPB”. 32. Section 37 §§ (1) and (3) of the Development Planning Act provide: “(1) If an applicant considers that conditions imposed upon a development permission, or a refusal of such a permission, is unreasonable he may, without prejudice to his right of appeal, either request the Authority or the Commission, as the case may be, to reconsider its decision or he may lodge an appeal with the Appeals Board ... A request for reconsideration shall not be made currently with an appeal. A request for reconsideration and an appeal under this sub-section, as the case may be, shall be made within thirty days of receipt of the decision of the Authority or of the Commission, as the case may be. Where a request for reconsideration has been made, an appeal may be made to the Appeals Board within thirty days of receipt of the decision taken in the reconsideration. ... (3) During the reconsideration stage, the Authority or the Commission, as the case may be, may request the applicant to file fresh plans, in which case the Authority or the Commission, as the case may be, shall give reasons for such a request provided that the substance of the development shall not change and any person who has made written objections to the development in terms of Article 32(5) shall be informed that such fresh plans have been so filed and shall also be invited to be present at the Authority’s or the Commission’s sitting, as the case may be, when such application shall be discussed. Both the applicant and the objectors, if any, shall be informed of the date and time of the meeting and, if present, may address the Authority or the Commission, as the case may be, with regard to the planning matters concerning the said application.” 33. The relevant sections of the Maltese Civil Code read as follows: Section 1030 “Any person who makes use, within the proper limits, of a right competent to him, shall not be liable for any damage which may result therefrom. Section 1031 Every person, however, shall be liable for the damage which occurs through his fault. Section 1032 (1) A person shall be deemed to be in fault if, in his own acts, he does not use the prudence, diligence, and attention of a bonus paterfamilias. (2) No person shall, in the absence of an express provision of the law, be liable for any damage caused by want of prudence, diligence, or attention in a higher degree. Section 1033 Any person who, with or without intent to injure, voluntarily or through negligence, imprudence, or want of attention, is guilty of any act or omission constituting a breach of the duty imposed by law, shall be liable for any damage resulting therefrom.” | 0 |
train | 001-91464 | ENG | GEO | ADMISSIBILITY | 2,009 | KIKOLASHVILI v. GEORGIA | 4 | Inadmissible | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | The applicant, Ms Tamila Kikolashvili, is a Georgian national who was born in 1961 and lives in Tbilisi. She was represented before the Court by Mr M. Pataraia, a lawyer practising in Tbilisi. The Georgian Government (“the Government”) were represented by their Agent, Mr M. Kekenadze, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant worked as a sales manager in a State shop. Following its privatisation on 20 November 1998, she was obliged to take unpaid leave. By an order of 15 January 2001, the administration of the shop (“the employer”) dismissed the applicant in view of the suppression of her post. The applicant brought an action against the employer, requesting reinstatement in her post and recovery of the salary for the period of compulsory leave and unlawful dismissal. After a series of remittals of the case between various judicial instances, the Tbilisi Regional Court (“the Regional Court”) partly allowed her action on 31 May 2002. Acknowledging that the applicant had been dismissed without prior notice, in breach of Article 42(2) of the Labour Code, the court annulled the order of 15 January 2001 and awarded her the amount corresponding to the loss of salary. As to the reinstatement claim, it was dismissed due to the extinction of the post in question. The judgment of 31 May 2002 was not appealed and became binding. On 21 October 2002 the respondent discharged the judgment debt in full. On 3 January 2003 the applicant brought an action for non-pecuniary damage against the employer, claiming to have suffered distress and frustration on account of her unlawful dismissal. She demanded 500,000 Georgian laris (EUR 249,117) and, relying on her work record as a proof of unemployment, requested under Article 47 § 1 of the Code of Civil Procedure (“the CCP”) exemption from the State fee due for proceeding with that claim. In a decision of 6 January 2003, the Krtsanisi-Mtatsminda District Court in Tbilisi (“the District Court”) refused the exemption sought, and ordered the applicant to pay the required fee by a fixed date, on pain of leaving her claim without consideration. In reply, the applicant requested, on 4 February 2003, that the payment of the State fee be deferred until after examination of the case in accordance with Article 48 of the CCP. The District Court granted that request on 10 February 2003. On 25 March 2003, the District Court, in view of the respondent party’ On 10 June 2003 the applicant appealed to the Regional Court, complaining that the lower court had applied the wrong law to her dispute. She did not however refer to another legal provision arguably providing for the right to claim non-pecuniary damage in her situation. Considering that the appellate proceedings concerned legal issues rather than factual matters, the applicant paid a State fee of GEL 30 (EUR 14). In a decision of 26 June 2003, the Regional Court ordered the applicant to pay, in an allotted period, the outstanding part of the fee, GEL 4,970 (EUR 2,264), on pain of leaving her appeal without consideration. On 11 July 2003 the applicant, re-submitting her work record as evidence, reiterated that she had been unemployed for the past five years, did not have any other source of revenue and requested an exemption under Article 47 § 1 of the CCP. On 14 July 2003 the Regional Court decided to leave the applicant’s appeal without examination for non-compliance with its decision of 26 June 2003. The court considered that the exemption under Article 47 § 1 of the CCP could not be applied, since the applicant had failed to substantiate her allegedly difficult financial situation. On 25 August 2003 the applicant lodged with the Regional Court an interlocutory appeal against the decision of 14 July 2003. She complained that no other official document, except for her work record, could have been submitted in support of her indigence. On 29 September 2003 the Regional Court ordered the applicant to pay a State fee of GEL 5,000 (EUR 2,279) for the interlocutory proceedings. In reply, the applicant filed, on 24 October 2003, another request for exemption, attaching a certificate of unemployment issued by a municipal agency. In a decision of 31 October 2003, the Regional Court dismissed the applicant’s request of 24 October 2003, reasoning that the unemployment certificate was insufficient to prove financial difficulties. The court allotted the applicant additional time to pay the fee for the interlocutory proceedings. In a decision of 12 December 2003, the Regional Court rejected the applicant’s interlocutory appeal for non-compliance with its previous fee payment orders, and transmitted the case to the Supreme Court for a final decision. On 5 March 2004 the Supreme Court upheld the decision of 12 December 2003. It stated that, since the lower court had not deemed it necessary to exempt the applicant from the State fee, and the latter had failed to abide by the payment orders, the interlocutory appeal could not be entertained. The proceedings were thus discontinued. A reasoned copy of the Supreme Court’s decision of 5 March 2004 was communicated to the applicant on 1 April 2004. As disclosed by the case file, the State fee imposed by the judgment of 25 March 2003 has not been paid by the applicant to date. The provisions concerning the payment of court fees due for proceeding with civil claims, which include the State fee, were cited in paragraph 29 of the Court’s judgment in the case of FC Mretebi v. Georgia (no. 38736/04, 31 July 2007). 2. The Act of 29 April 1998 on State Fees, as it stood at the material time The Act regulated the modalities of payment of State fees in various situations, including that of court proceedings relating to a civil claim. Pursuant to section 6 § 3, the paid State fee should be returned to the payer in full or in part, in the event that the relevant court proceedings were discontinued or the claim left without consideration. Article 413 § 1 “Non-pecuniary damage, which amount should be reasonable and equitable, can be claimed exclusively in the situations explicitly envisaged by law.” The Civil Code did not provide for the right to claim non-pecuniary damage in employment disputes. The Labour Code was the sole legislation regulating the rights and responsibilities of private employers and employees. It contained a mechanism for settling employment disputes in court. Chapter XV of the Labour Code (Articles 194-216) specified the different types of pecuniary damage that, subject to certain conditions, a claimant could request in court, together with the claim for reinstatement to a post – i.e. the right to be compensated for a salary loss caused by unlawful dismissal or downgrading. However, neither that Chapter nor any other provision of the Labour Code provided, at least on arguable grounds, for a situation of a dismissed or otherwise dissatisfied person claiming non-pecuniary damage. | 0 |
train | 001-75214 | ENG | TUR | ADMISSIBILITY | 2,006 | DERIN AND OTHERS v. TURKEY | 4 | Inadmissible | null | The applicants, Yahya Derin, Aydın Gökhan, Kadri Ersancan, Şeyhmus Büyükşahin, Yahya Büyükşahin, Tahsin Bağır and Hayriye Bağır, are Turkish nationals. They currently live in Istanbul. They are represented before the Court by Mr M.A. Kırdök, Mr Özcan Kılıç and Mr Hasan Kemal Elban, lawyers practising in Istanbul. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants own property in the Şiro quarter, in the district of Lice, in Diyarbakır. The applicants had not used their property for ten years as the 2nd Interior Security Brigade Command had prohibited access to the area due to security reasons. It is to be noted that the applicants, excluding Mr Yahya Derin, did not submit any document to the Court attesting their ownership of property in Şiro. In November and December 2001 the applicants brought a declaratory action before the Lice Magistrates’ Court (sulh hukuk mahkemesi), requesting the court to determine their damage due to their inability to have access to their property. On 8 February 2002 the president of the Lice Magistrates’ Court, an expert and four of the applicants, Mr Yahya Derin, Mr Aydın Gökhan, Mr Kadri Ersancan and Mr Şeyhmus Büyükşahin went to Şiro in order to inspect the property of these applicants. They could not gain access to the property of the applicants as they were informed by gendarme officers that there might be land mines in the area. The Hani Forestry Management Director, who had been informed of the enquiry by the 2nd Interior Security Brigade Command, notified the judge, the expert and the applicants that the area in question appeared to be forestry land on the forestry management plans and the country map. He further stated that the area could not be the subject of private property. On an unspecified date the expert, Mr Hakan Ünal drafted an agricultural expert report, in which he estimated the annual incomes of the four applicants from the lands in questions. On 14 March 2002 the Hani Forestry Management Director submitted a report to the Lice Magistrates’ Court regarding the nature of the immovable property in Şiro. According to this report the ownership of the property in question was disputed. On 15 March 2003 the Lice Magistrates’ Court dismissed the request of assessment of damage by the other three applicants, Ms Hayriye Bağır, Mr Yahya Büyükşahin and Mr Tahsin Bağır, holding that these applicants would not benefit from a declaratory judgment since there was a dispute concerning the ownership of the property in question. The investigation carried out by the authorities indicated that the applicants had left their villages of their own will. The security forces had not forced the applicants to leave their village. The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages. On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages. In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation. The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained. A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI). | 0 |
train | 001-95345 | ENG | MKD | CHAMBER | 2,009 | CASE OF TRPESKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 4 | Violation of Article 6 - Right to a fair trial | Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 4. The applicant was born in 1944 and lives in Skopje. 5. He worked in a company for production of chemical products (“the employer”). 6. On 8 February 1993 a second-instance commission of the Pension and Social Insurance Fund (“the Fund”) declared the applicant completely and permanently incapacitated due to a work-related eye-disease. On 30 April 1993 the applicant's employment terminated ipso jure. On 4 June 1993 the Fund determined the amount of his disability pension. 7. In other proceedings that ended with the Supreme Court's decision of 6 July 1995, it was established that the applicant had contracted a work-related eye-disease. 8. On 4 April 1994 the applicant brought a civil action against his employer requesting the then Skopje Municipal Court to award him compensation for the pecuniary and non-pecuniary loss sustained as a result of his disease. 9. On four hearings listed between 22 April 1997 and 11 November 1998 the applicant specified his claim, submitted new evidence or requested additional expert examination. 10. On 6 April 1999 the Skopje Court of First Instance (“the first-instance court”) dismissed the applicant's claim finding that the damage to his eye was to be regarded as a disease and that the employer could not be held responsible for the applicant's disease. It based its decision on a range of evidence: the expert report of the Forensic Institute of 6 April 1995; its supplement of 25 December 1995; the oral evidence of the Institute's experts produced on a hearing of 19 February 1998; the statements of two co-workers and a physician working with the employer. On 5 April 2000 the Skopje Court of Appeal quashed this decision instructing the lower court to obtain an alternative expert opinion from a hospital since the Institute's experts were not eye-disease specialists. 11. On 8 February 2002 the first-instance court dismissed the applicant's claim again. The alternative expert examination confirmed that the damage to the applicant's eye could not be regarded as work-related. On 5 June 2002 the Skopje Court of Appeal dismissed the applicant's appeal. 12. On 28 October 2002 the applicant lodged with the Supreme Court an appeal on points of law (ревизија) which was dismissed by a decision of 22 October 2003. This decision was served on the applicant on 5 December 2003. | 1 |
train | 001-5293 | ENG | HRV | ADMISSIBILITY | 2,000 | NALETILIC v. CROATIA | 1 | Inadmissible | Georg Ress | The applicant is a Croatian citizen, born in 1946 and presently in the penitentiary of the International Criminal Tribunal for the Former Yugoslavia (ICTY) at The Hague, the Netherlands. He is represented before the Court by Mr Krešimir Krsink, a lawyer practising in Zagreb (Croatia). At the time when he lodged his application with the Court the applicant was in custody in Zagreb District Penitentiary, Hospital for Detained Persons, in the context of criminal proceedings pending against him before the Zagreb County Court (Županijski sud u Zagrebu) for kidnapping, murder and participation in a group that committed a crime. On 21 December 1998 the applicant was indicted by the ICTY on seventeen counts including crimes against humanity, grave breaches of the Geneva Conventions and violations of the laws and customs of war. On 1 September 1999 the Zagreb County Court ordered that the applicant be handed over to the ICTY. Both the Supreme and Constitutional Courts, upon the applicant’s appeal, upheld that decision. On 15 October 1999 the applicant lodged with the Court a Rule 39 request which was not granted by decision of the President of the Fourth Section of the same day. He is presently in custody in the penitentiary of the ICTY at The Hague, the Netherlands, in the context of criminal proceedings pending against him. | 0 |
