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train | 001-87884 | ENG | RUS | CHAMBER | 2,008 | CASE OF NADROSOV v. RUSSIA | 3 | Partly inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | 6. The applicant was born in 1976 and lived until his arrest in Rostov-on-Don. He is now serving his sentence in a correctional colony in the town of Bataysk. 7. On 29 October 2000 two police officers accompanied by a person in civilian clothes approached the applicant at a bus stop. According to the applicant, the civilian punched him and the police officers held his hands behind his back in an armlock, hit him with a rubber truncheon on his head and back, body searched him and pushed him into a police car. They took the applicant to the Proletarskiy District police station. The applicant submitted that the beatings had continued at the station with a view to forcing him to confess to a theft. 8. The Government, relying on similar written statements made on 2 and 8 August 2005 by police officers A. and Av. and a written statement drawn up by the applicant’s co-defendant, Mr P., disputed the applicant’s description of events. They alleged that on 29 October 2000 he had been arrested on suspicion of having robbed truck drivers and had been taken to a police station. The relevant part of the statements read as follows: “On 29 October 2000, after midnight, on an order of an officer on duty, I drove to the following address:... due to a call about a robbery in progress. As a result of the operation, data was gathered, victims’ statements and explanations were recorded, and a certain police officer arrested Mr Nadrosov and Mr P. on suspicion of the crime and brought [them] to the police station. At present, due to the remoteness of the events, I cannot recall whether I questioned them and what they stated. I would like to add that on 29 October 2000, at 8.00 a.m., my shift ended and I left the police station. I took no further part in that police case. I strongly object to Mr Nadrosov’s statements that police officers injured him in the police station; at present I cannot recall whether Mr Nadrosov raised any complaints about the actions of the police officers.” “... after that, police officers arrived at the [bus] stop and arrested certain participants in that brawl; I was among them. After I had been taken to the Proletarskiy District police station, Rostov-on-Don, the police officers informed me that I was suspected of having committed a robbery. Of course, I denied my guilt, stating that at night I was with my friends and that I had not committed any crime... After that, the police officers placed Mr Nadrosov, whom I did not know and who was also arrested by policemen on suspicion of the robbery, in my cell. I was not present when Mr Nadrosov was searched. I would also like to note that the police officers did not beat Mr Nadrosov in my presence... As I am aware, on 29 October 2000 Mr Nadrosov complained that he did not feel well, due to which he was sent from the Proletarskiy District Police Department to a hospital. Subsequently, I saw Mr Nadrosov in a courtroom...” 9. On 30 October 2000 an ambulance was called for the applicant. Emergency doctors drew up a report noting that he had an injury to the left kidney and a closed injury on the left side of the chest. The applicant was taken to a hospital. 10. At the hospital doctors again examined the applicant and diagnosed him with “an injury to the lumbar region and a closed chest injury”. The applicant explained that he had sustained the injuries when he had fallen from “the height of his own stature” on 29 October 2000. The medical report issued in the hospital also indicated that the applicant had had numerous subdermal haematomas measuring up to 2 centimetres in diameter in the left subcostal area. 11. On the same day the applicant underwent a laparocentesis, a surgical puncture to diagnose injuries to and remove fluid from internal organs, as a result of which his diagnosis was confirmed. 12. On the morning of 31 October 2000 the applicant was discharged from the hospital and taken back to the detention unit at the police station. On his admittance to the unit the applicant was examined and the following injuries were recorded on him: “an injury to the soft tissues of the left side of the chest and stomach, an injury behind the right ear, an injury to the right leg”. 13. On 2 November 2000 the applicant’s mother complained to the Proletarskiy District Prosecutor that the applicant had been severely beaten up by the police. She also alleged that her requests for a forensic medical examination of the applicant had been futile. She applied for an examination which would establish the nature and cause of the applicant’s injuries. 14. On 10 November 2000 an assistant of the Proletarskiy District Prosecutor issued a decision not to institute criminal proceedings in connection with the applicant’s claim of ill-treatment. The reasoning of the one-page decision, in full, read as follows: “According to explanations by Mr Ya., on 29 October 2000 he was an investigator on duty in the police department. On an order of the head of the task unit of the Proletarskiy District Police Department of Rostov-on-Don, he received materials of a case pertaining to a robbery of truck drivers... The materials contained information requiring institution of criminal proceedings under Article 162 § 2 of the Criminal Code of the Russian Federation. He instituted criminal proceedings and began the pre-trial investigation. Mr Nadrosov... was among the suspects. [Mr Ya.] drew up an arrest record in respect of Mr Nadrosov at 7.00 p.m., when he was brought to his office. Before that [Mr Ya.] performed other investigating actions, such as questioning victims. Mr Nadrosov committed the crime on 29 October 2000, thus his arrest was carried out in timely fashion. He questioned Mr Nadrosov as a suspect and as an accused. During all their interviews the investigator used no physical or psychological pressure. Mr Nadrosov testified willingly. [Mr Nadrosov] did not make any complaints or requests in the course of the interviews. [Mr Ya.] did not see injuries on him. [Mr Ya.] did not see the police officers beat [Mr Nadrosov] up. Nor did [Mr Nadrosov] make any requests when he was served with the bill of indictment. Moreover, during the robbery Mr Nadrosov had had a fight with the truck drivers, who had actively defended themselves, and he could have sustained injuries then. No physical or moral pressure was applied to Mr Nadrosov during the pre-trial investigation. His guilt was completely proven. A policeman, Mr K., also totally denied that he had used any physical or psychological pressure on Mr Nadrosov. In connection with the above-mentioned, there is no objective evidence, save for... a complaint about Mr Nadrosov’s beatings. The actions of the police officers of the Proletarskiy District Police Department do not contain any elements of a crime as prescribed by Articles 285, 288 of the Criminal Code of the Russian Federation.” 15. On the same day the assistant prosecutor sent a letter to the applicant’s mother informing her that her request for institution of criminal proceedings against the police officers had been refused. He also noted that the decision could be appealed against to a higher-ranking prosecutor. 16. On an unspecified date the applicant’s mother complained to the Rostov-on-Don Town Prosecutor that the applicant had been ill-treated and about the refusal to institute criminal proceedings against the police officers. She once again asked for a forensic medical examination of the applicant. According to the applicant, no response followed. 17. The applicant was committed to stand trial before the Proletarskiy District Court of Rostov-on-Don. 18. The applicant’s lawyer complained to the District Court that the police officers had severely beaten the applicant up and asked it to examine the applicant’s medical records. He insisted that the statement which the applicant had originally made to the police about the nature of his injuries had been given in fear of reprisals and did not reflect the truth of what had happened to him. 19. On 13 April 2001 the Proletarskiy District Court of Rostov-on-Don found the applicant guilty of aggravated robbery and sentenced him to nine years’ imprisonment. As to the applicant’s ill-treatment complaint, the District Court refused to call for or examine medical documents pertaining to the applicant’s beatings. However, it heard the truck drivers, an emergency doctor who had been called to the applicant on 30 October 2000, and the police officer who had investigated the applicant’s criminal case. The truck drivers confirmed that they had been attacked by several men, including the applicant, but they did not recall hitting the applicant in defence. The emergency doctor stated that she had been called to the applicant who had been complaining of severe pain in the back as a result of a fall from a bench. She had examined the applicant and had not discovered any visible injuries. The applicant had not complained to her of beatings by the police. The investigator testified that the applicant had complained of ill-treatment by the police and that she had examined “necessary documents” pertaining to his complaint. Relying on the witnesses’ testimony, the District Court dismissed the applicant’s complaint of beatings as unfounded. 20. The applicant appealed against the judgment. In his statement of appeal he alleged, inter alia, that he had been severely beaten up by the police officers. He also complained that the District Court had refused to examine the medical evidence corroborating his allegations of ill-treatment. 21. On 21 August 2001 the Rostov Regional Court upheld the conviction, endorsing the reasons given by the District Court. The Regional Court also found that the applicant’s allegations of ill-treatment were “not convincing” because they had been refuted by the statements of the emergency doctor and the fact that the applicant had initially stated that he had sustained an injury as a result of a fall from a height. 22. The RSFSR Code of Criminal Procedure (in force until 1 July 2002, “the CCrP”) established that a criminal investigation could be initiated by an investigator upon the complaint of an individual or on the investigative authorities’ own initiative when there were reasons to believe that a crime had been committed (Articles 108 and 125). A prosecutor was responsible for general supervision of the investigation (Articles 210 and 211). He could order a specific investigative action, transfer the case from one investigator to another or order an additional investigation. If there were no grounds to initiate a criminal investigation, the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party. | 1 |
train | 001-103394 | ENG | FIN | CHAMBER | 2,011 | CASE OF HEINO v. FINLAND | 4 | Violation of Art. 8 | Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano | 5. The applicant was born in 1955 and lives in Helsinki. 6. The applicant is an attorney. Some business transactions of her client's spouse were investigated by the police but she herself was not a suspect. 7. On 7 October 2009 police investigators conducted a search at the applicant's office. During the search some e-mail correspondence were copied from her computer and certain documents were seized. 8. By letter dated 12 October 2009 the head of the investigation (tutkinnanjohtaja, undersökningsledaren) informed the applicant that the seizure of the data had not been successful due to the fact that the wrong files had been copied, and that the information copied had been destroyed. The applicant allegedly never received a copy of the seized files so it was not possible to verify whether the seizure of the data really had been unsuccessful. The seized documents remained in the police's possession. 9. The pre-trial investigation has been concluded and the case has been submitted to the public prosecutor for consideration of charges. No court proceedings have been initiated yet. 10. According to Article 10 of the Finnish Constitution (perustuslaki, grundlagen, Act no. 731/1999), the sanctity of everyone's home is guaranteed. Measures derogating from this right, and which are necessary for the purpose of guaranteeing basic rights and liberties or for the investigation of crime, must be laid down by an Act. 11. Chapter 5, section 1, subsection 1, of the Coercive Measures Act (pakkokeinolaki, tvångsmedelslagen, Act no. 646/2003) provides that a search may be conducted, inter alia, if there is reason to suspect that an offence has been committed and provided the maximum sentence applicable exceeds six months' imprisonment. 12. According to Chapter 5, Section 3, of the Coercive Measures Act, an official with the power of arrest shall decide on a search of premises. However, a police officer may carry out a search of premises without a warrant when the purpose of the search is to locate a person to be apprehended, arrested, detained, brought to court or subjected to a bodily search, or to seize an object, when continuously followed or monitored since the commission of the offence. A police officer may carry out a search of the premises also in other urgent cases. 13. The person whose domicile is being searched, or in his or her absence someone else, must be given the opportunity to be present at the search and to call a witness, unless this causes delay. If none of the above-mentioned persons was present at the time of the search, the person whose domicile has been searched must be immediately informed (Chapter 5, section 4, subsection 2). 14. Chapter 4, section 2, subsection 2 of the Coercive Measures Act provides that a document shall not be seized for evidential purposes if it may be presumed to contain information in regard to which a person referred to in Chapter 17, section 23, of the Code of Judicial Procedure is not allowed to give evidence at a trial and provided that the document is in the possession of that person or the person for whose benefit the secrecy obligation has been prescribed. A document may nevertheless be seized if, under section 27, subsection 2 of the Pre-Trial Investigation Act, a person referred to in Chapter 17, Article 23, of the Code of Judicial Procedure would have been entitled or obliged to give evidence in the pre-trial investigation about the matter contained in the document. 15. Under Chapter 17, section 23, subsection 1, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken; as modified by Acts no. 571/1948 and 622/1974), counsel may not testify in respect of what a client has told him or her for the purpose of pleading a case, unless the client consents to such testimony. Although subsection 3 provides for an exception to this secrecy obligation if the charges concern an offence carrying a minimum sentence of six years' imprisonment (or attempting or aiding and abetting such an offence), this exception does not extend to counsel for an accused. 16. Under section 5c of the Advocates Act (laki asianajajista, lagen om advokater; as modified by Act no. 626/1995) an advocate or his assistant shall not without due permission disclose the secrets of an individual or family or business or professional secrets which have come to his knowledge in the course of his professional activity. Breach of this confidentiality obligation shall be punishable in accordance with Chapter 38, section 1 or 2, of the Penal Code, unless the law provides for a more severe punishment on another count. 17. Chapter 4, section 13, of the Coercive Measures Act provides that, at the request of a person whom the case concerns, the court shall decide whether the seizure of any materials shall remain in force. A request which has been submitted to the court before its examination of the charges shall be considered within a week of its reception by the court. The court shall provide those with an interest in the matter an opportunity to be heard, but the absence of any such persons shall not preclude a decision on the issue. A decision reviewing a seizure is subject to a separate appeal (Chapter 4, section 16, subsection 1). 18. According to section 118, subsection 3, of the Constitution everyone who has suffered a violation of his or her rights or sustained loss through an unlawful act or omission by a civil servant or other person performing a public function shall have the right to request that the civil servant or other person in charge of the public function be sentenced to a punishment and that the public organisation, official or other person in charge of a public function be held liable for damages, as provided in more detail by an Act. 19. Chapter 40, section 9, subsection 1, of the Penal Code (rikoslaki, strafflagen, as modified by Act no. 604/2002), provides that if a public official, when acting in office, intentionally in a manner other than that provided above in this Chapter violates or neglects to fulfil his official duty based on the provisions or regulations to be followed in official functions, and the act, when assessed as a whole, taking into consideration its detrimental and harmful effect and the other circumstances connected with the act, is not a petty offence, he shall be sentenced for violation of official duties to a fine or to imprisonment for a maximum of one year. 20. Chapter 40, section 10, of the Penal Code (as modified by Act no. 604/2002) provides that if a public official, when acting in office, through carelessness or lack of caution, in a manner other than that referred to in section 5, subsection 2, violates or neglects to fulfil his or her official duty based on the provisions or regulations to be followed in official functions, and the act, when assessed as a whole, taking into consideration its detrimental and harmful effect and the other circumstances connected with the act, is not a petty offence, he shall be sentenced for negligent violation of official duties to a warning or to a fine. 21. According to Chapter 1, section 14, of the Criminal Procedure Act (laki oikeudenkäynnistä rikosasioissa, lagen om rättegång i brottmål, as modified by Act no. 647/2003), an injured party may bring a private prosecution only if the public prosecutor has decided not to press charges. 22. Under Chapters 3 and 4 of the Tort Liability Act (vahingonkorvauslaki, skadeståndslagen, Act no. 412/1974) proceedings may be brought against the State in respect of damage resulting from fault or neglect by its employees in the performance of their duties. | 1 |
train | 001-86655 | ENG | SVN | ADMISSIBILITY | 2,008 | ZAJC v. SLOVENIA | 4 | Inadmissible | Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra | 1. The applicants are Slovenian nationals who live in Slovenia. The first four applicants, Mr Zajc, Mr Podlogar, Mr Hohkraut and Mr Januš were represented before the Court by Mr Boštjan Verstovšek, a lawyer practising in Celje. The fifth applicant, Mr Rozman, was not represented by a lawyer. The respondent Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney-General. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicants were parties to civil proceedings which terminated before 1 January 2007. The relevant length of each of the proceedings is indicated in the attached table. 4. On 20 and 22 February 2007, 21 May 2007 and 11 September 2007 the respondent Government were given notice of the present applications. 5. On the dates indicated in the table the State Attorney’s Office sent settlement proposals to the applicants under section 25 of the Act on the Protection of the Right to a Trial without undue Delay (“the 2006 Act”). In its proposals, the State Attorney’s Office acknowledged the violation of the right to a trial within a reasonable time and offered to pay monetary compensation in respect of non-pecuniary damage and reimbursement of the costs and expenses connected with the case, if claimed, to each applicant (see the attached table). 6. Subsequently, each of the applicants informed the State Attorney’s Office that they were not willing to accept the proposals as the sums offered were too low. At the same time, they set out their proposals with a view to securing settlements. 7. No settlements have been reached so far. 8. The Slovenian Government adopted on 12 December 2005 a Joint State Project on the Elimination of Court Backlogs, the “Lukenda Project”. Its goal is the elimination of backlogs in Slovenian courts and prosecutor’s offices by the end of 2010, by providing for structural and managerial reform of the judiciary. As a part of the “Lukenda Project” the Parliament adopted the 2006 Act (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006) which has been implemented since 1 January 2007. 9. Section 25 of the 2006 Act lays down the following transitional rules in relation to the applications already pending before the Court: “(1) In cases where an infringement of the right to a trial without undue delay has already ceased and the party has 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 competent court under this Act. The party may bring an action within six months of receiving the State Attorney’s Office reply that the party’s proposal referred to in the previous paragraph was not acceded to, or after the expiry of the period fixed in the previous paragraph for the State Attorney’s Office to decide to proceed with 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.” 10. The following parts of the 2006 Act are relevant as regards the “claim for just satisfaction”: “When deciding on the legal remedies under this Act, the circumstances of the particular case shall be taken into account, namely: its complexity in terms of facts and law; actions of the parties to the proceedings, in particular as regards the use of procedural rights and fulfilment of obligations in the proceedings; compliance with rules on the set order for resolving cases, or with statutory deadlines for fixing preliminary hearings or for giving court decisions; the manner in which the case was heard before a supervisory appeal or a motion for a deadline was lodged; the nature and type of case and its importance for a party.” “.... (2) Just satisfaction shall be provided by: i. payment of monetary compensation for damage caused by an infringement of the right to a trial without undue delay; ii. a written statement from the State Attorney’s Office that the party’s right to a trial without undue delay has been infringed; iii. the publication of a judgment that the party’s right to a trial without undue delay has been infringed.” “(1) Monetary compensation shall be payable for non-pecuniary damage caused by an infringement of the right to a trial without undue delay. Strict liability for any damage caused shall lie with the Republic of Slovenia. (2) Monetary compensation for individual finally decided cases shall be granted in the amount of 300 up to 5,000 euros. “... (3) Territorial jurisdiction for decision-making on an action for damages under this Act shall lie with the local court in whose district the plaintiff is a permanent or temporary resident or has registered office. ... (6) 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. (7) Appeal on points of law shall be excluded for disputes on damage under this Act.” “... (2) The State Attorney’s Office shall pay monetary compensation and the party’s costs of the proceedings on the basis of a final court decision which has established an infringement of the right to a trial without undue delay in the proceedings, under section 20 or section 21 of the present Act.” ...” “Funds ... shall be earmarked in the Budget of the Republic of Slovenia within the framework of the financial plan of the State Attorney’s Office.” 11. Section 27 of the amended Personal Income Tax Act (Zakon o dohodnini, Official Journal No. 117/06), which entered into force on 1 January 2007, provides that monetary compensation for non-pecuniary damage received in accordance with the 2006 Act is exempt from personal income tax (dohodnina). | 0 |
train | 001-72567 | ENG | ITA | CHAMBER | 1,984 | CASE OF LUBERTI v. ITALY | 2 | Violation of Art. 5-4;No violation of Art. 5-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings | C. Russo | 8. Mr. Luberti, who is an Italian national born in 1924, currently resides in a religious home. On 20 January 1970, in Rome, he killed his mistress by firing several shots at her. He then left the apartment, leaving the body behind. On 25 March 1970, the police, acting on information in a letter from the applicant confessing to the killing, discovered the body. According to the police report, the circumstances of the act suggested that the perpetrator was not fully in possession of his mental faculties. Criminal proceedings were instituted against Mr. Luberti; he was not arrested until 10 July 1972, by which date the preliminary investigation of the case had been completed and he had been committed for trial on a charge of murder. 9. On 17 January 1976, the Rome Assize Court sentenced Mr. Luberti - who had pleaded not guilty - to twenty-one years’ imprisonment for murder and to one year’s imprisonment and a fine of 500,000 Lire for possession of military weapons. 10. The applicant appealed, pleading for the first time, amongst other grounds, that he was insane at the time of the commission of the act of which he was accused. On 24 November 1976, the Rome Appeal Court of Assize ordered an expert psychiatric opinion. The two experts appointed for this purpose filed their report on 11 November 1977; their conclusion was that at the date of the killing Mr. Luberti was suffering from a paranoiac syndrome (sindrome paranoica) depriving him of the capacity to form an intention (capacità di volere) and that at the time when the opinion was drawn up he was, in psychiatric terms, a dangerous person. As this conclusion was challenged by the expert called by the party seeking damages (consulente tecnico), the Appeal Court directed on 17 November 1978 that a further expert opinion be obtained. The Appeal Court wished to be advised whether the applicant was, at the time of the killing, partly or completely insane and whether he was still a danger to society. Three new experts examined Mr. Luberti on several occasions; they saw him for the last time on 14 May 1979. Although their report agreed with the previous report in other respects, it differed as regards the precise diagnosis of his illness; it also found that at the moment of the crime Mr. Luberti lacked the capacity to understand and not just the capacity to form an intention (capacità d’intendere e di volere). In addition, the report contained observations on the applicant’s behaviour during his meetings with the experts. It mentioned certain symptoms of the illness that was diagnosed: evidence of megalomania was to be found in Mr. Luberti’s overestimation of himself, in his superiority complex in regard to the experts, in his conviction that he was immortal and in his antagonistic attitude to the world around him. Furthermore, statements by the applicant alleging that he was the victim of widespread international conspiracies showed clearly that he was suffering from persecution mania. Finally, the report affirmed that the psychosis observed had certainly also existed at the time of the events giving rise to the criminal proceedings. The Appeal Court accepted these findings. On 16 November 1979, it acquitted Mr. Luberti on the ground of mental incapacity (infermità psichica - Article 88 of the Criminal Code) and directed that he be confined for two years in a psychiatric hospital. This security measure was ordered on the basis of Article 222 of the Criminal Code as then in force (see paragraph 18 below). Amongst other things, that Article provided that in a case like Mr. Luberti’s the court always had to order confinement for two years, there being a legal presumption that the accused was a danger to society. However, although it was under no legal obligation to do so, the Appeal Court of Assize also made a finding as to the applicant’s mental health at the time of its judgment. It agreed in particular with the conclusions of the two expert opinions regarding Mr. Luberti’s lack of responsibility and the assessment of his dangerous character. It added that his dangerous character was not simply presumed but real, as the experts had unanimously found, and that attention should be drawn to this as a factor that could, in due course, assist in making a re-assessment of Mr. Luberti’s state of mind when the question of the termination of his confinement came to be considered. Finally, the Appeal Court of Assize noted that the case concerned a "paranoiac" and that the confinement necessitated by his state of mental health should follow his detention without a break. Pursuant to Article 485 of the Code of Criminal Procedure, taken in conjunction with Article 206 of the Criminal Code, the Appeal Court of Assize ordered the provisional implementation of its decision. 11. Appeals on points of law, based on different grounds, were lodged with the Court of Cassation by the applicant and by the public prosecutor attached to the Rome Court of Appeal. Mr. Luberti complained of the failure of the Appeal Court of Assize to take account of a medico-legal and ballistic report which had been drawn up pursuant to a direction it had given at the hearings and which should have determined whether there had been homicide or, on the contrary, suicide. The two appeals were dismissed on 17 June 1981. 12. Pursuant to the judgment of the Appeal Court of Assize, Mr. Luberti, who had been continuously detained in prison since 10 July 1972, was admitted to the psychiatric hospital of Aversa (Province of Naples) on 21 November 1979. 13. After that judgment, Mr. Luberti made several applications to the judicial authorities for release from confinement. He adopted basically two different approaches. On the one hand, he applied on 28 November 1979 to the supervising judge (magistrato di sorveglianza - see paragraph 21 below) at the Santa Maria Capua Vetere court (within whose jurisdiction the hospital was situated) to have the periods during which he was undergoing psychiatric examinations whilst in detention on remand set off against the period of the security measure. This application was rejected. On the other hand, Mr. Luberti applied to three different courts for early release from confinement, on the ground that it was not justified by his state of health. 14. He turned first - as early as 19 November 1979, that is barely three days after the judgment of the Appeal Court of Assize - to the Rome Supervision Division (sezione di sorveglianza - see paragraph 21 below); he relied on Article 207 of the Criminal Code and section 71 of Act no. 354 of 26 July 1975, concerning the administration of prisons and the implementation of measures involving deprivation or restriction of liberty. The Supervision Division first undertook a series of inquiries. It obtained, inter alia, a medical report from the hospital, a copy of Mr. Luberti’s "clinical diary" and several documents submitted by him. On 5 March 1980, a psychologist consulted by the applicant on a private basis issued him with a certificate to the effect that he had recovered and that it was necessary to release him if the clinical progress achieved was not to be completely reversed. On 5 August 1980, the Rome Supervision Division held a hearing at which the public prosecutor’s office submitted, on the basis of Article 635 of the Code of Criminal Procedure (see paragraph 21 below), that that Division lacked jurisdiction since the appeals on points of law against the judgment of 16 November 1979 (see paragraph 11 above) were still pending. By order of the same date, deposited in the court registry on the following day, the Supervision Division ruled that it did not have jurisdiction. This order was based, inter alia, on a judgment of the Court of Cassation, in which it was held that an application for suspension of the implementation of a security measure imposed following an acquittal that has not yet become final must, since it constitutes an issue forming part of the proceedings (procedimento incidentale), be made to the trial court and not to the judge supervising the execution of sentences (1st Chamber, 12 June 1962, in "Giustizia Penale" 1965, III, p. 152). On 16 August 1980, Mr. Luberti appealed on a point of law to the Court of Cassation. That Court held on 3 December 1980 that, under Article 640 of the Code of Criminal Procedure, the Rome Court of Appeal had jurisdiction to determine the appeal. The judgment (decreto) was deposited in the court registry on 4 February and the file was sent to the Court of Appeal on 26 February 1981. By judgment (decreto) of 4 May 1981, deposited in the court registry on 29 May, the Court of Appeal confirmed the order of 5 August 1980. 15. On 16 August 1980, the date of his appeal to the Court of Cassation against the aforesaid order, Mr. Luberti had also made two other applications: one was addressed to the Rome Appeal Court of Assize and the other to the Naples Supervision Division, within whose district the hospital where he was confined was situated. 16. At first, on 4 September 1980, the proceedings before the Appeal Court of Assize were suspended indefinitely because on 22 August the applicant had failed to report back to the hospital after an eight-hour period of leave granted to him by the supervising judge at the Santa Maria Capua Vetere court. Subsequently, on a date which the Government were unable to indicate, the Appeal Court discontinued the proceedings before it. The applicant was again arrested on 17 March 1981 and re-admitted to the hospital two days later. 17. The Naples Supervision Division in the first place suspended its decision pending the final outcome of the proceedings instituted before the Rome Supervision Division (see paragraph 14 above). It resumed consideration of the application pending before it as soon as the Rome Court of Appeal had dismissed, on 4 May 1981, the appeal against the order of 5 August 1980 (ibid.). The hearings were held on 12 May, that is even before the Appeal Court’s judgment had been deposited in its registry (29 May). The material before the Naples Supervision Division included a medical report dated 16 April 1981 - that is, less than a month after Mr. Luberti’s return to the psychiatric hospital -, which had been drawn up for the purposes of the inquiry into the case; the Chief Medical Officer (Direttore capo sanitario) of the hospital stated therein that "from the clinical point of view there [was] no reason why the security measure should not be terminated". On 4 June 1981, the Naples Supervision Division directed that the confinement should be terminated, having found, particularly in the light of the aforesaid report, that psychiatrically and criminologically Mr. Luberti was no longer dangerous. Before giving its decision on the merits of the case, the Supervision Division stated that it had jurisdiction to rule on the application although the public prosecutor’s appeal on points of law against the judgment of the Rome Appeal Court of Assize was still pending (see paragraph 11 above); it disagreed with the Rome Supervision Division’s interpretation of Article 635 of the Code of Criminal Procedure (see paragraph 14 above). The order was deposited on 10 June and Mr. Luberti was released on 15 June that is two days before the dismissal of the two appeals on points of law (see paragraph 11 above). 18. Under Article 222 of the Italian Criminal Code in force at the time of Mr. Luberti’s trial, an accused acquitted on account of insanity was to be subjected to a security measure in the form of confinement in a psychiatric hospital (ospedale psichiatrico giudiziario). The minimum period of detention was prescribed by law by reference to the seriousness of the offence; in the present case, that period was two years. Article 202, first sub-paragraph, provided that security measures could be imposed only on persons who were a danger to society and had committed an act constituting an offence under the law. Under the first sub-paragraph of Article 204, such measures were to be ordered where it was established that the individual concerned was a danger to society. However, the second sub-paragraph added: "In the cases expressly provided for" - including that covered by Article 222 -, "there shall be a legal presumption that the person concerned is a danger to society. Nevertheless, even in such cases the application of security measures shall be conditional on proof of a danger of this nature, if the conviction or acquittal was pronounced: (1) more than ten years after the facts occurred, when persons of unsound mind are involved, in the cases set out in the second sub-paragraphs of Articles 219 and 222; ...." The presumption created by the first sentence of this text was applicable in the present case. 19. On some points, there was a change in the law following a judgment handed down by the Constitutional Court on 27 July 1982 (no. 139). It was held in that judgment that Article 222, first sub-paragraph, and Article 204, second sub-paragraph, of the Criminal Code were unconstitutional "... in so far as they fail[ed] to make a decision that an individual acquitted on account of insanity be confined in a psychiatric hospital conditional on a prior finding, either by the trial court or by the judge supervising the execution of sentences, there was a continuing danger to society on account of the ... illness at the time of the application of the measure ...." 20. Under Article 207, as qualified by another Constitutional Court judgment (no. 110 of 23 April 1974), termination of a security measure such as Mr. Luberti’s confinement can be ordered even before expiry of the minimum period, for example on application by the individual concerned, if he no longer presents a danger to society. Article 208 specifies that the court shall in any event re-examine the position at the end of that period in order to determine whether the person confined still presents such a danger and shall, if appropriate, fix the date for a further examination. 21. Under Article 206 of the Criminal Code, the implementation of a security measure may in certain cases, including that of a person of unsound mind, begin during the investigation or the trial; this is no more than a discretionary power enjoyed by the court. At this stage, the measure is deemed provisional and only the trial court has jurisdiction over any questions to which it may give rise, including the question of termination of the measure. For security measures ordered subsequently to the investigation or the trial, Article 635 of the Code of Criminal Procedure confers the power of review and decision on the judge supervising the execution of sentences (giudice di sorveglianza). This institution is comprised of two organs: the supervising judge (magistrato di sorveglianza) and the supervision division (sezione di sorveglianza). Their respective jurisdictions, which are mutually exclusive, are laid down by sections 69 and 70 of Act no. 354 of 26 July 1975, concerning the administration of prisons and the implementation of measures involving deprivation or restriction of liberty. In particular, it is the supervision division which hears applications for termination of security measures. Supervising judges and supervision divisions give decisions at first instance. The individual concerned and the public prosecutor’s office have a right of appeal against such decisions either to the Court of Appeal (Article 640 of the Code of Criminal Procedure) or, if the ground of appeal is alleged violation of the law, to the Court of Cassation (section 71 ter of Act no. 354 of 1975). They may also challenge a judgment (decreto) given by the Court of Appeal in such proceedings, by filing an application for review (ricorso per revisione) with the Court of Cassation; in that event, the Court of Cassation is also empowered to give a decision on the merits of the case (Article 641 of the Code of Criminal Procedure). | 1 |