train | 001-72298 | ENG | TUR | CHAMBER | 2,006 | CASE OF YATIR v. TURKEY | 4 | Violation of P1-1;Pecuniary damage - financial award;Costs and expenses award - Convention proceedings | null | 4. The applicant was born in 1958 and lives in Mersin. 5. The General Directorate of National Roads and Highways (Devlet Karayolları Genel Müdürlüğü), a State body responsible, inter alia, for motorway construction, expropriated four plots of land belonging to the applicant in İçel in order to build a motorway. A committee of experts assessed the value of the land and the sum so fixed was paid to her when the expropriation took place. 6. Following the applicant’s request for increased compensation, on 31 December 1993 the Mersin Civil Court of First Instance awarded her additional compensation of 238,172,000 Turkish liras (TRL) (approximately 14,341 euros (EUR)), plus interest at the statutory rate applicable at the date of the court’s decision, running from 22 June 1993. 7. On 15 December 1997 the Court of Cassation upheld the judgment of 31 December 1993. 8. On 21 April 1998 the administration paid the applicant TRL 651,598,000 (approximately EUR 2,391) in additional compensation, together with interest. 9. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, §§ 17-25). | 0 |
train | 001-100990 | ENG | POL | COMMITTEE | 2,010 | CASE OF POLANSKI v. POLAND | 4 | Violation of Art. 5-3 | Lech Garlicki;Nebojša Vučinić | 5. The applicant was born in 1973 and lives in Bierutów. 8. The applicant's appeal against the detention order, likewise his further appeals against decisions prolonging his detention and all his subsequent applications for release and appeals against refusals to release him, were unsuccessful. 9. It appears that between 8 August and 27 September 2006 the applicant served a sentence of fifty days' imprisonment ordered in another set of proceedings against him. 10. In the course of the investigation, the applicant's detention was prolonged by decisions of the Warsaw Court of Appeal (Sąd Apelacyjny) delivered on 2 March and 1 June 2007. In the latter decision the court stressed that an expertise on several documents, due at the end of May, had not yet been submitted 11. On 3 July 2007 the bill of indictment against the applicant and four other defendants was lodged with the Warsaw District Court. It appears that three defendants, including the applicant, were charged with offences committed in an organised criminal group. 12. Further decisions extending the applicant's pre-trial detention were taken by the Warsaw Regional Court (Sąd Okręgowy) on 8 October 2007 and by the Warsaw District Court on 9 January 2008. 13. In all their detention decisions the authorities repeatedly relied on a strong suspicion that the applicant had committed the offences in question, which was supported by evidence from witnesses. They attached importance to the fact that the offences had been committed in an organised criminal group. They further stressed that the applicant, if released, could easily abscond, having access to forged identity documents and being in contact with criminal groups abroad. In this respect the courts stressed that in the initial stage of the investigation the applicant had used a false identity and appeared under the name of Petro Polyansky, a Ukrainian national. Lastly, the courts found no special grounds, as specified in Article 259 § 1 of the Code of Criminal Procedure, that would justify lifting the detention. In a decision of 9 January 2008 the Warsaw District Court stressed that two wanted notices had been issued in the applicant's case. 14. On 15 February 2008 the trial court held the first hearing. It subsequently held, until 24 October 2008, some seventeen hearings in the case. 15. During the court proceedings the applicant's detention was further prolonged by the Warsaw Court of Appeal on 4 March 2008. The court repeated the grounds previously given for the applicant's continued detention. 16. On 3 July 2008 the Warsaw Court of Appeal lifted the applicant's detention. The court decided that the applicant could be released under police supervision and a prohibition on his leaving the country. 17. It seems that on 2 February 2009 the applicant was again arrested in the same set of criminal proceedings. On 4 February 2009 the Warsaw Regional Court remanded him in custody. It would appear that additional charges of organising illegal border crossing were laid against the applicant. 18. The applicant's detention was further extended by decisions of the Warsaw Regional Court delivered on 27 April and 27 July 2009. The applicant's interlocutory appeal against the former decision was dismissed by the Warsaw Regional Court. 19. On 7 September 2009 the Warsaw Court of Appeal decided to lift the applicant's detention. The court held that his detention after 2 February 2009 has lacked a legal basis and had therefore been in breach of procedural criminal law, as ordered and subsequently extended by courts that had not been competent to deal with the case. It stressed that having regard to the fact that the applicant had already been detained in the same set of proceedings for over two years, his re-arrest should have been ordered and extended by the Appellate Court. 20. The proceedings are still pending before the first-instance court. 21. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are set out in the Court's judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006. 22. Relevant statistical data, recent amendments to the Code of Criminal procedure designed to streamline criminal proceedings and references to the relevant Council of Europe materials including the 2007 Resolution of the Committee of Ministers can be found in the Court's judgment in the case of Kauczor (see Kauczor v. Poland, no. 45219/06, § 27-28 and 30-35, 3 February 2009). | 1 |
train | 001-77231 | ENG | DEU | ADMISSIBILITY | 2,006 | DOGMOCH v. GERMANY | 1 | Inadmissible | Peer Lorenzen | The applicant, Mr Mohammad Yassin Dogmoch, has German and Syrian nationality. He was born in 1941 and lives in Beirut in Lebanon. He was represented before the Court by Mr W. Bub, a lawyer of the law firm Bub, Gauweiler & Partner practising in Munich, Germany. The applicant is a businessman with professional activities in Germany and throughout the Arab world. Since 1995 the applicant entertained professional contacts with two businessmen from Mannheim, Germany, named S. and K. In the beginning of 2000 the Mannheim Public Prosecutor suspected the latter of having set up an extensive fraudulent scheme. According to the allegations brought out against them, between 1994 and 1999 S. and K. pretended to own industrial drilling machines, which they sold to a number of leasing companies although these drilling machines did not exist and the damage remained with the leasing companies. These incidents, which became known as the “Flowtex-scandal”, stirred a considerable amount of media attention and are regarded as a pre-eminent example of commercial delinquency in German history. On 16 February 2000 the criminal investigation judge (Ermittlungsrichter) at the Mannheim District Court (Amtsgericht), in the investigation proceedings against S., K. and two alleged co-offenders, and upon the Public Prosecutor’s request, ordered the applicant’s assets, amounting to 60,800,000.00 Deutschmarks (DEM), to be frozen pursuant to sections 111b subsections 2 and 5, 111d, 111e subsection 1 of the Code of Criminal Procedures in conjunction with section 73 subsection 1, second sentence, subsection 3, and section 73a of the Criminal Code (attachment in rem, dinglicher Arrest, see relevant domestic law below). That court found that, according to the preliminary investigations, a sum of DEM 60,800,000.00 deriving from the fraudulent sales had been transferred to the applicant’s enterprise and from there to his personal property. There was the risk that the applicant would try to transfer the assets abroad in order to prevent the execution of claims brought out later by aggrieved third parties. On 8 May 2000 the Mannheim District Court, in a decision naming the applicant as a person charged with an offence (Beschuldigter), modified and extended the attachment of the applicant’s assets to the amount of DEM 102,800,000.00. Relying on statements given by S. and K. during the preliminary investigations, the District Court found the suspicion to be confirmed that the applicant had knowingly received money derived from fraudulent transactions. Accordingly, there was the suspicion that the applicant had committed the offence of money-laundering. The money was subjected to the claims of aggrieved third parties according to the provisions of civil liability. On 16 June 2000 the Mannheim Regional Court (Landgericht), on the applicant’s complaint, upheld the attachment of DEM 60,800,000.00 and lifted the attachment of additional DEM 42,000,000.00. That court confirmed that there was strong evidence given by the statements of S. and K. that the applicant had participated in the fraudulent actions. The measure taken was proportionate, moreover, it could be expected that he would try to deprive the aggrieved leasing companies of the assets. On 19 September 2000 the Mannheim Regional Court upheld its previous decision. On 23 November 2000 the Mannheim Regional Court rejected the applicant’s request to be heard personally. According to that court, the applicant and his counsel had been well informed about all circumstances which raised suspicions against him. In her written submissions to that court, the applicant’s counsel had tried to cast doubts on the credibility of the main offenders S. and K. She had laid out in detail the applicant’s point of view regarding all circumstances of the cash flow and had tried to rebut the incriminating evidence. As the applicant’s point of view had been clearly and unambiguously submitted in writing, the chamber saw no need to hear him orally. With regard to the right to a fair hearing as guaranteed by Article 103 subsection 1 of the Basic Law, the Regional Court found as follows: “The attachment of assets pursuant to section 111d, 111b subsection 5 in conjunction with sections 73 f. of the Criminal Code in order to safeguard third persons’ claims is ordered by court decision. According to section 33 subsection 4 sentence 1 of the Code of Criminal Procedure, the order to seize property in order to safeguard the claims of aggrieved parties is issued without hearing the person charged of the offence, as a prior hearing could enable him to transfer the property and thus to thwart the aim of the safeguarding measure. This practice has been approved of by the Federal Constitutional Court.... During the ensuing complaint proceedings...the right to a fair hearing was fully taken account of. Pursuant to section 309 subsection 1 of the Code of Criminal Procedure, the decision on the complaint is taken without an oral hearing. Accordingly, the decision is taken in written proceedings. ...It follows that the fair hearing has to be granted in written proceedings. For special reasons the court of complaint can decide to hear oral statements. According to the chamber, these regulations do neither in general nor in this specific case run contrary to Article 103. With the aid of his counsel Dr. W., the defendant has made full use of the opportunity to submit his statements, which were fully taken into account, in the written proceedings. There were no obstacles which prevented him from using this form of communication to fully and objectively depict the incidents. Neither the alleged actions to the detriment of the leasing companies nor the alleged participation of the defendant were of such a nature that a personal and oral statement given by the defendant would have been more suited to provide a correct assessment of his actions than a written statement and would thus have been preferable for the chamber. The defendant’s acts of participation did not have an ambiguous content; they did not concern exceptional or borderline circumstances which would have necessitated the defendant’s personal presence and hearing in order to assess them. Contrary to the defendant’s counsel’s opinion, it was not only necessary to weigh the statements given by the two main suspects K. and S. against the defendant’s own statements. On the contrary, it was necessary to weigh a number of other circumstances, which, taken on their own, justified the attachment order.... Accordingly, they were no “special reasons” justifying to hear the defendant personally.” On 31 July 2001 the Mannheim District Court upheld the attachment of an amount of DEM 39,000,000.00 and lifted the attachment of DEM 21,800,000.000. On the basis of the results of the preliminary investigations, the District Court confirmed the existence of a strong suspicion that the applicant had aided the transfer and concealment of assets. It further confirmed that an oral hearing was neither legally prescribed nor necessary in order to safeguard the applicant’s right to a fair hearing. On 30 January 2003 the Federal Constitutional Court, sitting as a panel of three judges, refused to accept the applicant’s complaint against the decision of the Mannheim Regional Court of 23 November 2000 and – indirectly – against section 111b of the Code of Criminal Procedure for adjudication for lack of prospect of success. With respect to the right to a fair hearing, the Federal Constitutional Court found as follows: “The constitutionally guaranteed right to a fair hearing includes the right to information, the right to lodge requests and to submit statements, and the right that the courts take into account the submitted statements. According to the consistent case-law of the Federal Constitutional Court, Article 103 section 1 of the Basic Law does not grant the right to be heard in a specific form, in particular, in an oral hearing. Accordingly, it is up to the legislator to decide to which extent he wishes to grant the right to an oral hearing in specific proceedings. According to section 309 subsection 1 of the Code of Criminal Procedure the decision on the complaint is taken without an oral hearing, that is to say in written proceedings. The complaint court is not prevented from orally hearing witnesses or experts in the course of their investigations pursuant to section 308 subsection 2 or to hear oral statements given by the parties to the proceedings. However, it has the discretion to decide whether it deems such measures necessary. There is no indication that it did not make correct use of this discretion, the more so, as the applicant has failed to establish what he would have stated differently in case of an oral hearing.” This decision was served on the applicant’s counsel on 17 February 2003. On 17 March 2003 the Mannheim Public Prosecutor issued an indictment against the applicant. The criminal proceedings against the applicant have been suspended on 14 June 2006 in view of the applicant’s inability to plead. The order that the applicant’s assets amounting to DEM 39,000,000.00 be frozen remains in force. Article 103 subsection 1 of the Basic Law provides that in the courts, everyone is entitled to be heard in accordance with the law (Anspruch auf rechtliches Gehör). According to section 111b, subsection 2 of the Code of Criminal Procedure, the attachment of assets may be ordered if there are reasons for assuming that the conditions of forfeiture or for confiscation have been fulfilled. According to subsection 5, this also applies if forfeiture may not be ordered because the assets are subject to claims brought out by the aggrieved party. Section 73 subsection 1, sentence 1 of the Criminal Code provides that the court shall order the forfeiture of any object which has been acquired by a perpetrator or accessory as a result of an unlawful act. According to sentence 2, this shall not apply to the extent that the assets are subject to claims brought out by the aggrieved party. If the forfeiture of a particular object is impossible due to the nature of what was acquired or for some other reasons, the court shall order the forfeiture of the sum of money which corresponds to the value of that which was acquired (section 73a of the Criminal Code). Section 33 subsections 3 and 4 of the Code of Criminal Procedure provide that the concerned person is not heard prior to the issue of an order of seizure or other measure, if this would endanger the purpose of such order. According to section 309 subsection 1, the decision on the complaint shall be taken without an oral hearing. According to section 308 subsection 2, the court of complaint may order investigations or conduct them itself. | 0 |
train | 001-58536 | ENG | GRC | CHAMBER | 2,000 | CASE OF ACADEMY TRADING LTD AND OTHERS v. GREECE | 3 | No violation of Art. 6-1 with regard to impartiality;Violation of Art. 6-1 with regard to the length of the proceedings;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings | Elisabeth Palm | 5. In 1977 Citibank, a major provider of loan capital to the Greek shipping community, granted a $ 14.8 million loan to a group of companies under the ownership of G.T., a Greek-American shipowner. The applicants, also under the ownership of G.T., were among the guarantors of the loan. 6. On 21 January 1982 the applicants brought an action for damages against Citibank and three Greek members of its senior management before the Athens First Instance Civil Court (Πoλυμελές Πρωτoδικείo). The applicants argued that because of a shipping crisis they had been unable to meet repayment instalments on the loan and that in 1979 they had been obliged to sell two ships at below their insured and actual value to another client of the bank, who had been given generous financing terms in order to take over the vessels. Eventually other vessels in the fleet were put under the same management prior to their being sold to the management company. The applicants alleged therefore that Citibank had acted contrary to business morality under the Greek Civil Code. 7. On 1 November 1982, by decision no. 14803/1982, the First Instance Civil Court ordered the parties to submit further evidence. 8. On 20 November 1987, by decision no. 8027/1987, the First Instance Civil Court dismissed the applicants' action as being ill-founded. 9. On 29 January 1988 the applicants lodged an appeal with the Athens Court of Appeal (Εφετείo). 10. On 31 January 1989 the Court of Appeal declared the appeal admissible without prejudging the merits and ordered a new hearing in order to submit further questions to the parties. The new hearing was held on 15 February 1990. 11. By decision no. 5025/1990, the Court of Appeal unanimously overturned the decision of the First Instance Civil Court and granted the applicants' claim. In particular, the Court established that Citibank, at a time of shipping crisis, had rejected a request by G.T. for an extension of time to pay off his debt and for a small amount of capital which would have enabled him to tackle urgent cash problems, despite the fact that he had already repaid 63.25% of the loan granted to him and that he had never been late in making payments. As a result, G.T.'s business went bankrupt and the bank took over the management of his ships. The vessels were subsequently sold and the bank provided the new owner with the credit facilities it had previously refused to G.T. 12. Therefore, the Court considered that it was “against morality for a bank to exploit its dominant position vis-à-vis its counterpart during a period of financial crisis by cruelly prosecuting it instead of extending financial facilities which are customary in banking transactions during such periods”. The Court awarded the applicants $ 7.75 million plus interest at 25 % per year back-dated from 20 February 1982. 13. The above judgment created a stir in the local shipping community. Several publications appeared in the local and international shipping press, stressing the impact that the judgment would have on future ship credits. A number of cases started to be prepared against banks. Citibank, which had already appealed in cassation (αvαίρεση) on 21 May 1990, threatened to withdraw from the Greek market altogether if the Court of Cassation (Αρειoς Πάγoς) upheld the judgment of the Court of Appeal. 14. On 29 May 1991, by decision no. 925/1991, the First Chamber of the Court of Cassation overturned the judgment of the Court of Appeal on the ground that the bank had not acted contrary to business morality and that the impugned judgment did not give sufficient reasons. The case was then referred to the Fourth Chamber for further examination. 15. Following deliberations on 14 February 1992, the Fourth Chamber, by decision no. 1154/1992, ordered the parties to appear in person before it and to give further explanations about the case. The hearing was held on 11 December 1992. With the exception of one judge who had also participated in the deliberations of 14 February 1992 and was the rapporteur in the case, the Fourth Chamber sat in a different composition. 16. On 30 June 1993, i.e. six months after the hearing of 11 December 1992, one of the judges participating in that hearing retired. Under Greek law this meant that if the Chamber had not reached a decision by that date it could no longer deliberate but should hear the case again in a different composition. However, no actions were taken at that stage, which led the applicants to believe that the decision had already been taken before the retirement of the judge and that they had to await the delivery of the judgment. 17. 198 cases were heard after the hearing on the applicants' case and before the retirement of the judge on 30 June 1993. In 74 of these cases the judgments were delivered before 30 June 1993. In the course of the judicial vacations (i.e. from 1 July to 15 September 1993), the President of the Fourth Chamber delivered 95 more judgments. The judgments in the remaining 29 cases were delivered in the course of autumn 1993. 18. On 7 November 1993 the applicants inserted an open letter in a Greek newspaper. In their publication, entitled “Open letter to the Fourth Chamber of the Court of Cassation”, the applicants questioned the reasons for the delay taken by the Chamber in delivering its judgment. Having received no answer, the applicants sent a similar letter on 12 December 1993 to the Minister of Justice and the President and Public Prosecutor of the Court of Cassation. They again received no answer. 19. On 26 January 1994, the President of the Third Chamber (who had until summer 1993 been President of the Fourth Chamber) returned the file of the case to the Secretariat of the Fourth Chamber, accompanied by a hand-written note which read as follows: “To be further discussed, in accordance with Article 307 of the Code of Civil Procedure (since it was ascertained, after the last report, that there is a need for further deliberation, which is not feasible due to the retirement of one of the members of the Court).” 20. On 20 May 1994 the new hearing was held. The Fourth Chamber was composed of five judges. The first had participated in the deliberations of 14 February 1992 and the second in both previous compositions as rapporteur. The other three members heard the case for the first time. One of them, a junior judge, was designated as the new rapporteur. 21. On 30 June 1995, by decision No. 1198/1995, the Court of Cassation dismissed the appeal, lodged by the applicants against decision no. 8027/1987 of the Athens First Instance Civil Court, on the ground that it was ill-founded. In his dissenting opinion, the judge who was initially the rapporteur in the case expressed the view that Citibank had not acted in good faith and that the applicants' appeal should therefore be upheld. 22. Under Article 300 of the Code of Civil Procedure a decision is taken by the same judges who participated in the hearing of the case. 23. Under Article 307 of the Code of Civil Procedure if, after the hearing of a case, a decision cannot be taken for any reason (namely the death, resignation or removal from office of a judge who has participated in the hearing) the case must be reheard. | 1 |
train | 001-80805 | ENG | DEU | ADMISSIBILITY | 2,007 | SCHENK v. GERMANY | 4 | Inadmissible | Peer Lorenzen | The applicant, Mr Jürgen Schenk, is a German national, who was born in 1954 and lives in Tübingen. The respondent Government are represented by Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was the chairman of several limited liability companies registered under German law. In November 1990 the Tübingen Public Prosecutor’s Office commenced, without the applicant’s knowledge at that time, a preliminary investigation against him on suspicion of fraud and breach of trust (Untreue) in connection with the establishment of a closed property fund (geschlossener Immobilienfonds). On 14 May 1991 the Tübingen Public Prosecutor’s Office requested the Tübingen District Court to authorise the search of the companies’ premises and the seizure of all relevant documents. On 22 May 1991 the court issued an according order. On 10 June 1991 the police searched the premises of the above-mentioned companies and seized computers and numerous documents. On 3 September, 3 December 1991 and 8 January 1992 the applicant’s defence counsel asked the Public Prosecutor’s Office for a progress report. On 5 August 1991 the Reutlingen District Court also authorised the search of the local branch of a bank. On 27 September 1991 the police department issued an intermediary report on the search of the branch of the bank and the questioning of numerous witnesses. On 15 January 1992 the police rendered its final report on its investigation. Subsequently the investigating prosecutor changed. On 20 January 1992 the applicant’s defence counsel consulted the Public Prosecutor’s Office’s file. On 4 June 1992 the applicant’s defence counsel submitted his first observations. Until 30 November 1992 the representatives of several affected investors of the closed property fund consulted the Public Prosecutor’s file. On 8 February 1993 the applicant’s defence counsel submitted his further observations. On 13 April 1993 the defence counsel met with the investigating prosecutor and announced that he would submit further observations until 30 April 1993. Until 26 May 1993 representatives of further affected investors consulted the file. On 17 August 1993 the applicant’s defence counsel asked for a progress report. On 25 August 1993 a further charge was brought against the applicant. On 13 September 1993 the defence counsel again asked for a progress report. The investigating prosecutor then changed. The new investigating prosecutor informed the applicant’s defence counsel that he would have to familiarise himself with the files first. On 30 November 1993 further charges were brought against the applicant. On 13 December 1993 the applicant inquired as to which information was needed by the Public Prosecutor’s Office. On 7 January 1994 the Public Prosecutor’s Office requested information as to the flow of certain funds from another bank. On 24 January 1994 the Public Prosecutor’s Office requested the police department to examine the information provided by the bank. On 11 January 1994 the applicant’s defence counsel announced further observations, which were submitted on 3 February 1994. On 2 February 1994 the applicant’s defence counsel asked for another progress report. On 4 February 1994 the Public Prosecutor’s Office requested the police department to assess the applicant’s submissions. On 10 May 1994 the police department issued its final report on its further investigation. On 30 August 1994 the applicant’s defence counsel asked for a progress report. On 13 September 1994 the applicant’s defence counsel submitted further observations. On 2 November 1994 the applicant’s defence counsel again asked for a progress report. On 9 December 1994 the Public Prosecutor’s Office sent a request for mutual assistance (Rechtshilfeersuchen) to the Vaduz Regional Court in Liechtenstein asking for the questioning of an employee of a company that was suspected to be involved in the case. Subsequently the investigating prosecutor changed. On 1 March 1995 the Government of Liechtenstein replied to the request stating that the afore-mentioned company had objected to the questioning. It invited the Tübingen Public Prosecutor’s Office to comment on this issue. On 31 March 1995 the Public Prosecutor’s Office submitted its observations. On 14 June 1995 the applicant’s legal counsel addressed letters to the Public Prosecutor’s Office asking for a progress report and requesting the discontinuation of the proceedings for lack of evidence. On 3 July and 18 December 1995 the Government of Liechtenstein reminded the Vaduz Regional Court of the request of mutual assistance. On 5 January 1996 the Government of Liechtenstein informed the Tübingen Public Prosecutor’s Office that the Vaduz Regional Court would now examine the request for mutual assistance, but that it was impossible to foresee when the proceedings would be terminated. Subsequently the investigating prosecutor changed. On 14 May 1996 the Tübingen Public Prosecutor’s Office issued the bill of indictment. The applicant was accused of 43 counts of fraud, seven counts of fraudulent breach of trust and one count of incitement to fraudulent breach of trust. The applicant was suspected of having caused financial damage amounting to about 2.6 million Deutschmarks (DEM). On 29 November 1996 the Reutlingen District Court convicted the applicant of nine counts of fraudulent breach of trust and sentenced him to eight months’ imprisonment. In respect of the remaining charges the proceedings were discontinued, because the prosecution had become time-barred (Verfolgungsverjährung). On 6 December 1996 the applicant appealed against that decision. He did not contest the length of proceedings in his appeal. On 12 December 1996 the applicant’s defence counsel requested reinstatement of the proceedings insofar as he had failed to observe the time-limit for lodging the appeal. On 22 January 1997 the Reutlingen District Court rejected the appeal as inadmissible. On 27 January 1997 the defence counsel requested the Court of Appeal to render a decision on the applicant’s appeal and again requested reinstatement of the proceedings. On 4 February 1997 the defence counsel lodged a complaint against the decision of the District Court of 22 January 1997. On 28 February 1998 the Tübingen Regional Court quashed the decision of the Reutlingen District Court of 22 January 1998 and granted the applicant reinstatement of the proceedings. On 24 April 1998 the Public Prosecutor’s Office inquired as to when the hearing would take place. On 17 June 1998 the Reutlingen District Court convicted the applicant in a different set of proceedings (reference no. 12 Js 6696/95) of fraudulent preference of creditors (Gläubigerbegünstigung) and sentenced him to a prison sentence of five months. On 27 August 1998 the Tübingen Regional Court scheduled the hearing for 22 and 23 October 1998. On 22 October 1998 the applicant challenged the sitting judge for bias and the hearing was suspended. On 18 December 1998 the Regional Court rejected the applicant’s motion for bias as ill-founded. On 20 January 1999 the applicant’s defence counsel lodged a complaint against that decision. On 28 January 1999 the Stuttgart Court of Appeal rejected the applicant’s complaint as inadmissible. On 6 October 1999 the presiding judge at the Regional