train | 001-60713 | ENG | GBR | CHAMBER | 2,002 | CASE OF ALLAN v. THE UNITED KINGDOM | 1 | Violation of Art. 8;Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Matti Pellonpää;Nicolas Bratza | 8. On 3 February 1995 Mr David Beesley, store manager, was shot dead in the manager's office of a Kwik-Save supermarket in Greater Manchester. 9. On 18 February 1995 the applicant and another man, by the name of Leroy Grant, were arrested on suspicion of having committed a robbery at the Late Saver shop, Cheadle. At the time, they were in possession of an 8-mm Beretta replica handgun. Charged in connection with this offence, Mr Grant admitted to the offence and several other late-night shop robberies. The applicant denied involvement in any of the offences. On or about 20 February 1995 an anonymous informant told the police that the applicant had been involved in the murder of David Beesley. 10. On 20 February 1995 the applicant and Leroy Grant appeared in custody at the Stockport Magistrates' Court and were further remanded in custody to reappear on 23 February 1995. On 20 February 1995 Detective Chief Inspector Dunn requested permission for the cell and the visiting areas used by the applicant and Leroy Grant to be bugged with audio and video technology, alleging that all regular methods of investigation to identify David Beesley's murderer had failed. The Chief Constable of the Greater Manchester Police granted authority on the same day for an unlimited period for both the police stations at Stockport and Cheadle Hulme. On 13 March 1995 similar authority was sought and obtained for the installation of a listening device with video system to be placed in the visiting area of Stretford police station, where the applicant was then held. 11. On 8 March 1995 the applicant was arrested for the murder and questioned. In the interviews with the police which followed, the police told the applicant that he was not obliged to say anything. He availed himself of that right. 12. During this time visits to the applicant by his female friend, J.N.S, were recorded on audio and videotape in the prison visiting area between 12 and 28 March 1995. The applicant and Leroy Grant were held for long periods in the same cell and recordings of their conversations were made from 20 February to 12 March 1995. 13. On 23 March 1995 H. was brought to Stretford police station. H. was a long-standing police informant with a criminal record who had been arrested on 21 March 1995 for unrelated offences. He was placed in the applicant's cell for the purpose of eliciting information from the applicant. As asserted by the applicant, H. had every incentive to inform on him. Telephone conversations between H. and the police included comments by the police instructing H. to “push him for what you can” and disclosed evidence of concerted police coaching. After 20 April 1995 he associated regularly with the applicant who was remanded at Strangeways Prison. 14. On 28 June 1995 the applicant was taken away from the prison to be interviewed by the police concerning the Kwik-Save robbery. He was attended and advised by his solicitor. During the course of the interview, the applicant was invited to comment on the recordings made in February and March 1995. He made no comment to any question. According to the applicant, he was interrogated at length by the police in an attempt to “rattle” or unsettle him, such that he would be more talkative and vulnerable to H. upon his return to the prison. H. had been fitted with recording devices. The recording thereby obtained was adduced in evidence at the applicant's trial. 15. The applicant was interviewed again in the presence of his solicitor on 29 June and 26 July 1995 and remained silent when faced with the allegations. 16. On 25 July 1995 H. made a 59- to 60-page witness statement detailing his conversations with the applicant and was released on bail on 4 August 1995. His sentence was postponed until after he had given evidence at the applicant's trial. The high point of H.'s evidence was the assertion that the applicant had admitted his presence at the murder scene. This asserted admission was not part of the recorded interview and was disputed. The thrust of the applicant's case was that he was discussing robberies and did not accede to H.'s efforts to channel their conversation into a discussion of the murder. The audio- and video-recordings (or transcripts thereof) were utilised in the trial of the applicant. No evidence, other than the alleged admissions, connected the applicant with the killing of Mr Beesley. 17. In January 1998 the applicant's trial on one count of murder and a count of conspiracy to rob began before a jury. He was represented by leading counsel. 18. During his trial, the applicant's counsel challenged the admissibility of extracts from covert audio- and video-recordings of conversations of the applicant with Leroy Grant and J.N.S., under sections 76 and 78 of the Police and Criminal Evidence Act 1984 (PACE). The judge concluded that there was evidence on the tapes from which the jury could infer that the applicant was involved in the events of 3 February 1995, and it was not so unreliable that it could not be left to the jury to assess for themselves. The judge also rejected the applicant's counsel's arguments under sections 76 and 78 of PACE that the evidence from H. was obtained by oppression or by such impropriety as to render it inadmissible. He considered that the use of an informant to talk and listen to the accused over a substantial period of time did not result in any unfairness to the accused. The fact that H. might be considered as having much to gain in giving evidence was also a matter to be left to the jury in their assessment of the reliability of his evidence. The evidence was accordingly admitted before the jury. The judge's ruling on the admissibility of the evidence was given on 26 January 1998, after a voir dire (submissions on a point of law in the absence of a jury) and consisted of a judgment of eighteen pages. 19. In his summing-up to the jury on 10 and 11 February 1998, the trial judge gave directions on the way in which the jury should assess the reliability of the disputed evidence. He told them that they were to judge whether the police had deliberately wound up the applicant during the interview on 28 June 1995 and how to approach the evidence put forward by H.: “So at the end of the day with regard to H. you have his evidence about the conversations that he had with [the applicant] and what [the applicant] said. You have the tape recordings of the conversations on 28 June when H. had been wired up, between [the applicant] and H., and you have the transcripts of the conversations between H. and the police. I suggest ... that you approach the evidence of H. with the very greatest caution and care. He is a professional criminal. He behaved, and has behaved as he acknowledged, dishonestly and criminally for years. He saw the likelihood of advantage to himself, both in terms of bail and in the sentence that he was likely to receive. You have heard that he has not yet been sentenced on matters for which he was in custody in early 1995. The defence say if you consider the whole picture you simply cannot rely upon H.; quite unsafe to do so. The prosecution say the contents of the tapes of 28 June can be relied on and are consistent with what H. says [the applicant] had said to him previously, before he, H., was wired up. Of course tapes of ... conversations cannot possibly constitute any independent confirmation of what H. says about what [the applicant] had said to him previously, because, and you will understand the logic of that, the information is all coming from one source, namely H. and the witness cannot strengthen his own evidence essentially by repetition. So, ladies and gentlemen, at the end of the day how do you regard H.? Was he or may he have been lying, or are you sure that he was telling the truth? If you are sure, for example, in relation to things said on the tapes of 28 June or other aspects of H.'s evidence that his evidence is true, that [the applicant] did say a number of things, what do those things mean? Do they point to his guilt, to his presence at Kwik-Save on 3 February 1995, or are they capable of meaning something else? ...” 20. The judge also directed the jury concerning the possible drawing of inferences from the applicant's silence in police interview on 28 and 29 June and 26 July 1995, pursuant to section 34 of the Criminal Justice and Public Order Act 1994. He reminded the jury that the defence had contended that the applicant's silence had been adopted on legal advice because of the view that oppressive interrogation techniques were being used. 21. On 17 February 1998, after the jury had deliberated for a total of twenty-one and a half hours, the applicant was convicted of murder before the Crown Court at Manchester by a majority of ten to two and sentenced to life imprisonment. The applicant thereafter lodged a notice of appeal, asserting, inter alia, that the judge ought to have excluded evidence of the audio- and video-recordings of his conversations with Leroy Grant and J.N.S. and the evidence put forward by H. He also argued that the judge had erred in his directions as to the circumstances in which the jury could draw inferences from the applicant's failure to respond to police questions in interviews of 28 and 29 June, when the police strategy was to “spook” the applicant into a state of garrulousness when he returned to prison, where he had a conversation with H. 22. On 31 July 1998 he was refused leave to appeal against his conviction by a single judge. His renewed application was refused by the Court of Appeal (Criminal Division) on 18 January 1999 23. Guidelines on the use of equipment in police surveillance operations (The Home Office Guidelines of 1984) provide that only chief constables or assistant chief constables are entitled to give authority for the use of such devices. The Guidelines are available in the library of the House of Commons and are disclosed by the Home Office on application. They provide, inter alia: “4. In each case, the authorising officer should satisfy himself that the following criteria are met: the investigation concerns serious crime; normal methods of investigation must have been tried and failed, or must from the nature of things, be unlikely to succeed if tried; there must be good reason to think that use of the equipment would be likely to lead to an arrest and a conviction, or where appropriate, to the prevention of acts of terrorism; use of equipment must be operationally feasible. 5. In judging how far the seriousness of the crime under investigation justifies the use of a particular surveillance technique, authorising officers should satisfy themselves that the degree of intrusion into the privacy of those affected is commensurate with the seriousness of the offence.” 24. The Guidelines also state that there may be circumstances in which material so obtained could appropriately be used in evidence at subsequent court proceedings. 25. The 1997 Act provides a statutory basis for the authorisation of police surveillance operations involving interference with property or wireless telegraphy. The relevant sections relating to the authorisation of surveillance operations, including the procedures to be adopted in the authorisation process, came into force on 22 February 1998. 26. Since 25 September 2000 these controls have been augmented by Part II of the Regulation of Investigatory Powers Act 2000 (RIPA). In particular, covert surveillance in a police cell is now governed by sections 26(3) and 48(1) of RIPA. RIPA also establishes a statutory Investigatory Powers Tribunal to deal with complaints about intrusive surveillance and the use of informants by the police. 27. Section 76 provides: “(1) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section. (2) If in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained – (a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession that might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession, notwithstanding that it might be true, was not obtained as aforesaid.” 28. Section 78(1) provides: “In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.” 29. The parties have referred to cases concerning the use of informers to obtain incriminating statements from persons in police custody. 30. In R. v. Hebert ([1990] 2 Supreme Court Reports 151), the accused had relied on his right to silence when questioned by the police. He had then been placed in a cell with an undercover police officer to whom he made statements implicating himself in a robbery. The Supreme Court held that the statements of the undercover officer should have been excluded at trial. McLachlin J said, inter alia: “The common-law rules related to the right to silence suggest that the scope of the right in the pre-trial period must be based on the fundamental concept of the suspect's right to choose whether to speak to the authorities or remain silent ... When the police use subterfuge to interrogate an accused after he had advised them that he does not wish to speak to them, they are improperly eliciting information that they were unable to obtain by respecting the suspect's constitutional right to silence: the suspect's rights are breached because he has been deprived of his choice. However, in the absence of eliciting behaviour on the part of the police, there is no violation of the accused's right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police.” 31. In R. v. Broyles ([1991] 3 Supreme Court Reports 595), B. was arrested and held for questioning in respect of a suspicious death. He had spoken to a lawyer who had advised him to remain silent. The police arranged for a friend to visit B. in custody while carrying a body-pack recording device. The friend questioned B. about his involvement in the murder and in the words of the Supreme Court “sought to exploit the [accused's] trust in him as a friend to undermine the [accused's] confidence in his lawyer's advice to remain silent and to create a mental state in which the [accused] was more likely to talk”. The Supreme Court held that it was wrong to admit the evidence obtained by the friend that the accused knew the time of the deceased's death. According to the headnote of the reported case: “The right to silence is triggered when the accused is subjected to the coercive powers of the State through his or her detention. The right protects against the use of State power to subvert the right of an accused to choose whether or not to speak to the authorities. Where the informer who allegedly acted to subvert the right to silence of the accused is not obviously a State agent, the analysis must focus on both the relationship between the informer and the State and the relationship between the informer and the accused. The right to silence will only be infringed where the informer was acting as an agent of the State at the time the accused made the statement and where it was the informer who caused the accused to make the statement. Accordingly two distinct inquiries are required. First ... was the evidence obtained by an agent of the State? Second, was the evidence elicited? The right to silence ... will be violated only if both questions are answered in the affirmative. Applying the above principles to the facts of this case, it is clear that the informer was an agent of the State for the purposes of the right to silence in section 7 [of the Canadian Charter of Rights and Freedoms]. The conversation here would not have occurred or would have been materially different but for the authorities' intervention. Furthermore, the impugned statement was elicited. Parts of the conversation were functionally the equivalent of an interrogation and the appellant's trust in the informer as a friend was used to undermine the appellant's confidence in his lawyer's advice to remain silent and to create a mental state in which the appellant was more likely to talk.” 32. In R. v. Liew ([1999] 3 Supreme Court Reports 227), the accused was arrested in connection with a cocaine deal and the police also pretended to arrest the undercover officer who negotiated the transaction. They were placed together in an interview room where the accused initiated a conversation referring to the arrest. The undercover officer asked the accused: “What happened?”, and stated: “Yeah. They got my fingerprints on the dope.” The accused replied: “Lee and me too.” The Supreme Court found nothing to suggest that the exchange was the functional equivalent of an interrogation. It was of no consequence that the police officer was engaged in a subterfuge, permitted himself to be misidentified or lied, so long as the responses were not actively elicited or the result of interrogation. In this case the conversation had been initiated by the accused and the police officer picked up the flow and content of the conversation without directing or redirecting it in a sensitive area. Nor was there any relationship of trust between the accused and the officer or any appearance that the accused was obligated or vulnerable to the officer. 33. In R. v. Swaffield and Pavic ([1998] High Court of Australia 1), the accused Swaffield was one of the targets of an undercover operation aimed at identifying drug suppliers and also suspected of arson. An undercover officer held a conversation with the accused pretending that his own brother-in-law was suspected of arson and the accused made admissions of his own involvement in a fire. The High Court of Australia found that the admissions should not have been admitted at trial as they had been elicited by a police officer in clear breach of the accused's right to choose whether or not to speak. The accused Pavic had been questioned by the police about a disappeared person and remained silent. After his release from custody, Pavic made incriminatory statements to a friend called C., who had been fitted with a listening device by the police. The High Court found that there was no impropriety involved and the admissions were reliable and should be admitted. C. had not been a police officer or a person in authority over Pavic. The fact that C. was regarded as trustworthy by Pavic was an indicator of the reliability of the admissions; a serious crime had been committed and there was no public interest to be served by rejecting the admissions. Kirby J stated: “Subterfuge, ruses and tricks may be lawfully employed by the police, acting in the public interest. ... The critical question is not whether the accused has been tricked and secretly recorded. It is not even whether the trick has resulted in self-incrimination, electronically preserved to do great damage to the accused at trial. It is whether the trick may be thought to involve such unfairness to the accused or otherwise to be so contrary to public policy that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value. In the case of covertly obtained confessions, the line of forbidden conduct will be crossed if the confession may be said to have been elicited by police (or by a person acting as an agent of the police) in unfair derogation of the suspect's right to exercise a free choice to speak or to be silent.” | 1 |
train | 001-78783 | ENG | POL | ADMISSIBILITY | 2,006 | BIZIUK AND BIZIUK v. POLAND | 4 | Inadmissible | Nicolas Bratza | The applicants, Mr Janusz Biziuk and Ms Irena Biziuk, are Polish nationals who were born in 1931 and 1934, respectively, and live in Sokółka. On 26 May 2000 the first applicant lodged with the Sokółka District Court a claim for compensation for allegedly unjustified detention during criminal proceedings against him. His case was registered by the court’s registry on 25 January 2001 and later transferred to the Białystok Regional Court. A hearing was subsequently listed for 28 November 2001. On an unspecified date the applicant was granted legal aid. On 19 November 2001 the second applicant submitted a claim for compensation for her allegedly unfair criminal conviction and requested that her case be examined jointly with the first applicant’s claim. At a hearing held on 26 November 2001 the court decided that her claim should be examined separately. On 28 November 2001 the Białystok Regional Court dismissed the first applicant’s claim. It found that he had been detained for forty three days in a psychiatric hospital, because he had previously repeatedly failed to comply with summonses to undergo a psychiatric examination ordered to establish whether he could be held criminally liable. He had also absconded for some periods of time. The court had regard to the fact that the applicant had been duly informed about the dates of the planned psychiatric examination. It further observed that the applicant had once been arrested and brought to the hospital for the same purpose, but had left without permission after several days. Hence, given the applicant’s manifest unwillingness to co-operate in establishing the circumstances relevant to the assessment of his criminal liability, the decision to remand him in custody had been fully justified. The first applicant’s legal-aid lawyer appealed, arguing that the court had wrongly assessed the evidence and wrongly applied the applicable legal provisions. In addition, the applicant lodged his own appeal with the appellate court. In this appeal he raised in essence the same complaints. He further submitted that his defence rights had been breached in the criminal proceedings. He also complained that his legal-aid lawyer had only been informed about the hearing held on 26 November 2001 on the same day, which negatively affected the fairness of the proceedings. On 29 August 2002 the Bialystok Court of Appeal dismissed the appeal brought by the applicant’s lawyer, fully sharing the conclusions of the first-instance court. The court did not examine separately the appeal lodged by the applicant himself. In proceedings concerning claims for compensation for unjustified detention or conviction, the Code of Criminal Procedure applies. According to Article 444 of the Code of Criminal Procedure, a party can lodge an appeal against a decision of a first-instance court with the appellate court. Pursuant to Article 446 § 1 of the Code, legal representation is mandatory where a first-instance judgment has been given by a regional court. In a decision of 23 February 2005, the Kraków Court of Appeal held that where legal representation in criminal proceedings was mandatory, arguments contained in an appeal drawn up by a represented person him – or herself could be regarded by the court as additional arguments supporting the reasoning underlying the remedy filed by a lawyer (Kraków Court of Appeal, II Aka 52/05, KZS 2005/2/41). Article 79 § 1 of the 1997 Constitution provides as follows: “In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.” Pursuant to Article 46 § 1 of the Constitutional Court’s Act, a constitutional complaint has to be lodged within two months from the date on which the individual decision was served on the complainant. | 0 |
train | 001-111521 | ENG | GEO | CHAMBER | 2,012 | CASE OF KHONIAKINA v. GEORGIA | 3 | Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Alvina Gyulumyan;Corneliu Bîrsan;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria | 5. The applicant was born in 1926 and lives in Tbilisi. 6. The applicant had served as a judge of the Supreme Court of Georgia since 1956, first when the country formed part of the Soviet Union and then after it became independent. 7. On 4 May 2000 the applicant retired on age grounds and was granted, under section 36 of the Act of 12 May 1999 on the Supreme Court of Georgia (“the Supreme Court Act”), a pension of 1,073 Georgian laris (GEL – 492 euros (EUR).), corresponding to her final salary. 8. The original version of section 36 of the Supreme Court Act, in force at the time of the applicant’s retirement, stated that, upon retirement, a Supreme Court judge was entitled to a life-long pension in an amount equal to his or her final salary and adjustable in line with changes in the salary scales of serving Supreme Court judges. 9. Section 36 of the Supreme Court Act was later amended on several occasions. Thus, by an amendment of 16 March 2001, its second clause concerning the adjustment requirement (“the adjustment clause”) was removed. 10. By an amendment of 10 March 2005, the adjustment clause was reintroduced to the Supreme Court Act in a slightly altered form, extending the adjustment benefit to cover, in addition to retired Supreme Court judges, those who agreed to relinquish office between 1 January and 31 December 2005, providing they had served for at least three years (sections 36 and 40(7) of the Act, as of 23 June 2005). 11. Finally, by an amendment of 23 December 2005, which entered into force on 1 January 2006, section 36 was rephrased as follows: “A Supreme Court judge who has retired either on reaching pension age or on expiry of his or her term of office shall be entitled to State compensation in the amount of GEL 1,200 [EUR 551]”. 12. Section 40(7) of the Act, which was amended at the same time, stated that Supreme Court judges who had relinquished office between 1 January 2005 and 1 January 2006 would receive State compensation in an amount equal to their final salary for the remainder of the term which they would have normally served if they had remained in office; after expiry of that term the compensation paid to judges who had resigned would be recalculated in accordance with the latest version of section 36. 13. Unlike previous amendments to that provision, the 23 December 2005 version of section 36 was given retroactive effect by virtue of section 40(7)(1), inserted in the Supreme Court Act on the same day. 14. On 3 September 2004 the applicant, dissatisfied with the procedure for payment of her pension, brought an action against the State seeking compensation for pecuniary damage, challenging, in particular, the lawfulness of the application of the amendment of 16 March 2001 to the Supreme Court Act. Relying on the original version of section 36 of the Act, she requested that her pension be adjusted in line with the Supreme Court judges’ pay rise which had occurred after her retirement, and that she be compensated for the resulting arrears. The Georgian State Social Insurance Fund (“the Fund”) was a respondent in the proceedings. 15. On 27 December 2004 the Krtsanisi-Mtatsminda District Court in Tbilisi allowed her claim in part, reasoning, inter alia, that the amendment of 16 March 2001 could not be given retroactive force under Article 6 of the Civil Code in so far as, by removing the adjustment clause, it worsened the applicant’s situation. 16. On 23 May 2005 the Tbilisi Court of Appeal overturned the lower court’s decision, stating that there were no signs of a worsening of the applicant’s pre-existing situation. 17. Finally, in a judgment of 21 February 2006 following a cassation appeal, adopted by a majority vote, a three judge bench of the Administrative Division of the Supreme Court (“the majority”) quashed the appeal decision of 23 May 2005 and allowed the applicant’s claim in full. 18. At the outset, the majority noted that, in so far as the Fund had paid the applicant, by error, her January 2006 pension in an amount corresponding to the latest salary of a serving Supreme Court judge (GEL 3,000 – EUR 1,378), the applicant’s claim should be limited in time up to and including December 2005. 19. The majority then stated that the amendment of 16 March 2001 could not have retroactive force because it did not contain any indication to that effect as required by section 47(1) of the Act on Normative Acts (see 38 below). In the absence of such an explicit indication, it could not legitimately be inferred that the legislature had intended to deprive judges who had already retired of their “adjustment right” ex post facto; the respondent administrative authority’s decision to do so had therefore been arbitrary. 20. The majority also stated that, in so far as section 8 of the Act of 25 June 1996 on Supreme Court Judges’ Social Security Entitlements ruled out the possibility of a reduction in a Supreme Court judge’s salary, it was logical to assume that the adjustment clause was, in principle, meant to protect the right to an increase in pension. 21. The majority further ruled that, when deciding on a dispute, the courts must apply the statute in force at the time material to the critical event, even if the legal consequences of that event only emerged later under a different statutory regime. To hold otherwise, in the opinion of the cassation court, “would undermine legal certainty ... and ... allow the legislature’s arbitrariness to replace a stable legal order.” Despite the fact that the applicant’s pension rights were obviously of a continuous nature, those rights had arisen, in the opinion of the Supreme Court, as a result of the material fact of the applicant’s retirement in May 2000, when she had been granted a pension for life under the original version of section 36 of the Supreme Court Act. 22. In view of the above, the majority concluded that the impugned amendment of 16 March 2001 should apply only to those judges who had voluntarily relinquished office or retired on reaching pensionable age or on expiry of their term of office, and had thus acquired their pension rights after its entry into force. In no way could that amendment be understood to replace the original section 36 of the Supreme Court Act and to apply to retired judges who had already obtained their pension rights. 23. The majority also noted that the original version of section 36 of the Supreme Court Act set a very high standard of retirement benefit for Supreme Court judges. It stated in this regard that “the creation of generous pension benefits is not only a question of providing social protection for any particular retired judge, it also aims to maintain the independence and impartiality of the judiciary in general, by providing serving judges with the expectation of obtaining the same benefits upon their future retirement...” 24. One of the members of the Supreme Court, Judge S., expressed a dissenting opinion. He reasoned, in so far as relevant, that the removal of the adjustment clause from the original version of section 36 of the Supreme Court Act could not be said to have necessarily caused the applicant’s situation to deteriorate, as the pension might equally have been reduced and not just increased. Contrary to the majority’s opinion, he stated that section 8 of the Act of 25 June 1996 on Supreme Court Judges’ Social Security Entitlements had nothing to do with the protection of judges’ retirement pensions. As to the question whether a Supreme Court judge’s pension could be reduced, Judge S. replied in the affirmative, arguing that such a mechanism existed under section 81(4) of the Act on the Courts of Common Jurisdiction. In his opinion, the amendment of 16 March 2001 could be held applicable to the applicant’s situation because it did not affect her right to receive the pension as such, but simply redefined its amount. 25. Judge S. also stated that “neither the amendment of 16 March 2001 nor the amendment of 23 December 2005, which fixed the pension for judges who had already retired at GEL 1,200, breached ... the principle of legal certainty”. He concluded that the applicant’s pension should be adjusted in line with the Supreme Court judges’ pay rise only between 10 March 2005, when the adjustment clause had been reintroduced into section 36 of the Supreme Court Act, and 1 January 2006, when the ex post facto amendment of 23 December 2005 had entered into force. 26. The judgment of 21 February 2006 ordered the Fund to compensate the applicant for all the arrears accumulated as a result of the failure to adjust her pension in line with the Supreme Court judges’ pay rises up to and including December 2005, as required by the original version of section 36 of the Supreme Court Act. 27. The Fund discharged the judgment debt of 21 February 2006 in the applicant’s favour in due time. 28. With effect from February 2006, the Fund, relying on the amendment of 23 December 2005 to the Supreme Court Act, fixed the applicant’s pension at GEL 1,200 (EUR 551). 29. In view of the above, on 31 May 2006 the applicant brought another action for damages against the Fund, challenging the lawfulness of the application of the amendment of 23 December 2005 to her situation. 30. On 19 September 2006 the Tbilisi City Court dismissed the applicant’s action as manifestly ill-founded. Its reasons mostly corresponded to those given by Judge S. in his dissenting opinion on the judgment of 21 February 2006. The first-instance court added that the impugned amendment of 23 December 2005, unlike the previous amendments to section 36 of the Supreme Court Act, contained a clear indication of its retroactive effect and was, consequently, compatible with section 47(1) of the Act on Normative Acts. 31. The applicant lodged an appeal against the judgment of 19 September 2006, which was dismissed by the Tbilisi Regional Court on 6 March 2007. Referring to paragraphs 39 and 45 of the Court’s judgment in the case of Kjartan Ásmundsson v. Iceland (no. 60669/00, ECHR 2004IX), the appellate court stated that Article 1 of Protocol No. 1 did not guarantee the right to receive a pension of a particular amount. In reply to the applicant’s complaint that the first-instance court had disregarded the findings of the Supreme Court’s judgment of 21 February 2006, the Regional Court stated that the scope of that judgment had been limited to resolving her pension dispute arising out of the amendment of 16 March 2001; the judgment of 21 February 2006 had never addressed the issue of payment of her pension on the basis of the amendment of 23 December 2005. 32. On 9 July 2007 the applicant lodged a cassation appeal against the appellate judgment of 6 March 2007. Amongst other arguments, the applicant affirmed, referring to the case of Zielinski and Pradal and Gonzalez and Others v. France ([GC], nos. 24846/94 and 34165/96 to 34173/96, ECHR 1999VII), that legislative interference retroactively affecting a civil right was incompatible with the Convention. In support of the admissibility of her cassation appeal, the applicant, comparing the Supreme Court’s judgment of 21 February 2006 with the Tbilisi Regional Court’s judgment of 6 March 2007, pointed out that the two decisions had resolved an analogous situation differently, and argued that an examination of her cassation appeal on the merits was indispensable for the consistent development of the domestic case-law on the subject. 33. On 10 October 2007 a bench of the Administrative Division of the Supreme Court, composed of Judge S. (see paragraph 24 and 25 above) and two other judges who had not participated in the examination of the applicant’s first pension dispute, declared the cassation appeal of 9 July 2007 inadmissible. The decision was delivered without an oral hearing, under the written procedure. Without specifically addressing any of the applicant’s cassation arguments, the cassation court stated that none of the conditions of admissibility envisaged by the relevant provision of the General Administrative Code had been met. 34. The applicant then requested the setting-aside of the decision of 10 October 2007 on the basis of Article 422 § 1 (a) of the Code of Civil Procedure. She complained that Judge S. should not have participated in the examination of her cassation appeal of 9 July 2007, in so far as he had already expressed his opinion on the same issue; that constituted a ground for his exemption or withdrawal under Articles 31 § 1 (d) and 32 of the Code of Civil Procedure. 35. In a final decision of 26 December 2007 the Supreme Court rejected as unsubstantiated the applicant’s request to have the impugned decision set aside. The fact that Judge S. had expressed a dissenting opinion on the judgment of 21 February 2006 could not, in the cassation court’s view, be accepted as evidence of bias, actual or implied, against the applicant. 36. The relevant provisions of the Code of Civil Procedure read as follows: Article 29 – Exclusion of a judge from repeated examination of a case “1. A judge who participated in the examination of a case in the court of first instance shall not participate in the examination of the same case in appellate or cassation proceedings. 2. A judge who participated in the examination of a case by the appellate court shall not participate in the examination of the same case in a court of first instance or in cassation proceedings. 3. A judge who participated in the examination of a case at cassation level shall not participate in the examination of this case in a court of first instance or in appellate proceedings.” Article 31 § 1 (d) – Grounds for a judge’s exemption from the case “1. A judge may not participate in the examination of the case if: ... (d) he or she is believed to be personally, directly or indirectly interested in the outcome of the case or there exist other reasons which cast doubt on his or her impartiality.” Article 32 – Withdrawal of a judge “If there exists a ground for exempting a judge from sitting in the case, the judge concerned must withdraw. The court shall deliver a decision explaining the reason for the withdrawal.” Article 422 §§ 1 (a) – Request to render a final judgment (decision) null and void “1. A final and binding judgment (decision) may be quashed at the request of the party concerned if: (a) A judge who participated in the determination of the case has been barred from doing so by law...” 37. Article 7 of the Code of Administrative Procedure reads as follows: Article 7 – Exclusion of a judge from repeated examination of a case “A judge shall not participate in the hearing of a case if he or she previously participated in administrative proceedings in connection with the case.” 38. Section 47(1) reads as follows: “1. A normative act can have retroactive force only if this is explicitly stated.” 39. This Act, which entered into force on 1 January 2006, consolidated, under a single legal regime for State compensation, the payment of pensions for retired civil servants, including those who had previously been entitled, under various distinct statutes, to a life-long pension in an amount permanently adjustable in line with changes in the salary scales of the corresponding posts (such as retired public prosecutors, retired officials of the Defence, Interior and Security Ministries and former members of Parliament). 40. Section 7 of the Act fixed the maximum level of such State compensation for all the retired civil servants concerned, irrespective of the number of years they had served and in which part of the public service, at GEL 560 (EUR 260). 41. The relevant provisions read as follows: Section 81(4) “4. Funds allocated in the State budget for current expenditure of the courts of common jurisdiction may be reduced in relation to the previous year’s allocation only by consent of the general conference of judges.” Section 82(2) (in fine, as amended on 21 December 2004) “2. It is forbidden to reduce a judge’s salary throughout the entire term of his or her office.” 42. The relevant provision reads as follows: Section 8 (as amended on 23 December 2005) “It is forbidden to reduce a Supreme Court judge’s salary throughout the entire term of his or her office.” 43. On 23 December 2005 the Act on Salary Benefits for Judges of the Courts of Common Jurisdiction was adopted, fixing a Supreme Court judge’s salary at GEL 3,000 (EUR 1,378). The Act entered into force on 1 January 2006. 44. By an amendment of 20 June 2007 to that Act, a Supreme Court judge’s salary was raised to GEL 3,100 (EUR 1,424). An amendment of 28 December 2007 further raised the salary to GEL 4,200 (EUR 1,929). 45. Finally, by virtue of a further amendment of 19 December 2008, which is still in force, the current salary of a Supreme Court judge was set at GEL 4,400 (EUR 2,020). 46. The Administrative Division of the Supreme Court of Georgia, which was the highest cassation court in all types of judicial proceedings concerning administrative disputes, was composed of six judges at the time of the examination of the applicant’s pension disputes. 47. The Charter was adopted during the second multilateral meeting concerning the status of judges in Europe, organised by the Council of Europe in Strasbourg on 8-10 July 1998. Its relevant parts read as follows: “1. General Principles 1.1. The statute for judges aims at ensuring the competence, independence and impartiality which every individual legitimately expects from the courts of law and from every judge to whom is entrusted the protection of his or her rights. It excludes every provision and every procedure liable to impair confidence in such competence, such independence and such impartiality. The present Charter is composed hereafter of the provisions which are best able to guarantee the achievement of those objectives. Its provisions aim at raising the level of guarantees in the various European States. They cannot justify modifications in national statutes tending to decrease the level of guarantees already achieved in the countries concerned. ... 6. Remuneration and Social Welfare 6.4 [The Charter] specifies in this context that judges who have reached the age of judicial retirement after the requisite time spent as judges must benefit from payment of a retirement pension, the level of which must be as close as possible to the level of their final salary as a judge.” | 0 |
train | 001-22368 | ENG | FRA | ADMISSIBILITY | 2,001 | TEYTAUD AND OTHERS v. FRANCE | 1 | Inadmissible | Georg Ress | The applicants are all French nationals. Their details are set out in a list appended to this decision. The applications were lodged by the applicants acting on their own behalf and in their capacity as the heirs of their deceased parents. They were represented before the Court by Mr Laurent Pettiti, a lawyer practising in Paris. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants or their ascendants were the owners of immovable property in Algeria, but were dispossessed after Algeria became independent. Mrs Georgette Teytaud, Mrs Marie-Louise Lambelin and their mother, Mrs Bertrande Saint-Pierre, jointly owned, as part of the family estate, four parcels of agricultural land (two in Misserghin with surface-areas of 1,052 hectares and 1,027 hectares, and two in Bou-Tlelis with surface-areas of 471 hectares and 1,628 hectares) and two properties in Oran, one a nine-roomed house and the other a twelve-roomed house. Mrs Bertrande Saint-Pierre also owned a property that was let out to tenants and a wine wholesalers in Oran. These properties were valued by the French authorities using a scale laid down by a law of 5 April 1970. The first applicant’s share was put at 1,493,204 French francs (FRF) at the 1962 value of the franc, the second applicant’s share at FRF 1,520,798 and their mother’s share at FRF 1,111,246. Pursuant to a law of 16 July 1987 the properties were revalued at FRF 1,647,727, FRF 1,682,220 and FRF 1,375,688 respectively (at the 1962 value). In “real terms” the “1998 value” of the properties would be FRF 12,351,362, FRF 12,609,921.12 and FRF 10,001,251 respectively. The annual compensatory payments allegedly received by each of the first two applicants since 1979 amount to FRF 3,314,646. Their mother has allegedly received FRF 3,121,840 (at the 1998 value). Mr Georges Raoux jointly owned, as part of the family estate, a house at Ain El Turck. The property was valued by the French authorities, using the scale laid down by the law of 5 April 1970, at FRF 85,500 (at the 1962 value). Pursuant to the law of 16 July 1987 it was revalued at 106,875 “francs at the 1962 value”, which the applicant said came to 640,908 “francs at the 1998 value”. The annual compensatory payments he has allegedly received since 1979 amount to FRF 230,697 “francs at the 1998 value”. Further, Mr Albert Raoux, the father of Georges Raoux and Mrs Jeanne-Marie Faure, owned two parcels of agricultural land – 513 hectares at Sainte Barbe du Tlélat (which was matrimonial property) and 495 hectares at Parmentier – and two buildings at Oran (which was also matrimonial property). These properties were valued by the authorities, using the scale laid down by the law of 5 April 1970, at FRF 4,564,795 (at the 1962 value). Pursuant to the law of 16 July 1987 these properties were revalued at 5,100,394 “francs at the 1962 value”, which the applicants said came to 38,232,533 “francs at the 1998 value”. As the property was jointly owned by the brother and sister as part of the family estate, each was entitled to FRF 19,116,276. The annual compensatory payments received by Georges Raoux and his father since 1979 allegedly amounted to 1,294,601 “francs at the 1998 value” and by Jeanne-Marie Faure and her father to 1,115,407 “francs at the 1998 value”. In addition, the applicants’ mother, Mrs Marie-Louise Raoux, owned two parcels of agricultural land – 513 hectares at Sainte Barbe du Tlélat (which was matrimonial property) and 255 hectares at El Akra – and three buildings at Oran, two of which were matrimonial property while the third was owned jointly as part of the family estate. These properties were valued by the authorities, using the scale laid down by the law of 5 April 1970, at FRF 2,239,924 (at the 1962 value). Pursuant to the law of 16 July 1987 the properties were revalued at 2,606,915 “francs at the 1962 value”, which the applicants said came to 19,541,434 “francs at the 1998 value”. As the property was jointly owned by the brother and sister as part of the family estate, each was entitled to FRF 9,770,717. The annual compensatory payments received by Georges Raoux and his mother since 1979 allegedly amounted to 762,204 “francs at the 1998 value” and by Jeanne-Marie Faure and her mother to 618,393 “francs at the 1998 value”. Mrs Gabrielle Raoux jointly owned, as part of the family estate, a house situated at Ain El Turck, a flat and a plot of building land in Oran, and two parcels of agricultural land – 189 hectares at Nazereg Flinois and 200 hectares at Tircine. These properties were valued by the authorities, using the scale laid down by the law of 5 April 1970, at FRF 286,747 (at the 1962 value). Pursuant to the law of 16 July 1987 they were revalued at 328,522 “francs at the 1962 value”, which the applicant said came to 2,462,600 “francs at the 1998 value”. The annual compensatory payments she had allegedly received since 1979 amounted to FRF 1,401,732 “francs at the 1998 value”. Mr Michel Faure’s father owned 216.97 hectares of land at Ain-Tedeles, and two building plots and a house at Mostaganem. These properties were valued by the authorities, using the scale laid down by the law of 5 April 1970, at FRF 1,417,741 (at the 1962 value). Pursuant to the law of 16 July 1987 they were revalued at 1,637,359 “francs at the 1962 value”, which the applicant said came to 12,273,643 “francs at the 1998 value”. The annual compensatory payments allegedly received by the applicant’s father since 1979 amounted to FRF 3,322,847 “francs at the 1998 value”. Acting on their own behalf or, as applicable, as the heirs and assigns of their ascendants, the applicants sent a demand to the Secretary of State for Social Affairs in December 1992 for the payment of the balance of the value of the nationalised properties, together with interest. They submitted that by virtue of the “Évian Accords” and unilateral undertakings given in writing by the French Government, the French State had an obligation to pay “just and fair” compensation to persons who had been dispossessed of their property. They added inter alia that there had been a violation of Article 1 of Protocol No. 1 and of Article 14 of the Convention, as they had received only partial compensation,. In June 1993 they applied to the Paris Administrative Court for an order setting aside the Secretary of State’s decision, which was deemed to have been a refusal as he had not replied within four months. The Administrative Court dismissed their applications on 8 June 1994. The applicants appealed to the Paris Administrative Court of Appeal, which dismissed their appeals on 27 June 1996 on the following grounds: “... Neither the Government’s declarations of 19 March 1962 regarding Algeria, known as the “Évian Accords”, nor the leaflet “the Évian Accords and the pieds-noirs [Algerian born Frenchmen]”, which was published and distributed in 1962 by the High Commission of the Republic in Algeria, nor the declarations made at the time by members of the French Government, which were confined to comments on the aforementioned accords, contained, contrary to what has been submitted in the appeal, clauses or promises affording French nationals living in Algeria a guarantee that the French State would compensate them for any loss resulting from their being wrongfully divested of their property by the Algerian State. It follows that the court must reject the argument that the State has engaged its responsibility and failed to comply with its undertakings because compensation has been paid for only part of the loss of the property in issue. The loss sustained ..., which directly originated from the action of a foreign State, cannot give rise to liability on the part of the French State on the basis of the rule that public burdens shall be borne equally (principe de l’égalité devant les charges publiques). In accordance with the final paragraph of section 4 of the Law of 26 December 1961 on the Admission and Resettlement of French Overseas Nationals, the Law of 15 July 1970 referred to above instituted a national levy to raise compensation for French nationals who had been dispossessed of their property, notably in Algeria. The amount of compensation paid to such persons pursuant to that statute has been increased by the Laws of 2 January 1978 and 16 July 1987 referred to above, the amount being limited, however, by the latter statute to 1,000,000 or 2,000,000 francs depending on the circumstances. [Although it has been submitted] that the payment of compensation for only part of the loss contravenes both the principles of national solidarity and payment of compensation of loss in full and the right to the protection of property guaranteed by the Constitution, the Preamble to the Constitution of 27 October 1946 and the Declaration of the Rights of Man and of the Citizen of 26 August 1789 to which it refers, it is not for the administrative courts to determine the constitutionality of those statutory provisions. By instituting a national levy to provide compensation in the form of an advance on the sums owed to French nationals by the Algerian State for the dispossession of their property, by making the share of the compensation fund apportioned to each dispossessed person proportional to the value of the property which he or she had lost and by imposing a general limit on the amount of that share in the light of the resources which the nation could reasonably devote to it, the aforementioned statutes do not contain any provision that is incompatible with France’s international obligations under, on the one hand, Article 1 of Protocol No. 1 to the Convention... relating to unlawful interference with private property by any of the States that have signed the Convention or, on the other hand, Article 14 of the Convention or Article 26 of the International Covenant on Civil and Political Rights, which prohibit any discrimination between individuals....” The applicants appealed to the Conseil d’État, alleging, inter alia, a violation of Article 1 of Protocol No. 1 and Article 14 of the Convention. They also maintained that, in violation of Article 6 of the Convention and of their right to a fair hearing, the Administrative Court of Appeal had not acted as an independent and impartial tribunal, as it had “regarded itself as being bound in practice by the interpretation of the Minister of Foreign Affairs”, as reproduced in the Moraly judgment delivered by the Conseil d’État on 31 January 1969. On 25 November 1998 the Conseil d’État dismissed the appeals on points of law for the following reasons: “The ground of appeal based on the interpretation of the declarations made by the Government on 19 March 1962 regarding Algeria, known as the ‘Évian Accords’: An examination of the impugned judgment, which contains sufficient reasons, shows that for the