Court suggested vis-à-vis the Public Prosecutor’s Office examining whether the proceedings might be discontinued in accordance with sections 154 § 2 or 153 a § 2 of the Criminal Procedure Code. On 27 October 1999 the Public Prosecutor’s Office refused to consent to the discontinuation in view of the sentence imposed by the court of first instance. On 8 December 2000 the Public Prosecutor’s Office asked the Regional Court for a progress report. On 13 December 2000 the applicant’s defence counsel submitted further observations to the Public Prosecutor’s Office concluding by suggesting that the proceedings should be discontinued in view of the length of proceedings. On 14 February 2001 the Regional Court scheduled the next hearing for 5 April 2001. During the hearing on 5 April 2001 the Public Prosecutor’s Office announced that it would submit a new offer of proof (Beweisantrag). The hearing was then suspended. On 6 April 2001 the Public Prosecutor’s Office requested an expert opinion on the question whether the applicant’s actions had actually caused any damage and furthermore requested the summons of the affected investors as witnesses. On 22 May 2001 the applicant’s defence counsel announced that he would submit observations on the Public Prosecutor’s Office’s motions. On 11 July 2001 the presiding judge inquired as to when the defence counsel would render his observations. On 4 September 2001 he repeated his request. On 21 September 2001 the Regional court received the observations. On 30 April 2002 the presiding judge asked the Public Prosecutor’s Office again to consent to the discontinuation of the proceedings. On 3 September 2002 the Public Prosecutor’s Office again refused to consent to it. On 7 December 2002 the applicant lodged a hierarchical complaint (Dienstaufsichtsbeschwerde) with the Chief Public Prosecutor (Genral-staatsanwalt) complaining inter alia about the length of the preliminary investigations. On 30 December 2002 the sitting judge in the parallel proceedings (reference no. 4 DsF 19 Js 18822/96 see below under 2) proposed a deal with the view of terminating all pending proceedings, but the negotiations broke down. On 1 April 2003 the Chief Public Prosecutor rejected the applicant’s complaint stating that the preliminary investigations had already been terminated on 14 May 1996 with issuing the bill of indictment. The Chief Public Prosecutor found that in any event there was no indication that the preliminary investigations had been avoidably delayed. On 12 December 2003 the Regional Court scheduled the next hearing for 15 January 2004. On 8 January 2004 the applicant’s defence counsel informed the court that the applicant had had a heart attack. He suggested that the proceedings be discontinued according to section 154 of the Criminal Procedure Code and requested the cancellation of the hearing. On 12 January 2004 the Regional Court cancelled the hearing. On 13 February 2004 the Public Prosecutor’s Office again refused to consent to the discontinuation of the proceedings. On 8 October 2004 the Public Prosecutor’s Office telephoned the presiding judge and announced that the Public Prosecutor’s Office would file a motion for discontinuation of the proceedings according to section 154 § 2 of the Criminal Procedure Code in view of the length of the proceedings. On 11 October 2004 the Public Prosecutor’s Office filed a motion for the discontinuation of the proceedings in view of the applicant’s conviction of 17 June 1998 in the parallel set of proceedings. Following the applicant’s consent the Tübingen Regional Court closed the proceedings preliminarily according to section 154 § 2 of the Criminal Procedure Code on 18 October 2004. The court held that the expected possible sentence would not carry weight compared to the applicant’s afore-mentioned conviction of 17 June 1998 in a parallel set of proceedings. On 16 August 1995 the Tübingen Public Prosecutor’s Office opened a preliminary investigation against the applicant on suspicion of inter alia tax evasion in respect of a tax amount of more than 1 million DEM. On 27 September 1995 the applicant’s home was searched by agents of the Reutlingen Tax Office and documents were seized. On 27 October 1995 the Tübingen District Court confirmed the legality of the seizure. Upon the applicant’s complaint the Tübingen Regional Court ordered that two of the seized items had to be returned to the applicant. Between 11 December 1995 and 9 September 1996 the tax fraud office (Steuerfahndung) heard numerous witnesses. On 12 December 1995 the applicant’s defence counsel filed a remonstrance (Gegenvorstellung) with the Regional Court. Between 9 February 1996 and 17 June 1996 the applicant and the tax fraud office were involved in a dispute as to whether certain seized items had already been returned to him. On 19 August 1998 the tax fraud office addressed a request for mutual assistance to the Innsbruck Finance Office. On 23 September 1996 the preliminary investigation was extended to several other tax offences. On 30 September the tax fraud office submitted its files to the Public Prosecutor’s Office. On 11 August 1997 the Public Prosecutor’s Office addressed a request for mutual assistance to the Austrian authorities requesting the search of a branch of a bank. Between 26 June 1998 and 4 February 1999 several witness were questioned by the Public Prosecutor’s Office. On 3 September 1998 several banks were asked to provide information as to the flow of certain funds. On 26 October 1998 the Austrian authorities supplied the requested information. On 3 November 1999 the files were submitted to the Public Prosecutor’s Office. On 9 November 1999 the applicant’s defence counsel consulted the Public Prosecutor’s Office’s file. On 14 June 2000 the Tübingen Public Prosecutor’s Office issued the bill of indictment accusing the applicant of tax evasion. On 5 July 2000 the applicant’s defence counsel withdrew from the case. On 3 August 2000 the applicant himself announced that he would name additional witnesses and would submit further offers of proof. On 8 August 2000 the Tübingen District Court set a time-limit for the applicant’s submissions until 10 September 2000. On the same day the applicant’s new defence counsel informed the District Court that he would represent the applicant and requested an extension of the time-limit to 31 October 2000. On 11 December 2000 the District Court scheduled a hearing for 23 January 2001. On 23 January 2001 the court scheduled the next hearings for 1 and 8 February 2001. On 8 February 2001 the Public Prosecutor’s Office requested to postpone the hearing. On 27 August 2001 and 23 January 2002 the Public Prosecutor’s Office asked the court for a progress report. On 30 December 2002 the sitting judge proposed a deal to the Public Prosecutor’s Office with the view of terminating all pending proceedings, but the negotiations broke down (see above). On 26 March 2004 the next hearing was scheduled for 20 April 2004. On 15 April 2004 the applicant’s defence counsel informed the court that the applicant had had a heart attack and requested to cancel the hearing. Upon the suggestion by the District Court the Public Prosecutor’s Office consented to the discontinuation of the proceedings. Following the applicant’s consent the District Court then closed the proceedings preliminarily according to section 154 § 2 of the German Criminal Procedure Code (see “Relevant domestic law” below) on 7 May 2004. It referred to the aforementioned previous conviction by the Reutlingen District Court of 17 June 1998. Article 2 § 1 of the German Basic Law (Grundgesetz) in conjunction with the principle of the rule of law (Rechtsstaatsprinzip) guarantees the right to expeditious proceedings. According to the settled case-law of the Federal Constitutional Court the courts and the prosecuting authorities (Anklagebehörden) are called upon to draw the consequences of the length of proceedings at any stage of the proceedings. Their possibilities include inter alia the discontinuation of the proceedings pursuant to sections 153 and 153a of the Criminal Procedure Code, the limitation of the proceedings according to sections 154 and 154a of the Criminal Procedure Code or a reduction of the sentence (see, among others, the decision of 24 December 1983 (no. 2 BvR 121/83); the decision of 19 April 1993 (no. 2 BvR 1487/90); the decision of 21 January 2004, no. 2 BvR 1471/03, Reports of Chamber Decisions (BVerfGK) no. 2, pp. 239 et seq.; the decision of 21 June 2006, nos. 2 BvR 750/06, 752/06 and 761/06). In cases of an exceptional length of proceedings creating particular hardship in respect of which the possibilities under the German Criminal Procedure Code do not suffice, the courts may discontinue the proceedings on account of a procedural bar to the proceedings (Verfahrenshindernis) derived from the German Basic Law (see the decision of 25 July 2003, no. 2 BvR 153/03, Reports of Chamber Decisions (BVerfGK) no. 1, pp. 269 et seq. “(1) If a misdemeanour (Vergehen) is the subject of the proceedings, the Public Prosecutor’s Office may dispense with the prosecution upon the consent by the criminal court competent for the opening of the main proceedings, if the perpetrator’s guilt is considered to be minor and if there is no public interest in the prosecution. ... (2) Has the bill of indictment already been issued, the court may discontinue the proceedings at any stage upon the consent of the Public Prosecutor’s Office and the accused. ...” “Upon the consent by the criminal court competent for the opening of the main proceedings and the accused, the Public Prosecutor may dispense with issuing a bill of indictment and impose conditions and instructions upon the accused, if those are adequate for resolving the public interest of prosecution and are not in conflict with the severity of the guilt. ...” “(1) The Public Prosecutor’s Office may dispense with the prosecution, 1. if the sentence or the measure of reform and prevention (Maβregel der Sicherung und Besserung) to which the prosecution might lead would not carry weight compared to another sentence or measure of reform and prevention already imposed or expected to be imposed, 2. if a judgment cannot be expected in reasonable time and if another sentence or the measure of reform and prevention already imposed or expected seems sufficient to impress the accused and protect the legal order. (2) Has the bill of indictment already been issued, the court may discontinue the proceedings preliminarily at any stage upon a motion by the Public Prosecutor’s Office. ...” “(1) If certain parts of one act (Tat) or several of multiple infractions committed though the same act, do not carry weight 1. compared to the expected sentence or measure of reform and prevention, or 2. next to a sentence or measure of reform and prevention already imposed upon the accused or to be expected for another act, The prosecution may be limited to the remaining parts of the act or infractions. Section 154 § 1 no. 2 applies accordingly. ... (2) Has the bill of indictment already been issued, the court may at any stage and upon the consent by the Public Prosecutor’s Office undertake the limitation. ...” | 0 |
train | 001-97268 | ENG | DEU | ADMISSIBILITY | 2,010 | BOCK v. GERMANY | 2 | Inadmissible | Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Mr Stephan Bock, is a German national who was born in 1951 and lives in Frankfurt (Oder). The respondent Government were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 15 July 2002 the applicant, a civil servant with a monthly salary of more than 4,500 euros (EUR) at the time in question, made a request for aid (Beihilfe) to the Brandenburg Land, his employer. He asked to be reimbursed part of the cost, namely 7.99 EUR, he had paid for magnesium tablets prescribed by his physician. On 14 August 2002 the Land refused this request. On 20 August 2002 the applicant instituted preliminary administrative proceedings (Widerspruchsverfahren) by lodging an objection to the decision of 14 August 2002. On 4 November 2002 the Land dismissed the applicant’s objection. On 13 November 2002 the applicant brought an action against the Brandenburg Land with the Frankfurt (Oder) Administrative Court claiming that the magnesium tablets in question were eligible for aid, and requested a renewed decision by the Land. By letter dated 2 April 2004 the Administrative Court informed the applicant at his request that all cases were dealt with in chronological order, that there was a backlog of cases and that for the time being he could not expect a date for an oral hearing to be set. On 6 January 2005 the Administrative Court replied to another information request by the applicant that a decision was expected to be reached that year. On 4 January 2006 the applicant lodged an extraordinary complaint, that the Frankfurt (Oder) Administrative Court was taking no action, with the Berlin-Brandenburg Administrative Court of Appeal. By a letter dated 9 January 2006 the Administrative Court of Appeal informed the applicant that his extraordinary complaint was not admissible since the Code of Administrative Procedure did not provide for such a remedy and, furthermore, he was not, as prescribed by the relevant law, represented by counsel. On 22 January 2006 the applicant withdrew the complaint of inactivity he had lodged with the Administrative Court of Appeal. With decision dated 25 January 2006 the Administrative Court of Appeal discontinued the complaint proceedings. On 1 February 2006 the applicant lodged a constitutional complaint with the Federal Constitutional Court that the Administrative Court was taking no action. On 24 April 2007 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint for examination (file no. 2 BvR 267/06). On 26 November 2007 the Frankfurt (Oder) Administrative Court referred the case to a single judge for a decision. By a judgment of 19 December 2007 the Frankfurt (Oder) Administrative Court dismissed the applicant’s action. The judgment was served on the applicant on 29 December 2007 and has since become final. | 0 |
train | 001-57827 | ENG | GRC | CHAMBER | 1,993 | CASE OF KOKKINAKIS v. GREECE | 2 | Violation of Art. 9;No violation of Art. 7;Not necessary to examine Art. 10;Not necessary to examine Art. 14+9;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | N. Valticos | 6. Mr Minos Kokkinakis, a retired businessman of Greek nationality, was born into an Orthodox family at Sitia (Crete) in 1919. After becoming a Jehovah’s Witness in 1936, he was arrested more than sixty times for proselytism. He was also interned and imprisoned on several occasions. The periods of internment, which were ordered by the administrative authorities on the grounds of his activities in religious matters, were spent on various islands in the Aegean (thirteen months in Amorgos in 1938, six in Milos in 1940 and twelve in Makronisos in 1949). The periods of imprisonment, to which he was sentenced by the courts, were for acts of proselytism (three sentences of two and a half months in 1939 - he was the first Jehovah’s Witness to be convicted under the Laws of the Metaxas Government (see paragraph 16 below) -, four and a half months in 1949 and two months in 1962), conscientious objection (eighteen and a half months in 1941) and holding a religious meeting in a private house (six months in 1952). Between 1960 and 1970 the applicant was arrested four times and prosecuted but not convicted. 7. On 2 March 1986 he and his wife called at the home of Mrs Kyriakaki in Sitia and engaged in a discussion with her. Mrs Kyriakaki’s husband, who was the cantor at a local Orthodox church, informed the police, who arrested Mr and Mrs Kokkinakis and took them to the local police station, where they spent the night of 2-3 March 1986. 8. The applicant and his wife were prosecuted under section 4 of Law no. 1363/1938 making proselytism an offence (see paragraph 16 below) and were committed for trial at the Lasithi Criminal Court (trimeles plimmeliodikio), which heard the case on 20 March 1986. 9. After dismissing an objection that section 4 of that Law was unconstitutional, the Criminal Court heard evidence from Mr and Mrs Kyriakaki, a defence witness and the two defendants and gave judgment on the same day: "[The defendants], who belong to the Jehovah’s Witnesses sect, attempted to proselytise and, directly or indirectly, to intrude on the religious beliefs of Orthodox Christians, with the intention of undermining those beliefs, by taking advantage of their inexperience, their low intellect and their naïvety. In particular, they went to the home of [Mrs Kyriakaki] ... and told her that they brought good news; by insisting in a pressing manner, they gained admittance to the house and began to read from a book on the Scriptures which they interpreted with reference to a king of heaven, to events which had not yet occurred but would occur, etc., encouraging her by means of their judicious, skilful explanations ... to change her Orthodox Christian beliefs." The court found Mr and Mrs Kokkinakis guilty of proselytism and sentenced each of them to four months’ imprisonment, convertible (under Article 82 of the Criminal Code) into a pecuniary penalty of 400 drachmas per day’s imprisonment, and a fine of 10,000 drachmas. Under Article 76 of the Criminal Code, it also ordered the confiscation and destruction of four booklets which they had been hoping to sell to Mrs Kyriakaki. 10. Mr and Mrs Kokkinakis appealed against this judgment to the Crete Court of Appeal (Efetio). The Court of Appeal quashed Mrs Kokkinakis’s conviction and upheld her husband’s but reduced his prison sentence to three months and converted it into a pecuniary penalty of 400 drachmas per day. The following reasons were given for its judgment, which was delivered on 17 March 1987: "... it was proved that, with the aim of disseminating the articles of faith of the Jehovah’s Witnesses sect (airesi), to which the defendant adheres, he attempted, directly and indirectly, to intrude on the religious beliefs of a person of a different religious persuasion from his own, [namely] the Orthodox Christian faith, with the intention of changing those beliefs, by taking advantage of her inexperience, her low intellect and her naïvety. More specifically, at the time and place indicated in the operative provision, he visited Mrs Georgia Kyriakaki and after telling her he brought good news, pressed her to let him into the house, where he began by telling her about the politician Olof Palme and by expounding pacifist views. He then took out a little book containing professions of faith by adherents of the aforementioned sect and began to read out passages from Holy Scripture, which he skilfully analysed in a manner that the Christian woman, for want of adequate grounding in doctrine, could not challenge, and at the same time offered her various similar books and importunately tried, directly and indirectly, to undermine her religious beliefs. He must consequently be declared guilty of the above-mentioned offence, in accordance with the operative provision hereinafter, while the other defendant, his wife Elissavet, must be acquitted, seeing that there is no evidence that she participated in the offence committed by her husband, whom she merely accompanied ..." One of the appeal judges dissented, and his opinion, which was appended to the judgment, read as follows: "... the first defendant should also have been acquitted, as none of the evidence shows that Georgia Kyriakaki ... was particularly inexperienced in Orthodox Christian doctrine, being married to a cantor, or of particularly low intellect or particularly naïve, such that the defendant was able to take advantage and ... [thus] induce her to become a member of the Jehovah’s Witnesses sect." According to the record of the hearing of 17 March 1987, Mrs Kyriakaki had given the following evidence: "They immediately talked to me about Olof Palme, whether he was a pacifist or not, and other subjects that I can’t remember. They talked to me about things I did not understand very well. It was not a discussion but a constant monologue by them. ... If they had told me they were Jehovah’s Witnesses, I would not have let them in. I don’t recall whether they spoke to me about the Kingdom of Heaven. They stayed in the house about ten minutes or a quarter of an hour. What they told me was religious in nature, but I don’t know why they told it to me. I could not know at the outset what the purpose of their visit was. They may have said something to me at the time with a view to undermining my religious beliefs ... . [However,] the discussion did not influence my beliefs ..." 11. Mr Kokkinakis appealed on points of law. He maintained, inter alia, that the provisions of Law no. 1363/1938 contravened Article 13 of the Constitution (see paragraph 13 below). 12. The Court of Cassation (Arios Pagos) dismissed the appeal on 22 April 1988. It rejected the plea of unconstitutionality for the following reasons: "Section 4 of Law no. 1363/1938, substituted by section 2 of Law no. 1672/1939 providing for the implementation of Articles 1 and 2 of the Constitution and enacted under the 1911 Constitution then in force, Article 1 of which prohibited proselytism and any other interference with the dominant religion in Greece, namely the Christian Eastern Orthodox Church, not only does not contravene Article 13 of the 1975 Constitution but is fully compatible with the Constitution, which recognises the inviolability of freedom of conscience in religious matters and provides for freedom to practise any known religion, subject to a formal provision in the same Constitution prohibiting proselytism in that proselytism is forbidden in general whatever the religion against which it is directed, including therefore the dominant religion in Greece, in accordance with Article 3 of the 1975 Constitution, namely the Christian Eastern Orthodox Church." It also noted that the Crete Court of Appeal had given detailed reasons for its judgment and had complied with the 1975 Constitution in applying the impugned provisions. In the opinion of a dissenting member, the Court of Cassation should have quashed the judgment of the court below for having wrongly applied section 4 of Law no. 1363/1938 in that it had made no mention of the promises whereby the defendant had allegedly attempted to intrude on Mrs Kyriakaki’s religious beliefs and had given no particulars of Mrs Kyriakaki’s inexperience and low intellect. 13. The relevant Articles of the 1975 Constitution read as follows: "1. The dominant religion in Greece is that of the Christian Eastern Orthodox Church. The Greek Orthodox Church, which recognises as its head Our Lord Jesus Christ, is indissolubly united, doctrinally, with the Great Church of Constantinople and with any other Christian Church in communion with it (omodoxi), immutably observing, like the other Churches, the holy apostolic and synodical canons and the holy traditions. It is autocephalous and is administered by the Holy Synod, composed of all the bishops in office, and by the standing Holy Synod, which is an emanation of it constituted as laid down in the Charter of the Church and in accordance with the provisions of the Patriarchal Tome of 29 June 1850 and the Synodical Act of 4 September 1928. 2. The ecclesiastical regime in certain regions of the State shall not be deemed contrary to the provisions of the foregoing paragraph. 3. The text of the Holy Scriptures is unalterable. No official translation into any other form of language may be made without the prior consent of the autocephalous Greek Church and the Great Christian Church at Constantinople." "1. Freedom of conscience in religious matters is inviolable. The enjoyment of personal and political rights shall not depend on an individual’s religious beliefs. 2. There shall be freedom to practise any known religion; individuals shall be free to perform their rites of worship without hindrance and under the protection of the law. The performance of rites of worship must not prejudice public order or public morals. Proselytism is prohibited. 3. The ministers of all known religions shall be subject to the same supervision by the State and to the same obligations to it as those of the dominant religion. 4. No one may be exempted from discharging his obligations to the State or refuse to comply with the law by reason of his religious convictions. 5. No oath may be required other than under a law which also determines the form of it." 14. The Christian Eastern Orthodox Church, which during nearly four centuries of foreign occupation symbolised the maintenance of Greek culture and the Greek language, took an active part in the Greek people’s struggle for emancipation, to such an extent that Hellenism is to some extent identified with the Orthodox faith. A royal decree of 23 July 1833 entitled "Proclamation of the Independence of the Greek Church" described the Orthodox Church as "autocephalous". Greece’s successive Constitutions have referred to the Church as being "dominant". The overwhelming majority of the population are members of it, and, according to Greek conceptions, it represents de jure and de facto the religion of the State itself, a good number of whose administrative and educational functions (marriage and family law, compulsory religious instruction, oaths sworn by members of the Government, etc.) it moreover carries out. Its role in public life is reflected by, among other things, the presence of the Minister of Education and Religious Affairs at the sessions of the Church hierarchy at which the Archbishop of Athens is elected and by the participation of the Church authorities in all official State events; the President of the Republic takes his oath of office according to Orthodox ritual (Article 33 para. 2 of the Constitution); and the official calendar follows that of the Christian Eastern Orthodox Church. 15. Under the reign of Otto I (1832-62), the Orthodox Church, which had long complained of a Bible society’s propaganda directed at young Orthodox schoolchildren on behalf of the Evangelical Church, managed to get a clause added to the first Constitution (1844) forbidding "proselytism and any other action against the dominant religion". The Constitutions of 1864, 1911 and 1952 reproduced the same clause. The 1975 Constitution prohibits proselytism in general (Article 13 para. 2 in fine - see paragraph 13 above): the ban covers all "known religions", meaning those whose doctrines are not apocryphal and in which no secret initiation is required of neophytes. 16. During the dictatorship of Metaxas (1936-40) proselytism was made a criminal offence for the first time by section 4 of Law (anagastikos nomos) no. 1363/1938. The following year that section was amended by section 2 of Law no. 1672/1939, in which the meaning of the term "proselytism" was clarified: "1. Anyone engaging in proselytism shall be liable to imprisonment and a fine of between 1,000 and 50,000 drachmas; he shall, moreover, be subject to police supervision for a period of between six months and one year to be fixed by the court when convicting the offender. The term of imprisonment may not be commuted to a fine. 2. By ‘proselytism’ is meant, in particular, any direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion (eterodoxos), with the aim of undermining those beliefs, either by any kind of inducement or promise of an inducement or moral support or material assistance, or by fraudulent means or by taking advantage of his inexperience, trust, need, low intellect or naïvety. 3. The commission of such an offence in a school or other educational establishment or a philanthropic institution shall constitute a particularly aggravating circumstance." 17. In a judgment numbered 2276/1953 a full court of the Supreme Administrative Court (Symvoulio tis Epikratias) gave the following definition of proselytism: "Article 1 of the Constitution, which establishes the freedom to practise any known religion and to perform rites of worship without hindrance and prohibits proselytism and all other activities directed against the dominant religion, that of the Christian Eastern Orthodox Church, means that purely spiritual teaching does not amount to proselytism, even if it demonstrates the errors of other religions and entices possible disciples away from them, who abandon their original religions of their own free will; this is because spiritual teaching is in the nature of a rite of worship performed freely and without hindrance. Outside such spiritual teaching, which may be freely given, any determined, importunate attempt to entice disciples away from the dominant religion by means that are unlawful or morally reprehensible constitutes proselytism as prohibited by the aforementioned provision of the Constitution." 18. The Greek courts have held that persons were guilty of proselytism who had: likened the saints to "figures adorning the wall", St Gerasimos to "a body stuffed with cotton" and the Church to "a theatre, a market, a cinema"; preached, while displaying a painting showing a crowd of wretched people in rags, that "such are all those who do not embrace my faith" (Court of Cassation, judgment no. 271/1932, Themis XVII, p. 19); promised Orthodox refugees housing on specially favourable terms if they adhered to the Uniate faith (Court of Appeal of the Aegean, judgment no. 2950/1930, Themis B, p. 103); offered a scholarship for study abroad (Court of Cassation, judgment no. 2276/1953); sent Orthodox priests booklets with the recommendation that they should study them and apply their content (Court of Cassation, judgment no. 59/1956, Nomiko Vima, 1956, no. 4, p. 736); distributed "so-called religious" books and booklets free to "illiterate peasants" or to "young schoolchildren" (Court of Cassation, judgment no. 201/1961, Criminal Annals XI, p. 472); or promised a young seamstress an improvement in her position if she left the Orthodox Church, whose priests were alleged to be "exploiters of society" (Court of Cassation, judgment no. 498/1961, Criminal Annals XII, p. 212). The Court of Cassation has ruled that the definition of proselytism in section 4 of Law no. 1363/1938 does not contravene the principle that only the law can define a crime and prescribe a penalty. The Piraeus Criminal Court followed it in an order (voulevma) numbered 36/1962 (Greek Lawyers’ Journal, 1962, p. 421), adding that the expression "in particular" in section 4 of Law no. 1363/1938 (see paragraph 16 above) referred to the means used by the person committing the offence and not to the description of the actus reus. 19. Until 1975 the Court of Cassation held that the list in section 4 was not exhaustive. In a judgment numbered 997/1975 (Criminal Annals XXVI, p. 380) it added the following clarification: "... it follows from the provisions of section 4 ... that proselytism consists in a direct or indirect attempt to impinge on religious beliefs by any of the means separately listed in the Law." 20. More recently courts have convicted Jehovah’s Witnesses for professing the sect’s doctrine "importunately" and accusing the Orthodox Church of being a "source of suffering for the world" (Salonika Court of Appeal, judgment no. 2567/1988); for entering other people’s homes in the guise of Christians wishing to spread the New Testament (Florina Court of First Instance, judgment no. 128/1989); and for attempting to give books and booklets to an Orthodox priest at the wheel of his car after stopping him (Lasithi Court of First Instance, judgment no. 357/1990). In a judgment numbered 1304/1982 (Criminal Annals XXXII, p. 502), on the other hand, the Court of Cassation quashed a judgment of the Athens Court of Appeal (no. 5434/1981) as having no basis in law because, when convicting a Jehovah’s Witness, the Court of Appeal had merely reiterated the words of the indictment and had thus not explained how "the importunate teaching of the doctrines of the Jehovah’s Witnesses sect" or "distribution of the sect’s booklets at a minimal price" had amounted to an attempt to intrude on the complainants’ religious beliefs, or shown how the defendant had taken advantage of their "inexperience" and "low intellect". The Court of Cassation remitted the case to a differently constituted bench of the Court of Appeal, which acquitted the defendant. Similarly, it has been held in several court decisions that the offence of proselytism was not made out where there had merely been a discussion about the beliefs of the Jehovah’s Witnesses, where booklets had been distributed from door to door (Patras Court of Appeal, judgment no. 137/1988) or in the street (Larissa Court of Appeal, judgment no. 749/1986) or where the tenets of the sect had been explained without any deception to an Orthodox Christian (Trikkala Criminal Court, judgment no. 186/1986). Lastly, it has been held that being an "illiterate peasant" is not sufficient to establish the "naïvety", referred to in section 4, of the person whom the alleged proselytiser is addressing (Court of Cassation, judgment no. 1155/1978). 