purposes of interpreting those provisions of the aforementioned accords which were relied on, the Administrative Court of Appeal did not regard itself as being bound by the interpretation the Minister of Foreign Affairs may have given and, therefore, did not infringe either the provisions of Article 6 of the ... Convention ..., or, in any event, the first sub-paragraph of Article 14 of the International Covenant on Civil and Political Rights. Further, in finding that the said declarations did not contain any clause or promise guaranteeing French nationals living in Algeria compensation from the French State for any loss sustained in the event of their being wrongfully divested of their property by the Algerian State, the Administrative Court of Appeal has not erred in law. It was entitled in law to deduce from that finding that the State’s responsibility could not be engaged on the ground that it had failed to comply with the terms of the said declarations. The ground of appeal based on the State’s promises: The Administrative Court of Appeal did not misconstrue the scope of the leaflet entitled ‘the Évian Accords and the pieds noirs’, which was published and distributed in 1962 by the High Commission of the Republic in Algeria, by holding that it contained no undertaking or promise by the French State to pay compensation in full for losses sustained by French owners dispossessed of their property in Algeria should the Algerian State fail to pay compensation. The ground of appeal based on the fact that the compensation award ... contravened various principles and French international obligations: Firstly, the loss sustained ..., which directly originated from the action of a foreign State, cannot, as the Administrative Court of Appeal rightly held, result in the responsibility of the French State being engaged on the basis of the rule that public burdens shall be borne equally. Secondly, the administrative courts have no jurisdiction to decide whether the system of lump-sum partial compensation set up by the Laws ... of 15 July 1970, 2 January 1978 and 16 July 1987 infringe quasi-constitutional rules and principles and the Administrative Court of Appeal rightly declined to examine that issue. Thirdly, the Administrative Court of Appeal did not err in law in holding that the decision of the French State (which, as has been explained above, was under no obligation to take the place of the defaulting Algerian State in compensating the dispossessed French owners in full) to award partial compensation when the direct cause of the damage was the act of a foreign state could not have infringed Article 1 of Protocol No 1 to the ... Convention ..., Article 14 of the Convention, or, in any event, Article 26 of the International Covenant on Civil and Political Rights....” “French nationals who have been or have considered themselves compelled by political events to leave a territory in which they were settled and which was previously under French sovereignty or administration, or was a French protectorate, are eligible for assistance from the State... Such assistance shall take the form of a series of measures designed to integrate the repatriated French nationals into the nation’s economic and social structures. These measures shall consist, in particular, of return allowances, temporary subsistence allowances, reduced-rate loans and resettlement and regrading subsidies, measures facilitating access to work and schools, and welfare payments and exceptional relief for repatriated persons...” “The amount of compensation for conclusively proved wrongful divestment and loss of property belonging to the persons referred to in the first sub-paragraph of section 1 and the procedure for its assessment and payment shall be laid down, in the light of the circumstances, in separate legislation...” On 19 March 1962 the French and Algerian Governments signed various declarations of principle (“the Évian Accords”). The “Declaration of Principles governing Economic and Financial Cooperation” stated, inter alia: “Algeria shall secure without discrimination free and quiet enjoyment of pecuniary rights acquired in its territory prior to self-determination. No one shall be deprived of these rights without fair compensation determined beforehand.” “As part of the agrarian reform, France shall provide Algeria with special aid for the repurchase of all or part of the property rights of French nationals. On the basis of a repurchase scheme to be devised by the competent Algerian authorities the form the aid will take shall be determined by agreement between the two countries that will reconcile the implementation of Algeria’s economic and social policy with the need to stagger France’s financial assistance over a reasonable period.” In a referendum of 8 April 1962 the French people approved a bill providing that “the President of the Republic may enter into all such agreements as shall be drawn up in accordance with the Government’s declarations of 19 March 1962” and “may decide on ... any statutory or regulatory measures relating to the application of the Government’s declarations of 19 March 1962”. In a judgment of 31 January 1969 in the Moraly case, the Conseil d’État, interpreting the declarations in the same way as the Minister of Foreign Affairs had done, held that they did not contain “any provision intended to secure French residents in Algeria who alleged that their rights [had] been infringed, a right to compensation from the French State for the damage sustained”. A leaflet entitled “The Évian Accords and the pieds noirs”, published in 1962 by the High Commission of the Republic in Algeria, stated, inter alia, as follows: “... [After Algeria becomes independent] your landed property will be protected. For those of you who are farmers your land may only be expropriated under a repurchase scheme and in exchange for fair compensation with financing guaranteed by aid from France... All these commitments will be honoured. You are assured of that by the cooperation that has been established between France and Algeria through the Évian Declarations...” Another leaflet, likewise published in 1962 by the High Commission and entitled “the Évian Declarations and Rights and Guarantees for Europeans”, indicated that, as the declarations had been approved by the Algerian people, they were “binding on the Algerian State”. Pursuant to the third sub-paragraph of section 4 of the Law of 26 December 1961, Law no. 70632 of 15 July 1970 established a national levy to provide compensation for French nationals who had been dispossessed of property situated in a territory that had previously been under French sovereignty or administration or had been a French protectorate. Section 1 of the Law provided: “This levy shall constitute an advance payment on the sums owed by the foreign states or by persons who have benefited from the dispossession”. Law nos. 78-1 of 2 January 1978 and 87-549 of 16 July 1987 provided for the payment of additional compensation. The Law of 1978 also stipulated: “The amount of compensation shall be restricted to 1,000,000 francs per household... [and] 500,000 francs per person dispossessed”. The Law of 1987 provided for the grant of additional compensation calculated on the basis of a revaluation coefficient and limited to FRF 1,000,000 or FRF 2,000,000, depending on the circumstances. | 0 |
train | 001-119703 | ENG | CHE | CHAMBER | 2,013 | CASE OF GROSS v. SWITZERLAND | 3 | Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life) | András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen | 6. The applicant was born in 1931 and lives in Greifensee in Switzerland. 7. For many years, the applicant has expressed the wish to end her life. She explained that she is becoming more and more frail as time passes and is unwilling to continue suffering the decline of her physical and mental faculties. 8. In 2005, following a failed suicide attempt, the applicant received inpatient treatment for six months in a psychiatric hospital. This treatment did not, however, alter her wish to die. As the applicant was afraid of the possible consequences of another failed suicide attempt, she decided that she wished to end her life by taking a lethal dose of sodium pentobarbital. She contacted an assisted-death association, EXIT, for support, which replied that it would be difficult to find a medical practitioner who would be ready to provide her with a medical prescription for the lethal drug. 9. On 20 October 2008 a psychiatrist, Dr T., having examined the applicant on 13 and 19 August 2008, submitted an expert opinion on the applicant’s capacity to form her own judgment (Urteilsfähigkeit). He noted that the applicant had never been seriously ill and did not have to undergo major surgery. However, in recent years, the applicant had noted a decline in her physical and, to a certain degree, her mental faculties. Her memory, her capacity to concentrate and her attention span were not what they used to be. She had difficulty undertaking long walks and her range of activities and her circle of friends had diminished. Accordingly, it had been her strong desire for several years to be allowed to end her life, which she felt was becoming more and more monotonous. She could hardly bear her physical decline. Furthermore, she increasingly suffered from eczema and back aches and every change in her environment terrified her. Her quality of life was constantly decreasing, and she also suffered from the fact that she could not talk openly about her wish to die with her friends. 10. On the basis of his psychiatric examination, Dr T. observed that there was no doubt that the applicant was able to form her own judgment. He further noted that her wish to die was reasoned and well-considered, had persisted for several years and was not based on any psychiatric illness. From a psychiatric/medical point of view, Dr T. did not have any objection to the applicant being prescribed a lethal dose of sodium pentobarbital. However, he refrained from issuing the necessary prescription himself on the grounds that he did not want to confuse the roles of medical expert and treating physician. 11. By letters of 5 November 2008, 1 December 2008 and 4 May 2009 the applicant’s representative submitted the applicant’s request to be given a prescription for sodium pentobarbital to three further medical practitioners, who all declined to issue the requested prescription. In a letter dated 3 December 2008 medical practitioner Dr B. explained that she felt prevented by the code of professional medical conduct (aus standesrechtlichen Gründen) from issuing the requested prescription, given that the applicant was not suffering from any illness. In a letter dated 11 May 2009 medical practitioner Dr S. stated that she considered the applicant’s wish to die to be understandable. She stated that she would be ready to examine the applicant and to consider her request to issue the required prescription, provided that the applicant’s counsel could guarantee that she would not risk any consequences from the point of view of the code of professional medical conduct. When the applicant’s counsel replied that he could not give such a guarantee, Dr S. declined the request on the grounds that she did not wish to be drawn into lengthy judicial proceedings. 12. On 16 December 2008 the applicant submitted a request to the Health Board of the Canton of Zurich to be provided with 15 grams of sodium pentobarbital in order for her to commit suicide. She submitted that she could not reasonably be expected to continue her search for a physician who was ready to issue the required medical prescription. 13. On 29 April 2009 the Health Board rejected the applicant’s request on the grounds that neither Article 8 of the European Convention on Human Rights nor the Swiss Constitution obliged the State to provide a person who wished to end his or her life with the means of suicide of their choice. 14. On 29 May 2009 the applicant lodged an appeal with the Administrative Court of the Canton of Zurich. On 22 October 2009, the Administrative Court rejected the appeal. The Administrative Court noted, at the outset, that assisting someone to commit suicide was only subject to criminal liability under Article 115 of the Swiss Criminal Code if it was carried out for selfish motives. Accordingly, a physician who provided a patient suffering from a terminal illness with the means to commit suicide was not subject to criminal liability (the Administrative Court referred to the case-law of the Swiss Federal Supreme Court, judgment of 3 November 2006, BGE 133 I 58, summarised in Haas v. Switzerland, no. 31322/07, §§ 15-16, ECHR 2011). The prerequisite of a medical prescription for obtaining a lethal dose of sodium pentobarbital was in accordance with Article 8 of the Convention and with the Swiss Constitution. It ensured that a medical practitioner had examined all pertinent aspects of the matter and thus served the general interest in public health and safety and – in connection with assisted suicide – the prevention of crime and combating the risk of abuse. The medical prescription served the aim of preventing premature decisions and guaranteed that the intended action was medically justified. It further ensured that the decision was based on a deliberate exercise of the free will of the person concerned. 15. The Administrative Court observed that Dr T., in his expert opinion, had stated that he did not have any objection from a psychiatric/medical point of view to the applicant being prescribed a lethal dose of sodium pentobarbital. However, Dr T. had merely examined whether the applicant was able to form her own free will and whether her wish to die was well thought out and persistent. He had not, however, considered whether the applicant was suffering from any illness which would justify the assumption that the end of her life was near. Neither had he examined whether the applicant’s wish to die might be the manifestation of a disease which could be medically treated. The wish to die taken on its own, even if it was wellconsidered, was not sufficient to justify the issuing of a medical prescription. Accordingly, the content of the case file did not demonstrate that the necessary prerequisites for issuing a medical prescription had been fulfilled in the instant case. There was therefore a need for further medical examination. 16. Under these circumstances, there was no sufficient reason to dispense the applicant from the necessity of a thorough medical examination and of a medical prescription. 17. The applicant lodged an appeal against the Administrative Court’s judgment. She repeated her request to be provided with 15 grams of sodium pentobarbital, alternatively through a pharmacy. She further asked the Federal Supreme Court to establish that the provision of a lethal dose of this substance to a person who was able to form her own judgment and was not suffering from a mental or physical illness did not constitute a violation of a medical practitioner’s professional duties. 18. Relying, explicitly or in substance, on Articles 2, 3 and 8 of the Convention, she alleged that the impugned decisions had rendered her right to decide by which means and at what point her life would end illusory. She averred that the State was under an obligation to provide the necessary means allowing her to exercise this right in a concrete and effective way. 19. On 12 April 2010 the Federal Supreme Court rejected the applicant’s appeal. Relying on its own case-law and on the Court’s judgment in the case of Pretty v. the United Kingdom (no. 2346/02, ECHR 2002III), the Federal Supreme Court considered, in particular, that there was no (positive) obligation enjoining the State to guarantee an individual’s access to a particularly dangerous substance in order to allow him or her to die in a painless way and without the risk of failure. The Federal Supreme Court observed that proceedings in the Haas case were pending before the European Court of Human Rights. Accordingly, it was up to that Court to examine whether the Federal Supreme Court had correctly interpreted Article 8 of the Convention in this context. Pending these proceedings, the Federal Supreme Court did not see any reason to revise its reasoning in the Haas judgment. 20. The Federal Supreme Court furthermore held that the requirement of a medical prescription pursued the legitimate aims of protecting the individual concerned from making a hasty decision and of preventing abuse. The restriction on access to sodium pentobarbital served the protection of public health and safety. In view of the ethical questions relating to medically assisted suicide, it was primarily up to the democratically elected legislature to decide if and under which circumstances the purchase, transport and storage of sodium pentobarbital should be allowed. The Federal Supreme Court observed in this context that a reform of the law on assisted suicide was currently the subject of political debate. 21. The Federal Supreme Court further observed that the applicant undisputedly did not fulfil the prerequisites laid down in the medical ethics guidelines on the care of patients at the end of life adopted by the Swiss Academy of Medical Sciences (“SAMS”, see paragraphs 32-33 below), as she was not suffering from a terminal illness, but had expressed her wish to die because of her advanced age and increasing frailty. Even though the Federal Supreme Court had considered in its previously cited decision that the issuing of a medical prescription for sodium pentobarbital to a person suffering from an incurable, persistent and serious psychological illness did not necessarily amount to a violation of a doctor’s professional duties, this exception had to be handled with “utmost restraint” and did not enjoin the medical profession or the State to provide the applicant with the requested dose of sodium pentobarbital to put an end to her life. The Federal Supreme Court further noted that the issuing of the requested substance required a thorough medical examination and, with respect to the persistence of the wish to die, long-term medical supervision by a specialist practitioner who was ready to issue the necessary prescription. This requirement could n ot be circumvented by the applicant’s request for an exemption from the necessity of obtaining a medical prescription. 22. The relevant provisions of the Swiss Criminal Code are worded as follows: Article 114 – Homicide at the victim’s request “Any person who for commendable motives, and in particular out of compassion, causes the death of a person at that person’s own genuine and insistent request shall be liable to a custodial sentence not exceeding three years or to a monetary penalty.” Article 115 – Inciting and assisting suicide “Any person who for selfish motives incites or assists another to commit or attempt to commit suicide shall, if that other person thereafter commits or attempts to commit suicide, be liable to a custodial sentence not exceeding five years or to a monetary penalty.” 23. The Federal Law on Drugs (“the Drugs Act”) of 3 October 1951 regulates the use and supervision of drugs. The Federal Law on Medicinal Products and Medical Devices (“the Therapeutic Products Act”) of 15 December 2000 applies to drugs covered by the Drugs Act where they are used as therapeutic products (section 2, subsection (1)(B) of the Therapeutic Products Act). The Drugs Act remains applicable, however, if the Therapeutic Products Act does not regulate a specific matter or if its regulation is less extensive (section 2, subsection (1) bis of the Drugs Act). 24. Under section 1 of the Drugs Act and the Order of 12 December 1996 on Drugs and Psychotropic Substances issued by the Swiss Institute for Therapeutic Products, sodium pentobarbital is considered to be a drug within the meaning of the Drugs Act. In addition, it appears from the Federal Court’s judgment of 3 November 2006 that sodium pentobarbital is categorised as a category B medicinal product within the meaning of the Therapeutic Products Act. 25. Section 9 of the Drugs Act lists the members of the medical professions who may obtain drugs without authorisation. Section 9(1) is worded as follows: “Doctors, dentists, veterinary surgeons and those managing a public or hospital pharmacy who practise as self-employed professionals by virtue of a decision of the cantonal authorities adopted pursuant to the Federal Law of 19 December 1877 on the practice of the professions of doctor, pharmacist and veterinary surgeon in the Swiss Confederation may obtain, hold, use and issue drugs without authorisation, within the limits justified by their practice, in conformity with the requirements of their profession. This shall be without prejudice to cantonal provisions regulating direct dispensing by doctors and veterinary surgeons...” 26. Pursuant to section 10(1) of the same Act, only doctors and veterinary surgeons are authorised to prescribe drugs. Doctors and veterinary surgeons may write such prescriptions only in so far as this is medically acceptable and only for patients whom they have examined personally (section 11(1) of the same Act, and regulation 43(1) of the Order on Drugs of 29 May 1996). 27. Sections 24 and 26 of the Therapeutic Products Act are worded as follows: Section 24 – Dispensing of medicinal products subject to prescription (1) The following persons shall be entitled to dispense prescription-only medicinal products: (a) pharmacists, on presentation of a doctor’s prescription and, in justified exceptional cases, without a doctor’s prescription; (b) all other medical professionals in accordance with the provisions on dispensing physicians; (c) all duly trained professionals, under the supervision of a person specified in subsections (1) (a) and (b). ...” Section 26 – Principle of prescription and dispensing “(1) The recognised rules of pharmaceutical and medical sciences must be respected when prescribing and dispensing medicinal products. (2) A medicinal product may only be prescribed if the state of health of the consumer or patient is known.” 28. Chapter 8 of the same Act contains criminal-law provisions targeting persons who intentionally endanger the health of another person in relation to an activity covered by the Act. Section 86 of the Act provides: Section 86 – Offences “"(1) Unless an offence carrying a more severe penalty under the Criminal Code or the Narcotics Act of 3 October 1951 has been committed, any person who wilfully endangers human health by: (a) neglecting his duty to exercise diligence in dealing with therapeutic products; (b) manufacturing, placing on the market, prescribing, importing or exporting, or trading in a foreign country, medicinal products without authorisation or licence or while infringing other provisions of this Act; (c) dispensing medicinal products without authorisation; ... shall be liable to a term of imprisonment or to a fine not exceeding 200,000 francs. (2) If the person concerned acts in his professional capacity, he or she shall be liable to a term of imprisonment not exceeding five years and to a fine not exceeding 500,000 francs. (3) If the person concerned acts through negligence, he or she shall be liable to a term of imprisonment not exceeding six months or a fine of up to 100,000 francs.“ 29. On 28 October 2009, the Swiss Federal Council submitted two alternative legal projects aimed at regulating organised assisted suicide. It proposed two options that would change Swiss criminal law: the determination in the Criminal Code of clear duties of care for employees of assisted suicide organisations, or a complete ban on organised assisted suicide per se (see the press release issued by the Federal Department of Justice and Police on 28 October 2009). The consultation of the cantons, political parties and other interested parties (Vernehmlassung) demonstrated that no consensus on the issue could be reached. While a majority of the consulted parties considered that the federal law should define specific duties of care within the context of assisted suicide, they could not agree on the concrete implementation. On 29 June 2011 the Federal Council decided to refrain from including specific regulations on organised assisted suicide in criminal law, while expressing its intent on fostering suicide prevention and palliative care in order to reduce the number of suicides (see the press release issued by the Swiss Federal Council on 29 June 2011). 30. On 3 November 2006 the Federal Supreme Court was called upon to examine a request to be granted a lethal dose of sodium pentobarbital lodged by a plaintiff who had been suffering from a serious bipolar affective disorder and considered that as a result, he could no longer live in a dignified manner. Since that substance was only available on prescription, he approached several psychiatrists to obtain it, but was unsuccessful. In its judgment (published in the Official Collection of Decisions of the Federal Supreme Court, BGE 133 I 58, summarised in Haas, cited above, §§ 15-16), the Federal Supreme Court considered that sodium pentobarbital could not be issued without a medical prescription. It noted, in particular, that section 24(1)(a) of the Therapeutic Products Act had to be interpreted narrowly and did not allow for an exemption in the event that no doctor could be found who was ready to issue a prescription. The Federal Supreme Court further considered that the following prerequisites had to be met before a doctor could issue a medical prescription for sodium pentobarbital: a thorough and considered examination; a medical indication; and, with regard to the genuineness of the wish to die and capacity for discernment in this connection, monitoring over a certain period by a medical specialist. Following that judgment, in May 2007 the plaintiff wrote to 170 psychiatrists setting out his case and asking each of them whether they would agree to produce a psychiatric report on him with a view to issuing a prescription for sodium pentobarbital. None of the doctors responded positively to his request. 31. On 16 July 2010 the Federal Supreme Court examined the validity of an agreement concluded by the General Public Prosecutor of the canton of Zurich and the assisted-death organisation EXIT aimed at lying down specific rules to be observed in assisted-death cases. The Federal Supreme Court considered that the agreement was invalid as it lacked a legal basis and was not in accordance with the domestic law (BGE 136 II 415). 32. In its judgment given on 3 November 2006, the Federal Supreme Court referred to the medical ethics guidelines on the care of patients at the end of life which were adopted on 25 November 2005 by the Swiss Academy of Medical Sciences (SAMS), an association of the five medical faculties and the two veterinary faculties in Switzerland. According to the case-law of the Federal Supreme Court (judgment of 26 August 2010, BGE 136 IV 97), the guidelines issued by SAMS do not have the formal quality of law. As they prescribe a number of precautionary measures, they can be classed as a code of conduct — the value of which is generally accepted by the practitioners bound by it. Furthermore, these guidelines may serve to define the duty of diligence in criminal proceedings or in proceedings concerning civil liability. 33. The scope of application of these guidelines is defined as follows: 1. Scope of application “(1) These guidelines concern the care of patients at the end of life. These are patients whose doctor has arrived at the conclusion, on the basis of clinical signs, that a process has started which, as experience indicates, will lead to death within a matter of days or a few weeks.” Section 4 of these guidelines reads as follows: 4. The limits of medical intervention “Respect for the patient’s wishes reaches its limit if the patient asks for measures to be taken that are ineffective or to no purpose, or that are not compatible with the personal moral conscience of the doctor, the rules of medical practice or applicable law.” 4.1. Assisted suicide “According to Article 115 of the Penal Code, helping someone to commit suicide is not a punishable offence when it is done for altruistic reasons. This applies to everyone. With patients at the end of life, the task of the doctor is to alleviate symptoms and to support the patient. It is not his task to directly offer assistance in suicide, rather he is obliged to alleviate any suffering underlying the patient’s wish to commit suicide. However, in the final phase of life, when the situation becomes intolerable for the patient, he or she may ask for help in committing suicide and may persist in this wish. In this borderline situation a very difficult conflict of interests can arise for the doctor. On the one hand assisted suicide is not part of a doctor’s task, because this contradicts the aims of medicine. On the other hand, consideration of the patient’s wishes is fundamental for the doctor-patient relationship. This dilemma requires a personal decision of conscience on the part of the doctor. A decision to provide assistance to commit suicide must be respected as [a decision of that sort]. In any case, the doctor has the right to refuse help in committing suicide. If he decides to assist a person to commit suicide, it is his responsibility to check the following preconditions: - The patient’s disease justifies the assumption that he is approaching the end of life. - Alternative possibilities for providing assistance have been discussed and, if desired, have been implemented. - The patient is capable of making the decision, his wish has been well thought out, without external pressure, and he persists in this wish. This has been checked by a third party, who is not necessarily a doctor. The final action in the process leading to death must always be taken by the patient himself.” 4.2. Killing on request “Even if requested seriously and insistently, the killing of a patient must be refused by the doctor. According to Article 114 of the Penal Code, killing on request is a criminal offence.” 34. The research conducted by the Court in the context of the Haas case (cited above, §§ 29-31) indicates that certain member States of the Council of Europe have specific regulations covering access to substances liable to facilitate suicide. 35. In Belgium, for example, the Law of 28 May 2002 defines euthanasia as an act carried out by a third party which intentionally ends an individual’s life at that individual’s request (section 2 of the Law). A pharmacist who issues a “lethal substance” does not commit an offence where this is done on the basis of a prescription in which the doctor has explicitly stated that he or she is acting in accordance with the law. The implementing regulations establish the criteria of prudence and the conditions which must be met for the prescription and issuing of such substances; the necessary measures must also be taken to ensure the availability of the lethal substances. 36. In Luxembourg, the Law of 16 March 2009 decriminalised euthanasia and assisted suicide. Under that Law, access to a substance enabling suicide is only lawful for a doctor if he or she is playing an integral part in the process of euthanasia or assisted suicide. 37. Sodium pentobarbital is listed in Schedule III of the Convention on Psychotropic Substances of 21 February 1971, to which the Swiss Confederation acceded on 22 April 1994. Article 9 of that Convention reads as follows: Article 9: Prescriptions “1. The Parties shall require that substances in Schedules II, III and IV be supplied or dispensed for use by individuals pursuant to medical prescription only, except when individuals may lawfully obtain, use, dispense or administer such substances in the duly authorized exercise of therapeutic or scientific functions. 2. The Parties shall take measures to ensure that prescriptions for substances in Schedules II, III and IV are issued in accordance with sound medical practice and subject to such regulation, particularly as to the number of times they may be refilled and the duration of their validity, as will protect the public health and welfare. 3. Notwithstanding paragraph 1, a Party may, if in its opinion local circumstances so require and under such conditions, including record-keeping, as it may prescribe, authorize licensed pharmacists or other licensed retail distributors designated by the authorities responsible for public health in its country or part thereof to supply, at their discretion and without prescription, for use for medical purposes by individuals in exceptional cases, small quantities, within limits to be defined by the Parties, of substances in Schedules III and IV.” | 1 |
train | 001-5367 | ENG | NLD | ADMISSIBILITY | 2,000 | BOONS v. THE NETHERLANDS | 4 | Inadmissible | Elisabeth Palm;Gaukur Jörundsson | The applicant is a Dutch national, born in 1959, and was detained at the time of the introduction of the application. He is represented before the Court by Mr G. Spong, a lawyer practising in The Hague. A. In its judgment of 22 May 1995, the Regional Court (Arrondissementsrechtbank) of s’-Hertogenbosch convicted the applicant of homicide and of hiding and/or removing a body with the aim to conceal the fact and/or the cause of death. It sentenced the applicant to six years’ imprisonment. In addition, it ordered the measure that the applicant be placed at the Government’s disposal (terbeschikkingstelling) in order to receive mental treatment at the Government’s expense. The applicant filed an appeal with the Court of Appeal (Gerechtshof) of ‘s-Hertogenbosch. The prosecution did not appeal. On 2 April 1996, following adversarial proceedings, the Court of Appeal delivered its judgment in public. With the exception of the qualification and the determination of sentence, the Court of Appeal upheld the judgment of 22 May 1995. It convicted the applicant of homicide and of hiding and removing a body with the aim to conceal the fact and/or the cause of death. The Court of Appeal sentenced the applicant to eight years’ imprisonment. It further ordered the measure that the applicant be placed at the Government’s disposal. As regards the determination of the applicant’s sentence of imprisonment, the Court of Appeal stated: <Translation> “In the court’s opinion another or lighter sanction than a punishment which entails unconditional deprivation of liberty of a duration stated hereinafter does not suffice. On this point, the seriousness of what has been found proven in relation to other punishable facts as, inter alia, expressed by the statutory defined maximum punishment for this and by the punishments imposed for similar facts, has been taken into account. The court is of the opinion that a punishment as imposed by the first instance court and as sought by the procurator-general does not suffice in that it insufficiently expresses; - the fact that the victim M. was a girl of just fifteen years old and the fact that she was related to the accused; - the extent to which the facts found proven caused personal suffering in the victim’s family circle and to extent to which society has been rocked; - the violent character of what has been found proven and the social unrest of which this is also a consequence.” The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad). Relying on Article 6 of the Convention, he complained, inter alia, that it did not appear from the judgment of the Court of Appeal whether or not it had decided unanimously to increase his sentence. He submitted that, pursuant to Article 424 § 2 of the Code of Criminal Procedure (Wetboek van Strafvordering), such an increase could only be decided unanimously by the Court of Appeal. In his opinion, a convicted person should be able to verify whether this rule had in fact been respected. The Procurator-General (Procureur-Generaal) to the Supreme Court, in his advisory opinion to the Supreme Court, considered on this point that it cannot be derived from the Strasbourg case-law under the Convention that there is an obligation that judgments must reflect whether the rule set out in Article 424 § 2 of the Code of Criminal Procedure has been respected. In his opinion, it concerns a rule of domestic procedural law and it is to the domestic legislator to decide whether and, if so, to what extent compliance with this rule must be apparent. Although the Procurator-General agreed with the applicant that it would be desirable that the Court of Appeal, in a situation referred to in Article 424 § 2, would make it clear in its judgment that an increase of sentence had been decided unanimously. However, he did not consider that a failure to do so should result in nullity of the judgment concerned. In his opinion, there was insufficient reason for departing from the established case-law. On this point, he found that - given the explicit reasons stated for the increase of sentence - there were no reasons to doubt whether the Court of Appeal had unanimously decided to increase the applicant’s sentence. In its judgment of 20 May 1997 and referring to Article 101a of the Judicial Organisation Act (Wet op de Rechterlijke Organisatie), the Supreme Court rejected the applicant’s appeal in cassation as not prompting a determination of legal issues in the interest of legal unity and legal development. B. Relevant domestic law and practice With the exception of Article 472 § 2 of the Code of Criminal Procedure, which concerns decisions of the Supreme Court in relation of revision requests, there is no explicit statutory general rule in Dutch law to the effect that judicial decisions must be taken by a majority. This principle is considered to be inherent in the Dutch judicial system insofar as cases are not determined by a single judge. A reference to judges’ deliberations is contained in Article 26 § 1 of the Judicial Organisation Act, pursuant to which provision the President of a chamber of the court must, during the judges’ deliberations, ask each of the judges individually to state his or her opinion. The President will be the last person to state his or her opinion. According to Article 26 § 2, each of the sitting judges must participate in the decision making. However, according to Article 424 of the Code of Criminal Procedure, a unanimous decision of the judges concerned is required in three specific situations, including the situation described in paragraph 2 of this provision, which reads: <Translation> “Where only the accused has filed an appeal, he can - as to what has been found proven against him in the first instance proceedings - only by a unanimous vote be given a higher sentence than the sentence given by the first instance court.” Article 424 § 2 of the Code of Criminal Procedure stipulated initially that, where only the accused had filed an appeal, no higher sentence could be imposed. This protection did, however, not apply where the appeal court reached different findings than the first instance court in relation to what facts were considered proven (bewezenverklaring). As it was felt incompatible with the public law character of criminal proceedings to restrict the appeal judge in the assessment of the seriousness of the offence of which an accused had been found guilty, this provision was amended on 29 November 1935 to its current wording. In two cases, the Supreme Court rejected a complaint that the unanimity required under Article 424 § 2 of the Code of Criminal Procedure did not appear from the wording of the judgment of the Court of Appeal. The Supreme Court held that there is no statutory provision to the effect that an appeal judgment must explicitly mention that the requirement under Article 242 § 2 has been respected (Hoge Raad 15 February 1972, Nederlandse Jurisprudentie 1972, nr. 240; and HR 10 January 1978, NJ 1978, nr. 629). Article 101a of the Judicial Organisation Act provides: <Translation> “If the Supreme Court considers that a complaint submitted cannot lead to cassation and does not prompt a determination of legal issues in the interest of legal unity and legal development, it can limit itself to this finding when giving the reasons of its decision on that point.” | 0 |
train | 001-69396 | ENG | HRV | CHAMBER | 2,005 | CASE OF PITRA v. CROATIA | 4 | Violation of Art. 6-1 (length);Partly inadmissible;Pecuniary damage - claim dismissed | Christos Rozakis | 4. The applicant was born in 1956 and lives in Osijek. 5. On 15 January 1997 the applicant was dismissed from her position at the Osijek Faculty of Agriculture (“the Faculty”). The decision had retroactive effect as of 27 November 1995. 6. On 17 January 1997 the applicant instituted civil proceedings challenging the lawfulness of the Faculty's decision. She claimed to have never been reinstated, as was required by a final court decision from proceedings she had previously instituted against the Faculty, and that she could therefore not have been dismissed. 7. On 12 July 1999 the Osijek Municipal Court (Općinski sud u Osijeku) ruled in the applicant's favour, ordering the Faculty to reinstate her. 8. Following an appeal by the Faculty, on 28 October 1999 the Osijek County Court (Županijski sud u Osijeku) upheld the first instance judgment. 9. The Faculty subsequently filed a request for revision on points of law (revizija). On 3 May 2000, the Supreme Court (Vrhovni sud Republike Hrvatske) reversed the first and second instance judgments and dismissed the applicant's claim. The Supreme Court found that the Faculty was under no obligation to reinstate the applicant and that therefore its decision was in line with the applicable law. 10. On 28 August 2000 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske). She claimed that the Supreme Court's judgment was in breach of her constitutional right to work, of the rule of law and of the requirement that the courts adjudicate on the basis of laws and the Constitution. 11. On 24 March 2004 the Constitutional Court dismissed her complaint finding no violation of the alleged constitutional rights. | 1 |