21. After the revision of the Constitution in 1975, the Jehovah’s Witnesses brought legal proceedings to challenge the constitutionality of section 4 of Law no. 1363/1938. They complained that the description of the offence was vague, but above all they objected to the actual title of the Law, which indicated that the Law was designed to preserve Articles 1 and 2 of the Constitution in force at the time (the 1911 Constitution - see paragraph 12 above), which prohibited proselytism directed against the dominant religion. In the current Constitution this prohibition is extended to all religions and furthermore is no longer included in the chapter concerning religion but in the one dealing with civil and social rights, and more particularly in Article 13, which guarantees freedom of conscience in religious matters. The courts have always dismissed such objections of unconstitutionality, although they have been widely supported in legal literature. 22. The Jehovah’s Witnesses movement appeared in Greece at the beginning of the twentieth century. Estimates of its membership today vary between 25,000 and 70,000. Members belong to one of 338 congregations, the first of which was formed in Athens in 1922. 23. Since the revision of the Constitution in 1975 the Supreme Administrative Court has held on several occasions that the Jehovah’s Witnesses come within the definition of a "known religion" (judgments nos. 2105 and 2106/1975, 4635/1977, 2484/1980, 4620/1985, 790 and 3533/1986 and 3601/1990). Some first-instance courts, however, continue to rule to the contrary (Heraklion Court of First Instance, judgments nos. 272/1984 and 87/1986). In 1986 the Supreme Administrative Court held (in judgment no. 3533/1986) that a ministerial decision refusing the appointment of a Jehovah’s Witness as a literature teacher was contrary to freedom of conscience in religious matters and hence to the Greek Constitution. 24. According to statistics provided by the applicant, 4,400 Jehovah’s Witnesses were arrested between 1975 (when democracy was restored) and 1992, and 1,233 of these were committed for trial and 208 convicted. Earlier, several Jehovah’s Witnesses had been convicted under Law no. 117/1936 for the prevention of communism and its effects and Law no. 1075/1938 on preserving the social order. The Government have not challenged the applicant’s figures. They have, however, pointed out that there have been signs of a decline in the frequency of convictions of Jehovah’s Witnesses, only 7 out of a total of 260 people arrested having been convicted in 1991 and 1992. | 1 |
train | 001-102848 | ENG | SVN | CHAMBER | 2,011 | CASE OF SIMONČIČ v. SLOVENIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra | 5. The applicants were born in 1956 and 1982 and live in Maribor. 6. On 10 March 1997 the applicants instituted civil proceedings before the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 8,202.697 Slovenian tolars (SIT, approximately 34,000 euros) for the death of a family member in a car accident. 7. Between 25 August 1997 and 6 March 2000 the applicants lodged fourteen preliminary written submissions and requests that a date be set for a hearing. 8. On 7 April 2000 a hearing was held and the first-instance court delivered a partial judgement. All three defending parties appealed. 9. On 27 September 2001 the Celje Higher Court (Višje sodišče v Celju) delivered a judgment upholding the appeal in part. An appeal on points of law was lodged against the rejected part of the appeal by one of the defending parties. 10. On 16 December 2004 the Supreme Court (Vrhovno sodišče) rejected the appeal on points of law and the proceedings continued before the first-instance court. 11. On 19 September 2005 the Celje District Court delivered a judgment upholding the applicants' claim in part. An appeal was lodged. 12. On 7 February 2007 the Celje Higher Court issued a judgment upholding the appeal in part. An appeal on points of law was lodged. 13. On 7 June 2007 the Supreme Court upheld the appeal on points of law in part and changed the second-instance judgment. The judgment was served on the applicants on 29 June 2007. | 1 |
train | 001-115923 | ENG | IRL | ADMISSIBILITY | 2,012 | COURTNEY v. IRELAND | 4 | Inadmissible | Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens | The applicant, Martina Courtney, is an Irish national who lives in Dublin. She was represented before the Court by Mr. J. MacGuill, a lawyer practising in Dundalk The applicant is a school traffic warden. She took part in a prison visiting project for which she provided her personal details to the prison authorities for security purposes. During the project she became acquainted with N (in prison for the murder of two persons and charged with the murder of two others) and they began a personal relationship. At 15.30 on 13 May 2010 (Thursday) the applicant was visited at home by a journalist from the Irish Daily Star newspaper. The journalist sought information on the applicant’s relationship with N. Apart from confirming that she knew N, the applicant refused to comment further. Later that afternoon the journalist returned and the applicant did not make any comment. At 19.00 that day a letter from the journalist was delivered to the applicant’s home: the journalist was writing an article about the applicant’s relationship with N, she was sure of its validity based as it was on information from prison sources and she wanted to give the applicant the opportunity to tell her side of the story. The article would be published the following Sunday (16 May 2010). On 14 May 2010 the applicant went to visit N. As she entered the prison, she was approached by the journalist and photographed. As she left, the journalist requested the applicant to tell her side of the story. The applicant made no comment and contacted her solicitor who sent a letter by facsimile to the newspaper on the same day. The letter underlined that the proposed article concerned the applicant’s private affairs and was devoid of any real public interest so that its publication would breach the code of practice of the Press Council of Ireland as well as the applicant’s constitutional and Convention rights. Since her vital personal interests would be irreparably damaged, the letter called on the newspaper not to publish the story. A response was requested by 11.00 the following day, failing which the applicant would apply to the High Court for protection. The newspaper did not respond. On 15 May 2010 the applicant’s solicitors contacted the High Court duty judge (it was a Saturday). They applied to that judge, on an ex parte basis and grounded upon a draft Plenary Summons and the applicant’s affidavit, for an interim injunction restraining publication of any material disclosing her relationship with N; for a declaration that any such publication would infringe her right to privacy contrary to the Convention and the Constitution; and for damages for breach of her Convention and constitutional right to privacy. The applicant’s grounding affidavit underlined that she was a private person of modest means and pointed to the prejudicial impact of the inevitable media scrutiny on her, her two young sons and her ongoing employment. Since the story was not a matter of any real public interest, the devastating consequences for her and her family’s personal dignity and private life would be disproportionate. In an ex tempore judgment dated 15 May 2010 the High Court refused to grant the injunction. She was a private citizen with a right to respect for her private life and there was no public interest in revealing that she was in a relationship with N. Journalism which invaded private life in the threatened manner was meretricious and worthless. However, in Foley v. Independent Newspapers ([2005] IEHC 14), the High Court had found that the common law rule enunciated in Bonnard v. Perryman ([1891] 2 Ch 269) had survived the Human Rights Act 1998 in the United Kingdom and applied in Ireland. The rule provides that, in all but exceptional cases, the court should refuse injunctions. It can only grant such injunctions where it is shown that there is no prospect of successfully defending the substantive action. The High Court judge considered this was a limited protection as it seemed to allow even worthless publication the same level of protection as is accorded to journalism that has redeeming characteristics. He noted the Supreme Court’s recent confirmation that the Convention does not have direct applicability in Irish law and only arises when that law falls to be interpreted in some fashion. He queried whether the rule in Bonnard would survive a Convention challenge but acknowledged that this was a matter for another day and another court. Applying the rule in the applicant’s case, the High Court judge concluded that he could not make an order restraining the publication. On 16 May 2010 the Irish Daily Star published on its front page a story entitled “Lady and the Killer”. It contained a series of photographs of the applicant and the associated article read, in so far as relevant, as follows: “Meet the lollipop lady who has struck up an unlikely bond with double murderer N. Most mornings [the applicant] helps primary school kids across the road at a plush south Dublin school. But once her work is done, the mum-of-three regularly cycles into town to visit high-profile convicted double killer N. ... Prison sources have revealed the pair have been seen being openly affectionate in the visitors’ centre at the jail. For the past few months, [the applicant], from Terenure, has been visiting psycho N. twice a week in [prison]. Jail sources have told Star Sunday that killer N. – who has admitted that he is mentally ill – is “besotted” with the attractive woman. ...“[the applicant] always sits up on the table between her and Mark in order to be closer to him,” said a source. “She often snuggles in to his chest and they embrace a lot, which can often be a bit embarrassing for the other visitors.” However, when [the applicant] was confronted by Star Sunday at her home on Thursday evening, she denied she was romantically involved with N. ....Sources at the jail said [the applicant] visits the killer twice a week, usually every Tuesday and Friday between 10am and midday.” On 18 May 2010 the applicant formally filed the Plenary Summons on which she had relied when she applied for the interim injunction and in which she claims damages for a breach of privacy. It would appear that this substantive action has not been pursued further. On 24 September 2010 the applicant’s Counsel advised that, since the application for an injunction had been refused and the article published the following day, there were no further steps open to the applicant through which she could have prevented the publication. In so concluding, Counsel noted that it had not been open to her to appeal to the Supreme Court on 15 or 16 May 2010 because that court was not sitting on either of those days. In this case the High Court outlined the criteria for deciding interlocutory injunction requests. It recalled the judgment of the Supreme Court in Campus Oil v. Minister for Industry and Energy (No. 2) ([1983] I.R. 88) and noted the guidelines for the granting of an interlocutory prohibitory injunction. A plaintiff had to demonstrate: (a) the existence of a serious question to be tried; (b) the inadequacy of damages; and (c) that the balance of convenience lies in favour of the grant of the injunction. While resolving these issues in favour of an applicant would, in many cases, result in an injunction being granted, it was not always so. In addition to these three questions, there might be many other special factors to be taken into consideration in the particular circumstances of individual cases. Over the years, a number of cases had been identified where the guidelines, even if satisfied, do not result in an interlocutory injunction being granted. A good example of this was the rule in Bonnard v. Perryman ([1891] 2 Ch 269) which the High Court in Foley deemed to be of ‘some relevance’ to an application for an injunction restraining publication. Although the courts undoubtedly possessed the requisite jurisdiction to grant interlocutory injunctive relief, the rule in Bonnard provides that in all but exceptional circumstances they should not issue an interlocutory injunction to restrain the publication of a libel which the defence sought to justify except where it was clear that the defence would fail. The rule was based on the need not to restrict the right of free speech by interfering before the final determination of the matter save in a clear case of an untrue libel. The High Court in Foley noted that the right to freedom of expression as provided for in the Constitution and in the Convention is an important right and one which the courts must be extremely circumspect about curtailing particularly at the interlocutory stage of a proceedings. While refusing to restrict the defendant’s right between the making of the application for an injunction and the trial of the action, it did, however, direct an early trial and heard submissions on the delivery of accelerated pleadings. The rule in Bonnard was approved and followed by the Supreme Court in Sinclair v. Gogarty ([1937] I.R. 377). This rule reads as follows: “13. Where an ex parte application has been refused in whole or in part by the High Court an application for a similar purpose may be made to the Supreme Court ex parte within four days from the date of such refusal, or within such enlarged time as the Supreme Court may allow.” | 0 |
train | 001-87935 | ENG | GBR | ADMISSIBILITY | 2,008 | DONOHUE v. THE UNITED KINGDOM | 4 | Inadmissible | Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä | The applicant, Mr John Donohue, is a British national who was born in 1943 and lives in Stockport. He was represented before the Court by Mr R. Jenkins, a welfare rights officer in Stockport. 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 in 1984. In September 2000, the applicant made his claim for widows’ benefits. On 19 September 2000 the applicant was informed that his claim had been disallowed as he was not a woman. The applicant did not appeal 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 | 001-71988 | ENG | BGR | CHAMBER | 2,006 | CASE OF MIHAILOVA v. BULGARIA | 4 | No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life) | Christos Rozakis;Georgieva | 7. The applicant was born in 1975 and lives in Dobrich. She married in June 1994 and in November 1995 gave birth to a girl. 8. In 2000 the applicant instituted divorce proceedings. On 14 July 2000 the spouses separated. The applicant moved out of the apartment where the family used to live. Thereafter, she lived in her sister's apartment in Dobrich but also spent time in the nearby village Z., where her boyfriend lived. 9. The applicant's husband also moved out after the separation and returned to his parents' house. 10. Ever since the spouses' separation in July 2000, the applicant's daughter lived with her father and his parents who looked after her but she also spent short periods of time with the applicant. In particular, during the summer she spent one week in Z., where the applicant, her boyfriend and his parents looked after her. The child visited the applicant again, in Z. and in her apartment in Dobrich. The frequency of those meetings is unknown. 11. On an unspecified date in 2000 the applicant's husband brought an action against her seeking alimony payments for the upbringing of their daughter. By judgment of 24 November 2000 the Dobrich District Court ordered the applicant to pay alimony. 12. On 18 April 2001 the Dobrich District Court pronounced the couple's divorce. The court approved the parties' agreement according to which the applicant would have custody of their daughter but the child would remain with her father until 24 May 2001 since she attended an elementary school in the area of the father's home. The agreement further stated that the child would move in with the applicant at 8 a.m. on 25 May 2001. Thereafter, the father would take the child to his home every second weekend and also for five or six weeks per year during three or four holiday periods. The father undertook to pay alimony. 13. In the following weeks the applicant saw her child often and spent time with her, including in the village Z. According to Mrs N., a psychiatrist who held therapeutic sessions with the child in June and July 2001, the father's report that the child had returned tense and worried from some of those meetings was plausible since the child had been frustrated from the fact that her wish to be with both parents and to have all her mother's attention and affection had not realised. 14. On 25 May 2001 an argument erupted when the applicant, accompanied by her boyfriend and her lawyer, came to collect her daughter. The child was terrorised and refused to leave. It appears that from that moment on, all meetings between the applicant and her daughter were very short and often in the presence of other persons. 15. On 29 May 2001 the applicant instituted enforcement proceedings before the Dobrich District Court. 16. On 25 June 2001 the enforcement judge sent a summons to the applicant's former husband inviting him to appear on 28 June 2001. The summons was not served for reasons which are unclear. In a statement made later, the enforcement judge stated that the father was hiding. 17. On an unspecified date the enforcement judge appointed medical experts to examine the child. 18. On 25 June 2001 the applicant complained about the inactivity of the enforcement judge. On 28 June 2001 the Dobrich Regional Court examined the applicant's appeal against delays in the enforcement proceedings and found that there had been unjustified delays. In particular, insufficient efforts had been made to summon the father. Apparently implying that the failure to serve the summons was difficult to understand, the Dobrich Regional Court remarked that the mother of the applicant's former husband, in whose house the child lived with her father, worked as clerical staff of the Dobrich District Court. The court ordered the enforcement judge to speed up the proceedings. 19. On 28 June 2001 the enforcement judge invited a representative of the social services in Dobrich to attend the hearings in the enforcement proceedings. On 3 July 2001 the applicant wrote to the social services seeking their assistance and asking them to establish the circumstances in which her daughter lived with her father. That prompted an inquiry by Mr K., an employee of the social services, which were also in charge of matters of protection of children. Mr K. conducted an inquiry into the conditions in which the applicant's daughter lived and the social circumstances of the applicant and on 5 July 2001 drew up a report. Mr K. stated in his report that, inter alia, the applicant lived with her sister and their father in Dobrich in a four-room apartment in good conditions. At that time the applicant had been a student in a school for medical personnel. During the summer months she worked in her boyfriend's restaurant in the village Z. Mr K. also described as good the conditions in the father's home, where the child lived. As to the child, Mr K. had spoken with her and had learned that she wanted to live with both parents or with her father but also wanted to see her mother often. She did not want to live in the village Z. 20. On 13 July 2001 the enforcement judge attempted again to summon the father for 20 July 2001. The officer responsible for serving the summons was given two addresses for the respondent father. However, the officer noted that the father could not be located at either address and, according to a neighbour, had left on holidays. 21. The applicant filed another appeal against the delays in the enforcement proceedings which was examined on 25 July 2001 by the Dobrich Regional Court. The court found that insufficient efforts had been made to locate the respondent and that attempts should be made to summon him at his place of work. 22. On 26 July 2001 an attempt was made to serve a summons on the respondent father ordering him to appear on 30 July 2001. For that purpose, two court officers and a police officer visited three addresses indicated by the applicant including her former husband's workplace. It was established that he was on holidays until 1 August 2001. 23. On 7 August 2001 the father was eventually found at his address and summoned to appear before the enforcement judge to transfer the custody of the child on 23 August 2001. 24. In June and July 2001 the applicant sent several complaints to the local prosecutor, to the police and other institutions seeking assistance and police protection for her daughter. The police replied that the case did not fall within the scope of the regulations on police protection of children as there was no indication that the child had disappeared or was in danger. On 6 July 2001 the applicant's former husband received a police warning to comply with his obligation to transfer the custody of the child. In July and August 2001, upon the applicant's complaints that the father was hiding, the local prosecuting office conducted an inquiry. The father, his parents and the applicant were questioned and visits were made to their homes. On 18 August 2001 the prosecutor refused to open criminal proceedings. On an unspecified date the mother of the applicant's former husband complained to the local prosecutor that the applicant's lawyer had repeatedly disturbed them in their home and had used offensive language. On 6 July 2001 the applicant's lawyer received a police warning to abstain from threatening the family of the applicant's former husband. According to statements made later by persons involved in the proceedings, offensive remarks and groundless allegations were not uncommon in the complaints submitted by the parties. 25. On 7 August 2001 the applicant's former husband submitted to the enforcement judge a request that Mrs N., a psychiatrist who had monitored his daughter's health, be present during the transfer of custody on 23 August 2001. He enclosed a certificate dated 1 August 2001 issued by the psychiatrist. Mrs N. had seen the child in June and July 2001 as the father had noted that his daughter had become nervous, had no appetite, could not sleep well, tended to remain alone and cried. That was apparently caused by the changes in the child's life as a result of her separation from “part of her family circle”. Having held therapeutic sessions with the child, the psychiatrist stated that an improvement was noted. However, the psychiatrist considered that it was essential to avoid future situations which could cause psychological trauma. 26. On 16 and 17 August 2001 the applicant requested further psychiatric examinations of the child. She also stated that a paediatrician and Mr. K., the employee of the local social service who had previously seen her daughter, should also be present during the transfer of custody on 23 August 2001. 27. On 23 August 2001 the enforcement judge heard the applicant, her former husband, the child, Mrs N., Mr K. and the parties' lawyers. The applicant was asked to leave when the child was being heard. 28. According to the minutes, the child stated that she wanted to be with her mother, but also wanted to be with her father and preferred to stay with her father and to pay visits to her mother. 29. Mrs N., the psychiatrist, stated that the child needed to spend more time with her mother and that favourable conditions had to be created so as to avoid any traumatic incidents for the child, who was suffering as a result of the conflict between her parents. The child needed to receive more affectionate attention from her mother. Changes in the child's home and school environment could be dangerous. Mrs N. also expressed the view that the child was not sufficiently prepared for the transfer of custody and should not be forced. 30. Mr K, the social services employee, stated that the child was not at risk with her father. She enjoyed a good social environment and her situation would continue to be monitored by the social services. 31. The father's lawyer stated that an assessment should be made of the applicant's ability to provide satisfactory conditions for her daughter. 32. The enforcement judge instructed Mrs N. and Mr K. to provide additional information in writing before 30 August 2001 and adjourned the proceedings. 33. On 24 and 27 August 2001 the applicant complained to the health authorities about Mrs N., to the social services about Mr K., to the police about her former husband and to the District Court about the enforcement judge. The applicant alleged that her daughter's expressed reluctance to come with her had been the result of psychological manipulation and the administration of drugs on her by the enforcement judge and other persons. In her view, the enforcement judge should have immediately proceeded to handing the child to her. The applicant also filed a formal appeal against the adjournment of the proceedings and requested the recusal of the enforcement judge. 34. On 27 August 2001 Mr K. submitted a written opinion in which he stated that in his view the child, despite her low age, had grown to understand that her parents had separated and had formed a clear opinion in favour of staying with her father. She also wanted to see her mother more often. Mr K. also confirmed that the child lived in good conditions with her father and grandparents. 35. On 29 August 2001 Mrs N., the psychiatrist, filed additional assessments. She stated, inter alia, that the child's condition improved as she gradually adjusted to the circumstances. However, it was of utmost importance that the parents maintained better relations, which would allow a possibility for the child to see her mother more often. The child needed her mother's care and affection. At the same time any changes in the child's environment must be very carefully prepared. 36. On 11 September 2001 the applicant complained about the delay in the enforcement proceedings. 37. On 17 September 2001 the Dobrich Regional Court found that there were no undue delays in the proceedings in August and September 2001. 38. During the relevant period the applicant made several visits to her daughter's elementary school. In her submission, she could not see her daughter at the home of her former husband as he had threatening behaviour and did not allow normal contacts. His parents allegedly used offensive language against her. According to statements made by the applicant's former husband before the relevant authorities, the applicant seldom sought contact with her daughter, was unable to demonstrate affection for her and tried to achieve the enforcement of the court order through legal means only, as a result of which the child was repeatedly confronted with representatives of the authorities and with the applicant's lawyer and thus suffered stressful situations. 39. On 27 September 2001 the applicant and her lawyer visited the elementary school attended by the applicant's daughter, with the apparent intention to collect her. The applicant's daughter started crying and explained to the teacher that she did not want to go. The applicant was upset by her daughter's reaction. On 5 October 2001 the applicant's former husband complained to the prosecution authorities and to the local Bar against the behaviour of the applicant's lawyer, who had allegedly made repeated visits to his daughter's school and had insisted that the child be given to the applicant. In his written opinion given later, Mr K., the social service employee who worked on the applicant's case, stated that the presence of the applicant's lawyer and the applicant's boyfriend had negative effect on the meetings between the applicant and her daughter. 40. It appears that an attempt to summon the applicant's former husband at the end of September or the beginning of October 2001 was unsuccessful. 41. In mid-October 2001 a hearing in the enforcement proceedings was scheduled for 29 November 2001. The applicant complained, stating that this long delay was unnecessary. 42. On 29 November 2001 the applicant, her former husband, their daughter, their lawyers, two employees of the child protection service and a police officer appeared before the enforcement judge. Apparently with the aim to put pressure to bear on the authorities, the applicant invited journalists from the local television station and the press who came with their cameras. 43. The judge spoke to the child and told her that she would live with her mother. The child stated that she did not want to go with her mother and, according to testimony given later by Mr K., one of the social service employees, uttered rude words at her. Thereupon, the judge decided that the applicant should be left alone with her daughter for an hour. When the hearing resumed the child still refused to go. The social service employees expressed the view that there was no valid reason why the applicant should not have the custody of her daughter. The enforcement judge decided that the applicant could take her daughter home in execution of the custody agreement. The hearing was closed. 44. As the parties walked out of the courtroom, the applicant's former husband grabbed the child and ran away. A police officer who was present did not intervene. 45. The applicant complained to the prosecution authorities about the enforcement judge and the police. By decisions of 15 and 18 February 2002 they refused to open criminal proceedings. 46. On 6 December 2001 the applicant complained to the Dobrich Regional Court that the father had taken the child away. 47. Upon the applicant's request, the enforcement judge renewed the efforts to transfer the custody of the applicant's daughter to her. On 7 February 2002 the Dobrich District Court issued directions regarding the enforcement proceedings. On an unspecified date the applicant's former husband appealed against the acts of the enforcement judge, arguing that the proceedings should be terminated as the custody of the child had already been transferred on 29 November 2001. On 26 July 2002 the Dobrich District Court dismissed the appeal, considering that the enforcement proceedings could continue as the father had unlawfully taken his daughter away from her mother. 48. On 17 December 2001 the applicant's former husband instituted proceedings before the Dobrich District Court for a revision of the custody and contact measures, seeking the custody of his daughter (see the chronology of those proceedings in paragraphs 62-69 below). 49. He also requested a stay in the enforcement proceedings. On 10 January 2002 that request was refused on grounds that a stay of execution would constitute a de facto partial revision of the custody measures while any decision on the matter had to cover all relevant aspects, including contact arrangements. The court also stated that the execution of the April 2001 custody agreement would not prejudge the matter or otherwise impede the execution of any custody order that may be issued in the revision proceedings. 