train | 001-97174 | ENG | GBR | ADMISSIBILITY | 2,010 | KING v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | 1. The applicant, Mr Anthony King, is a British national who was born in 1966. He is currently detained at HMP Wandsworth. He was represented before the Court by Mr D. Mladenovic, a lawyer practising in London with Kaim Todner LLP. The United Kingdom Government (“the Government”) were represented by their Agent, Ms E. Willmott of the Foreign and Commonwealth Office. 2. The facts of the case, as submitted by the parties, may be summarised as follows. On 16 December 2003 the Government of Australia issued two warrants of arrest against the applicant seeking the applicant’s extradition on four charges of conspiracy to supply ecstasy and conspiracy to possess ecstasy with intent to supply. He was accused of being a member of an international gang engaged in a conspiracy to import large quantities of ecstasy into Australia in 2003. The ecstasy intercepted by the Australian authorities as part of their investigation amounted to over 164,000 tablets weighing 31 kg with a street value of 11.4 million Australian dollars. 3. On 17 December 2003 the applicant was arrested under the extradition request at his home in the United Kingdom. On 15 November 2004 a District Judge sitting at Bow Street Magistrates’ Court found that there was a case to answer on all four charges and committed the applicant to await the decision of the Secretary of State. 4. The applicant asked the Secretary of State to refuse to order his return to Australia under section 12 of the Extradition Act 1989. He claimed his involvement in the conspiracy was under duress; if extradited he would be unable to obtain the attendance and examination of witnesses who would give evidence to this effect under the same conditions as witnesses against him, in breach of Article 6 § 3(d) of the Convention. He maintained that he could be prosecuted in the United Kingdom for conspiring to export ecstasy and that if convicted in Australia he would inevitably receive a life sentence with, probably, no right of parole, which would be manifestly excessive. He also argued his extradition would be a disproportionate interference with his family life in the United Kingdom, which consisted of a wife, two children (born in 1998 and 2004) and a mother who was in poor health. 5. On 4 May 2005, while the Secretary of State was considering the applicant’s representations, the Attorney-General’s Department of the Australian Government provided the following information on the applicant’s likely sentence: “While it is possible, given the seriousness of the offences, that Mr King may receive a sentence of life imprisonment, the sentencing Court is required to set a nonparole period unless, having regard to the nature and circumstances of the offence and to the antecedents of the person, the Court is satisfied that it is not appropriate to fix a non-parole period. It would be highly unusual for the Court not to fix a nonparole period. The sentence imposed will depend upon the findings of the Court in relation to matters such as the type and amount of narcotics involved, the role of the defendant in the importation and other particular distinguishing factors. The sentence imposed will also depend upon whether there is a plea of guilty or not guilty and whether any assistance has been provided by the defendant. Comparative sentences imposed in [New South Wales] over the last two years for offences of importation of a commercial quantity of narcotics consisting of MDMA [ecstasy], heroin or cocaine, where the quantity consisted of more than 10 kilograms and a plea of not guilty entered shows head sentences in the range of 15 years to life imprisonment with non-parole period in the range 11 years to 25 years. The maximum penalty of life imprisonment is, of course, usually reserved for the most serious offences.” 6. On 16 August 2005 the Secretary of State ordered the applicant’s extradition to Australia. In reply to the complaint about the likely imposition of a life sentence in the event of conviction, it was noted that it would be highly unusual for Australian courts not to fix a non-parole period, and, in any event, it would not be unjust or oppressive to return the applicant to Australia purely on the basis of the sentence he could receive if convicted of serious criminal offences. As to the argument that the applicant would be unable to plead duress in Australia, no evidence had been submitted to substantiate the claims of intimidation of the applicant and his family or that these mattes were reported to the police. The Australian authorities had confirmed that should any of the applicant’s witnesses be subjected to threats, appropriate action would be taken by the Australian police. They also advised that it was open to the applicant to apply for a suppression order in relation to the names of any witnesses who feared for their safety. If his witnesses were unable or unwilling to attend trial in Australia he could apply to the Australian courts for evidence to be given via video link. It was also possible for evidence not requiring crossexamination to be submitted in the form of a written statement. On this basis, the Secretary of State was satisfied that there was sufficient provision to allow the applicant’s witnesses to give evidence to the Australian courts and there would be no breach of his rights under Article 6 § 3 (d). As to the Article 8 complaint the applicant’s family circumstances were not so exceptional as to engage this provision. In addition, the United Kingdom was obliged to fulfil its international obligations towards its extradition partner. The applicant’s co-accused had already been tried in Australia, and, as such, it would not be unreasonable for the Australian authorities to expect related trials to be conducted in the same jurisdiction. 7. The applicant then made further representations, arguing that there would be a further breach of Article 6 since he would not obtain legal aid in Australia. He renewed his representations on Article 8 and also claimed that the Australian provisions governing the transfer of prisoners were discriminatory and were applied inconsistently and arbitrarily. 8. These further representations were rejected by the Secretary of State on 30 June 2006. As to the legal aid complaint the Australian authorities had confirmed that persons charged with serious criminal offences would normally be granted legal aid if their means were insufficient to engage private legal representatives. If the applicant were to be refused legal aid, he could make an application for a stay of the trial: the relevant Australian case-law (Dietrich v. the Queen (1992 177 CLR 292)) provided that where an accused charged with a serious offence, who through no fault on his or her part was unable to obtain legal representation, applied to the trial judge for an adjournment or stay then, in the absence of exceptional circumstances, the trial should be adjourned, postponed, or stayed, until legal representation was available. If an application that the trial be delayed was refused, and by reason of the lack of representation of the accused, the resulting trial was not a fair one, any conviction of the accused would have to be quashed by an appellate court for the reason that there had been a miscarriage of justice in that the accused had been convicted without a fair trial. Further, the Secretary of State noted that the applicant’s co-accused had been granted legal aid for their trials in Sydney. 9. As to the applicant’s contention concerning the Australian provisions for the transfer of sentenced prisoners, Australia was a party to the multilateral Council of Europe Convention on the Transfer of Sentenced Persons, which was incorporated into Australian domestic law. The applicant, if convicted, would be eligible to apply for transfer. The Secretary of State was satisfied that any application for transfer he might wish to make would receive appropriate and fair consideration. On Article 8, the Secretary of State again found the applicant’s circumstances were not so exceptional as to prevent extradition. 10. On 19 February 2007 the High Court refused permission for judicial review. It refused to interfere with the Secretary of State’s finding that Australia was the appropriate venue for the trial, especially when the alleged co-conspirators had been tried there. On the fairness of the trial in Australia, Lord Justice Latham (with whom Mr Justice Lloyd Jones agreed) accepted that the legal aid authorities in Australia would not fund the travel of defence witnesses but this was remedied by the fact that there was no bar on witnesses giving evidence by video link. He added: “However more importantly, the evidence before this court simply does not raise a scintilla of a suggestion that the Australian judicial authorities will permit a trial to proceed if to do so would be unjust to the applicant. The case of Dietrich has been cited by the Australian authorities to the Secretary of State, who has considered it. As one would expect of Australian jurisprudence, it essentially says that if there is unfairness to a defendant arising out of difficulties from legal aid funding, the court will be astute to exercise such powers as it has to ensure that the trial is ultimately a fair trial or is stayed. I can therefore see no justification for concluding that there will be any breach of Article 6 in the Secretary of State’s decision to return the appellant to Australia.” 11. Four further letters from the Attorney-General’s Department of the Australian Government addressed the applicant’s likely sentence and general sentencing practice for drugs offences. The first, dated 18 November 2005, summarised the trial and sentencing of two co-accused of the applicant, Peter James Henry and Hugh Williams James Gravett. The Australian Government considered Henry to be one of the most senior members of the conspiracy in Australia. He received a “head sentence” of 18 years’ imprisonment and a non-parole period of 11 years. Gravett received a head sentence of 13 years’ imprisonment, with a non-parole period of 8 years and 8 months. The letter noted that it was the prosecution’s case that the applicant’s level of criminality was higher than that of Henry but any sentence would have to be proportionate to that imposed upon the co-accused. Subsequent developments in the cases of Henry and Gravett were set out in the third and fourth letters (see paragraph 13 below). The first letter went on to state that there were only two people in Australia who had been sentenced to life imprisonment without a non-parole period; a third was re-sentenced to life imprisonment without a non-parole period after he breached a life sentence with a non-parole period on his release. The two who were sentenced to life imprisonment without a nonparole period at first instance were the principals in an organisation which had imported 389 kg of heroin. In other cases of the importation of narcotics where life imprisonment has been imposed, but a non-parole had been set, the highest non-parole period has been 30 years’ imprisonment, ranging down to 15 years. 12. The second letter, dated 1 May 2007 and provided in the context of the proceedings before this Court, reiterated that it was unlikely that the applicant would receive a life sentence with no non-parole period. Since his co-accused had already been sentenced, should the applicant be convicted a major concern for a sentencing judge would be that of parity of sentence with those of the co-accused. The letter noted that, in addition to Henry and Gravett, three other co-accused - Hands, Swansson and Alkarim - received head sentences of between 5 and 9 years’ imprisonment with non-parole periods of between 3 and 6 years. A fourth co-accused, Alchikh, the only one to plead guilty, received a discount of one third for that plea and for his assistance to the relevant law enforcement agencies. The discount reduced his head sentence from 18 years’ imprisonment to 12 years. His non-parole period was set at 7 years and 3 months. The United Kingdom Government in their observations (see below) indicated that another co-accused, Susan Saxby, had pleaded guilty and was sentenced to life imprisonment with a recommendation that she serve a minimum of thirteen years before being eligible for parole. The letter from the Australian Government stated that the applicant’s sentence would necessarily be higher than his coaccused to reflect his role as the principal organiser. However, any sentence imposed would not be so much higher as to be out of proportion with the sentences imposed on the co-accused. Should the applicant be convicted, the Crown would not submit to the court that a sentence of life imprisonment without parole was an appropriate sentencing option. The letter also recorded that a person convicted and sentenced to a term of imprisonment could appeal as of right to the Court of Criminal Appeal and, thereafter, seek special leave to appeal to the High Court of Australia. A federal offender was also able to petition the Governor-General to exercise the Royal Prerogative of Mercy to remit or commute part of his sentence of imprisonment. It continues: “It is likely that the Prerogative would only be exercised if there were circumstances that did not exist, or were unknown to the court, at the time the matter was dealt with, which warranted some mitigation of the sentence. A federal offender could also apply for early release on licence under section 19AP of the Crimes Act 1914. The Attorney-General or his Delegate may grant early release on licence where exceptional circumstances exist that warrant early release, for example assistance to law enforcement agencies or health problems that cannot be adequately managed within the prison system.” 13. The third and four letters, dated 4 and 17 August 2009, were also provided in the context of the proceedings before this Court. The letters stated that Gravett, Henry and Swansson had appealed to the Court of Criminal Appeal on the basis that their convictions were without jurisdictional foundation because of the form of the indictments. Their appeals were allowed. At the end of the retrial of Gravett and Henry in spring 2008, the jury was discharged because it was unable to reach a verdict. On 27 January 2009, Gravett pleaded guilty to a charge of attempting to possess a prohibited import. On 20 February 2009, he was sentenced to ten years’ imprisonment with a non-parole period of six years to date from 17 December 2003. Henry’s third trial commenced on 27 January 2009 and, on 19 February 2009, he pleaded guilty to one charge of aiding, abetting, counselling or procuring an attempt to possess prohibited imports. The Crown accepted that plea of guilty in full satisfaction of all charges brought against him. On 14 August 2009 he was sentenced to 11 years’ imprisonment commencing on 17 December 2003 and expiring on 16 December 2014. The non-parole period was seven years commencing on 17 December 2003 and expiring on 16 December 2010. Swansson was also retried and, on 13 May 2009, found guilty of aiding, abetting, counselling or procuring an attempt to possess prohibited imports. He was sentenced to nine years’ imprisonment with a non-parole period of five years and five months to date from 8 July 2008. 14. At the relevant time, extradition arrangements between the United Kingdom and Australia were governed by the Extradition Act 1989. By section 12(1) of the Act, the Secretary of State has a general discretion to order a person’s surrender, including when it would, having regard to all the circumstances, be unjust or oppressive to return the person. The Secretary of State’s decision was open to challenge by way of judicial review, inter alia, on the basis that it was incompatible with a Convention right. This is by virtue of section 6(1) of the Human Rights Act 1998, which makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. | 0 |
train | 001-90960 | ENG | POL | ADMISSIBILITY | 2,008 | FENSKE v. POLAND | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | The applicant, Mr Heinrich Fenske, is a German national who was born in 1929 and lives in Langwedel. He is represented before the Court by Mr T. Gertner, a lawyer practising in Bad Ems. A summary account of historical events in which the present application originated can be found in the Court’s decision on admissibility in the case of Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (see Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (dec.), no. 47550/06, 7 October 2008, §§ 3-5. In January 1945 the applicant and his family left their then place of residence, at present Dominikowo in Poland, to escape the advancing Red Army. They succeeded in reaching the British occupation zone in Germany. The region in which they lived before and during the Second World War belonged to the German Reich. After the defeat of Germany at the end of the war, when the border between Germany and Poland was drawn along the Oder-Neisse line, it was included in the territory of Poland (see Preussische Treuhand GmbH & CO. Kg A. A., cited above, § 3). They applicant submits that he and his family have still not been allowed to return to their home and have been refused restitution of their property A detailed description of the relevant international and domestic law is set out in the above-mentioned case of Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (ibid. §§ 31-41). | 0 |
train | 001-114082 | ENG | MDA;RUS | GRANDCHAMBER | 2,012 | CASE OF CATAN AND OTHERS v. THE REPUBLIC OF MOLDOVA AND RUSSIA | 1 | Preliminary objection dismissed;Remainder inadmissible;No violation of Article 2 of Protocol No. 1 - Right to education-{general} (Article 2 of Protocol No. 1 - Right to education) (the Republic of Moldova);Violation of Article 2 of Protocol No. 1 - Right to education-{general} (Article 2 of Protocol No. 1 - Respect for parents' philosophical convictions;Right to education) (Russia);Non-pecuniary damage - award | Anatoly Kovler;David Thór Björgvinsson;Dean Spielmann;Egbert Myjer;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Ján Šikuta;Josep Casadevall;Karel Jungwiert;Lech Garlicki;Ledi Bianku;Mark Villiger;Mihai Poalelungi;Mirjana Lazarova Trajkovska;Nicolas Bratza | 8. The country which subsequently became the Republic of Moldova was created as the Moldavian Soviet Socialist Republic on 2 August 1940 from a part of Bessarabia and a strip of land on the eastern bank of the Dniester (see further Tănase v. Moldova [GC], no. 7/08, §§ 11-17, ECHR 2010-...). This eastern region, now known as Transdniestria, had since 1924, together with a number of territories which are now part of Ukraine, been part of the Moldavian Autonomous Soviet Socialist Republic. The population of Transdniestria was originally composed principally of Ukrainians and Moldovans/Romanians, but from the 1920s onwards it was subject to significant immigration by industrial workers from elsewhere in the Soviet Union, particularly Russians and Ukrainians. In a census organised by the Soviet Union in 1989, the population of Transdniestria was assessed at 679,000, composed ethnically and linguistically of 40% Moldovan, 28% Ukrainian, 24% Russian and 8% others. 9. According to the 1978 Constitution of the Moldavian Soviet Socialist Republic, there were two official languages: Russian and “Moldavian” (Moldovan/Romanian written with the Cyrillic alphabet). 10. In August and September 1989 the Latin alphabet was reintroduced in Moldova for written Moldovan/Romanian, which became the first official language. 11. On 23 June 1990 Moldova proclaimed its sovereignty; on 23 May 1991 it changed its name to the Republic of Moldova; and on 27 August 1991 the Moldovan parliament adopted the Declaration of Independence of the Republic of Moldova, whose territory included Transdniestria. 12. The facts concerning the armed conflict of 1991-1992 and the period up to late 2003 are set out in more detail in Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 28-183, ECHR 2004VII and only a summary of the key events is provided here for ease of reference. The Court notes that in their observations the Russian Government submitted that the facts concerning the armed conflict were not relevant to the issues arising in present case. 13. From 1989 onwards, a movement of resistance to Moldovan independence had been forming in Transdniestria. On 2 September 1990 Transdniestrian separatists announced the creation of the “Moldavian Republic of Transdniestria” (the “MRT”). On 25 August 1991 the “Supreme Council of the MRT” adopted the “declaration of independence” of the “MRT”. On 1 December 1991 a “presidential election”, declared illegal by the Moldovan authorities, was organised in the Transdniestrian provinces and Mr Igor Smirnov claimed to have been elected “President of the MRT”. To date, the “MRT” has not been recognised by the international community. 14. At the time of Moldova’s declaration of independence, it did not have its own army. The USSR’s 14th Army, whose headquarters had been in Chişinău since 1956, remained on Moldovan territory, although from 1990 onwards equipment and personnel began to be withdrawn. In 1991 the 14th Army in Moldova was composed of several thousand soldiers, infantry units, artillery (notably an anti-aircraft missile system), armoured vehicles and aircraft (including planes and strike helicopters). It had a number of ammunition stores, including one of the largest in Europe at Colbaşna in Transdniestria. 15. By Decree no. 234 of 14 November 1991 the President of Moldova declared that ammunition, weapons, military transport, military bases and other property belonging to the military units of the Soviet armed forces stationed in Moldovan territory were the property of the Republic of Moldova. This decree was not given effect within Transdniestria. 16. By a decree dated 5 December 1991, Mr Smirnov decided to place the military units of the 14th Army deployed in Transdniestria under the command of “the National Defence and Security Department of the Moldavian Republic of Transdniestria”. Mr Smirnov appointed the Commander of the 14th Army, Lieutenant-General Iakovlev, as head of the “TRM” “National Defence and Security Department”. In December 1991 Lieutenant-General Iakovlev was arrested by the Moldovan authorities, who accused him of helping the Transdniestrian separatists to arm themselves by using the weapon stocks of the 14th Army. However, he was subsequently released following the intercession of the Government of the Russian Federation. 17. At the end of 1991 and the beginning of 1992 violent clashes broke out between the Transdniestrian separatist forces and the Moldovan security forces, claiming the lives of several hundred people. 18. On 6 December 1991, in an appeal to the international community and the United Nations Security Council, the Moldovan Government protested against the occupation, on 3 December 1991, of the Moldovan towns of Grigoriopol, Dubăsari, Slobozia, Tiraspol and Ribniţa, situated on the left bank of the Dniester, by the 14th Army under the command of Lieutenant-General Iakovlev. They accused the authorities of the USSR, particularly the Ministry of Defence, of having prompted these acts. The soldiers of the 14th Army were accused of distributing military equipment to the Transdniestrian separatists and organising the separatists into military detachments which were terrorising the civilian population. 19. In 1991-92 a number of 14th Army military units joined the Transdniestrian separatists. In the Ilaşcu judgment the Court found it established beyond reasonable doubt that Transdniestrian separatists were able, with the assistance of 14th Army personnel, to arm themselves with weapons taken from the stores of the 14th Army stationed in Transdniestria. In addition, large numbers of Russian nationals from outside the region, particularly Cossacks, went to Transdniestria to fight with the separatists against the Moldovan forces. Given the support provided to the separatists by the troops of the 14th Army and the massive transfer to them of arms and ammunition from the 14th Army’s stores, the Moldovan army was in a position of inferiority that prevented it from regaining control of Transdniestria. On 1 April 1992 the President of the Russian Federation, Mr Boris Yeltsin, officially transferred the 14th Army to Russian command, and it thereafter became the “Russian Operational Group in the Transdniestrian region of Moldova” or “ROG”. On 2 April 1992 General Netkachev, the new Commander of the ROG ordered the Moldovan forces which had encircled the town of Tighina (Bender), held by the separatists, to withdraw immediately, failing which the Russian army would take counter-measures. In May the ROG launched attacks against the Moldovan forces, driving them out of some villages from the left bank of the Dniester. In June the ROG intervened officially in favour of the separatists who were losing the city of Tighina, driving out the Moldovan forces. 20. On 21 July 1992 the President of the Republic of Moldova, Mr Mircea Snegur, and Mr Yeltsin signed an agreement on the principles for the friendly settlement of the armed conflict in the Transdniestrian region of the Republic of Moldova (“the ceasefire agreement”). 21. The agreement introduced the principle of a security zone to be created by the withdrawal of the armies of the “parties to the conflict” (Article 1 § 2). Under Article 2 of the agreement, a Joint Control Commission (“the JCC”) was set up, composed of representatives of Moldova, the Russian Federation and Transdniestria, with its headquarters in Tighina. The agreement also provided for a peacekeeping force charged with ensuring observance of the ceasefire and security arrangements, composed of five Russian battalions, three Moldovan battalions and two Transdniestrian battalions under the orders of a joint military command structure which was itself subordinate to the JCC. Under Article 3 of the agreement, the town of Tighina was declared a region subject to a security regime and its administration was put in the hands of “local organs of selfgovernment, if necessary acting together with the control commission”. The JCC was given the task of maintaining order in Tighina, together with the police. Article 4 required Russian troops stationed in the territory of the Republic of Moldova, to remain strictly neutral. Article 5 prohibited sanctions or blockades and laid down the objective of removing all obstacles to the free movement of goods, services and persons. The measures provided for in the agreement were defined as “a very important part of the settlement of the conflict by political means” (Article 7). 22. On 29 July 1994 Moldova adopted a new Constitution. It provided, inter alia, that Moldova was neutral, that it prohibited the stationing in its territory of troops belonging to other States and that a form of autonomy might be granted to regions which included some areas on the left bank of the Dniester. According to Article 13 of the Constitution, the national language was Moldovan, to be written using the Latin alphabet. 23. On a number of occasions from 1995 onwards the Moldovan authorities complained that ROG army personnel and the Russian contingent of the JCC’s peace-keeping force had infringed the principle of neutrality set out in the ceasefire agreement and that, inter alia, Transdniestrians had been able to acquire further military equipment and assistance from the ROG. These allegations were firmly denied by the Russian authorities. In addition, the Moldovan delegation to the JCC alleged that the Transdniestrians had created new military posts and customs checkpoints within the security zone, in breach of the ceasefire agreement. In the Ilaşcu judgment the Court found it established, by the evidence contained in the JCC’s official documents, that in various areas of Transdniestria under the control of the Russian peacekeeping forces, such as Tighina, the Transdniestrian separatist forces were breaching the ceasefire agreement. 24. On 8 May 1997 in Moscow, Mr Petru Lucinschi, the President of Moldova, and Mr Smirnov, the “President of the MRT”, signed a memorandum laying down the basis for the normalisation of relations between the Republic of Moldova and Transdniestria (“the 1997 Memorandum”). Under the terms of the 1997 Memorandum, decisions concerning Transdniestria had to be agreed by both sides, powers had to be shared and delegated and guarantees had to be secured reciprocally. Transdniestria had to be allowed to participate in the conduct of the foreign policy of the Republic of Moldova on questions concerning its own interests to be defined by mutual agreement. Transdniestria would have the right unilaterally to establish and maintain international contacts in economic, scientific, technical, cultural and other fields, to be determined by mutual agreement. The parties undertook to settle conflicts through negotiation, with the assistance where necessary of the Russian Federation and Ukraine, as guarantors of compliance with the agreements reached, and of the Organisation for Security and Cooperation in Europe (OSCE) and the Commonwealth of Independent States (CIS). The 1997 Memorandum was countersigned by the representatives of the guarantor States, namely Mr Yeltsin for the Russian Federation and Mr Leonid Kuchma for Ukraine, and by Mr Helveg Petersen, the President of the OSCE. 25. In November 1999 the OSCE held its sixth summit at Istanbul. During the summit, 54 Member States signed the Charter for European Security and the Istanbul Summit Declaration and 30 Member States, including Moldova and Russia, signed the Agreement on the Adaptation of the Treaty on Conventional Armed Forces in Europe (“the adapted CFE treaty”). The adapted CFE treaty set out, inter alia, the principle that foreign troops should not be stationed in Moldovan territory without Moldovan consent. Russia’s agreement to withdraw from Transdniestria (one of the “Istanbul Commitments”) was set out in an Annex to the adapted CFE Final Act. In addition, the Istanbul Summit Declaration, at paragraph 19, recorded inter alia the commitment of the Russian Federation to withdraw its forces from Transdniestria by the end of 2002: “19. Recalling the decisions of the Budapest and Lisbon Summits and Oslo Ministerial Meeting, we reiterate our expectation of an early, orderly and complete withdrawal of Russian troops from Moldova. In this context, we welcome the recent progress achieved in the removal and destruction of the Russian military equipment stockpiled in the Trans-Dniestrian region of Moldova and the completion of the destruction of nontransportable ammunition. We welcome the commitment by the Russian Federation to complete withdrawal of the Russian forces from the territory of Moldova by the end of 2002. We also welcome the willingness of the Republic of Moldova and of the OSCE to facilitate this process, within their respective abilities, by the agreed deadline. We recall that an international assessment mission is ready to be dispatched without delay to explore removal and destruction of Russian ammunition and armaments. With the purpose of securing the process of withdrawal and destruction, we will instruct the Permanent Council to consider the expansion of the mandate of the OSCE Mission to Moldova in terms of ensuring transparency of this process and coordination of financial and technical assistance offered to facilitate withdrawal and destruction. Furthermore, we agree to consider the establishment of a fund for voluntary international financial assistance to be administered by the OSCE.” In 2002, during an OSCE Ministerial Conference in Lisbon, Russia was granted a one-year extension for the removal of troops, up until the end of December 2003. 26. Russia did not comply with the commitments given at the OSCE Istanbul Summit and Lisbon Ministerial Conference to withdraw militarily from Transdniestria before the end of 2003. At the OSCE Ministerial Council in December 2003, it was impossible to reach a common position on Transdniestria, and the published statement recorded that: “Most Ministers noted the efforts made by the Russian Federation to fulfil the commitments undertaken at the OSCE Istanbul Summit in 1999 to complete the withdrawal of Russian forces from the territory of Moldova. They noted that concrete progress was achieved in 2003 on the withdrawal/disposal of some ammunition and other military equipment belonging to the Russian Federation. They appreciated the efforts of all participating States of the OSCE that have contributed to the Voluntary Fund established to support this effort. They were, however, deeply concerned that the withdrawal of the Russian forces will not be completed by 31 December 2003. They stressed the need for the fulfilment of this commitment without further delay.” The Member States of the North Atlantic Treaty Organisation (NATO) have refused to ratify the adapted CFE until Russia has complied with the Istanbul Commitments. 27. In 2001, the Communist Party were successful in elections and became the governing Party in Moldova. The new President of Moldova, Mr Vladimir Voronin, entered into direct negotiation with Russia over the future of Transdniestria. In November 2003, the Russian Federation put forward a settlement proposal, the “Memorandum on the Basic Principles of the State Structure of the United State” (referred to as the “Kozak Memorandum”, after the Russian politician, Mr Dimitry Kozak, who worked on it). The Kozak Memorandum proposed a new federal structure for Moldova, under which the authorities of the “MRT” would have had a substantial degree of autonomy and guaranteed representation in the new “federal legislature”. The Kozak Memorandum included transitional provisions under which, until 2015, a three-quarters majority in a newly created legislative second chamber, composed of four representatives from Gagauzia, nine from Transdniestria and 13 from the new federal legislature’s first chamber, would have been required to confirm federal organic laws. This would have given the “MRT” representatives in the second chamber an effective veto over any legislation affecting all of Moldova until 2015. On 25 November 2003, having previously indicated his willingness to accept these proposals, Mr Voronin decided not to sign the Kozak Memorandum. 28. In December 2005, a European Union Border Assistance Mission was established to help combat illegal trade between Ukraine and Moldova. In March 2006 Ukraine and Moldova began implementing a 2003 customs agreement under which Transdniestrian companies engaged in cross-border trade had to register in Chişinău in order to be issued documents indicating the goods’ country of origin, in accordance with World Trade Organisation protocols. Ukraine undertook to refuse to permit goods without such export documents to pass across its border. 29. In what was seen as a response to these new customs measures, Transdniestrian representatives refused to continue with the 5+2 talks. Furthermore, in February and March 2005, “in response to the course of action taken by the Moldovan Government aimed at worsening the situation around Transdniestria”, the Russian Duma adopted resolutions asking the Russian Government to introduce an import ban on Moldovan alcohol and tobacco products; to export energy to Moldova (except Transdniestria) at international rates; and to require visas for Moldovan nationals visiting Russia, except residents of Transdniestria. 30. In April 2005 the Russian authorities banned imports of meat products, fruits and vegetables from Moldova, on the ground that domestic hygiene standards had not been complied with in the production of these products. Between March 2006 and November 2007 a ban was placed on importation of Moldovan wine. The International Monetary Fund found that these measures had a combined negative effect on Moldova’s economic growth of 2-3% annually in 2006-2007. 31. In January 2005 Mr Viktor Yushchenko was elected President in Ukraine. In May 2005 the Ukrainian Government introduced a new proposal for the resolution of the Transdniestrian conflict, “Towards a Settlement through Democratization” (summarized in the report of the Parliamentary Assembly of the Council of Europe: see paragraph 64 below). In July 2005, citing the Ukrainian plan, the Moldovan parliament adopted a law, “On the Basic Principles of a Special Legal Status of Transdniestria”. Formal negotiations resumed in October 2005, with the European Union (“EU”) and the United States of America participating as observers (referred to as “the 5+2 talks”). 32. On 20 March 1998 an agreement concerning the military assets of the ROG was signed in Odessa by Mr Viktor Chernomyrdin, the Prime Minister of the Russian Federation, and Mr Smirnov, “President of the MRT”. According to the timetable annexed to the agreement, the withdrawal and decommissioning of certain stocks, to be disposed of by explosion or other mechanical process, was to be completed by 31 December 2001. The withdrawal (transfer and decommissioning) of surplus ammunition and other Russian military equipment and personnel not forming part of the peacekeeping forces was planned to take place by 31 December 2002 at the latest. A number of trainloads of Russian military equipment left Transdniestria between 1999 and 2002. 33. In October 2001 the Russian Federation and the “MRT” signed a further agreement on the withdrawal of the Russian forces. Under that agreement, in compensation for the withdrawal of part of the Russian military equipment stationed in Transdniestria, the “MRT” was granted a reduction of one hundred million United States dollars (USD) in its debt for gas imported from the Russian Federation, and the transfer to it by the Russian Army of part of its equipment capable of being put to civilian use. 34. According to an OSCE press release, 29 railway wagons carrying bridge-building equipment and field kitchens were removed from Colbaşna by the Russian authorities on 24 December 2002. The same press release quoted a declaration by the Commander of the ROG, General Boris Sergeyev, to the effect that the latest withdrawals had been made possible by an agreement with the Transdniestrians under which the “MRT” was to receive half of the non-military equipment and supplies withdrawn. General Sergeyev cited the example of the withdrawal, on 16 December 2002, of 77 lorries, which had been followed by the transfer of 77 Russian military lorries to the Transdniestrians. 35. According to the evidence heard by the Court in the Ilaşcu case, in 2003 at least 200,000 tonnes of Russian arms and ammunition remained in Transdniestria, mainly at Colbaşna, together with 106 battle tanks, 42 armoured cars, 109 armoured personnel carriers, 54 armoured reconnaissance vehicles, 123 cannons and mortars, 206 anti-tank weapons, 226 anti-aircraft guns, nine helicopters and 1,648 vehicles of various kinds (see the Ilaşcu judgment, cited above, § 131). In 2003, the OSCE observed and verified the withdrawal from Transdniestria of 11 trains of Russian military equipment and 31 trains loaded with more than 15,000 tons of ammunition. However, the following year, in 2004, the OSCE reported that only one train containing approximately 1,000 tons of ammunition had been removed. 36. Since 2004 there have been no verified withdrawals of any Russian arms or equipment from Transdniestria. The Court found in Ilaşcu that, at the end of 2004, approximately 21,000 metric tons of ammunition remained, together with more than 40,000 small arms and light weapons and approximately ten trainloads of miscellaneous military equipment. In November 2006, a delegation from the OSCE were allowed access to the ammunition stores and reported that over 21,000 tons of ammunition remained stored there (see paragraph 68 below). The Commander of the ROG reported in May 2005 that surplus stocks of 40,000 small arms and light weapons had been destroyed, but no independent observer was allowed access in order to verify these claims. In their observations in the present case, the Russian Government submitted that most of the weapons, ammunition and military property were removed between 1991 and 2003 and that all that remained in the warehouses were shells, hand grenades, mortar bombs and small-arms ammunition. 37. The parties to the present case agreed that approximately 1,000 Russian servicemen were stationed in Transdniestria to guard the arms store. In addition, the parties agreed that there were approximately 1,125 Russian soldiers stationed in the Security Area as part of the internationally agreed peace-keeping force. The Security Area was 225 km long and 12-20 km wide. 38. Again, it should be noted that the Russian Government contended that events in Transdniestria prior to the schools crisis were not relevant to the issues in the present case. 39. In the Ilaşcu judgment the Court found it uncontested that the arms industry, which was one of the pillars of the Transdniestrian economy, was directly supported by Russian firms including the Rosvoorouzhenie (Росвооружение) and Elektrommash companies. The Russian firm Iterra had bought the largest undertaking in Transdniestria, the Râbniţa engineering works, despite the opposition of the Moldovan authorities. In addition, the Russian Army constituted a major employer and purchaser of supplies in Transdniestria. 40. According to the applicants in the present case, Russia accounted for 18% of the “MRT”‘s exports and 43.7% of its imports, primarily energy. The “MRT” paid for less than 5% of the gas it had consumed. For example, in 2011 Transdniestria consumed USD 505 million worth of gas, but paid for only 4% (USD 20 million). The Russian Government explained that since the “MRT” was not recognised as a separate entity under international law, it could not have its own sovereign debts and Russia did not effect separate gas supplies for Moldova and Transdniestria. The bill for supplying gas to Transdniestria was, therefore, attributed to Moldova. The supply of gas to the region was organised through the Russian public corporation Gazprom and the joint stock company Moldovagaz, which was owned jointly by Moldova and the “MRT”. The debt owed by Moldovagaz to Russia exceeded USD 1.8 billion, of which USD 1.5 billion related to gas consumed in Transdniestria. Gazprom could not simply refuse to supply gas to the region, since it needed pipelines through Moldova to supply the Balkan States. 41. The applicants further alleged that Russia provided direct humanitarian aid to Transdniestria, mostly in the form of contributions to old-age pensions. The applicants claimed that official Russian sources stated that between 2007 and 2010 the total volume of financial assistance to Transdniestria was USD 55 million. The Moldovan Government submitted that in 2011 the “MRT” received financial aid from Russia totalling USD 20.64 million. The Russian Government submitted that the amount of aid given to Russian citizens living in the region for humanitarian purposes, such as the payment of pensions and assistance with catering in schools, prisons and hospitals, was fully transparent, and could be compared with humanitarian aid provided by the European Union. As well as providing aid to the population living in Transdniestria, Russia provided aid to those living in other parts of Moldova. 42. In addition, the applicants claimed that some 120,000 individuals living in Transdniestria had been granted Russian citizenship. These included many of the “MRT” leaders. The Court considers that this should be put in the context of the findings of a census carried out in 2004 by the “MRT Government”, which found, in the area under their control, a population of 555,347 people, approximately 32% of whom came from the Moldovan community, 30% of whom were Russian and 29% were Ukrainian, with small percentages of other national and ethnic groups. 43. According to Article 12 of the MRT “Constitution”, the official languages within the MRT are “Moldavian”, Russian and Ukrainian. Article 6 of the “MRT Law on languages”, which was adopted on 8 September 1992, states that, for all purposes, “Moldavian” must be written with the Cyrillic alphabet. The “law” provides further that use of the Latin alphabet may amount to an offence and Article 200-3 of the “MRT Code of Administrative Offences”, adopted on 19 July 2002, states that: “Failure by persons holding public office and other persons in the executive and State administration, in public associations, as well as in other organisations, regardless of their legal status and form of ownership, and in other entities, situated on the territory of the MRT, to observe MRT’s legislation on the functioning of languages on the territory of MRT ... entails liability in the form of a fine which may amount to 50 (fifty) minimal salaries.” 44. On 18 August 1994 the “MRT” authorities forbade the use of the Latin script in schools. By a decision of 21 May 1999, the “MRT” ordered that all schools belonging to “foreign States” and functioning on “its” territory had to register with the “MRT” authorities, failing which they would not be recognised and would be deprived of their rights. 45. On 14 July 2004 the “MRT” authorities began taking steps to close down all schools using the Latin script. At the date of adoption of the admissibility decision, there remained only six schools in Transdniestria using the Moldovan/Romanian language and the Latin script. 46. The applicants are 18 children who were studying at Evrica School in Rîbniţa during the period in question and 13 parents (see the annex to this judgment). 47. From 1997 Evrica School used premises situated on Gagarin Street built with Moldovan public funds. The school was registered with the Moldovan Ministry of Education and was using the Latin script and a curriculum approved by that Ministry. 48. Following the “MRT decision” of 21 May 1999 (see paragraph 44 above), Evrika School refused to register, since registration would require it to use the Cyrillic script and the curriculum devised by the “MRT” regime. On 26 February 2004 the building used by the school was transferred by the “MRT” authorities to the “Rîbniţa Department of Education”. In July 2004, following a number of closures of Latin-script schools within the “MRT”, the pupils, parents and teachers of Evrika School took it upon themselves to guard the school day and night. On 29 July 2004 Transdniestrian police stormed the school and evicted the women and children who were inside it. Over the following days local police and officials from the “Rîbniţa Department of Education” visited the parents of children registered with the school, asking them to withdraw their children from the school and to put them in a school registered with the “MRT” regime. The parents were allegedly told that if they did not do so, they would be fired from their jobs and would even be deprived of their parental rights. As a result of this pressure, many parents withdrew their children and transferred them to another school. 49. On 29 September 2004, and following the intervention of the OSCE Mission to Moldova, the school was able to register with the “Tiraspol Chamber of Registration” as a foreign institution of private education, but could not resume its activity for lack of premises. On 2 October 2004 the “MRT” regime allowed the school to reopen in another building, which had previously housed a kindergarten. The building is rented from the “MRT” and the Moldovan Government has paid for it to be refurbished. The school’s repeated requests to be allowed to return to the building situated on Gagarin Street, which is bigger and more appropriate, were rejected on the ground that another school was now using that building. The applicants allege that the rented premises are inappropriate for a secondary school, in that the lighting, corridors and classrooms are not fully adapted and there are no laboratories or sports facilities. The school is administered by the Moldovan Ministry of Education, which pays the teachers’ salaries and provides educational material. It uses the Latin alphabet and a Moldovan curriculum. 50. The applicants filed a number of petitions and complaints with the authorities of the Russian Federation. The Ministry of Foreign Affairs of the Russian Federation replied by making public general statements about the escalation of the conflict around the Moldovan/Romanian-language schools in Transdniestria. Stating that the underlying problem was the ongoing conflict between Moldova and the “MRT”, the Russian Ministry of Foreign Affairs drew the attention of Moldova and the “MRT” to the fact that the use of force to solve the conflict could endanger security in the region and urged them to use various types of negotiations in order to solve the conflict. The applicants also complained about their situation to the Moldovan authorities. 51. The school became the target of a systematic campaign of vandalism, including broken windows. The applicants allege that this campaign started in 2004; the Moldovan Government claim that it started in the autumn of 2007. On 10 April 2008 the Moldovan Ministry of Reintegration asked the Special Representative of the Secretary General of the Council of Europe to intervene to try and bring an end to the attacks. The applicants also allege that the children were intimidated by the local Russian-speaking population and were afraid to speak Moldovan outside the school. 52. On 16 July 2008 the Moldovan Ministry of Reintegration sought the assistance of the OSCE Mission to Moldova in transporting educational and construction material and money for teachers’ salaries across the “border” with the “MRT”. 53. There were 683 pupils at the school during the academic year 20022003. During the year 2008-2009 that number had fallen to 345. 54. The applicants are 26 children who were studying at Alexandru cel Bun School in Tighina, Bender during the period in question and 17 parents, (see the annex). The school had been using premises situated on Kosmodemianskaia Street built with Moldovan public funds and rented for it by the Moldovan authorities. The school was registered with the Moldovan Ministry of Education and was therefore using the Latin script and a curriculum approved by the Ministry of Education. 55. On 4 June 2004, the “MRT Ministry for Education” warned the school that it would be closed down if it did not register with them, and that disciplinary measures would be taken against the head teacher. On 18 July 2004 the school was disconnected from electricity and water supplies and on 19 July 2004 the school administration was notified that it could no longer use the premises on Kosmodemianskaia Street. However, teachers, pupils and parents occupied the building, refusing to leave. Transdniestrian police tried unsuccessfully to reoccupy the premises, and eventually surrendered the building. They withdrew on 28 July 2004. On 20 September 2004, and following various negotiations with international observers, including representatives of the Council of Europe, the school was reconnected to water and electricity. 56. The “MRT” regime allowed the school to reopen in September 2004, but in different premises, rented from the “MRT” authorities. The school is currently using three buildings, located in separate districts of the town. The main building has no cafeteria, science or sports facilities and cannot be reached by public transport. The Moldovan Government provided the school with a bus and computers. They also paid for the refurbishment of the sanitary facilities in one of the buildings. 57. The applicants have filed a number of petitions and complaints with the Russian and Moldovan authorities. 58. There were 1751 pupils at the school in 2002-2003 and 901 in 20082009. 59. The applicants are 46 children who were studying at the Ştefan cel Mare School in Grigoriopol during the relevant period and 50 parents (see the attached annex). 60. In 1996, at the request of the parents and their children, the school, which was using a Cyrillic alphabet curriculum, filed a number of petitions with the “MRT” regime requesting to be allowed to use the Latin script. As a result, between 1996 and 2002, the “MRT” orchestrated a campaign of hostile press reports, intimidation and threats by security forces. These measures reached a climax on 22 August 2002 when Transdniestrian police stormed the school and evicted the teachers, the pupils and their parents who were inside it. On 28 August 2002 the President of the Pupils Committee was arrested and subsequently sentenced to fifteen days’ administrative imprisonment. Following these incidents, 300 pupils left the school. 61. Faced with the occupation of the building by the “MRT” regime, the Moldovan Ministry of Education decided that the school should be transferred temporarily to a building in Doroţcaia, a village about 20 kilometres from Grigoripol and which is under Moldovan control. Each day, pupils and teachers were taken to Doroţcaia in buses provided by the Moldovan Government. They were subjected to bag searches and identity checks by “MRT” officials and also, allegedly, acts of harassment such as spitting and verbal abuse. 62. Representatives of the school filed a number of petitions and complained about this situation to the OSCE, the United Nations Organisation, as well as to the Russian and Moldovan authorities. The Russian authorities replied by urging both Moldova and “MRT” to use various types of negotiations in order to solve the conflict. The Moldovan authorities informed the applicants that they could do nothing further to help. 63. There were 709 pupils at the school in 2000-2001 and 169 in 20082009. 64. On 16 September 2005 the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee) of the Parliamentary Assembly of the Council of Europe (PACE) issued a report on “The functioning of the democratic Institutions in Moldova”. The section devoted to Transdniestria reads as follows: “31. Major new developments have occurred during the last months which the Assembly has to follow very closely and accompany in the best possible way. 32. Following intense diplomatic contacts between Moldova and Ukraine, at the GUAM Summit in Chisinau on 22 April the Ukrainian President Yushchenko announced a 7-point initiative to settle the Transnistrian issue. ... The main thrust of this new plan is to achieve a long-lasting solution through the democratisation of Transnistria. This would entail: – the creation of conditions for the development of democracy, civil society, and a multi-party system in Transnistria; – holding of free and democratic elections to the Transniestrian Supreme Soviet, monitored by the European Union, the OSCE, the Council of Europe, Russia, United States, and other democratic countries including Ukraine; – the transformation of the current format of peacekeeping operation into an international mission of military and civil observers under the aegis of the OSCE and the expansion of the number of Ukrainian military observers in the region; – admission by Transniestrian authorities of an international monitoring mission, to include Ukrainian experts, to military-industrial enterprises in the Transniestrian region; – a short-term OSCE monitoring mission in Ukraine to verify the movement of goods and persons through the Ukrainian-Moldovan border. 33. The full text of the Ukrainian plan was presented on 16-17 May at a meeting of the representatives of the mediators and Moldova and Transnistria in Vinnitsa, Ukraine after the Ukrainian Secretary of Security Council Pyotr Poroshenko and Moldavian presidential aide Mark Tkachuk spent almost a month doing ‘shuttle diplomacy’. 34. The reactions were varied but cautiously positive. 35. On 10 June the Moldovan Parliament adopted a ‘Declaration on the Ukrainian initiative of settlement of the Transnistrian conflict’ as well as two appeals, on demilitarisation and on promoting the criteria of democratisation of the Transnistrian region of the Republic of Moldova .... 36. The declaration welcomed the initiative of President Yushchenko, hoping that it would become ‘a major factor in the achievement by Moldova of its territorial and civil unity’. The parliament however regretted that the Ukrainian initiative did not reflect some important principles of settlement, in the first place the withdrawal of Russian troops; demilitarisation; the principles and conditions of the region’s democratisation and the establishing of a transparent and legal control over the Transnistrian segment of the Moldovan-Ukrainian border. It called for additional efforts by the international community and Ukraine in this respect. 37. The parliament also criticised a number of provisions which might ‘infringe upon the sovereignty of the Republic of Moldova’, such as the co-participation of Transnistria in the conduct of foreign policy of the Republic of Moldova and the proposal to create the so-called conciliation committee. The Parliament insisted on resolving the conflict within the framework of the Moldovan Constitution through dialogue with a new, democratically elected, Transnistrian leadership. There are thus a number of divergences between the Ukrainian initiative and the approach to implementing it chosen by Moldova. 38. The mediators in the Transnistrian conflict (the OSCE, Russia and Ukraine) stated that the plan provided a concrete impetus toward achieving a settlement. At all of their latest meetings they called for resuming direct, continuing dialogue on resolution of the conflict. 39. More delicate is the position of Russia. It is clear that through its military and economic presence and thanks to the strong cultural and linguistic links with Transnistria, Russia would like to retain its strong influence over the territory. The press recently reported the existence of an ‘Action plan of retaining Russian influence in the Moldova Republic’, details of which are kept secret. Russia is still strongly attached to the so-called ‘Kozak Memorandum’ of 2003, which proposed to Moldova a federal solution. Moldova had nearly accepted the plan; it refused to sign it at the last moment, allegedly under Western influence. 40. Over the last months, there have been several signs of tension. For instance, on 18 February the Russian Federation State Duma adopted with a large majority a resolution requesting from the Russian government a number of economic and other sanctions against Moldova, with the exclusion of Transnistria, if the Moldovan authorities did not change their ‘economic blockade of Transdniestria.’ The sanctions included a ban on imports of Moldovan alcohol and tobacco, world market prices for exports of Russian natural gas to Moldova and visas for Moldovans entering Russia. 41. Both appeals adopted by the Moldovan parliament called on the Council of Europe for support and, concerning the democratisation of Transnistria, to engage actively in the process. During our visit in Chisinau our interlocutors repeatedly stressed the importance they attached to the expertise and experience of our organisation in this respect. The documents adopted by the Moldovan Parliament were officially submitted by its Speaker to the Monitoring Committee ‘for examination in the framework of the Moldova’s monitoring exercise’ and for ‘analysis, comments and recommendations, as well as ideas of the Parliamentary Assembly that could contribute to the democratisation of the Transnistrian region and final settlement of the conflict’. 42. At the first sight, the plan should be followed closely by the Council of Europe, as the leading organisation in the field of democracy, human rights and rule of law. The Committee has therefore entrusted us with the responsibility of visiting Kiev, Moscow, Bucharest and Brussels in order to meet the main figures responsible for the Ukrainian plan and get acquainted with all its details. On the basis of this information we will make specific proposals for the Assembly to play an effective part in the plan’s progress. 43. A number of questions remain about the implementation of the Ukrainian plan and the conditions set by the Moldovan parliament. However, against the background of all the failed diplomatic attempts, it has one strong advantage. It combines diplomatic efforts with specific measures for democratisation, in Transnistria but also in Moldova, which must serve as an example. The initiative also comes at the right moment, as it coincides with a major strive for democratisation and European integration in the entire region. 44. Not only Moldova, whose territorial integrity and sovereignty have been violated, but Europe as a whole can no longer afford to have this ‘black hole’ on its territory. Transnistria is a centre of all kinds of illicit trade and, in the first place arms trafficking and all forms of smuggling. Political life continues to be dominated by the secret police; fundamental freedom and liberties are curtailed. 45. One of the most difficult elements appears to be the possibility to organise democratic elections in Transnistria. For this the region needs to have freely functioning political parties, media and civil society. The 27 March local elections in Transnistria (to elect village, settlement, city and district councils, as well as the chairmen of village and settlement councils) showed that real strong opposition is still missing. These elections by the way were considered as a test for the scheduled December 2005 elections for the Transnistrian Supreme Soviet. 46. However, there are some interesting developments, especially concerning a group of Supreme Soviet members led by the Deputy Speaker Evgeny Shevchuk. On 29 April this group initiated ambitious draft changes to the Transnistrian ‘constitution’ aiming at reinforcing this ‘parliament’’s role vis-à-vis the ‘president’ and the executive – for instance by granting it the right to a no-confidence vote on ‘ministers’ and other officials appointed by the ‘president’, or the right to control the work and the spending of the executive. Some more modest changes, as well as a draft law on local administration, stipulating that the chairmen of raion [district] and city councils have to be elected by the councils by secret vote, were adopted on 18 May at first reading. Mr Shevchuk is also promoting a legislative initiate to transform the regional official ‘TV PMR’ into a public broadcasting institution. 47. On 22 June the Supreme Soviet recommended that ‘president’ Smirnov dismiss the ‘minister’ of justice Victor Balala. Balala, who is one the closest allies of the ‘president’, recently decided to transfer registration functions from his ‘ministry’ to a quasi-commercial ‘chamber of experts.’ 48. On 22 July the Moldovan parliament approved in two readings the Law on the Main Provisions of a Special Legal Status for Populated Areas on the Left Bank of Dniestr (Transnistria). The law established an autonomous territorial unit which is an inseparable part of Moldova and – within the plenary powers established under the Constitution and legislation of Moldova – decides on questions within its jurisdiction. The law stipulates that populated localities on the left bank of the Dniester may join Transnistria or secede from it on the basis of local referenda and in conformity with the Moldovan legislation.” 65. In the light of this report, PACE adopted a resolution in which it resolved, inter alia, that: “10. The Assembly welcomes the resumption of negotiations following Ukraine’s optimistic initiative of settling the Transnistrian conflict by giving priority to democratisation. It hopes that the current five-member format, involving Moldova, the Transnistrian region, Russia, Ukraine and the OSCE, will be extended to include also the Council of Europe. It emphasises the need for effective supervision of the border between Moldova and Ukraine, arms stocks and the production of armaments factories. Given their accumulated expertise, the Assembly wishes its rapporteurs to be associated with all these developments. 11. Any settlement of the Transnistrian conflict must be based on the inviolable principle of full respect for Moldova’s territorial integrity and sovereignty. In accordance with the rule of law, any solution must accord with the popular will as expressed in fully free and democratic elections run by internationally recognised authorities.” 66. In its Annual Report for 2004, the OSCE referred to events in Transdniestria as follows: “...The most disruptive development, however, was the Transdniestrian decision in mid-July to close the Moldovan schools in Transdniestrian territory teaching in Latin script. In response, the Moldovan side suspended its participation in the five-sided political settlement negotiations. Together with co-mediators from the Russian Federation and Ukraine, the Mission went to extraordinary lengths from mid-July well into autumn to ameliorate the school crisis and to find and implement a solution. The Mission also sought to defuse tensions between the sides concerning freedom of movement, farmlands, and railways.” In 2004 the OSCE also observed that: “Only one train containing approximately 1,000 tons of ammunition was removed from the Operative Group of Russian Forces depots in Transdniestria in 2004. Approximately 21,000 metric tons of ammunition remain to be removed, together with more than 40,000 small arms and light weapons and approximately ten trainloads of miscellaneous military equipment. The Mission continued to co-ordinate technical and financial assistance to the Russian Federation for these activities.” 67. The 2005 Annual Report stated: “The Mission concentrated its efforts on restarting the political settlement negotiations, stalled since summer 2004. The mediators from the Russian Federation, Ukraine, and the OSCE held consultations with representatives from Chisinau and Tiraspol in January, May and September. At the May meeting, Ukraine introduced President Victor Yushchenko’s settlement plan, Toward a Settlement through Democratization. This initiative envisages democratization of the Transdniestrian region through internationally conducted elections to the regional legislative body, along with steps to promote demilitarization, transparency and increased confidence. In July, the Moldovan Parliament, citing the Ukrainian Plan, adopted a law On the Basic Principles of a Special Legal Status of Transdniestria. During consultations in September in Odessa, Chisinau and Tiraspol agreed to invite the EU and US to participate as observers in the negotiations. Formal negotiations resumed in an enlarged format in October after a 15-month break and continued in December following the OSCE Ministerial Council in Ljubljana. On 15 December, the Presidents of Ukraine and the Russian Federation, Victor Yushchenko and Vladimir Putin, issued a Joint Statement welcoming the resumption of negotiations on the settlement of the Transdniestrian conflict. In September, Presidents Voronin and Yushchenko jointly requested the OSCE Chairman-in-Office to consider sending an International Assessment Mission (IAM) to analyse democratic conditions in Transdniestria and necessary steps for conducting democratic elections in the region. In parallel, the OSCE Mission conducted technical consultations and analyses on basic requirements for democratic elections in the Transdniestrian region, as proposed in the Yushchenko Plan. At the October negotiating round, the OSCE Chairmanship was asked to continue consultations on the possibility of organizing an IAM to the Transdniestrian region. Together with military experts from the Russian Federation and Ukraine, the OSCE Mission completed development of a package of proposed confidence- and securitybuilding measures, which were presented by the three mediators in July. The Mission subsequently began consultations on the package with representatives of Chisinau and Tiraspol. The October negotiating round welcomed possible progress on enhancing transparency through a mutual exchange of military data, as envisaged in elements of this package.” On the question of Russian military withdrawal, the OSCE observed: “There was no withdrawal of Russian arms and equipment from the Transniestrian region during 2005. Roughly 20,000 metric tons of ammunition remain to be removed. The commander of the Operative Group of Russian Forces reported in May that surplus stocks of 40,000 small arms and light weapons stored by Russian forces in the Transdniestrian region have been destroyed. The OSCE has not been allowed to verify these claims.” 68. In 2006, the OSCE reported as follows: “The 17 September ‘independence’ referendum and the 10 December ‘presidential’ elections in Transnistria – neither one recognized nor monitored by the OSCE – shaped the political environment of this work ... To spur on the settlement talks, the Mission drafted in early 2006 documents that suggested: a possible delimitation of competencies between central and regional authorities; a mechanism for monitoring factories in the Transnistrian militaryindustrial complex; a plan for the exchange of military data; and an assessment mission to evaluate conditions and make recommendations for democratic elections in Transnistria. The Transnistrian side, however, refused to continue negotiations after the March introduction of new customs rules for Transnistrian exports, and thus no progress could be made including on these projects. Attempts to unblock this stalemate through consultations among the mediators (OSCE, Russian Federation and Ukraine) and the observers (European Union and the United States of America) in April, May and November and consultations of the mediators and observers with each of the sides separately in October were to no avail. ... On 13 November, a group of 30 OSCE Heads of Delegations, along with OSCE Mission members gained access for the first time since March 2004 to the Russian Federation ammunition depot in Colbaşna, near the Moldovan-Ukrainian border in northern Transnistria. There were no withdrawals, however, of Russian ammunition or equipment from Transnistria during 2006, and more than 21,000 tons of ammunition remain stored in the region ...” 69. The Annual Report for 2007 stated: “The mediators in the Transnistrian settlement process, the Russian Federation, Ukraine and the OSCE, and the observers, the European Union and the United States, met four times. The mediators and observers met informally with the Moldovan and Transnistrian sides once, in October. All meetings concentrated on finding ways to restart formal settlement negotiations, which have nonetheless failed to resume. ... The Mission witnessed that there were no withdrawals of Russian ammunition or equipment during 2007. The Voluntary Fund retains sufficient resources to complete the withdrawal tasks.” 70. In 2008, the OSCE observed: “Moldovan President Vladimir Voronin and Transnistrian leader Igor Smirnov met in April for the first time in seven years and followed up with another meeting on 24 December. Mediators from the OSCE, Russian Federation and Ukraine and observers from the European Union and the United States met five times. Informal meetings of the sides with mediators and observers took place five times. These and additional shuttle diplomacy efforts by the Mission notwithstanding, formal negotiations in the ‘5+2’ format were not resumed. ... There were no withdrawals of Russian ammunition or equipment from the Transistrian region during 2008. The Voluntary Fund retains sufficient resources to complete withdrawal tasks.” 71. In its report dated 17 June 2004, “Moldova: Regional Tensions over Transdniestria” (Europe Report no. 157), the International Crisis Group (ICG) found as follows (extract from the Executive Summary): “Russia’s support for the self-proclaimed and unrecognised Dniestrian Moldovan Republic (DMR) has prevented resolution of the conflict and inhibited Moldova’s progress towards broader integration into European political and economic structures. In its recent and largely unilateral attempts to resolve the Transdniestrian conflict, Russia has demonstrated almost a Cold War mindset. Despite comforting rhetoric regarding Russian-European Union (EU) relations and Russian-U.S. cooperation on conflict resolution and peacekeeping within the Newly Independent States of the former Soviet Union (NIS), old habits appear to die hard. Russia remains reluctant to see the EU, U.S. or the Organisation for Security and Cooperation in Europe (OSCE) play an active role in resolving the conflict because Moldova is still viewed by many in Moscow as a sphere of exclusively Russian geopolitical interest. It has not been difficult for Russia to exploit Moldova’s political and economic instability for its own interests. Despite having accepted concrete deadlines for withdrawing its troops, Russia has repeatedly back-pedalled while trying to force through a political settlement that would have ensured, through unbalanced constitutional arrangements, continued Russian influence on Moldovan policymaking and prolongation of its military presence in a peacekeeping guise. It has so far been unwilling to use its influence on the DMR [“MRT”] leadership to promote an approach to conflict resolution that balances the legitimate interests of all parties. Ukrainian and Moldovan business circles have become adept at using the parallel DMR economy to their own ends, regularly participating in re-export and other illegal practices. Some have used political influence to prevent, delay, and obstruct decisions which could have put pressure on the DMR leadership to compromise. These include abolition of tax and customs regulations favourable to the illegal re-export business, enforcement of effective border and customs control, and collection of customs and taxes at internal ‘borders’. With backing from Russian, Ukrainian and Moldovan economic elites, the DMR leadership has become more assertive. Recognising that international recognition is unlikely, it has focused on preserving de facto independence through a loose confederation with Moldova. Unfortunately, DMR leaders - taking advantage of contradictions in the tax and customs systems of Moldova and the DMR - continue to draw substantial profits from legal and illegal economic activities including re-exports, smuggling and arms production. The DMR has become a self-aware actor with its own interests and strategies, possessing a limited scope for independent political manoeuvre but an extensive web of economic and other links across Russia, Moldova, and Ukraine. However, it remains heavily dependent on Russian political and economic support and does not like to put itself in a position where it must act counter to Russian policy. Russian and DMR interests often overlap but in some instances DMR leaders have been able to design and implement strategies to avoid Russian pressure, delay negotiations, obstruct Russian initiatives, and undermine Russian policies by playing up disagreements between the co-mediators and capitalising on alternative sources of external support. Russia’s most recent attempt to enforce a settlement - the Kozak Memorandum in October and November 2003 - has shown that its influence, while pervasive, has clear limits. Russia is unable to push through a settlement without the support of Moldova and the international community, especially key players such as the OSCE, EU, and the U.S. A comprehensive political settlement requires an approach that can bridge the differences between Russia and other key international actors while fairly considering the interests of both the Moldovan government and the DMR. Despite an understanding that Russia should not be antagonised, the gravitational pull of European integration is strong in Moldova. Recently, even its communist leadership has stressed the need to do more to achieve that goal. The country has rarely been on Western radar screens during the last decade, however, and it will need more demonstrable EU and U.S. backing if it is to resist Russian political and material support for the DMR and Transdniestrian obstruction of the negotiation process. International actors must also help Moldova to secure its own borders against the illicit economic activities which keep Transdniestria afloat and affect its European neighbours as well. The conflict can only be resolved if the international community uses its influence on Russia bilaterally and within the OSCE. Only then, and with a substantially more determined commitment to political, economic and administrative reform on its own part, will Moldova be able to realise its European aspirations. A comprehensive strategy towards Moldova, Ukraine and Russia within the EU’s Wider Europe Policy would be a critical first step.” 72. In its report of 17 August 2006, “Moldova’s Uncertain Future” (Europe Report no. 175), the ICG observed (extract from the Executive Summary): “With Romania’s expected entry into the European Union in 2007, the EU will share a border with Moldova, a weak state divided by conflict and plagued by corruption and organised crime. Moldova’s leadership has declared its desire to join the EU, but its commitment to European values is suspect, and efforts to resolve its dispute with the breakaway region of Transdniestria have failed to end a damaging stalemate that has persisted for fifteen years. Young people have little confidence in the country’s future and are leaving at an alarming rate. If Moldova is to become a stable part of the EU’s neighbourhood, there will need to be much greater international engagement, not only in conflict resolution but in spurring domestic reforms to help make the country more attractive to its citizens. Two recent initiatives by the EU and Ukraine gave rise to hopes that the balance of forces in the separatist dispute had changed significantly. An EU Border Assistance Mission (EUBAM) launched in late 2005 has helped curb smuggling along the Transdniestrian segment of the Moldova-Ukraine frontier, a key source of revenue for the authorities in Tiraspol, the Transdniestrian capital. At the same time, Kiev’s implementation of a landmark customs regime to assist Moldova in regulating Transdniestrian exports has reduced the ability of businesses in the breakaway region to operate without Moldovan oversight, striking a major psychological blow. But optimism that these measures would ultimately force Transdniestria to make diplomatic concessions appears to have been false. Although EUBAM has had significant success, particularly given its small size and budget, widespread smuggling continues. Nor has the Ukrainian customs regime had a decisive effect on Transdniestrian businesses, which remain capable of profitable legal trade as they were in the past. Moreover, domestic political uncertainty has raised questions about whether Kiev will continue to enforce the new regulations. Russia has increased its support for Transdniestria, sending economic aid and taking punitive measures against Moldova, including a crippling ban on wine exports, one of its main revenue sources. Moscow refuses to withdraw troops based in Transdniestria since Soviet times whose presence serves to preserve the status quo. With Russian support, the Transdniestrian leader, Igor Smirnov, has little incentive to compromise in his drive toward independence. The internationally-mediated negotiations between the two parties are going nowhere, despite the presence since 2005 of the EU and U.S. as observers. Although some understanding had been reached about the level of autonomy in a settlement, Moldova has hardened its position to match Transdniestria’s intransigence.” 73. In its report entitled “Freedom in the World 2009”, Freedom House commented, inter alia: “Moldova rejected a Russian-backed federalization plan in November 2003 after it drew public protests. The latest round of formal multilateral talks collapsed in early 2006, and Transnistrian referendum voters in September 2006 overwhelmingly backed a course of independence with the goal of eventually joining Russia, although the legitimacy of the vote was not recognized by Moldova or the international community. In the absence of active 5+2 negotiations, Voronin pursued bilateral talks with Russia and took a number of steps to bring Moldova’s foreign policy into line with the Kremlin’s. For much of 2008, he urged Russia to accept a proposal whereby Transnistria would receive substantial autonomy within Moldova, a strong and unitary presence in the Moldovan Parliament, and the right to secede if Moldova were to unite with Romania in the future. Russian property rights would be respected, and Russian troops would be replaced by civilian observers. Voronin defended his separate ‘consultations’ with Russia by saying that any settlement would be finalized in the 5+2 format. The Transnistria issue took on an added degree of urgency in August 2008, after Russia fought a brief conflict with Georgia and recognized the independence of two breakaway regions there. Russian officials said they had no plans to recognize the PMR [‘MRT’], but warned Moldova not to adopt Georgia’s confrontational stance. The Moldovan government in turn rejected any comparison and repeated its commitment to peaceful negotiations. Some experts expressed concerns that Russia could impose a harsh settlement on Moldova in the bilateral talks and then recognize the PMR if the plan were rejected. Transnistrian president Igor Smirnov’s relations with Voronin remained tense throughout the year, as the Moldovan leader effectively negotiated over Smirnov’s head and expressed clear frustration with the PMR leadership. The two men met in April for the first time since 2001, then again in December. Days after the April meeting, Romanian president Traian Basescu indirectly raised the prospect of a partition in which Ukraine would absorb Transnistria and Romania would annex Moldova proper, prompting Voronin to accuse him of sabotaging the negotiations. Meanwhile, Russian president Dmitri Medvedev met with Voronin and Smirnov separately during the year ... Political Rights and Civil Liberties Residents of Transnistria cannot elect their leaders democratically, and they are unable to participate freely in Moldovan elections... Corruption and organized crime are serious problems in Transnistria ... The media environment is restrictive ... Religious freedom is restricted ... Although several thousand students study Moldovan using the Latin script, this practice is restricted. The Moldovan language and Latin alphabet are associated with support for unity with Moldova, while Russian and the Cyrillic alphabet are associated with separatist goals. Parents who send their children to schools using Latin script, and the schools themselves, have faced routine harassment from the security services. The authorities severely restrict freedom of assembly and rarely issue required permits for public protests ... The judiciary is subservient to the executive and generally implements the will of the authorities ... Authorities discriminate against ethnic Moldovans, who make up about 40 percent of the population. It is believed that ethnic Russians and Ukrainians together comprise a slim majority, and as many as a third of the region’s residents reportedly hold Russian passports.” 74. The International Law Commission (ILC) adopted its Draft Articles on the Responsibility of States for Internationally Wrongful Acts (“Draft Articles”) in August 2001. Articles 6 and 8 of Chapter II of the Draft Articles provide: “Article 6: Conduct of organs placed at the disposal of a State by another State The conduct of an organ placed at the disposal of a State by another State shall be considered an act of the former State under international law if the organ is acting in the exercise of elements of the governmental authority of the State at whose disposal it is placed. Article 8: Conduct directed or controlled by a State The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of that State in carrying out the conduct.” 75. In its advisory opinion “Legal consequences for States of the continued presence of South Africa in Namibia, notwithstanding Security Council resolution 276 (1970)”, the ICJ held, on the obligation under international law to put an end to an illegal situation: “117. Having reached these conclusions, the Court will now address itself to the legal consequences arising for States from the continued presence of South Africa in Namibia, notwithstanding Security Council resolution 276 (1970). A binding determination made by a competent organ of the United Nations to the effect that a situation is illegal cannot remain without consequence. Once the Court is faced with such a situation, it would be failing in the discharge of its judicial functions if it did not declare that there is an obligation, especially upon Members of the United Nations, to bring that situation to an end. As this Court has held, referring to one of its decisions declaring a situation as contrary to a rule of international law: ‘This decision entails a legal consequence, namely that of putting an end to an illegal situation" (I.C.J. Reports 1951, p. 82). 118. South Africa, being responsible for having created and maintained a situation which the Court has found to have been validly declared illegal, has the obligation to put an end to it. It is therefore under obligation to withdraw its administration from the Territory of Namibia. By maintaining the present illegal situation, and occupying the Territory without title, South Africa incurs international responsibilities arising from a continuing violation of an international obligation. It also remains accountable for any violations of its international obligations, or of the rights of the people of Namibia. The fact that South Africa no longer has any title to administer the Territory does not release it from its obligations and responsibilities under international law towards other States in respect of the exercise of its powers in relation to this Territory. Physical control of a territory, and not sovereignty or legitimacy of title, is the basis of State liability for acts affecting other States.” 76. In the Case Concerning the Application of the Convention on the Prevention and Punishment of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), judgment of 26 February 2007, the ICJ held, on the question of State responsibility: “391. The first issue raised by this argument is whether it is possible in principle to attribute to a State conduct of persons - or groups of persons - who, while they do not have the legal status of State organs, in fact act under such strict control by the State that they must be treated as its organs for purposes of the necessary attribution leading to the State’s responsibility for an internationally wrongful act. The Court has in fact already addressed this question, and given an answer to it in principle, in its Judgment of 27 June 1986 in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits, Judgment, I.C.J. Reports 1986, pp. 62-64). In paragraph 109 of that Judgment the Court stated that it had to ‘determine . . . whether or not the relationship of the contras to the United States Government was so much one of dependence on the one side and control on the other that it would be right to equate the contras, for legal purposes, with an organ of the United States Government, or as acting on behalf of that Government’ (p. 62). Then, examining the facts in the light of the information in its possession, the Court observed that ‘there is no clear evidence of the United States having actually exercised such a degree of control in all fields as to justify treating the contras as acting on its behalf’ (para. 109), and went on to conclude that ‘the evidence available to the Court . . . is insufficient to demonstrate [the contras’] complete dependence on United States aid’, so that the Court was ‘unable to determine that the contra force may be equated for legal purposes with the forces of the United States’ (pp. 62-63, para. 110). 392. The passages quoted show that, according to the Court’s jurisprudence, persons, groups of persons or entities may, for purposes of international responsibility, be equated with State organs even if that status does not follow from internal law, provided that in fact the persons, groups or entities act in ‘complete dependence’ on the State, of which they are ultimately merely the instrument. In such a case, it is appropriate to look beyond legal status alone, in order to grasp the reality of the relationship between the person taking action, and the State to which he is so closely attached as to appear to be nothing more than its agent: any other solution would allow States to escape their international responsibility by choosing to act through persons or entities whose supposed independence would be purely fictitious. 393. However, so to equate persons or entities with State organs when they do not have that status under internal law must be exceptional, for it requires proof of a particularly great degree of State control over them, a relationship which the Court’s Judgment quoted above expressly described as ‘complete dependence’. ...” The ICJ went on to find that Serbia was not directly responsible for genocide during the 1992-1995 Bosnian war. It held nonetheless that Serbia had violated its positive obligation to prevent genocide, under the Convention on the Prevention and Punishment of the Crime of Genocide, by failing to take all measures within its power to stop the genocide that occurred in Srebrenica in July 1995 and by having failed to transfer Ratko Mladić, indicted for genocide and complicity in genocide, for trial by the International Criminal Tribunal for the former Yugoslavia. 77. Article 26 of the Universal Declaration of Human Rights provides: “(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. (2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. (3) Parents have a prior right to choose the kind of education that shall be given to their children.” 78. The above Convention, which was adopted by the United Nations Educational, Scientific and Cultural Organization during its 11th session October-December 1960, provides in Articles 1, 3 and 5: “Article 1 1. For the purposes of this Convention, the term ‘discrimination’ includes any distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education and in particular: (a) Of depriving any person or group of persons of access to education of any type or at any level; (b) Of limiting any person or group of persons to education of an inferior standard; (c) Subject to the provisions of Article 2 of this Convention, of establishing or maintaining separate educational systems or institutions for persons or groups of persons; or (d) Of inflicting on any person or group of persons conditions which are in-compatible with the dignity of man. 2. For the purposes of this Convention, the term ‘education’ refers to all types and levels of education, and includes access to education, the standard and quality of education, and the conditions under which it is given. Article 3 In order to eliminate and prevent discrimination within the meaning of this Convention, the States Parties thereto undertake: (a) To abrogate any statutory provisions and any administrative instructions and to discontinue any administrative practices which involve discrimination in education; ... Article 5 1.The States Parties to this Convention agree that: (a) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms; it shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace; ...” 79. Article 13 of the International Covenant on Economic, Social and Cultural Rights provides: “1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace. 2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right: (a) Primary education shall be compulsory and available free to all; (b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education; (c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education; (d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education; (e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved. 3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions. 4. No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph (1) of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.” 80. Article 5 of the above United Nations Convention provides (as relevant): “In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: ... (e) Economic, social and cultural rights, in particular: ... (v) The right to education and training;” 81. Articles 28 and 29 of the above United Nations Convention provide: “Article 28 1. States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (a) Make primary education compulsory and available free to all; (b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need; (c) Make higher education accessible to all on the basis of capacity by every appropriate means; (d) Make educational and vocational information and guidance available and accessible to all children; (e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates. 2. States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the present Convention. 3. States Parties shall promote and encourage international cooperation in matters relating to education, in particular with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods. In this regard, particular account shall be taken of the needs of developing countries. Article 29 1. States Parties agree that the education of the child shall be directed to: (a) The development of the child’s personality, talents and mental and physical abilities to their fullest potential; (b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations; (c) The development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own; (d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin; (e) The development of respect for the natural environment. 2. No part of the present article or article 28 shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principle set forth in paragraph 1 of the present article and to the requirements that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.” | 1 |