50. Apparently in reaction to the applicant's complaints against several judges, on an unspecified date all of the enforcement judges at the Dobrich District Court withdrew from the case, which was then transmitted to the Balchik District Court. 51. Upon the applicant's complaints to the Child Protection Agency and in reaction to other complaints concerning other persons, on 8 February 2002, the Agency appointed a three-member commission to examine the work of the local agencies in Dobrich and Rousse. The commission conducted meetings with several persons and examined documentary material. On an unspecified date in March 2002 it delivered a report in which it stated, inter alia, that in the applicant's case Mr K., the local social service employee, had only had two meetings with the child, that his conversations with the parents had not been documented, that a psychologist had never met the child and that more could be done to facilitate the enforcement of the judicial order on the custody of the child. The commission further stated that the delays in the enforcement proceedings had complicated and exacerbated the situation. The commission recommended, inter alia, the elaboration of a plan for meetings between the child and the parents in the presence of a social service employee and more active involvement of the agency employees in the efforts to facilitate the enforcement of the judicial order, including issuing directions to the father in case of non-compliance on his part. 52. In May 2002 the applicant complained that the custody agreement had not been enforced and that the recommendations of the Child Protection Agency had not been followed. 53. On an unspecified date the enforcement proceedings were transferred to the Kavarna District Court. A hearing was listed for 22 May 2002. The applicant was busy with her studies and was unable to attend. The case was adjourned until 20 June 2002. 54. On 20 June 2002 the applicant and her former husband appeared before the enforcement judge. As the father had not brought the child, the parties and the enforcement judge went to the father's home. The judge, the applicant and the child had a conversation. The child refused to follow her mother. On the same day the judge imposed a fine of 30 Bulgarian levs (“BGN”) on the father on the ground that he had failed to abide by his obligation to prepare the child for the transfer of custody. The father was instructed to do so before 2 July 2002. 55. On unspecified dates the enforcement judge imposed additional fines on the applicant's former husband for failure to abide by a final judgment. The total amount of the fines was BGN 200 (approximately 100 euros). On 9 July 2002 the applicant complained to the Regional Court that the fine had not been enforced. On an unspecified date the applicant's former husband appealed against the fine stating, inter alia, that the applicant had been unavailable for several months which had impeded the preparation of the child for the transfer. 56. The enforcement judge listed a hearing for 2 September 2002, with the purpose to effect the transfer of custody. The father and the child did not appear. The judge adjourned the matter. On 5 September 2002 the applicant complained of delays in the proceedings. 57. The enforcement judge scheduled the transfer of custody for 20 September 2002. The applicant's former husband did not comply. On 1 October 2002 he was ordered to pay another fine of BGN 200. 58. On 2 October 2002 the applicant's former husband reported to the local social services that his daughter did not want to live with her mother and stated that he would not force her. On 10 October 2002 the social service conducted an inquiry and recommended that it was in the interest of the child to see her mother more often. 59. During the relevant period the applicant saw her daughter several times when she visited her at her elementary school. In the applicant's submission, since the beginning of 2002 she has been prevented from seeing her daughter or speaking to her on the telephone. In his submissions to the relevant authorities, the applicant's former husband repeatedly stated that the applicant was calling seldom and did not come to see her daughter. In its judgment of 16 January 2004 (see paragraph 67 below) the Dobrich Dstrict Court, having heard several witnesses and examined documentary material, including all complaints submitted by the parties to various authorities and the files opened by the prosecuting authorities, found that the applicant had sought contacts with her daughter, but that her allegation that her former husband had prevented those contacts was groundless. The tense relations between the parents had been the main obstacle to normal contacts between the applicant and her daughter. 60. On 3 February 2003 the applicant wrote to the District Prosecutor stating that on 30 January 2003 she had visited her daughter at her school, whereupon her former husband had appeared, shouting offensive expressions. He had hit her and threatened to batter her if she continued seeing their daughter. On 11 February 2003 the applicant's former husband was summoned by the police and was ordered to cease obstructing the exercise of the applicant's parental rights. 61. On 11 February 2003 the applicant requested the assistance of the social services for securing her right to meet her daughter. A meeting was organised on 19 February 2003 between the applicant and her daughter in the presence of Mr K., employee of the social service, at the premises of the social service. The meeting ended at the request of the child. 62. On 17 December 2001 the applicant's former husband instituted proceedings under Article 106 § 5 of the Family Code before the Dobrich District Court for a revision of the custody and contact measures, seeking the custody of his daughter. A judge at the District Court in Dobrich examined the file on 18 December 2001 and scheduled a hearing for 4 March 2002. 63. The hearings listed for 4 March, 17 May and 27 September 2002 could not proceed as the applicant had not been summoned properly. She had not been found at her address in Dobrich. The attempts to notify the summons to her at the address of her boyfriend in the village Z., where she apparently moved in December 2001, were also unsuccessful. The lawyer of the applicant's former husband alleged that the mayor of the village obstructed the efforts to summon the applicant. 64. The first hearing was held on 11 November 2002. The applicant sought a stay of the proceedings pending the outcome of her application to the European Court of Human Rights. That was refused. The court commissioned a report on the child's living conditions at his father's place and the applicant's living conditions. The next hearing was listed for 24 January 2003. 65. In January 2003 the social services in Dobrich submitted to the District Court their report on the parents' living conditions. At the hearing on 24 January 2003 the court admitted the report and other evidence. The hearing was adjourned until 31 March 2003 to allow the examination of witnesses. 66. On 31 March 2003 the court heard several witnesses and decided to commission a report on the child's psychological state, sensitivities and attitude towards her parents. The report was submitted to the court in July 2003. The court held a hearing on 28 July 2003. The psychologists who had drawn up the report and an employee of the social services were heard. The last hearing in the case was held on 13 October 2003. 67. By judgment of 16 January 2004 the Dobrich District Court revised the custody measures as agreed upon by the parties in 2001 and granted the custody of the child to the applicant's former husband. The applicant was granted the right to take her daughter home every second weekend and for five weeks during three holiday periods. 68. The judgment contained detailed reasoning. The court noted that in accordance with Article 106 § 5 of the Family Code a change of circumstances could justify a revision of the custody and contact measures and examined all events since April 2001. The court stated that the custody dispute had to be decided primarily on the basis of the best interest of the child. It noted that according to the report of the psychologists, the child had suffered distress as a result of her separation from her mother but had stabilised with the passage of time. She loved her mother, did not express negative attitudes towards her and it was in her interest to see her more often and to restore normal contacts with her. However, the child felt safe and well in her current environment, where her father and her grandparents looked after her. She developed well and was offered good living conditions. A new change of environment would have a negative effect on the child's development. The court further took into consideration that the child had repeatedly expressed her preference for staying with her father. The court rejected as unproven the applicant's allegation that the father had been aggressive and had prevented the applicant from seeing her daughter. The main obstacle to the contacts between the applicant and her daughter had been the extremely tense relations between the parents who had filed numerous complaints against each other. That atmosphere was harmful for the child. 69. On appeal, on an unspecified date in 2004 the Dobrich Regional Court upheld the District Court's judgment. The applicant filed an appeal on points of law. As of December 2004 the case was pending before the Supreme Court of Cassation. 70. The Code of Civil Procedure 1952, which governs, inter alia, execution of final judgments, does not contain provisions setting out rules specifically applicable to transfer of custody of children. 71. In 1962, the Supreme Court set out several guiding principles in its interpretative decree No. 4 (462PPVS). According to these principles, the enforcement judge should organise the physical transfer of custody without delay but should act with care and seek where necessary the assistance of local social services. The interests of the child are paramount. The child should not be coerced but should be prepared for the change so as to avoid psychological trauma. Each case must be treated on an individual basis, with due regard to the child's age, personal circumstances and emotional links with his or her parents. All possible methods of persuasion must be exhausted. Parents should be warned that refusal to co-operate may result in a modification of custody and contact orders. Police assistance should be used as a last resort, and only where the interests of the child require immediate execution. In exceptional cases, where the custody order has not been enforced for a long time and the relevant circumstances have changed, the enforcement judge may adjourn the case and propose to the competent court to re-examine the custody order. In cases where a parent's refusal to comply constitutes a criminal offence, the matter should be referred to the prosecution authorities. 72. An enforcement judge has no power to order preparatory meetings, provisional contact arrangements or other measures with a view to achieve transfer of child custody if they are not provided for expressly in the judicial decision to be enforced. A parent considering that a change of circumstances requires a revision of the custody and contact measures fixed in a judicial decision may bring proceedings under Article 106 § 5 of the Family Code for revision of custody and contact measures. In such proceedings all relevant matters may be decided, including the use of the family home (Decision No. 1225 of 23.12.1993 in case 544/93, Supreme Court, II Chamber). 73. In September 2003 an amendment to the Code of Civil Procedure (new Article 423a) provided that in child custody cases the enforcement judge should apply the provisions concerning execution of orders to fulfil a particular act (Article 421 et seq.). According to those provisions, the only possible method of coercion is the imposition of fines on the debtor. It appears that in practice the guiding principles set out in Interpretative Decree No. 4 of 1962 are considered still valid after September 2003. 74. The Child Protection Act, in force since June 2000, empowers the Child Protection Agency and local social services to act in situations of children whose wellbeing is under threat or whose rights are violated. The Agency has supervisory functions, whereas the local social services are in charge of concrete cases. In cases of children at risk, the social services may seek police protection for the child and initiate proceedings with a view to placing the child with a foster family or into public care. Social service employees take part in all judicial proceedings affecting children's rights, in defence of the child's interest. In all cases where the child's rights are at stake, the social services may intervene through measures such as counselling and assistance and may also issue binding directions (section 21 § 1 (3) of the Act). It appears, however, that there is no practice of issuing binding directions by the social services on questions relating to the enforcement of child custody judgments. It is considered that in such matters the judicial authorities are in charge. The social services have no power to order preparatory meetings or provisional contact arrangements that are not provided for expressly in a judicial decision. 75. Failure to abide by a final decision concerning custody of children may be punishable under Article 182 of the Penal Code. | 0 |
train | 001-86915 | ENG | TUR | ADMISSIBILITY | 2,008 | ALPAR v. TURKEY | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall | The applicant, Mr Seyithan Alpar, is a Turkish national who was born in 1971 and lives in Midyat district of the province of Mardin. He was represented before the Court by Mr F. Gümüş, a lawyer practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. On 22 December 1992 the applicant was taken into police custody by police officers from the Anti-Terrorist Branch of the Nusaybin Security Headquarters on suspicion of membership of the PKK (Workers’ Party of Kurdistan), an illegal organisation. On 18 January 1993 the Diyarbakır State Security Court remanded him in custody. The public prosecutor filed a bill of indictment with the Diyarbakır State Security Court charging the applicant, under Article 125 of the Criminal Code, with membership of a terrorist organisation and with having been engaged in acts aimed at the secession of a part of the territory of the State. On 26 April 1993 the State Security Court commenced proceedings against the applicant and thirteen other suspects. On 18 June 1999 Turkey’s Grand National Assembly amended Article 143 of the Constitution and excluded military members from State Security Courts. Following similar amendments made on 22 June 1999 to the Law on the State Security Courts, the military judge sitting on the Diyarbakır State Security Court hearing the applicant’s case was replaced by a civilian judge. At the hearing of 8 July 1999 the military judge sitting on the bench of the Diyarbakır State Security Court was replaced by a civilian judge. On 8 May 2000 the State Security Court found the applicant guilty as charged and sentenced him to life imprisonment. The applicant appealed against the judgment. The applicant’s representative asked the appeal court to hold a hearing, which was granted. On 2 April 2001 the Court of Cassation, after hearing the applicant’s representative, closed the hearing and informed the parties that judgment would be pronounced on 11 April 2001. At the hearing of 11 April 2001 the Court of Cassation pronounced its judgment upholding the Diyarbakır State Security Court’s judgment. The applicant’s representative did not attend the hearing. On 4 June 2001 the Court of Cassation’s judgment was placed in the Registry of the Diyarbakır State Security Court. On 22 October 2001 the applicant’s representative requested a copy of the final judgment from the Registry of the Diyarbakır State Security Court; it was given to him on the same day. | 0 |
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