train | 001-23769 | ENG | HUN | ADMISSIBILITY | 2,004 | GECSE and HERMAN v. HUNGARY | 4 | Inadmissible | null | The applicants, Mrs Mária Gecse and Mr Péter Hermán are Hungarian nationals who were born in 1954 and 1951, respectively, and live in Budapest. The respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 23 September 1996 the applicants allegedly broke into the house of the first applicant's husband and, using violence, forced him to sign documents agreeing to the dissolution of their marriage. On 24, 25 and 26 September 1996 the applicants were interrogated. In December 1996 the Miskolc Public Prosecutor's Office preferred a bill of indictment against the applicants charging them with 'aggravated extortion', punishable by up to eight years' imprisonment under Article 323 § 2 of the Criminal Code. The Miskolc District Court held hearings on 18 September, 11 November and 16 December 1997, 19 March, 5 May and 11 June 1998. On the latter date, the District Court convicted the applicants of extortion and sentenced them to two years' imprisonment. The execution of the sentence was suspended for four years. On appeal, on 12 April 1999 the Borsod-Abaúj-Zemplén County Regional Court quashed the first instance decision and remitted the case to the District Court, essentially on the ground of procedural irregularities. In the resumed proceedings before the District Court, on 29 October 1999 the applicants requested the court to postpone the hearing, which had originally been scheduled for 8 a.m. on 30 November 1999, to 10 a.m. on the same day. They claimed that, as they lived in Budapest, they could not arrive in Miskolc in time by public transport. The hearing was eventually re-scheduled for 7 March 2000. On 24 February 2000 the Regional Court dismissed the applicants' motion for bias. The hearings of 7 March and 5 October 2000 were adjourned since the applicants did not appear. Meanwhile, on 25 May 2000 the police unsuccessfully attempted to escort the second applicant to the courtroom. On 24 November 2000 the Supreme Court rejected the applicants' motion that another court be appointed to hear the case. On 20 March 2001 the District Court held a hearing. Subsequently it appointed the Budapest Forensic Medical Institute to give an opinion on the first applicant's health. On 30 March 2001 the court ordered a telephone company to submit some information as evidence. A further hearing took place on 7 June 2001. A hearing scheduled for 5 February 2002 had to be postponed, apparently because of the first applicant's illness. In reaction to the applicants' renewed motion for bias, on 7 October 2002 the Supreme Court appointed the Kazincbarcika District Court to hear the case. A hearing scheduled by the Kazincbarcika District Court for 17 December 2002 had to be adjourned as the applicants did not appear. On 3 February 2003 the District Court appointed a medical expert to confirm whether the first applicant's illness was such as to prevent her from appearing at the court hearings. On 31 March 2003 the expert presented his opinion in which he replied in the negative. A hearing scheduled for 29 May 2003 had to be adjourned as the applicants did not appear. On 16 September 2003 the second applicant was escorted by the police to the courtroom. Subsequently the court held a hearing and heard that applicant, witnesses and an expert. On 9 October and 13 November 2003 the court held further hearings and heard the applicants, witnesses and an expert. On the latter date the court convicted the applicants of 'infringement of personal liberty' and sentenced them to six months' imprisonment. The execution of the sentence was suspended for two years. On 14 November 2003 both the applicants and the prosecutor appealed. The proceedings are still pending at second instance. The applicants allege that, during the proceedings, they have not been allowed to leave the country. On 27 December 1996 an article was published in a daily newspaper on the events of 23 September 1996. The article was based on the results of the investigation and interviews with the applicants and the first applicant's husband. On 6 March 1997 the applicants filed an action for damages against the newspaper with the Pest Central District Court. On 2 January 1998 the District Court requested the applicants to complete their action, which they did on 28 January 1998. A further order to complete of 30 January was complied with on 23 February 1998. On 19 May and 25 September 1998 the court held hearings. On 2 October 1998 it ordered the first applicant to complete the pleadings. On 28 January and 22 April 1999 the court held hearings. On the latter date it dismissed the action. On 8 June 1999 the applicants appealed. On 22 February and 5 October 2000 the Budapest Regional Court held hearings. On the latter date, it dismissed the appeal. On 21 December 2000 the applicants filed a petition for review. On 26 February 2001 the Supreme Court appointed a legal-aid lawyer for the applicants. The lawyer, being indisposed, refused the appointment on 13 March. Another lawyer was appointed on 22 March. This lawyer completed the petition on 11 April. On 3 July 2001 the Supreme Court dismissed the applicants' petition for review. Section 2 § 1 a) of Act no. 28 of 1989 on Travelling Abroad and on Passports (“the 1989 Act”, as in force until 31 August 1998) prohibited from travelling abroad anyone against whom criminal proceedings for a deliberate offence punishable by a sentence exceeding three years' imprisonment were being pursued, and for as long as those proceedings were pending. As of 1 September 1998, this legislation was replaced by section 16 § 1 a) of Act no. 12 of 1998 on Travelling Abroad (“the 1998 Act”). This provision, as in force until 30 June 2003, prohibited from travelling abroad anyone against whom criminal proceedings for an offence punishable by a sentence of or exceeding five years' imprisonment were being pursued, and until a final decision was taken in those proceedings. Under section 19 § 1 a) of the same Act, the passport authority shall refuse to issue a travel document to, or withdraw it from, a person, on whom a travel ban under section 16 § 1 has been imposed. Section 18 § 1 provides that the passport authority may – at the request of a citizen, on whom a travel ban under section 16 § 1 has been imposed – grant leave, on a ground worthy of special appreciation, to travel abroad for a definite period of time. Such leave is subject to approval by the public prosecutor or the trial judge. From 1 July 2003, the travel ban prescribed by section 16 § 1 a) of Act no. 12 of 1998 was annulled. | 0 |
train | 001-82283 | ENG | DEU | ADMISSIBILITY | 2,007 | SCHAEFER v. GERMANY | 3 | Inadmissible | Peer Lorenzen | The applicant, Mrs Brunhilde Schaefer, is a German national who was born in 1934 and lives in Mannheim. She was represented before the Court by Mr H. Hohmann and Mr T. Makatsch, lawyers practising in Büdingen. The applicant and M.S. are a married couple. Their property is subject to the statutory matrimonial property regime of the community of increased assets (Zugewinngemeinschaft; see Relevant domestic law below). M.S. was the manager of two limited liability companies in which he had invested 61,000 marks (DEM). The companies had taken out several loans for which M.S., as well as his son and wife, had provided security. On 26 September 1988 and on 1 August 1989 M.S. pledged four bonds (of a total value of DEM 232,000) to the Schwetzingen Regional Savings Bank as security for all present and future claims of the bank against him. Thereupon, the bank furnished a guarantee of DEM 300,000 for a loan which M.S. had received from a different bank and granted him two loans. On 20 January 1990 the Schwetzingen Regional Savings Bank gave M.S. notice of termination of the loans and claimed their repayment. However, M.S. was unable to settle his debts. In 1991 the claims arising from the four bonds pledged by M.S. became due. The Schwetzingen Regional Savings Bank arranged for the sum of money which had fallen due to be paid into M.S.’s account with the bank, where it was charged with M.S.’s debts. The applicant and M.S. have made their living since then from a small pension, financial aid granted by others and two low-paid part-time jobs. On 4 March 1991 the applicant, who was from then on represented by counsel throughout the proceedings, brought an action against the Schwetzingen Regional Savings Bank for restitution of the four bonds or alternatively for payment of DEM 232,000. She claimed that the pledging of the bonds by her husband was void pursuant to section 1365 of the Civil Code (see Relevant domestic law below). She argued that the companies managed by her husband had already been heavily indebted since 1986. Her husband’s interests in his two companies therefore no longer had any value. The defendant bank had been aware that the bonds constituted her husband’s last property and she had not consented to his pledging the bonds as prescribed by section 1365 of the Civil Code in such circumstances. As her husband did not want to claim restitution of the bonds himself, she had a right to restitution under section 1368 of the Civil Code (see Relevant domestic law below). The Schwetzingen Regional Savings Bank pleaded that, already in 1991, it had set off (see Relevant domestic law below) its claim for repayment of M.S.’s loan against the claim for restitution of the bonds. On 5 January 1994 the Schwetzingen District Court (Family Division) dismissed the applicant’s action. On 30 December 1997 the Karlsruhe Court of Appeal dismissed the applicant’s appeal. Contrary to a previous undertaking allegedly given orally by the judge rapporteur in the hearing, the Court of Appeal subsequently dismissed the applicant’s request for legal aid for the proceedings. On 1 February 2000 the applicant received a copy of the defendant’s observations. On 2 February 2000 the Federal Court of Justice, having held a hearing on that day, rejected the applicant’s request under section 283 of the Code of Civil Procedure (see Relevant domestic law below) to grant her an additional opportunity to reply in writing to the defendant’s observations (running to twelve pages) of 27 January 2000, which the applicant had received the day before the hearing, and dismissed the applicant’s appeal on points of law. The Federal Court of Justice noted that section 1365 of the Civil Code protected a spouse’s interest in preserving the family’s assets. However, this interest did not outweigh the interests of the other spouse’s creditors under all circumstances. In particular, the Debtors (Voidable Dispositions) Act (see Relevant domestic law below) offered protection for the creditors of a spouse who had transferred his/her assets to the other spouse in order to exempt these assets from his/her creditors’ attachment. This did not mean, however, that section 1365 of the Civil Code did not fully apply to heavily indebted spouses. The Federal Court of Justice found that the applicant could not claim under section 1368 of the Civil Code the amount of money the defendant had received when the claims arising from the four bonds had become due. It left open whether the bonds had constituted M.S.’s entire or almost entire property and whether the defendant had known this as required by section 1365. This being assumed, the pledge of the bonds had been void and M.S. had initially had a claim against the defendant for payment of the amount of money the bank had obtained when the bonds were redeemed. However, the defendant bank had validly set off its own claim against M.S. for repayment of the loans against M.S.’s said claim by having the money obtained from the bonds paid into M.S.’s account with the bank and by charging it with M.S.’s debts. The Federal Court of Justice, agreeing with the defendant, which had argued in its observations that it had set off its claim for repayment of the loans against the claim under section 1365 of the Civil Code, considered the set-off to be valid. Section 1368 of the Civil Code only allowed the applicant to enforce M.S.’s claim in her own name. Likewise, the protective purpose of sections 1365 and 1368 of the Civil Code had not been impaired by the set-off. The said provisions did not shield a spouse from all reductions of the family’s assets caused by the other spouse, in particular, by incurring liabilities which endangered the preservation of those assets. Creditors who had a claim for payment as a result of these liabilities could enforce their claim against the indebted spouse by execution against the debtor’s property. Just as section 1365 of the Civil Code did not give the other spouse a right to prevent compulsory execution, it did not protect that spouse from a set-off if the creditor had a claim against the spouse who had disposed of his/her property contrary to section 1365. Instead of attaching the disposing spouse’s claim for payment against the bank, the latter could set off its own claim for repayment of the loan against M.S.’s claim. The decision was served on the applicant on 6 April 2000. On 4 May 2000 the applicant lodged a complaint with the Federal Constitutional Court. She argued that the German courts had interpreted sections 1365 and 1368 of the Civil Code in a manner which disregarded her right to respect for her family life as protected by the Basic Law. The Federal Court of Justice had also refused to allow her an opportunity to reply in writing to the defendant’s observations, which she had received only one day before the hearing. Furthermore, her trial had been unfair, in particular, in that the undertaking of the judge rapporteur of the Court of Appeal that she would be granted legal aid had not been fulfilled. On 23 October 2002 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 1 BvR 801/00). The decision was served on the applicant on 29 October 2002. Sections 1363 to 1390 of the Civil Code lay down rules concerning the matrimonial property of married couples. The property of spouses is subject to the statutory matrimonial property regime of the community of increased assets (Zugewinngemeinschaft) if they have not stipulated in a marriage contract that different rules shall apply (section 1363 § 1 of the Civil Code). The property of the husband and wife does not become joint property. However, any increase in the assets of either spouse during the marriage is equalized on termination of the community of increased assets (for example, by death or divorce, see section 1363 § 2 of the Civil Code). There are certain limitations on a spouse’s right to dispose of his or her assets. In particular, according to section 1365 § 1 of the Civil Code, a spouse may only (agree to) dispose of the entirety of his or her assets with the other spouse’s prior or subsequent consent. The approval of guardianship courts may be substituted for the other spouse’s consent to the transaction under certain conditions: if the transaction is in line with a proper administration of the assets and if the other spouse has refused his or her consent without good cause (section 1365 § 2 of the Civil Code). Section 1368 of the Civil Code provides that if a spouse has disposed of his or her assets without the other spouse’s necessary consent, the other spouse is also entitled to enforce in court the claims emanating from the invalidity of the transaction. The Debtors (Voidable Dispositions) Act (Anfechtungsgesetz) of 5 October 1994 lays down rules for the contestation by creditors of a debtor’s transactions which have put the creditors at a disadvantage. Section 3 § 1 of that Act provides that a creditor may contest a transaction which has been entered into by the debtor, with the intention of putting his creditors at a disadvantage, within the preceding ten years if the other party to the transaction was aware of the debtor’s intent at the time of the transaction. According to section 3 § 2, the creditors may, under certain circumstances, also contest a contract involving remuneration between the debtor and a person having a close relationship with him or her, if the creditors are directly put at a disadvantage by the contract. If two persons have obligations of a similar nature against each other (in particular, the obligation to pay off a debt), each party may declare the set-off of his/her own claim against the claim of the other party under certain circumstances, in particular under the condition that the claim of the party effecting the set-off is already due (section 387 of the Civil Code). The set-off is effected by way of a declaration to the other party (section 388 of the Civil Code) and results in both claims becoming extinct (with retroactive effect) as from the time when both claims had first become subject to setting-off (section 389 of the Civil Code). Section 283 of the Code of Civil Procedure (which is applicable to proceedings before the Federal Court of Justice pursuant to section 555 of the Code of Civil Procedure) lays down rules on additional written pleadings after the hearing. If one party to the proceedings is unable to reply to the submissions of the other in the course of the hearing because that party had not been informed in due time of those submissions before the hearing , the court may, on the party’s request, grant that party leave to give explanations in writing after the hearing within a period fixed by the court. | 0 |
train | 001-59617 | ENG | TUR | CHAMBER | 2,001 | CASE OF REFAH PARTISI (THE WELFARE PARTY) AND OTHERS v. TURKEY | 3 | No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association) | Nicolas Bratza | 10. Refah was founded on 19 July 1983. It took part in a number of general and local elections, ultimately obtaining approximately 22% of the votes in the general election of 1995 and about 35% of the votes in the local elections of 3 November 1996. The results of the 1995 general election made Refah the largest political party in the Turkish parliament with a total of 158 seats in the Grand National Assembly (out of 450 altogether). On 28 June 1996 Refah came to power by forming a coalition government with the centre-right True Path (Doğru Yol) Party, led by Mrs Tansu Ciller. 11. On 21 May 1997 Principal State Counsel at the Court of Cassation applied to the Turkish Constitutional Court to have Refah dissolved on the grounds that it was a “centre” (mihrak) of activities contrary to the principles of secularism. In support of his application, he referred to the following acts and remarks by leaders and members of Refah. – Whenever they spoke in public Refah’s chairman and other leaders advocated the wearing of Islamic headscarves in State schools and buildings occupied by public administrative authorities, whereas the Constitutional Court had already ruled that this infringed the principle of secularism enshrined in the Constitution. – At a meeting on constitutional reform Refah’s chairman, Necmettin Erbakan, had made proposals tending towards the abolition of secularism in Turkey. He had suggested that the adherents of each religious movement should obey the rules of their own organisations rather than Turkish law. – On 13 April 1994 Necmettin Erbakan had asked Refah’s representatives in the Grand National Assembly to consider whether the change in the social order which the party sought would be “peaceful or violent” and would be achieved “harmoniously or by bloodshed”. – At a seminar held in January 1991 in Sivas Necmettin Erbakan had called on Muslims to join Refah, saying that only his party could establish the supremacy of the Koran through a holy war (jihad) and that Muslims should therefore make donations to Refah rather than distributing alms to third parties. – During Ramadan Necmettin Erbakan had received the heads of the Islamist movements at the residence reserved for the Prime Minister, thus assuring them of his support. – Several members of Refah, including some in high office, had made speeches calling for the secular political system to be replaced by a theocratic regime. These persons had also advocated the elimination of the opponents of this policy, if necessary by force. Refah, by refusing to open disciplinary proceedings against the members concerned and even, in certain cases, facilitating the dissemination of their speeches, had tacitly approved the views expressed. – On 8 May 1997 a Refah MP, İbrahim Halil Çelik, had said in front of journalists in the corridors of the parliament building that blood would flow if an attempt was made to close the “İmam-Hatip” theological colleges, that the situation might become worse than in Algeria, that he personally wanted blood to flow so that democracy could be installed in the country, that he would strike back against anyone who attacked him and that he would fight to the end for the introduction of Islamic law (sharia). – The Minister of Justice, Şevket Yılmaz (a Refah MP and vice-chairman of the party), had expressed his support for the mayor of Sincan by visiting him in the prison where he had been detained pending trial after being charged with publicly vindicating international Islamist terrorist groups. Principal State Counsel further observed that Refah had not opened any disciplinary proceedings against those responsible for the above-mentioned acts and remarks. 12. On 7 July 1997 Principal State Counsel submitted new evidence against Refah to the Constitutional Court. 13. On 4 August 1997 Refah’s representatives filed their defence submissions, in which they relied on international human-rights-protection instruments, including the Convention, pointing out that these instruments formed part of Turkish written law. They further referred to the case-law of the Commission, which had expressed the opinion that Article 11 of the Convention had been breached in the cases concerning the Turkish United Communist Party and the Socialist Party, and to the case-law of the Court and the Commission on the restrictions on freedom of expression and freedom of association authorised by the second paragraphs of Articles 10 and 11 of the Convention. They contended that the dissolution of Refah had not been prompted by a pressing social need and was not necessary in a democratic society. Nor, according to Refah’s representatives, was their party’s dissolution justified by application of the “clear and present danger” test laid down by the Supreme Court of the United States of America. 14. Refah’s representatives further rejected Principal State Counsel’s argument that the party was a “centre” of activities which undermined the secular nature of the Republic. They submitted that Refah was not caught by the criteria laid down in the Law on the regulation of political parties for determining whether a political party constituted a “centre of activities contrary to the Constitution”. They observed, inter alia, that the prosecuting authorities had not issued any warning to Refah (which had four million members) that might have enabled it to expel any of its members whose acts had contravened the provisions of the Criminal Code. 15. Refah’s representatives also set out their point of view on the concept of secularism. They asserted that the principle of secularism implied respect for all beliefs and that Refah had shown such respect in its political activity. 16. The applicants’ representatives alleged that in accusing Necmettin Erbakan of supporting the use of force to achieve political ends and of infringing the principle of secularism the prosecuting authorities had merely cited extracts from his speeches which they had distorted and taken out of context. Moreover, these remarks were covered by Mr Erbakan’s parliamentary immunity. They further noted that the dinner Mr Erbakan had given to senior officials of the Religious Affairs Department and former members of the theology faculty had been presented by Principal State Counsel as a reception organised for the leaders of religious movements, which had in any event been legally proscribed since 1925. 17. With regard to the remarks of other Refah leaders and members criticised by Principal State Counsel’s office, Refah’s representatives observed that these did not constitute any criminal offence. They asserted that none of the MPs concerned was authorised to represent Refah or held office within the party and claimed that the prosecuting authorities had not set in motion the procedure laid down in the Law on the regulation of political parties so as to give Refah the opportunity, if the need arose, to decide whether or not the persons concerned should continue to be members of the party; the first time Refah’s leadership had been informed of the remarks criticised in the case had been when they read Principal State Counsel’s submissions. The three MPs under attack had been expelled from the party, which had thus done what was necessary to avoid becoming a “centre” of illegal activities within the meaning of the Law on the regulation of political parties. 18. On 5 August 1997 Principal State Counsel filed his observations on the merits of the case with the Constitutional Court. He submitted that according to the Convention and the case-law of the Turkish courts on constitutional law issues nothing obliged States to tolerate the existence of political parties that sought the destruction of democracy and the rule of law. He contended that Refah, by describing itself as an army engaged in a jihad and by openly declaring its intention to replace the Republic’s statute law by sharia, had demonstrated that its objectives were incompatible with the requirements of a democratic society. Refah’s aim to establish a plurality of legal systems (in which each group would be governed by a legal system in conformity with its members’ religious beliefs) constituted the first stage in the process designed to substitute a theocratic regime for the Republic. 19. In their observations on the merits of the case Refah’s representatives again argued that the dissolution of their party could not be grounded on any of the restrictions permitted by the second paragraph of Article 11 of the Convention. They went on to say that Article 17 of the Convention was not applicable in the case, as Refah had nothing in common with political parties which sought to instal a totalitarian regime. Furthermore, the plurality of legal systems which it proposed was actually intended to promote the freedom to enter into contracts and the freedom to choose which court should have jurisdiction. 20. On 11 November 1997 Principal State Counsel submitted his observations orally. On 18 and 20 November 1997 Necmettin Erbakan submitted his oral observations on behalf of Refah. 21. In a judgment of 9 January 1998 the Constitutional Court, referring to Article 68 § 6 of the Constitution, ruled that the second paragraph of section 103 of the Law on the regulation of political parties was unconstitutional and declared it null and void. That provision, taken together with section 101(d) of the same Law, provided that for a political party to be considered a “centre” of activities contrary to the elementary principles of the Republic its members had to have been convicted of criminal offences. According to the Constitutional Court, that statutory restriction did not cover all cases contrary to the principles of the Republic. It pointed out, among other observations, that after the repeal of Article 163 of the Turkish Criminal Code activities contrary to the principle of secularism no longer attracted criminal penalties. 22. On 16 January 1998 the Constitutional Court dissolved Refah on the ground that it had become a “centre of activities contrary to the principle of secularism”. It based its decision on sections 101(b) and 103(1) of Law no. 2820 on the regulation of political parties. It also ordered the transfer of Refah’s assets to the Treasury as an automatic consequence of dissolution, in accordance with section 107 of Law no. 2820. 23. In its judgment the Constitutional Court first dismissed the preliminary objections raised by Refah. In that connection it held that the parliamentary immunity of the MPs whose remarks had been mentioned in Principal State Counsel’s submissions of 21 May 1997 had nothing to do with consideration of an application for the dissolution of a political party and temporary forfeiture by its members of certain political rights, but was a question of the criminal responsibility of the MPs concerned, which was not a matter of constitutional law. 24. With regard to the merits, the Constitutional Court held that while polutical parties were the main protagonists of democratic politics their activities were not exempt from certain restrictions. In particular, activities by them incompatible with the rule of law could not be tolerated. The Constitutional Court referred to the provisions of the Constitution which imposed respect for secularism on the various organs of political power. It also cited the numerous provisions of domestic legislation requiring political parties to apply the principle of secularism in a number of fields of political and social life. The Constitutional Court observed that secularism was one of the indispensable conditions of democracy. In Turkey the principle of secularism was safeguarded by the Constitution, on account of the country’s historical experience and the specific features of Islam. The democratic regime was incompatible with the rules of sharia. The principle of secularism prevented the State from manifesting a preference for a particular religion or belief and constituted the foundation of freedom of conscience and equality between citizens before the law. Intervention by the State to preserve the secular nature of the political regime had to be considered necessary in a democratic society. 25. The Constitutional Court held that the following evidence proved that Refah had become a “centre of activities contrary to the principle of secularism”: - Refah’s chairman, Necmettin Erbakan, had encouraged the wearing of Islamic headscarves in public and educational establishments. On 10 October 1993, at the party’s Fourth Ordinary General Meeting, he had said: “... when we were in government, for four years, the notorious Article 163 of the Persecution (Torture) Code was never applied against any child in the country. In our time there was never any question of hostility to the wearing of headscarves...” In his speech of 14 December 1995 before the general election he had said: “... [university] chancellors are going to retreat before the headscarf when Refah comes to power”. But manifesting one’s religion in such a manner amounted to exerting pressure on persons who did not follow that practice and created discrimination on the ground of religion or beliefs. That finding was supported by various rulings of the Constitutional Court and the Supreme Administrative Court and by the case-law of the European Commission of Human Rights on applications nos. 16278/90 and 18783/91 concerning the wearing of headscarves at universities. - The plurality of legal systems proposed by Necmettin Erbakan was nothing to do with the freedom to enter into contracts as Refah claimed, but was an attempt to establish a distinction between citizens on the ground of their religion and beliefs and was aimed at the installation of a theocratic regime. On 23 March 1993 Mr Erbakan had made the following speech to the National Assembly: “... ‘you shall live in a manner compatible with your beliefs’. We want despotism to be abolished. There must be several legal systems. The citizen must be able to choose for himself which legal system is most appropriate for him, within a framework of general principles. Moreover, that has always been the case throughout our history. In our history there have been various religious movements. Everyone lived according to the legal rules of his own organisation, and so everyone lived in peace. Why, then, should I be obliged to live according to another’s rules? ... The right to choose one’s own legal system is an integral part of the freedom of religion.” In addition, Mr Erbakan had spoken as follows on 10 October 1993 at a Refah party conference: “... We shall guarantee all human rights. We shall guarantee to everyone the right to live as he sees fit and to choose the legal system he prefers. We shall free the administration from centralism. The State which you have installed is a repressive State, not a State at the people’s service. You do not allow the freedom to choose one’s code of law. When we are in power a Muslim will be able to get married before the mufti, if he wishes, and a Christian will be able to marry in church, if he prefers.” - The plurality of legal systems advocated by Mr Erbakan in his speeches had its origin in the practice introduced in the first years of Islam by the “Medina Agreement”, which had given the Jewish and polytheist communities the right to live according to their own legal systems, not according to Islamic law. On the basis of the Medina Agreement some Islamist thinkers and politicians had proposed a model of peaceful co-existence under which each religious group would be free to choose its own legal system. Since the foundation of the Nizam party in 1970 (dissolved by the Decree of 2 May 1971) Mr Erbakan had been seeking to replace the single legal system with a plurality of legal systems and thus destroy legislative and judicial unity, which were preconditions for secularism and the consciousness of nationhood. - In addition, Mr Erbakan had made a speech on 13 April 1994 to the Refah group in parliament in which he had advocated setting up a theocratic regime, if necessary through force: “The second important point is this: Refah will come to power and a just [social] order (adil düzen) will be established. The question we must ask ourselves is whether this change will be violent or peaceful; whether it will entail bloodshed. I would have preferred not to use those terms, but in the face of all that, in the face of terrorism, and so that everyone can see the true situation clearly, I feel obliged to do so. Today Turkey must take a decision. The Welfare Party will establish a just order, that is certain. [But] will the transition be peaceful or violent; will it be achieved harmoniously or by bloodshed? The sixty million [citizens] must make up their minds on that point.” - The reception given by Necmettin Erbakan at the Prime Minister’s residence to the leaders of the various religious movements, who had attended in vestments denoting their religious allegiance, clearly evidenced Refah’s chairman’s support for these religious groups vis-à-vis public opinion. - In a public speech in April 1994 Şevki Yılmaz, MP for the province of Rize, had issued a clear call to wage a holy war (jihad) and had argued for the introduction of Islamic law, making the following declaration: “We shall certainly call to account those who turn their backs on the precepts of the Koran and those who deprive Allah’s messenger of his jurisdiction in their country.” In another public speech, also in April 1994, Şevki Yılmaz had said: “In the hereafter you will be summoned with the leaders you have chosen in this life. ... Have you considered to what extent the Koran is applied in this country? I have done the sums. Only 39% [of the rules] in the Koran are applied in this country. Six thousand five hundred verses have been quietly forgotten ... You found a Koranic school, you build a hostel, you pay for a child’s education, you teach, you preach. ... None of that is part of the chapter on jihad but of that on the amel-i salih (peacetime activities). Jihad is the name given to the quest for power for the advent of justice, for the propagation of justice and for glorification of Allah’s Word. Allah did not see that task as an abstract political concept; he made it a requirement for warriors (cahudi). What does that mean? That jihad must be waged by an army! The commander is identified... The condition to be met before prayer (namaz) is the islamisation of power. Allah says that, before mosques, it is the path of power which must be Muslim... It is not erecting vaulted ceilings in the places of prayer which will lead you to Paradise. For Allah does not ask whether you have built up vaulted ceilings in this country. He will not ask that. He will ask you if you have reached a sufficient level ... today, if Muslims have a hundred books, they must give thirty to the Koranic schools, to train our children, girls and boys, and the sixty remaining books must be given to the political establishments which open the road to power. Allah asked all his prophets to fight for power. You cannot name a single member of a religious movement who does not fight for power. I tell you, if I had as many heads as I have hairs on my head, even if each of those heads were to be torn from my shoulders for following the way of the Koran, I would not abandon my cause... The question Allah will ask you is this: ‘Why, in the time of the blasphemous regime, did you not work for the construction of an Islamic State?’ Erbakan and his friends want to bring Islam to this country in the form of a political party. The prosecutor understood that clearly. If we could understand that as he did, the problem would be solved. Even Abraham the Jew has realised that in this country the symbol of Islam is Refah. He who incites the Muslim community (cemaat) to take up arms before political power is in Muslim hands is a fool, or a traitor doing the bidding of others. For none of the prophets authorised war before the capture of State power. ... Muslims are intelligent. They do not reveal how they intend to beat their enemy. The general staff gives orders and the soldiers obey. If the general staff reveals its plan, it is up to the commanders of the Muslim community to make a new plan. Our mission is not to talk, but to apply the war plan, as soldiers in the army...” Criminal proceedings had been brought against Şevki Yılmaz. Although his antipathy to secularism was well-known, Refah had adopted him as a candidate in local-government elections. After he had been elected mayor of Rize, Refah had made sure that he was elected as an MP in the Turkish Grand National Assembly. - In a public speech on 14 March 1993 and a television interview first recorded in 1992 and rebroadcast on 24 November 1996, Hasan Hüseyin Ceylan, Refah MP for the province of Ankara, had encouraged discrimination between believers and non-believers and had predicted that if the supporters of applying sharia came to power they would annihilate non-believers: “Our homeland belongs to us, but not the regime, dear brothers. The regime and Kemalism belong to others. ... Turkey will be destroyed, gentlemen. People say: Could Turkey become like Algeria? Just as, in Algeria, we got 81% [of the votes], here too we will reach 81%, we will not remain on 20%. Do not waste your energy on us– I am speaking here to you, to those ... of the imperialist West, the colonising West, the wild West, to those who, in order to unite with the rest of the world, become the enemies of honour and modesty, those who lower themselves to the level of dogs, of puppies, in order to imitate the West, to the extent of putting dogs between the legs of Muslim women – it is to you I speak when I say: ‘Do not waste your energy on us, you will die at the hands of the people of Kırıkkale.’”. “... the army says: ‘We can accept it if you’re a supporter of the PKK, but a supporter of sharia, never.’ Well you won’t solve the problem with that attitude. If you want the solution, it’s sharia.” Refah had ensured that Ceylan was elected as an MP and its local branches had played videotapes of this speech and the interview. - Refah’s vice-chairman, Ahmet Tekdal, in a speech he made in 1993 while on pilgrimage in Saudi Arabia which was shown by a Turkish television station had said that he advocated installing a regime based on sharia: “In countries which have a parliamentary regime, if the people are not sufficiently aware, if they do not work hard enough to bring about the advent of ‘hak nizami’ [a just order or God’s order], two calamities lie ahead. The first calamity is the renegades they will have to face. They will be tyrannised by them and will eventually disappear. The second calamity is that they will not be able to give a satisfactory account of themselves to Allah, as they will not have worked to establish ‘hak nizami’. And so they will likewise perish. Venerable brothers, our duty is to do what is necessary to introduce the system of justice, taking all these subtleties into consideration. The political apparatus which seeks to establish ‘hak nizami’ in Turkey is the Welfare Party.” - On 10 November 1996 the governor of Kayseri province, Şükrü Karatepe, had urged the population to renounce secularism and asked his audience to “keep their hatred alive” until the regime was changed, in the following terms: “The dominant forces say ‘either you live as we do or we will sow discord and corruption among you’. So even Welfare Party Ministers dare not reveal their world-outlook inside their Ministries. This morning I too attended a ceremony in my official capacity. When you see me dressed up like this in all this finery, don’t think it’s because I’m a supporter of secularism. In this period when our beliefs are not respected, and indeed are blasphemed against, I have had to attend these ceremonies in spite of myself. The Prime Minister, other Ministers and MPs have certain obligations. But you have no obligations. this system must change. We have waited, we will wait a little longer. Let us see what the future has in store for us. And let Muslims keep alive the resentment, rancour and hatred they feel in their hearts.” Mr Karatepe had been convicted of inciting the people to hatred on the ground of religion. - On 8 May 1997 İbrahim Halil Çelik, Refah MP for the province of Şanlıurfa, had spoken in parliament in favour of the establishment of a regime based on sharia and approving acts of violence like those which were taking place in Algeria: “If you attempt to close down the “İmam-Hatip” theological colleges while the Welfare Party is in government, blood will flow. It would be worse than in Algeria. I too would like blood to flow. That’s how democracy will be installed. And it will be a beautiful thing. The army has not been able to deal with 3,500 members of the PKK. How would it see off six million Islamists? If they piss into the wind they’ll get their faces wet. If anyone attacks me I will strike back. I will fight to the end to introduce sharia.” Çelik had been expelled from the party one month after the application for dissolution had been lodged. His exclusion was probably only an attempt to evade the penalty in question. - Refah’s vice-chairman, the Minister of Justice, Şevket Kazan, had visited a person detained pending trial for activities contrary to the principle of secularism, thus publicly lending him his support as a Minister. 26. On the basis of the evidence adduced on 7 July 1997 by Principal State Counsel’s office, the Constitutional Court held that the following further evidence confirmed that Refah was a centre of activities contrary to the principle of secularism: - In a public speech on 7 May 1996 Necmettin Erbakan had emphasised the importance of television as an instrument of propaganda in the holy war being waged in order to establish Islamic order: “... A State without television is not a State. If today, with your leadership, you wished to create a State, if you wanted to set up a television station, you would not even be able to broadcast for more than twenty-four hours. Do you believe it is as easy as that to create a State? That’s what I told them ten years ago. I remember it now. Because today people who have beliefs, an audience and a certain vision of the world, have a television station of their own, thanks be to God. It is a great event. Conscience, the fact that the television [channel] has the same conscience in all its programmes, and that the whole is harmonious, is very important. A cause cannot be fought for without [the support of] television. Besides, today we can say that television plays the role of artillery or an air force in the jihad, that is the war for domination of the people ... it would be unthinkable to send a soldier to occupy a hill before those forces had shelled or bombed it. That is why the jihad of today cannot be waged without television. So, for something so vital, sacrifices must be made. What difference does it make if we sacrifice money? Death is close to all of us. When everything is black, after death, if you want something to show you the way, that something is the money you give today, with conviction, for Channel 7 (Kanal 7). It was to remind you of that that I shared my memories with you. ... That is why, from now on, with that conviction, we will truly make every sacrifice, until it hurts. May those who contribute, with conviction, to the supremacy of [Allah] be happy. May Allah bless you all, and may He grant Channel 7 even more success. Greetings.” - By a decree of 13 January 1997 the cabinet (in which the Refah members formed a majority) had reorganised working hours in public establishments to make allowances for fasting during Ramadan. The Supreme Administrative Court had annulled this decree on the ground that it undermined the principle of secularism. 27. The Constitutional Court observed that it had taken into consideration international human-rights-protection instruments, including the Convention. It also referred to the restrictions authorised by the second paragraph of Article 11 and Article 17 of the Convention. It pointed out in that context that Refah’s leaders and members were using democratic rights and freedoms with a view to replacing the democratic order with a system based on sharia. It held that where a political party pursued activities aimed at bringing the democratic order to an end and used its freedom of expression to issue calls to action to achieve that aim, the Constitution and supranational human-rights-protection rules authorised its dissolution. 28. The Constitutional Court observed that the public statements of Refah’s leaders, namely those of Necmettin Erbakan, Şevket Kazan and Ahmet Tekdal, had directly engaged Refah’s responsibility with regard to the constitutionality of its activities. It further observed that the public statements made by MPs Şevki Yılmaz, Hasan Hüseyin Ceylan and İbrahim Halil Çelik had likewise engaged the party’s responsibility since it had not reacted to them in any way or sought to distance itself from them, or at least not before the commencement of the dissolution proceedings. 29. As an additional penalty, the Constitutional Court decided to strip Necmettin Erbakan, Şevket Kazan, Ahmet Tekdal, Şevki Yılmaz, Hasan Hüseyin Ceylan and İbrahim Halil Çelik of MP status, in accordance with Article 84 of the Constitution. It found that these persons, by their words and deeds, had caused Refah’s dissolution. The Constitutional Court also banned them for five years from becoming founder members, ordinary members, leaders or auditors of any other political party, pursuant to Article 69 § 8 of the Constitution. 30. Judges Haşim Kılıc and Sacit Adalı expressed dissenting opinions stating, inter alia, that in their view the dissolution of Refah was not compatible either with the provisions of the Convention or with the case-law of the European Court of Human Rights on the dissolution of political parties. They observed that political parties which did not support the use of violence should be able to take part in political life and that in a pluralist system there should be room for debate about ideas thought to be disturbing or even shocking. 31. This judgment was published in the Official Gazette on 22 February 1998. 32. The relevant provisions of the Constitution read as follows: “The Republic of Turkey is a democratic, secular and social State based on the rule of law, respectful of human rights in a spirit of social peace, national solidarity and justice, adhering to the nationalism of Atatürk and resting on the fundamental principles set out in the Preamble.” “No amendment may be made or proposed to the provisions of Article 1 of the Constitution providing that the State shall be a Republic, the provisions of Article 2 concerning the characteristics of the Republic or the provisions of Article 3.” “Sovereignty resides unconditionally and unreservedly in the nation. ... Sovereign power shall not under any circumstances be transferred to an individual, a group or a social class. ...” “All individuals shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical belief, religion, membership of a religious sect or other similar grounds.” “None of the rights and freedoms referred to in the Constitution shall be exercised with a view to undermining the territorial integrity of the State and the unity of the nation, jeopardising the existence of the Turkish State or Republic, abolishing fundamental rights and freedoms, placing the control of the State in the hands of a single individual or group, ensuring the domination of one social class over other social classes, introducing discrimination on the grounds of language, race, religion or membership of a religious sect, or establishing by any other means a political system based on such concepts and opinions.” “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 interest or influence thereby.” “The constitutions, rulebooks and activities of political parties shall not be incompatible with the independence of the State, the integrity of State territory and of the nation, human rights, the principles of equality and the rule of law, national sovereignty or the principles of a democratic, secular Republic. No political party may be founded with the aim of advocating and establishing the domination of one social class or group, or a dictatorship in any form whatsoever. ...” “... The Constitutional Court shall give a final ruling on the dissolution of political parties on an application by Principal State Counsel at the Court of Cassation.” “... A political party may not be dissolved on account of activities contrary to the provisions of Article 68 § 4 unless the Constitutional Court has held that the political party concerned constitutes a centre of such activities.” “... Members and leaders whose declarations and activities lead to the dissolution of a political party may not be founder members, leaders or auditors of another political party for a period of five years from the date on which the reasoned decision to dissolve the party is published in the Official Gazette...” “Forfeiture of the status of member Where the Council of the Presidency of the Grand National Assembly has validated the resignation of members of parliament, the loss of their status as members shall be decided by the Grand National Assembly in plenary session. A convicted member of parliament shall not forfeit the status of member until the court which convicted him has notified the plenary Assembly of the final judgment. A member of parliament who continues to hold an office or carry on an activity incompatible with the status of member, within the meaning of Article 82, shall forfeit that status after a secret ballot of the plenary Assembly held in the light of the relevant committee’s report showing that the member concerned holds or carries on the office or activity in question. Where the Council of the Presidency of the Grand National Assembly notes that a member of parliament, without valid authorisation or excuse, has failed, for a total of five days in one month, to take part in the work of the Assembly, that member shall forfeit the status of member where by majority vote the plenary Assembly so decides. The term of office of a member of parliament whose words and deeds have, according to the Constitutional Court’s judgment, led to the dissolution of his party, shall end on the date when that judgment is published in the Official Gazette. The Presidency of the Grand National Assembly shall enforce that part of the judgment and inform the plenary Assembly accordingly.” 33. The relevant provisions of Law no. 2820 on the regulation of political parties read as follows: “Political parties (a) shall not aim or strive to or incite third parties to ... jeopardise the existence of the Turkish State and Republic, abolish fundamental rights and freedoms, introduce discrimination on grounds of language, race, colour, religion or membership of a religious sect, or establish, by any means, a system of government based on any such notion or concept. ...” “The constitution, programme and activities of political parties shall not contravene the Constitution or this Law.” “The Constitutional Court shall dissolve a political party ... (b) where its general meeting, central office or executive committee ... takes a decision, issues a circular or makes a statement ... contrary to the provisions of Chapter 4 of this Law, or where the Chairman, Vice-Chairman or General Secretary makes any written or oral statement contrary to those provisions. ... (d) Where acts contrary to the provisions of Chapter 4 of this Law have been committed by organs, authorities or councils other than those mentioned in sub-section I(b), State Counsel shall, within two years of the act concerned, require the party in writing to disband those organs and/or authorities and/or councils. State counsel shall [likewise] require, in writing, the permanent exclusion from the party of those members who have been convicted for committing acts or making statements which contravene the provisions of Chapter 4. State counsel shall lodge an application for the dissolution of any political party which fails to comply with the instructions in his letter within thirty days of its service. If, within thirty days of notification of the application for dissolution lodged by State Counsel, the party disbands the organ, authority or council concerned, or permanently excludes the member or members in question, the dissolution proceedings shall lapse. If not, the Constitutional Court shall consider the case on the basis of the file and shall adjudicate after hearing, if necessary, the oral submissions of State Counsel, the representatives of the political party and all those capable of providing information about the case...” “Where it is found that a political party has become a centre of activities contrary to the provisions of sections 78 to 88 and section 97 of the present Law, the party shall be dissolved by the Constitutional Court.” “All the assets of political parties dissolved by order of the Constitutional Court shall be transferred to the Treasury.” | 0 |
train | 001-70867 | ENG | UKR | CHAMBER | 2,005 | CASE OF KUZMENKOV v. UKRAINE | 4 | Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award | null | 4. The applicant was born in 1959 and lives in the town of Novogrodovka, the Donetsk Region. 5. On 8 July 1997 and 22 February 2000 the Novogrodovka City Court (hereafter “the City Court”) awarded the applicant a total of UAH 33,277 against the Novogrodovskaya State-owned Coal Mine No. 2 (hereafter “the NCM”) for arrears of salary, redundancy pay and industrial disability benefits. The judgments became final and were remitted to the Novogrodovka City Bailiffs’ Service for compulsory enforcement. 6. In 1998 and 1999 the Novgorodsky City Court and the Donetsk Regional Court rejected as unsubstantiated the applicant’s complaints against the Rossiya Association (the NCM’s managing company between August 1997 and March 1998) and the NCM for their failure to pay in due time and in full the sum awarded to him by the judgment of 8 July 1997. 7. In 1999 and 2000 the Prosecutor’s Office rejected on several occasions the applicant’s criminal complaints against officials of the Bailiffs’ Service. 8. On 24 May 2001 the Ministry of Fuel and Energy decided to wind up the NCM, designating the Ukrvuglrestrukrutizatsyya Company as its successor. 9. The applicant instituted proceedings in the City Court against the Bailiffs’ Service for failure to execute the decisions in his favour. On 14 August 2001, the court rejected the applicant’s claim, finding no fault had been committed by the Bailiffs, who had demonstrated due diligence in enforcing the judgments in the applicant’s favour, but the NCM’s lack of funds had prevented them from securing the immediate payment of the awards. 10. In 2002 and 2003, due to the on-going bankruptcy proceedings against the NCM, the Bailiffs’ Service forwarded on several occasions the applicant’s writs of execution to the NCM’s liquidation commission, which refused to accept them, referring to the company’s lack of funds. 11. The judgments of 8 July 1997 and 22 February 2000 remain partially unenforced, the outstanding debts being UAH 3,736 and 2,857 respectively. 12. Relevant domestic law may be found in the judgments of 27 July 2004 in the case of Romashov v. Ukraine (no. 67534/01, §§ 16-19) and of 30 November 2004 in the case of Dubenko v. Ukraine (74221/01 §§ 22-29). | 1 |
train | 001-83279 | ENG | GBR | ADMISSIBILITY | 2,007 | SIZER v. THE UNITED KINGDOM | 4 | Inadmissible | Josep Casadevall;Nicolas Bratza | The applicant, Mr Thomas Sizer, is a British national who was born in 1938 and lives in Devon. He was represented before the Court by Ms J. Starling, a lawyer practising 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 29 February 1996, leaving a child born in 1982. His second claim for widows’ benefits was made on 4 January 2001 and was rejected on 8 January 2001 on the ground that he was not entitled to widows’ benefits because 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 benefits were 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 | 001-108654 | ENG | UKR | CHAMBER | 2,012 | CASE OF KORNEYKOVA v. UKRAINE | 3 | Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonably necessary to prevent fleeing;Reasonably necessary to prevent offence);Violation of Article 5 - Right to liberty and security (Article 5-3 - Trial within a reasonable time);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Non-pecuniary damage - award | Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger | 5. The applicant was born in 1990 and lives in Kharkiv. 6. On an unspecified date the Dzerzhinsky District Police of Kharkiv instituted criminal proceedings against the applicant, who was fourteen years old at the material time, on suspicion of theft of a mobile telephone and acting as an accomplice in an unsuccessful attempted robbery of earrings, a watch and a mobile telephone, in company with two other minors, in January 2005. The robbery attempt was interrupted when two witnesses to the incident intervened. 7. On 29 March 2005 a bill of indictment was drafted and the investigator ordered the district police to bring the applicant in for questioning. In addition, the investigator imposed an undertaking not to abscond on the applicant as a preventive measure. 8. On the same date the police reported that it was impossible to locate the applicant and placed her on the “wanted list”. 9. On 19 April 2005 the Dzerzhinsky District Police of Kharkiv arrested the applicant at her mother’s home address and drew up an arrest report, the relevant parts of which read as follows: “Investigator ... L., on 19 April 2005 at 15:00 in accordance with Article 115 of the Criminal Procedure Code of Ukraine detained, on suspicion of the commission of a crime: Korneykova Viktoriya Yuryevna ... The crime which Korneykova V. Y. was detained on suspicion of having committed falls under Article 15 paragraph 2 [and] Article 186 paragraph 2 of the Criminal Code of Ukraine. Grounds and motives for detention: commission of a grave offence; may abscond from investigation and court, obstruct establishment of the facts of the case ...” 10. On 21 April 2005 Mr Tokarev, the applicant’s lawyer, lodged a complaint with the Dzerzhinsky District Court of Kharkiv (hereinafter – “the District Court”) alleging, in particular, that the applicant’s arrest and detention were in contravention of Article 29 of the Constitution of Ukraine, which authorised extra-judicial detention only where it was necessary to prevent or stop a crime. He argued that, since the crimes imputed to the applicant had taken place in January 2005, in accordance with Article 165-2 of the Code of Criminal Procedure of Ukraine (hereafter – “the CCP”) the investigating authorities had been under an obligation to seek a judicial order in order to arrest the applicant. In addition, he noted that Article 434 of the CCP allowed the detention of minors only in exceptional circumstances, which were absent in the applicant’s case. 11. On the same day the investigating authorities requested the District Court to authorise the applicant’s remand in custody. Having held a hearing in the presence of the applicant and her advocate, the court authorised the measure requested. In its reasoning the court noted that the applicant had been charged with serious offences and had absconded from the investigating authorities, and that this justified her placement on the wanted list. Furthermore, her mother, who had been deprived of her parental rights, was unlikely to be able to ensure that the applicant would appear before the investigating authorities, as she herself had a criminal record and suffered from alcoholism. In addition, the court referred to a report from the staff responsible for the applicant’s welfare at the boarding school where she was officially residing, which stated that the applicant had behavioural problems, including a proneness to run away from the school. In the light of these findings the court concluded that if not detained the applicant might commit another crime or obstruct the investigation. The court’s decision bore no reference to the applicant’s advocate’s complaint about the unlawfulness of her arrest and detention between 19 and 21 April 2005. 12. On 24 April 2005 Mr Tokarev appealed against the court decision of 21 April 2005. He alleged, in particular, that the District Court had failed to analyse the applicant’s situation from the angle of Article 434 of the Code of Criminal Procedure, which allowed for the placement of a minor in detention pending trial only on condition that there existed “exceptional circumstances”. He submitted that in the circumstances of the present case the detention was unwarranted. In particular, the crimes with which the applicant had been charged were not exceptionally serious and the findings that she might abscond, obstruct the investigation or commit another offence were speculative. In particular, no evidence had been presented that during the three months which had passed since the applicant’s alleged offences she had attempted to commit another crime or obstruct the investigation. Moreover, by April 2005 the evidence had been largely collected, which made it improbable that the applicant would obstruct the investigation. As regards the allegation that the applicant had already absconded, which justified her placement on the wanted list, the authorities had presented no evidence that the applicant had ever been subpoenaed to appear for questioning either at her school or at her mother’s address. She had been placed on the wanted list on the day the order to bring her in for questioning had been issued. Eventually she had been arrested at her mother’s address, which was her permanent address and whose location was well known to the police. In the meantime, the applicant’s health and well-being was likely to be seriously endangered by detention in an ordinary pre-trial detention facility, as she was suffering from tuberculosis and had a history of in-patient treatment for psychiatric disturbances. Mr Tokarev also noted that he had not been given a copy of the decision of 21 April 2005 and requested that the applicant be invited to participate in the appeal hearing in person. 13. On 25 April 2005 the investigator in the applicant’s case informed Mr Tokarev in a letter that he could access the decision of 21 April 2005 at the investigator’s office at ‘any convenient time’. 14. On 26 April 2005 Mr Tokarev amended his initial appeal against the decision of 21 April 2005. In particular, he noted that his complaint that the applicant’s arrest and detention between 19 and 21 April 2005 had been unlawful had not been considered. The applicant submitted to the Court a copy of this amended appeal bearing Mr Tokarev’s original signature. There is no receipt slip or any other evidence that the document was ever submitted for judicial consideration. 15. On 27 April 2005 the Kharkiv Regional Court of Appeal (hereinafter – “the Court of Appeal”) dismissed Mr Tokarev’s appeal following a hearing at which the prosecutor and Mr Tokarev, but not the applicant herself, were present. In its decision the Court of Appeal referred to the same arguments as the first-instance court and additionally mentioned that the applicant’s state of health was irrelevant to the finding that she might abscond, obstruct the investigation or commit another crime. 16. In the meantime, on 26 April 2005 the Dzerzhinsky District Police suspended the criminal proceedings against the applicant on account of her state of health, stating in its decision that all investigative actions necessary at the material time had been completed. Subsequently the investigation was resumed and suspended on several occasions on account of the applicant’s state of health. 17. On 12 May 2005 Mr Tokarev inquired of the District Court in a letter as to the state of consideration of his complaint about the unlawfulness of the applicant’s arrest and detention between 19 and 21 April 2005 and allegedly received no answer. 18. On 18 May 2005 the District Court decided, without a hearing but in presence of the prosecutor, to commit the applicant for an in-patient psychiatric assessment. 19. On 30 May 2005 the Dzerzhinsky District Prosecutor allowed the applicant’s premature release from detention under an obligation not to abscond, referring to her tuberculosis, which required in-patient treatment. On an unspecified date the applicant was committed for in-patient psychiatric assessment. 20. On 24 June 2005 the applicant was released from the psychiatric institution following her psychiatric assessment, according to which she was not suffering from any psychotic disorders. 21. The text of the relevant provision of the Constitution of Ukraine of 1996 (Article 29) can be found in the judgment in the case of Svershov v. Ukraine (no. 35231/02, § 39, 27 November 2008). 22. The text of the relevant provisions of Articles 148, 149 and 165-2 of the Code of Criminal Procedure of Ukraine of 1960 (“the CCP”) can be found in the judgment in the case of Osypenko v. Ukraine, no. 4634/04, § 33, 9 November 2010). 23. Other relevant provisions of the CCP, as worded at the material time, read as follows: “The body of inquiry shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds: (1) if the person is discovered whilst or immediately after committing an offence; (2) if eyewitnesses, including victims, directly identify this person as the one who committed the offence; (3) if clear traces of the offence are found either on the body of the suspect, or on his clothing, or with him, or in his home. If there is other information giving ground to suspect a person of a criminal offence, a body of inquiry may arrest such a person if the latter attempted to flee, or does not have a permanent place of residence, or the identity of that person has not been established. For each case of a suspect’s arrest, the body of inquiry shall be required to draw up an arrest order (протокол затримання) outlining the grounds, the motives, the day, time, year and month, the place of arrest, the explanations of the person detained and the time when it was recorded that the suspect had been informed of his right to have a meeting with defence counsel as from the moment of his arrest, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The arrest order shall be signed by the person who drew it up and by the detainee. A copy of the arrest order with a list of his rights and obligations shall immediately be handed to the detainee and sent to the prosecutor. At the request of the prosecutor, the material which served as a ground for the arrest shall be sent to him as well. ... Within seventy-two hours of the arrest, the body of inquiry shall: (1) release the detainee if the suspicion that he committed the crime has not been confirmed, if the term of the preliminary detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article; (2) release the detainee and select a non-custodial preventive measure; (3) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her. If the arrest is appealed against to a court, the detainee’s complaint shall be immediately sent by the head of the detention facility to the court. The judge shall consider the complaint together with the request by the investigating body for application of the preventive measure. If the complaint is received after the preventive measure was applied, the judge shall examine it within three days after receiving it. If the request has not been received or if the complaint has been received after the term of seventy-two hours of detention, the complaint shall be considered by the judge within five days after receiving it. The complaint shall be considered in accordance with the requirements of Article 165-2 of this Code. Following its examination, the judge shall give a ruling, either declaring that the arrest is lawful or allowing the complaint and finding the arrest to be unlawful. The ruling of the judge may be appealed against within seven days from the date of its adoption by the prosecutor, the person concerned, or his or her defence counsel or legal representative. Lodging such an appeal does not suspend the execution of the court’s ruling. Preliminary detention of a suspect shall not last for more than seventy-two hours. If, within the terms established by law, the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre-trial detention facility, the head of the pre-trial detention facility shall release the person concerned, drawing up the order to that effect, and shall inform the official or body that carried out the arrest accordingly.” “An investigator may arrest and question a person suspected of having committed a crime according to procedure envisaged by Articles 106, 106-1, and 107 of the Code.” “If a forensic medical or psychiatric examination necessitates long-term monitoring or assessment of the suspect, the court, at the investigator’s request and with the prosecutor’s authorisation, may order the suspect’s committal to the relevant medical institution. The matter shall be examined according to the procedure established by paragraph five of Article 165-2; the ruling of a judge may be appealed against within three days by the prosecutor, the accused, or his defence counsel or statutory representative ...” “Detention and placement in custody as a preventive measure may be applied to a minor only in exceptional circumstances, where this is warranted by the gravity of the crime imputed to him, in the presence of grounds, and according to the procedure established by Articles 106, 148, ... of this Code.” 24. Relevant provisions of the Act “on the procedure for the compensation of damage caused to a citizen by the unlawful actions of bodies of inquiry, the pre-trial investigative authorities, prosecutors and courts” of 1 December 1994 (with amendments) can be found in the judgment in the case of Dubovik v. Ukraine, nos. 33210/07 and 41866/08, § 34, 15 October 2009. 25. The above document, in so far as relevant, reads as follows: “... recommends the Governments of Member States to review, if necessary, their legislation and practice with a view: ... 7. to exclude the remand in custody of minors, apart from exceptional cases of very serious offences committed by older minors; in these cases, restricting the length of remand in custody and keeping minors apart from adults; arranging for decisions of this type to be, in principle, ordered after consultation with a welfare department on alternative proposals ...” 26. The above document, in so far as relevant, reads as follows: “15. Where juveniles are detained in police custody, account should be taken of their status as a minor, their age and their vulnerability and level of maturity. They should be promptly informed of their rights and safeguards in a manner that ensures their full understanding. While being questioned by the police they should, in principle, be accompanied by their parent/legal guardian or other appropriate adult. They should also have the right of access to a lawyer and a doctor. They should not be detained in police custody for longer than forty-eight hours in total and for younger offenders every effort should be made to reduce this time further. The detention of juveniles in police custody should be supervised by the competent authorities. 16. When, as a last resort, juvenile suspects are remanded in custody, this should not be for longer than six months before the commencement of the trial. This period can only be extended where a judge not involved in the investigation of the case is satisfied that any delays in proceedings are fully justified by exceptional circumstances. 17. Where possible, alternatives to remand in custody should be used for juvenile suspects, such as placements with relatives, foster families or other forms of supported accommodation. Custodial remand should never be used as a punishment or form of intimidation or as a substitute for child protection or mental health measures.” 27. Article 37 of the above document, in so far as relevant, reads as follows: “States Parties shall ensure that ... (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.” | 1 |
train | 001-61548 | ENG | FRA | CHAMBER | 2,003 | CASE OF PALAU-MARTINEZ v. FRANCE | 1 | Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | András Baka;Gaukur Jörundsson | 7. The applicant is a French citizen who was born in 1963 and lives in Alcira, near Valencia (Spain). 8. The applicant married in January 1983. She and her husband had two children, born in 1984 and 1989. 9. In August or September 1994 the applicant's husband left the matrimonial home and moved in with his mistress. In December 1994 the applicant petitioned for divorce. 10. By a judgment of 5 September 1996, the Nîmes tribunal de grande instance ruled on the divorce petition. It found, firstly, that a reading of the submitted documents had not established that the applicant's membership of the Jehovah's Witnesses had been the cause of the break-down in the couple's relationship, but that it had been attested that her husband had left the matrimonial home to live with his mistress, and had also prevented the applicant from working in the pizzeria they ran. Accordingly, it granted the divorce, attributing fault to the husband alone. 11. With regard to the children, the court decided that they would reside with their mother in Spain and that parental responsibility would be exercised jointly. The father was to have visiting and residence rights on an unrestricted basis and, in the absence of agreement, during the whole of the children's school holidays, provided that he collected them himself and escorted them back to their mother's home. It set the amount of the father's maintenance payments at 1,500 French francs (FRF) per month and per child. 12. On 21 November 1996 the applicant appealed against this judgment. She asked to be given access for one month during the children's summer holidays and one week during the Christmas and Easter holidays. She also renewed her request for a complementary allowance. In her pleadings in reply, the applicant complained that her ex-husband had not returned the children to her at the end of the 1997 summer holidays and had enrolled them in a school in Aigues-Mortes, where he lived with his new companion. She submitted that the father had influenced the children so that they would express a wish to live with him; she filed statements and photographs intended to show that she was bringing up her children with great care and that they were allowed to take part freely in any activity that interested them. She requested that a social inquiry report be drawn up. 13. The Nîmes Court of Appeal delivered judgment on 14 January 1998. It upheld the judgment with regard to the divorce pronouncement and awarded the applicant a complementary allowance of FRF 1,500 per month for three years. With regard to the children's place of residence, the court found as follows: “The two under-age children, C., aged 13, and M., aged 8, currently live with their father in Aigues-Mortes, where they attend school. This is a de facto situation which has been brought about by the father, who, contrary to the provisions of the appealed judgment, failed to return the children to their mother's home at the end of the summer holidays. In justifying his behaviour, R. claims that he has acted in the children's interests, in order to remove them from the detrimental influence of their mother and her circle, who oblige them to practice the religion known as 'the Jehovah's Witnesses'. Furthermore, R. has submitted a letter from child C., expressing the latter's wish to remain with his father, together with a medical certificate drawn up by Doctor D., a psychiatrist, on 7 January 1997, which states that child C. 'experiences his mother's prohibitions, via the Jehovah's Witnesses, as distressing and frustrating' and that 'child M. suffers from the religious constraints imposed on him and expressed a wish to live in Aigues-Mortes with his father as far back as the beginning of 1997'. Finally, numerous other witness statements testified to the children's expressed wish not to return to Spain. Séraphine Palau-Martinez does not deny that she is a Jehovah's Witness or that the two children were being brought up in accordance with the precepts of this religion. Admittedly, she has submitted numerous statements attesting to her affection for her children and showing that she provides for their well-being, and has filed group photographs in which her children appear happy. Taken together, however, the submitted documents are not inconsistent with the arguments of R., who does not wish to deny the mother's maternal attributes but restricts himself to criticising the strict upbringing received by the children on account of their mother's religious convictions. The rules regarding child-rearing imposed by the Jehovah's Witnesses on their followers' children are open to criticism mainly on account of their strictness and intolerance and the obligation on children to proselytise. It is in the children's interests to be free from the constraints and prohibitions imposed by a religion whose structure resembles that of a sect. There is no reason to order a social inquiry report which, in the present circumstances, would serve only to unsettle the children. In the light of the above analysis, the Court considers that, contrary to the lower court's decision, the two under-age children's place of residence should be their father's home, but that parental responsibility should continue to be exercised jointly. Should no agreement be reached [between the parents], Séraphine Palau-Martinez will enjoy free right of access and the right to have the children to stay: – for the whole of the February and All Saints holidays; – for one month during the summer holidays; – for half of the Easter and Christmas holidays, when it will be for the mother to collect the children from the father's home and for the latter to collect them from the mother's home; ...” 14. The applicant appealed on points of law. In particular, she complained that the Court of Appeal had reversed the first-instance judgment on the central ground that the rules regarding child-rearing imposed by the Jehovah's Witnesses on their followers' children were open to criticism mainly on account of their strictness and intolerance and the obligation on children to proselytise; in so deciding, it had done no more than apply a general and abstract ground and had failed to investigate whether, in reality, the children's upbringing was disrupted to an extent that justified changing their place of residence. She considered that this value judgment on the way in which she practised her religion, taken in abstracto, did not justify the court's decision. She added that the manner in which the court had asserted that it was in the children's interests to be free from the constraints and prohibitions imposed by a religion whose structure resembled a sect had been just as abstract. She also complained that the Court of Appeal had refused to grant her request for a social inquiry report. Referring to freedom of conscience and religion and to the rules of a fair hearing, she relied on Articles 9 and 6 of the Convention. 15. The Court of Cassation delivered its judgment on 13 July 2000. After summarising the grounds of the Court of Appeal's judgment, it ruled as follows: “It is apparent from these findings and considerations that the Court of Appeal, which replied to the submissions without inconsistency, was not obliged to order a social inquiry report and did not interfere with Ms Palau-Martinez's freedom of conscience, ruled, on the basis of the evidence which it alone is empowered to assess, that the children's interests required that their father's home be established as their habitual place of residence; ...” 16. The relevant provisions of the Civil Code provide: “Parental responsibility shall be exercised jointly by both parents. Failing an agreement or where the court considers that such an agreement goes against the child's interests, the court shall designate the parent with whom the children shall habitually reside. Where it is necessary in the interests of the child, the court may confer parental responsibility on one of the two parents. On their own initiative or at the court's request, the parents may submit their observations on the arrangements for exercising parental responsibility.” “Prior to any interlocutory or final decision setting out the arrangements for the exercise of parental responsibility and visiting rights, or entrusting the children to a third party, the court may instruct any qualified person to draw up a social inquiry report. The aim of this document is to gather information on the family's material and moral situation, the conditions in which the children live and are brought up, and the measures which should be taken in their interests. If one of the spouses disputes the conclusions of the social inquiry report, he or she may request a second expert opinion. The social inquiry report may not be used in the divorce proceedings.” | 1 |
train | 001-91442 | ENG | FIN | CHAMBER | 2,009 | CASE OF JAANTI v. FINLAND | 4 | Violation of Article 6 - Right to a fair trial | David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | 4. The applicant was born in 1951 and lives in Espoo. He is an attorney. 5. The applicant was suspected of aiding and abetting aggravated embezzlement. He was first questioned by the police on 28 September 1998. He was subsequently questioned again in connection with two other similar offences. 6. On 14 December 2000 the public prosecutor brought charges against him and another defendant, R, in the Helsinki District Court (käräjäoikeus, tingsrätten). The court held its first session on 29 November 2001. In the course of the proceedings, the court was presented with written evidence, including 94 documents submitted by the applicant. It also received testimony from both defendants and twelve witnesses, four of whom were called by the applicant. The evidence included a written statement and the oral testimony of the Bankruptcy Ombudsman. On 10 May 2002 the court gave its judgment. It found that on 30 September 1994 the applicant had, as a receiver of a bankrupt’s estate, unlawfully transferred a substantial sum of money from the estate’s bank account to the account of his own law firm. The court also found that, on the same date, he had aided and abetted his associate R in the commission of two similar offences. The court convicted the applicant of aggravated embezzlement and two counts of aiding and abetting aggravated embezzlement and sentenced him to a suspended term of one year and four months’ imprisonment. R was found guilty of having made unlawful money transfers on several separate occasions between 29 April 1993 and 31 May 1996. He was convicted of two counts of aggravated embezzlement, as well as aiding and abetting the applicant’s aggravated embezzlement. 7. The applicant, R, and the prosecutor all appealed against the judgment to the Helsinki Court of Appeal (hovioikeus, hovrätten). At the applicant’s request, the court had extended by some five weeks the time-limit for lodging his appeal. In his letter of appeal, lodged on 16 July 2002, the applicant claimed that he had only transferred funds to which he believed he was entitled as a retainer and that he had, therefore, lacked criminal intent. He made similar claims in connection with the two counts of aiding and abetting R’s offences. He also referred, inter alia, to the written statement of the Bankruptcy Ombudsman, in which the latter had considered it possible that the applicant had, in fact, lacked criminal intent in regard to the alleged embezzlement. On 15 and 17 November 2004 the Court of Appeal held an oral hearing. By its judgment of 13 January 2005 it upheld the applicant’s conviction but changed his sentence to one year and ten months’ unconditional imprisonment. In its reasons the court had regard, inter alia, to the Bankruptcy Ombudsman’s testimony. The Ombudsman had noted, inter alia, that at the time of drawing up his written statement he had not had all the information about the applicant’s actions in the matter or, at least, had not paid attention to it. He had also testified that the receiver of a bankrupt’s estate did not have a right to withdraw money from the estate’s account without consent. 8. On 4 May 2005 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal. 9. Chapter 6, section 7, subsection 3 of the Penal Code (rikoslaki, strafflagen; as amended by Act No. 515/2003 which took effect on 1 January 2004) reads: “In addition to what is provided above in section 6, grounds for mitigating the sentence that are also to be taken into consideration are ... (3) a considerably long period that has passed since the commission of the offence; if the punishment that accords with established practice would for these reasons lead to an unreasonable or exceptionally detrimental result.” 10. In its judgment of 11 June 2004 (KKO 2004:58), the Supreme Court noted that, although there were no legal provisions justifying the dismissal of a criminal charge due to unreasonably long proceedings, such a dismissal or declaring a case inadmissible might in some exceptional circumstances, for example if their duration ruled out a good defence, be the only effective remedy satisfying the requirements of Article 13 of the Convention. That was, however, not the case here. In considering whether there were grounds for applying Chapter 6, section 7, subsection 3 of the Penal Code, the Supreme Court held that it had to be decided in casu whether the duration of the proceedings (here over 5.5 years) had been unreasonable. It concluded that in this case there were no grounds not to impose a sentence or to mitigate the sentence owing to the duration of the proceedings. | 1 |
train | 001-4736 | ENG | ITA | ADMISSIBILITY | 1,999 | VAUGHAN v. ITALY | 4 | Inadmissible | Christos Rozakis | The applicant is a United States national, born in 1947 and currently residing in London. A. In 1976 the applicant opened a clothes shop in Florence and in 1980 she engaged a certain Mrs P. as a trainee sales assistant. In February 1982 Mrs P. was employed as a full time shop assistant. In June 1992 the applicant informed Mrs P. that she no longer required her services as she had sold the shop and was moving to London. The applicant left Italy on 24 September 1992. She returned to Florence on three occasions, in November 1992, January 1993 and May 1994. On 31 August 1993 Mrs P. summoned the applicant to appear before the Florence Labour Magistrate. She claimed, inter alia, that the training contract was null and void and that she was entitled to a higher severance payment. Mrs P. requested the bailiff to serve the summons at the applicant’s address in Florence. As the applicant was absent, the bailiff, acting in accordance with Rule 140 of the Code of Civil Procedure (hereinafter referred to as the “CPC”), left a notice on her letterbox and sent her a registered letter, informing her that a copy of the summons had been deposited at the Town Council’s registry. A number of witnesses were heard before the Florence Labour Magistrate on 12 and 28 January 1994. Neither the applicant nor her lawyer took part in these hearings. In a judgment of 28 January 1994, filed with the registry on 4 February 1994, the Florence Magistrate accepted Mrs P.’s claim and ordered the applicant to pay to her former employee the total sum of 16,314,971 ITL (approximately 55,250 FF). This judgment was served on the applicant on 8 April 1994 at her address in Florence in accordance with Rule 140 of the CPC. The applicant took cognisance of this judgment only on 23 May 1994, when she was on holiday in Florence. On 15 September 1994 the applicant lodged an appeal with the Florence District Court, challenging the lawfulness of the serving of the summons and of the first-instance judgment. She alleged, inter alia, that as she had moved to England in September 1992, the summons should have been served on her at her address in London. In this respect, the applicant requested the examination of a number of witnesses who could testify that Mrs P. knew her new address and telephone number in England. Observing that she had been unaware of the action brought against her and had taken cognisance of the Magistrate’s judgment only on 23 May 1994, the applicant requested the District Court to declare that the first-instance proceedings were null and void. In a judgment of 15 March 1995, the Florence District Court held that the first-instance decision had became final on 8 May 1994 and rejected the applicant’s appeal as being out of time. It observed that, as appeared from the certificates issued by the Chamber of Commerce and the Registry Office, at the relevant time and at least until 1 October 1994 the applicant had her official address in Florence. Even assuming that Mrs P. was aware that the applicant had left Florence for London, nothing suggested that this moving had a definitive character. As the applicant’s name was still written on the letterbox placed in front of her house, the serving of the summons and of the Magistrate’s judgment was valid and lawful. On an unspecified date, the applicant appealed on points of law, reiterating the objections raised before the District Court. In a memorial of 19 January 1998, she recalled that the competent authorities had refused to hear the witnesses who could have testified that she had sold her business and that Mrs P. knew her address and telephone number in England. In a judgment of 27 January 1998, filed with the registry on 12 June 1998, the Court of Cassation, considering that the lower court’s decision was logical and well-reasoned, rejected the applicant’s claim. It recalled that a person was presumed to reside in the place of his or her official residence and that this presumption could be overruled only by very substantial elements. The relevant parts of this judgment read as follows: “... the allegations of the applicant, aimed at obtaining a declaration that the serving ex Article 140 CPC was null and void, are based on three assertions: a. that Mrs Vaughan moved to London; b. that this moving had a definitive character; c. that it is up to Mrs P. to show that her moving was not definitive ... The District Court just considered the fact that the applicant’s residence was still in Florence, via Sdrucciolo dei Pitti no. 3, as this was evident not only from the bell and the letterbox, but also from the documents issued by the Town Council and the Chamber of Commerce. The applicant’s official address after her (alleged) moving remained unchanged ... Even assuming that there had been a moving, it is not clear why it should be up to Mrs P. to prove that this moving “was not definitive”. The objection has been raised by Mrs Vaughan. It is up to her to prove the facts on which her objection is based...”. The Court of Cassation noted that Mrs Vaughan did not produce any relevant document proving her moving to London, then continued as follows: “In her appeal, Mrs Vaughan requested the District Court to examine a number of witnesses who should have testified that Mrs P. was aware of her moving to London ... On this point, the Court shares the District Court’s finding that “even assuming that [Mrs P.] was aware that Mrs Vaughan had left Florence ... this does not mean that she should have inferred that this moving was a definitive one...”. The District Court’s reasoning is clear: two facts should be proved, the moving and its definitive character. This second element has not been proved and could not have been proved by the witnesses sought by the applicant ... This confirms that ... no moving has been proved, neither temporary, nor definitive. Therefore, the serving of the summons and of the first-instance judgment is lawful and the decision of the Florence Magistrate has now become final...” B. Relevant national law Article 140 of the CPC reads as follows: “If the actual delivery of the act is not possible because of the absence, lack of capacity or refusal of the persons indicated in Article 139 [the consignee, a member of his or her family, a person charged of his or her house or business], the bailiff deposits a copy of the act to be served at the Town Council ..., puts a notice ... on the front door of the consignee’s house or office and informs him or her by means of a registered letter”. | 0 |
train | 001-57541 | ENG | GBR | CHAMBER | 1,987 | CASE OF MONNELL AND MORRIS v. THE UNITED KINGDOM | 2 | No violation of Art. 5-1;No violation of Art. 6-1;No violation of Art. 6-3-c;No violation of Art. 14+5;No violation of Art. 14+6 | null | 10. The first applicant, Brian Arthur Monnell, is a British citizen born in 1945. On 4 September 1981, after a trial lasting three days, he was convicted by a jury before the Crown Court at Exeter of an offence of burglary and sentenced to three years’ imprisonment. In addition, on the same occasion he received two sentences of imprisonment of nine months each, to run consecutively to the three-year sentence but otherwise concurrently (giving a total sentence of three years and nine months), in respect of two charges of burglary to which he had pleaded guilty before the same Court three days earlier. In deciding the appropriate sentences to impose, the judge also took into account four other offences which Mr. Monnell had admitted to but which did not proceed to trial. At his trial, Mr. Monnell was represented by solicitors and counsel, under a legal aid order. 11. The counsel who had represented Mr. Monnell at the trial advised him in a written opinion dated 29 September 1981 that "no prospect whatsoever exists of appealing the conviction successfully". Counsel came to a similar conclusion regarding an appeal against sentence. In counsel’s view, "the offences were serious and the property unrecovered. He had a substantial criminal record and had served several prison sentences for offences of dishonesty. A further prison sentence was inevitable and the length of sentence passed was equally inevitable". Notwithstanding this advice, Mr. Monnell went ahead and lodged an application seeking leave to appeal against both conviction and sentence. His application was signed by him on 21 October 1981 and received by the Criminal Appeal Office on 26 October 1981. The gravamen of his application was premised on his view that witnesses who should have been called in his defence were not called. In his application, he acknowledged that he had read the Form AA, which is given to every prisoner contemplating an appeal to the Court of Appeal and which states: "Advice on appeal Loss of Time ... If you are thinking about an appeal you should get advice. Your solicitors and counsel at the trial are best able to give it. If they advise that there are grounds of appeal and these grounds are settled and signed by counsel the Court of Appeal will know that you had reasons to apply. It is useless to apply without grounds, or to try to invent them if there are none. Reasons are required - not a form of words. So it is important to get advice. If you cannot get it, and put in an application without it, you should say why ... before setting out your own grounds. You may, if you wish, ask the Court of Appeal to help you to get advice. But if your solicitor or counsel has advised against an appeal the Court will not give you another solicitor for that reason only. If you apply without real grounds you might lose by it. Your application may go first to a single Judge who might refuse it and direct that part of the time in custody after putting in the notice of application shall not count towards your sentence. If you then abandoned the application that time would be lost, but only that time. If, however, you renewed the application to a Court of three Judges they might direct that you lost more time. The result in either case is a later date of release." 12. Mr. Monnell, dissatisfied with the manner in which his defence had been conducted at his trial, dismissed his solicitors and, on 4 November 1981, instructed his present solicitors. In the meantime, the Criminal Appeal Office wrote to Mr. Monnell’s former solicitors, informing them that he had applied for leave to appeal and asking them whether they had advised him in this connection. The Criminal Appeal Office also invited the solicitors to comment on the allegation made by Mr. Monnell in his application that a certain individual should have been called as a witness at his trial. In response, the solicitors forwarded a copy of counsel’s adverse written advice and described their attempts to trace a large number of witnesses whom Mr. Monnell had initially intended to call in his defence. They explained that Mr. Monnell had later decided against calling most of the witnesses they had succeeded in tracing. The new solicitors sought legal aid in order, inter alia, to investigate the possibility of applying for a retrial because of additional evidence that could be obtained. Mr. Monnell also requested the Criminal Appeal Office to postpone the hearing of his application for leave to appeal pending the outcome of inquiries commenced by his new solicitors. A limited grant of legal aid was made. 13. Mr. Monnell’s application for leave to appeal was considered by a single judge, Mr. Justice Brown (see paragraph 23 below). The additional information obtained from Mr. Monnell’s former solicitors was also put before Mr. Justice Brown, together with the relevant court papers (for example, witness statements, a social enquiry report and a psychiatric report). The judge allowed the request that the application be heard although it had been lodged out of time but refused leave to appeal and various ancillary applications made (for legal aid, bail, leave to be present and leave to call witnesses). The judge gave the following written reasons, dated 2 December 1981, for his refusal: "You were convicted by the jury upon ample evidence after a full and correct summing up by the judge. The many witnesses you now say you wish to call were not required to be called by you at your trial. There is no ground for interference with the verdict of the jury. The total sentence passed upon you was not excessive or wrong in principle." 14. On 9 December 1981, Mr. Monnell renewed all those elements of his application which had been refused by Mr. Justice Brown. The Form SJ on which this application was made contained the following warning: "LOSS OF TIME. A renewal to the Court after refusal by the Judge may well result in a direction for the loss of time should the Court come to the conclusion that there was no justification for the renewal. If the Judge has already directed that you lose time the Court might direct that you lose more time." 15. A request to extend legal aid was refused at the end of January 1982. The solicitors therefore advised Mr. Monnell that they were unable to carry out any further investigations on his behalf, that the results of the investigations they had carried out were inconclusive and that, consequently, they were not in a position to advise him whether he should pursue his application for leave to appeal or not. 16. On 20 May 1982, the full Court of Appeal rejected the application in its entirety, finding the grounds of appeal to be "wholly without foundation". In its judgment, delivered by Lord Justice Watkins, the Court of Appeal stated: "[Mr. Monnell] had no conceivable reason to approach this Court for leave to appeal against either conviction or sentence. His learned counsel, in a very careful opinion on conviction, said: ‘In my opinion no prospect whatsoever exists of appealing the conviction successfully’, and further that in relation to sentence a further prison sentence was inevitable and the length of sentence passed was equally inevitable. When a person, in the light of advice of that kind and clearly without any ground whatsoever for challenging a conviction properly passed, wastes the time of the court by pressing on with his applications for leave to appeal as this applicant has done, it is right that the Court should consider whether or not his time in prison should be extended. We have come to the conclusion that it should be." The Court of Appeal therefore ordered that 28 days spent by him in custody pending the hearing of his application should not count towards his sentence. 17. The second applicant, Neville Morris, is a British citizen born in 1939. On 4 August 1980, he appeared before the Reading Crown Court charged, with two others, with conspiracy to supply heroin during a period of two years up to February 1980. The trial terminated three weeks later, on 24 August 1980, when the jury returned verdicts of guilty in respect of Mr. Morris and his co-accused. Mr. Morris was sentenced to three and a half years’ imprisonment, his two co-accused to five years’ and nine months’ imprisonment respectively. 18. At his trial, Mr. Morris was represented, under the legal aid scheme, by a solicitor and by counsel. Following his conviction, his counsel advised him against lodging an application for leave to appeal as, in counsel’s opinion, the Court of Appeal would be unlikely to interfere with the exercise of the trial judge’s discretion to admit certain damaging evidence since the trial judge had applied the law correctly. 19. Mr. Morris nevertheless drafted his own grounds of appeal against both conviction and sentence, which his solicitor then rendered into a "more comprehensible form" and had typed. The solicitor signed on Mr. Morris’ behalf the acknowledgement of having read the Form AA on advice on appeal and loss of time (see paragraph 11 above). The application for leave to appeal was received by the Criminal Appeal Office on 22 September 1980. The principal ground advanced by Mr. Morris for arguing that the conviction was unsafe was that damaging statements had been obtained from him under duress whilst he was suffering from withdrawal from drugs. His main contention in relation to his sentence was that it was unfair, having regard to his role in the conspiracy and to the sentences received by his co-defendants. On 2 April 1981, the Criminal Appeal Office sent Mr. Morris and his solicitor copies of the short transcript of his trial. On 13 April 1981, he submitted further grounds in support of his appeal, including an unsigned, undated letter claimed by him to have been written by one of his co-accused before the trial and purporting to clear him of any involvement in the offence of which he was subsequently convicted. 20. These documents, along with all other relevant papers, were put before a single judge, Mr. Justice Lawson. On 20 May 1981, the single judge refused leave to appeal against conviction and sentence as well as the ancillary applications (for legal aid and leave to be present). In the written decision sent to Mr. Morris, the judge stated: "there are no reasons to justify granting you leave to appeal". 21. Mr. Morris nonetheless renewed his application for leave to appeal. The Form SJ he used for this purpose (signed by him on 12 June and received by the Criminal Appeal Office on 17 June 1981) contained the same warning as given to Mr. Monnell (see paragraph 14 above). 22. On 27 October 1981, the full Court of Appeal, presided over by the Lord Chief Justice (Lord Lane C.J.), refused the application made by Mr. Morris. The Court first found that "there are no possible grounds for giving leave to appeal against conviction". As to the issue of sentence, the Court took the view that the trial judge had had ample opportunity to apportion the degree of moral responsibility between Mr. Morris and his co-accused and hence to grade the sentence imposed on him. The Court concluded: "... he must pay the penalty for renewing this hopeless application. He will lose 56 days." Consequently, 56 days of the period spent in custody by Mr. Morris awaiting the outcome of his application for leave to appeal did not count towards service of his sentence. 23. Under section 1(1) of the Criminal Appeal Act 1968, a person convicted of an offence on indictment (as were both applicants) may appeal to the Court of Appeal against his conviction. Where the appeal is not on a question of law alone, leave of the Court of Appeal must first be obtained, unless the trial judge has granted a certificate that the case is fit for appeal (section 1(2)). A person convicted of an offence on indictment may also appeal to the Court of Appeal against a sentence passed (not being a sentence fixed by law), but such appeal is similarly subject to the leave of the Court of Appeal (sections 9 and 11). An application for leave to appeal, notice of which must be on the relevant form prescribed by the Criminal Appeal Rules 1968, will normally be referred in the first place to a single judge (sections 31 and 45(2)). 24. According to Rule 11(1) of the Criminal Appeal Rules 1968, the single judge may sit in such place as he appoints and may sit otherwise than in open court. The principal purpose of the system of referring applications for leave to appeal first to a single judge is to identify those cases where the grounds of appeal are substantial and arguable. Where a single judge refuses an application for leave to appeal, the notification of the decision to the applicant will give the name of the judge and the reasons for the refusal. If an applicant wishes to pursue his application further, he must so notify the Registrar of Criminal Appeals on the prescribed form within 14 days of the date on which the notice of the refusal was served on him. In that event, his application will be determined, in open court, by the full Court of Appeal (section 31(3) of the Criminal Appeal Act 1968). Leave to appeal will be granted if any one member of the Court is of the view that it should be granted (R v. Healey 40 Criminal Appeals Reports 40 at 42). The single judge and the full Court of Appeal deal with an application for leave to appeal, and associated applications, in the light of all the case-papers and the grounds of appeal, but in the majority of cases without hearing oral argument. Nevertheless, an applicant for leave to appeal may always at private expense instruct counsel to appear and make oral submissions before both the single judge and the full Court (Rule 11(2)). 25. There is no absolute right to legal aid for representation during the procedure for consideration of an application for leave to appeal. The vast majority of defendants in criminal trials before Crown Courts are legally aided. This aid extends up to receiving advice from counsel on the question whether there appear to be reasonable grounds of appeal and, if such grounds appear to exist, assistance in the preparation of an application for leave to appeal where such application is required (Legal Aid Act 1974, sections 28(7) and 30(7)). On the other hand, if trial counsel advises against an appeal, the trial legal aid order ceases, both for solicitors and counsel. The Registrar of Criminal Appeals, the single judge and the full Court, however, have discretion to grant legal aid where an applicant for leave to appeal is unrepresented; they may also do so, whether or not counsel settled the grounds of appeal, for the purposes of further advice and assistance or for oral argument before a single judge or the full Court (Legal Aid Act 1974, sections 28(8) and 30(8); Legal Aid in Criminal Proceedings (General) Regulations (1968), Regulation 3(4)). Where legal aid has been refused by a judge, the Registrar cannot grant it unless the circumstances have changed (Legal Aid in Criminal Proceedings (General) Regulations 1968, Regulation 3(9)). In general, all would-be appellants have the opportunity of obtaining legal advice and assistance as to grounds of appeal and, if they cannot pay for it themselves, it will be available under legal aid. 26. The presence of a person in custody before the Court of Appeal when it is considering an application for leave to appeal is always subject to the leave of the Court (section 22(2)(b) of the Criminal Appeal Act 1968). In practice, leave for a person in custody to be present at the hearing of an application for leave to appeal will only be given in exceptional circumstances, and rarely where the application is being considered by a single judge. 27. Grounds of appeal against conviction are limited. The Court of Appeal does not re-hear the case on the facts. It may hear fresh evidence, although the mere fact that a convicted person says he wished that other evidence had been called at his trial is not enough. He has to demonstrate to the satisfaction of the Court that fresh evidence which he seeks to adduce is credible and relevant to an issue in the case, and that there was a good reason why it was not called at the trial. In the proceedings for examination of an application for leave to appeal, no witnesses are called; the Court of Appeal, whether it be the single judge or the full Court, will consider, firstly, whether the grounds as drafted are capable of constituting grounds for appeal and, secondly, whether they have any merit. If the grounds constitute legitimate grounds of appeal and are of some merit, then leave will be granted. But if the grounds, as drafted, are not legitimate grounds for appeal or do not merit further argument or consideration, leave will be refused. Any convicted person who chooses to take legal advice in relation to an appeal will have those basic principles explained to him. He will further be advised that counsel is not permitted to draft grounds which are unarguable. Under the terms of section 11(3) of the Criminal Appeal Act 1968, in determining an appeal the Court of Appeal shall "so exercise their powers ... that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below". 28. Under English law, in cases in which there is no appeal, a convicted person starts to serve a sentence of imprisonment immediately it is imposed; and, during any appeal proceedings, he (or she) is not regarded as being in detention on remand. The duration of any sentence must, however, be treated as reduced by the time spent prior to trial in custody on remand. Section 29(1) of the Criminal Appeal Act 1968 further provides that the time during which an appellant is in custody pending the determination of his appeal (including his application for leave to appeal) "shall, subject to any direction which the Court of Appeal may make to the contrary, be reckoned as part of the term of any sentence to which he is for the time being subject". Where leave to appeal is granted (see paragraph 23 above), the Court has no power to make such a direction (section 29(2) of the Act). However, the Court of Appeal is not precluded from directing that any such time, or part of it, should not count towards an applicant’s sentence when it refuses an application for leave to appeal. Although this did not occur in the present case, the power to make an order of this kind may also be exercised by a single judge (section 31(2)(h) of the Act). Where such a direction is made, the reasons must be given and communicated to the applicant (section 29(2) of the Act). 29. Prior to 1966, the law had been that the time during which an unsuccessful application for leave to appeal was pursued was not in principle reckoned as part of the sentence but the applicant did not lose more than six weeks unless the Court of Appeal ordered otherwise. The Court retained an overriding discretion to order that no time, or more or less time, should be lost in any particular case. In practice, the Court rarely gave a special direction and the prisoner thus almost invariably lost up to 42 days by operation of the relevant statute. The present rule was introduced in 1966 - being re-enacted in section 29 of the Criminal Appeal Act 1968 - in implementation of recommendations made in 1965 in a report prepared by an Interdepartmental Committee on the Court of Criminal Appeal (Command Paper Cmnd 2755). The Committee had suggested that the Court should bring its mind to the question of loss of time instead, as had been the case, of operating an almost automatic rule to the disadvantage of the appellant. The Committee, in making its recommendations, recognised the dangers of weakening the barriers against unmeritorious applications for leave to appeal being made, but envisaged that the power retained by the Court to penalise an applicant whose application was totally devoid of merit would act as a deterrent against a possible flood of hopeless applications. 30. Nonetheless, in 1969, the number of applications for leave to appeal had risen to approximately 9,700 and by March 1970 applications were being made at the rate of over 1,000 a month. As a matter of practice, it was almost unknown for a single judge to give directions for loss of time. On 17 March 1970, the Lord Chief Justice (Lord Parker C.J.) issued a Practice Direction drawing attention to the fact that the sheer volume of applications was leading to unacceptable delays which could not be tolerated in respect of applications which had merit (1970 1 All England Law Reports 119). He therefore announced that because facilities for advice on appeals were available to appellants, almost without exception, under the legal aid scheme, the single judge should have no reason to refrain from directing that time should be lost if he thought it right so to The stated aim of the exercise of the Court’s power in this manner was "to enable prompt attention to be given to meritorious cases by deterring the unmeritorious applications which stand in their way". Within a fortnight the number of applications fell by 50 per cent to approximately 500 cases per month. 31. On 14 February 1980, the Lord Chief Justice (Lord Widgery C.J.) issued a further Practice Direction reminding those concerned of the power, both of the full Court and of the single judge, to order loss of time ([1980] 1 All England Law Reports 555). This reminder had once more become necessary as "meritorious appeals [were] suffering serious and increasing delays, due to the lodging of huge numbers of hopeless appeals". 32. According to the Government, the great majority of appeals are those where a convicted person is serving a sentence of imprisonment, and loss-of-time orders have in practice specified a maximum loss of 64 days. During the year 1981, 6,097 applications for leave to appeal were registered. Precise figures regarding the number of cases in which loss of time was ordered, and the amount of time ordered to be lost in such cases, are not available. However, from information held by the Criminal Appeal Office it appears that loss of time was ordered in respect of 60 to 65 applications (which figure includes orders made by both single judges and the full Court); that the loss of time ordered ranged from 7 to 64 days; and that in approximately 75 per cent of these cases the loss of time ordered was for 28 days (this being the normal order) or less. In 1984, the last year for which statistics were available, 8,262 cases were dealt with in all. Single judges dealt with approximately 6,500. The total number of cases listed in the full Court was 3,800. Those cases consisted of renewals of applications to the Court after refusal by the single judge, cases where leave to appeal had been granted and cases referred directly to the Court. 91.39 per cent of all applicants were in custody. | 0 |
train | 001-87560 | ENG | UKR | CHAMBER | 2,008 | CASE OF FYODOROV v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property | Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva | 4. The applicant was born in 1930 and resides in the town of Zhovti Vody, Dnipropetrovsk region, Ukraine. 5. On an unspecified date the applicant instituted three separate sets of proceedings in the Zhovti Vody Town Court of Dnipropetrovsk Region against his employer, a State-owned company, the Zhovti Vody Construction Department (Жовтоводське управління будівництва), for salary arrears and other payments. 6. On 13 December 2000 and 31 July 2001 the court found for the applicant and awarded him a total of 4,694.11 Ukrainian hryvnyas (UAH). On 12 March 2002 the court dismissed the applicant’s third claim as time-barred. 7. In 2001 the Zhovti Vody Town Bailiffs’ Service initiated enforcement proceedings. 8. The applicant received UAH 2,142, but the remainder of the awards remains unpaid. 9. On 5 October 2004 the Ministry of Fuel and Energy liquidated the debtor enterprise and the writs of enforcement were transferred to the liquidation commission. 10. The relevant domestic law is summarised in the judgment of Sokur v. Ukraine (no. 29439/02, § 17-22, 26 April 2005). | 1 |
train | 001-22962 | ENG | UKR | ADMISSIBILITY | 2,002 | KOZAK v. UKRAINE | 1 | Inadmissible | null | The applicant, Mrs Anastasiya Borisovna Kozak, is a Ukrainian national who was born in Odessa on 28 November 1948 and lives in Ukraine. In February 1986 the Illichevsk Municipal Council instituted proceedings against the applicant for the withdrawal of her title to a plot of land and the house built on that land by R.L.P. without authorisation. According to the applicant, this property belonged to her. On 18 March 1986 the Illichevck District Court of Odessa allowed the Illichevsk Municipal Council’s claims. In 1998 the applicant requested the President of the Odessa Regional Court to initiate supervisory review proceedings and to seek annulment of the decision, since she had not participated in the proceedings as the owner of the property in question. The Odessa Regional Court rejected the applicant’s complaint on 8 April 1998, 23 September 1998 and 28 January 1999, as being unsubstantiated. In February 1999 the applicant lodged a request with the President of the Supreme Court of Ukraine for a supervisory review of her case. On 16 March 1999, the Supreme Court of Ukraine instructed the Odessa Regional Court to review the complaints of the applicant and to inform her of the results of the review. On 12 May 1999, the Odessa Regional Court informed the applicant that it was not possible to review the case because the case-file had been destroyed. In February 2001 the applicant instituted proceedings in the Illichevsk District Court of Odessa for the reconstruction of the case-file which had formed the basis of the 1986 decision. On 5 February 2001 the Illichevsk District Court of Odessa decided to reconstruct the case-file. In May 2001 the applicant lodged an application with the President of the Odessa Regional Court to annul the decision of the Illichevsk District Court of Odessa of 18 March 1986. On 30 May 2001 the Odessa Regional Court refused to initiate supervisory review proceedings on the basis of the applicant’s complaints. In September 2001 the applicant lodged an application with the Supreme Court of Ukraine in accordance with the procedure prescribed by the transitional provisions of the Law of 21 June 2001 on the Introduction of Changes and Amendments to the Code of Civil Procedure, for annulment (касаційна скарга) of the decision of the Illichevsk District Court of Odessa of 18 March 1986. On 7 December 2001 a panel of the Supreme Court of Ukraine refused to transfer the case to a chamber for consideration. “The Court of Cassation is the Supreme Court of Ukraine.” “Parties and other persons who participate in court proceedings, and the prosecutor and other persons who have not participated in the proceedings in which the court has decided on their rights and obligations, may lodge a cassation appeal against judgments and rulings adopted by the court of first instance, only in relation to a violation of the substantive or procedural law and rulings and judgments of an appeal court. The basis for such an appeal is the incorrect application of the norms of substantive law or infringement of the norms of procedural law.” “The deadline for lodging an application by the prosecutor is three months from the date of delivery of the ruling or judgment of the Court of Appeal, or one year from the date of delivery of the ruling or judgment of the court of first instance, if these rulings or decisions have not been appealed against.” “The issue of the transfer of the case for consideration by a judicial chamber is to be considered by a panel of three judges, in camera, without the participation of the parties to the proceedings. The case shall be transferred for a hearing by a judicial chamber if one of the judges of the court reaches that conclusion. ... If the grounds for transfer of the case for consideration by the chamber are not satisfied, the court shall adopt a ruling refusing to allow the applicant’s claims.” “The Court of Cassation has the power to: 1) adopt a ruling rejecting the application for annulment; 2) adopt a ruling fully or partly annulling a judicial decision at issue and remitting the case for a re-hearing to the court of first instance or appellate court; 3) adopt a ruling annulling the decision at issue and leaving in force a judgment that was quashed by an appeal court in error; 4) adopt a ruling annulling a decisions at issue, terminating the proceedings in a civil case and refusing to allow an applicant’s claims; 5) change the decision on the merits of the case and not remit it for further consideration.” “1. This Law shall enter into force as from 29 June 2001. 2. Laws and other normative acts adopted before this Law entered into force are effective in so far as their provisions do not conflict with the Constitution of Ukraine and this Law. 3. Appeals in civil cases lodged before 29 June 2001 shall be considered in accordance with the procedure adopted for the examination of appeals against local courts’ decisions. 4. Protests against judicial decisions lodged before 29 June 2001 shall be sent to the Supreme Court of Ukraine for consideration in accordance with the procedure for consideration of cassation appeals (касаційних скарг). 5. Decisions that have been adopted and have entered into force before 29 June 2001 can be appealed against within three months in accordance with the procedure for consideration of cassation appeals (to the Supreme Court of Ukraine).” | 0 |
train | 001-22622 | ENG | ITA | ADMISSIBILITY | 2,002 | MILONE v. ITALY | 4 | Inadmissible | Christos Rozakis | The applicant is an Italian national, born in 1959 and currently residing in Naples. In an order of 15 March 1992, served on the applicant on 16 March 1992, the Naples Public Prosecutor informed the applicant that criminal proceedings were instituted against him for kidnapping and rape and that his Office had requested the investigating judge to prolong the maximum period for the completion of the investigations. In an order of 3 March 1993, filed with the registry on 5 March 1993, the Public Prosecutor’s Office requested that the applicant be committed for trial. In an order of 6 March 1993, the investigating judge scheduled the preliminary hearing for 12 May 1993, on which date the case was adjourned by reason that the committal for trial had not been duly served on the accused. In an order of 19 October 1993 the investigating judge committed the applicant for trial, commencing on 8 February 1994 before the Naples District Court. The case-file was subsequently forwarded to the investigating judge because the committal for trial had not been duly served on the accused. In an order of 3 May 1994, the investigating judge committed the applicant for trial, commencing on 27 January 1995 before the Naples District Court. The first hearing did not take place because of a lawyers’ strike. On 10 April 1995 and 5 February 1996 the case was adjourned at the applicant’s request. On 12 March 1996 the case was postponed by reason that the witnesses summoned to appear were absent. On 15 May 1996 the case was adjourned until 11 February 1997 because some witnesses were absent and by reason of the fact that the bench of the court was composed of judges other than those who participated in previous hearings. A hearing scheduled for 7 May 1997 did not take place because the lawyers of the Naples Bar Association were on strike. On 12 November 1997, the case was adjourned because the witnesses were absent. In a judgement of 20 March 1998, filed with the registry on 24 March 1998, the District Court acquitted the applicant. The decision became final on 8 May 1998. In the meanwhile, on an unspecified date the applicant requested to be enrolled in the list of experts of the Naples District Court. However, this request was refused by reason that criminal proceedings were pending against him. | 0 |
train | 001-21951 | ENG | CHE | ADMISSIBILITY | 2,001 | LUTTA v. SWITZERLAND | 4 | Inadmissible | Christos Rozakis | The applicant, Heinz Lutta, is a Swiss national born in 1950 who resides in Bäch in Switzerland. Before the Court he is represented by Mr M. Ziegler, a lawyer practising in Lachen. The facts of the case as submitted by the applicant may be summarised as follows. Criminal proceedings were instituted against the applicant on account of water pollution. During the course of the investigations he was remanded in custody for a period of three days. On 2 May 1994 the Horgen District Court (Bezirksgericht) convicted the applicant of various charges of having contravened the Environment Act (Umweltschutzgesetz) and the Protection of Waters Act (Gewässerschutzgesetz). The conviction was confirmed upon appeal by the Court of Appeal (Obergericht) of the Canton of Zürich on 23 September 1996 which sentenced the applicant to three months’ imprisonment, suspended on probation, a fine of 5,000 Swiss francs (CHF), and damages of CHF 1,500.10. The applicant then filed two pleas of nullity (Nichtigkeitsbeschwerde), one with the Court of Cassation (Kassationsgericht) of the Canton of Zürich in which he complained of various procedural deficiencies, the other with the Federal Court (Bundesgericht) in which he complained of his conviction. On 28 October 1997 the Court of Cassation partly upheld the applicant’s plea of nullity. In particular, it found that the Horgen District Court, contrary to Article 6 § 1 of the Convention, had not pronounced its judgment publicly; however, the Court of Cassation considered it unnecessary for this reason to quash the previous decision as this would unnecessarily prolong the proceedings. Against the decision of the Court of Cassation the applicant filed on 15 December 1997 a public law appeal (staatsrechtliche Beschwerde) with the Federal Court. Therein, he complained, inter alia, that the Court of Cassation had not conducted an oral hearing and had disregarded certain submissions of his; that it had failed to transmit one submission of a lower instance to him for observation; that it had failed to draw the necessary conclusions from the fact that the judgment of the Horgen District Court had not been pronounced publicly; that a District Attorney who had ordered the applicant’s detention on remand had breached Article 5 § 3 of the Convention; that certain District Court judges had been biased; and that previous instances had in various respects incorrectly assessed the evidence. In his public law appeal the applicant also requested all submissions in the proceedings to be transmitted to him for his observations. The Federal Court transmitted a copy of the applicant’s public law appeal to the Court of Cassation of the Canton of Zürich and to the Zürich Public Prosecutor’s Office. The latter filed no observations, whereas the Court of Cassation submitted a reply, numbering three pages, on 2 April 1998. Therein it explained, inter alia, why the applicant could in respect of one issue no longer be considered a victim, and why certain other submissions were new and could not therefore be considered by the Federal Court. It pointed out that the Court’s jugment in the Nideröst Huber-case (judgment of 18 February 1997, Reports 1997I, p. 101) would, if applied consistently, prolong proceedings ad infinitum, and it also explained its point of view in respect of the complaint under Article 5 § 3 of the Convention. On 22 April 1998 the Federal Court transmitted a copy of the observations of the Court of Cassation to the applicant. By letter of 24 April 1998 the applicant filed a request with the Federal Court, asking for the opportunity to reply to the observations of that court, though it appears that he received no reply thereto. In two judgments of 3 June 1998 the Federal Court dealt with the applicant’s plea of nullity and public law appeal. Both judgments were served on the applicant on 15 June 1998. In the judgment of 3 June 1998 concerning the applicant’s plea of nullity, the Federal Court considered the various relevant legal provisions and concluded that the applicant had been incorrectly convicted. As a result, it quashed the judgment of the Court of Appeal of the Canton of Zürich of 23 September 1996. The applicant was awarded CHF 2,200 as compensation for costs. In the other judgment of 3 June 1998, numbering 29 pages, the Federal Court dismissed the applicant’s public law appeal, while imposing CHF 2,000 as court costs on him. In its judgment it dismissed the applicant’s complaints that he had not had an oral hearing before the Court of Cassation and that his subsequent submissions had not been considered. To the extent that the applicant had not been able to comment before the Court of Cassation on the observations of a lower instance, the Federal Court considered a reply unnecessary as the submissions had been “completely irrelevant” (völlig belanglos). Insofar as the applicant complained about the consequences of the lack of public pronouncement, the Federal Court found that the applicant had insufficiently substantiated this complaint, and that in any event it found the Court of Cassation’s reasoning pertinent. The Federal Court also dismissed the applicant’s complaints about the taking of evidence. Proceedings were then resumed before the Court of Appeal of the Canton of Zürich which on 19 October 1998 acquitted the applicant of the various offences. | 0 |
train | 001-83809 | ENG | DEU | CHAMBER | 2,007 | CASE OF CHAIR AND J. B. v. GERMANY | 3 | Not necessary to rule on the preliminary objection (non-exhaustion);No violation of Art. 8 | Christos Rozakis | 6. The first applicant was born in 1962 and lived in Morocco until 1987. 7. In 1987 he left Morocco in order to complete his chemistry studies in France. In June 1989 he went to Germany in order to obtain a doctorate in chemistry. From July 1993 to December 1994 he worked as a university assistant at Marburg University. In 1995 he moved to Hanover, where two of his brothers were living and where he worked in one of his brother's enterprises. Subsequently, he worked in his own kiosk. In 1998 he started training with a view to becoming an expert in logistics. 8. In 1990 the competent authorities granted the first applicant a temporary residence permit, which was prolonged first until March 1994 and then until the end of April 1997. 9. On 13 March 1997 the first applicant married the second applicant. His residence permit was thus prolonged until 14 May 2000. 10. In May 1997 a daughter was born to the applicants. 11. On 13 January 1998 the Hanover District Court (Amtsgericht) convicted the first applicant of aggravated theft and sentenced him to fifteen daily fines of thirty German marks. 12. On 14 January 1999 the applicant was arrested and subsequently detained on remand. 13. On 21 April 1999 the Hanover Regional Court (Landgericht) convicted the first applicant of rape. According to the facts established by the Regional Court, on 11 December 1998 he had forced a university student at knifepoint to engage in sexual contact with him. It sentenced him to five years and three months' imprisonment. In its reasoning, the Regional Court considered in particular the fact that the first applicant had for the most part confessed his crime, that he had used the knife only once at the beginning of the act and that he had lived an orderly life in spite of his difficulties in finding employment. The Regional Court took further into account that the crime had to a large part been committed owing to the first applicant's considerable intoxication and his growing frustration emanating from the lack of sexual contact with his wife. However, having regard to the fact that the first applicant had performed two acts of sexual coercion, that the incident had lasted for an overall duration of forty minutes and that he had constantly used force against his victim by exerting pressure with his arm and his hand, respectively, these factors precluded further mitigation of sentence. 14. Following his conviction, the first applicant served his sentence in Hanover Prison. 15. On 14 July 2000 the psychological expert P. submitted an expert opinion to the prison authorities. He considered that the first applicant had acknowledged his crime and was willing to change, in particular with regard to his alcohol consumption and his sexual conduct. There was no indication of sexual deviance. The expert further noted that the first applicant's upbringing in a traditional Moroccan family had led to a very restricted concept of masculinity, which he had not been able to revise. His relationship with the second applicant had been very burdened by the fact that the second applicant had refused sexual contact with him following the birth of their daughter and that he had not been able to talk to her about this. The expert further noted that there had been other situations prior to the rape where the applicant had harassed women, although such situations had not led to the commission of a sexual offence. He concluded that the first applicant was open-minded and self-critical. He was able to comprehend the circumstances which had led to the commission of the crime and to search for ways of overcoming his problems. Provided the first applicant engaged in pertinent couple therapy and managed to give up his illusionary concept of masculinity, a positive legal prognosis could be attributed to him. 16. According to the records of the regular conferences on the planning of sentence execution (Vollzugsplankonferenz), the first applicant attempted to instigate couple therapy. In February 2001, however, it was noted that the applicant's wife had expressed that she was experiencing great difficulties with her own situation, which she preferred to solve on her own before dealing with her husband's problems. She was uncertain whether she wished to continue the relationship. 17. From June 1999 until February 2000 the applicant attended meetings of Alcoholics Anonymous. 18. In the record dated 2 November 2001 the prison authorities noted that, in August 2001, the second applicant had had a conversation with a prison social worker, who gained the impression that she was not interested in meeting her husband and that she could not cope with the situation. The second applicant had not made use of her visiting rights for one year. In September 2001 the second applicant informed the social service by telephone that she agreed to meet her husband in spite of her doubts. 19. The participants in the conference of 2 November 2001 noted that the first applicant had been undergoing psychotherapy. They had, however, not gained the impression that he had made sufficient progress, as he was continuing to exert pressure on his wife and was trying to control her. It was further noted that the applicant's conduct during his detention was impeccable. 20. In the record dated 28 November 2002 it was noted that the first applicant had been granted leave to visit his wife and daughter on seven occasions since May 2002. The staff accompanying the visits considered that the state of the applicants' marriage was still unclear. While there had been a certain rapprochement between the couple, the spouses still did not communicate much with each other, but rather via the child. The second applicant was not opposed to her husband's continuing to visit their daughter. It still appeared, however, that she wanted a separation. The participants in the conference further consulted three psychological experts, including P., who considered that the applicant had not resolved his problems as regards his partnership and social contact with females. All three considered, however, that the danger of recidivism was low. 21. On 28 July 2000 the Municipal Public Order Authority (Ordnungsamt) of Hanover ordered the first applicant's expulsion to Morocco. Deportation to Morocco was announced upon his release from prison. Although the applicant was in possession of a valid residence permit and married to a German national, they considered that his conviction for a serious crime made it necessary to expel him under sections 47 § 1 and 48 § 1 of the Aliens Act (Ausländergesetz, see Relevant domestic law below). The circumstances of the present case left no room for any discretion on the part of the German authorities. The circumstances leading to his last conviction proved that he possessed a considerable amount of criminal energy. As a recidivist (Wiederholungstäter), there was a risk that the first applicant would commit further criminal acts in the future. The first applicant's assumption that his victim had willingly engaged in sexual contact with him gave rise to doubts as to whether he had fully comprehended and absorbed the extent of his crime. 22. According to the authorities, the long period spent in Germany could not preclude his expulsion, as his criminal offences had shown that he had so far not adapted to the living conditions in Germany. Neither his marriage to a German national, nor the fact that they had a child, could lead to a different conclusion in view of the seriousness of his crime. 23. On 29 January 2001 the Hanover District Council (Bezirksregierung) rejected an objection lodged by the applicant. 24. On 13 February 2002 the Hanover Administrative Court (Verwaltungsgericht) confirmed the deportation order of 28 July 2000. Having regard to the reasons given for the first applicant's criminal conviction, it found that given the seriousness of his crime, his expulsion was necessary in the interest of general deterrence (Generalprävention). It also considered the expulsion justified in this particular case. The Administrative Court did not view the first applicant as a recidivist, as his prior conviction for theft could not lead to the conclusion that he would continue to commit sexual offences. However, although the psychological expert P. had given the first applicant a positive social prognosis, a positive legal prognosis could only be given on condition that the first applicant engaged in successful therapy for couples and took leave of his “illusory concept of masculinity”. At the relevant time in January 2001 when the District Council gave its decision on the applicant's objection, these requirements had not been met. 25. Despite the first applicant's high professional qualifications and the fact that he had otherwise lived an orderly life, the two criminal offences committed in Germany attested to the fact that he had not succeeded in fully integrating himself into German society. This finding was also based on P.'s statement that there had been other situations prior to the rape where the first applicant had harassed women, even if such situations had not led to the commission of a sexual offence. If the first applicant did not learn how to deal adequately with problems and conflicts through pertinent therapy, the Administrative Court could not rule out the possibility that he might again commit criminal acts. 26. The Administrative Court further pointed out that, according to the legal practice in Germany, the existence of family ties alone could not preclude the first applicant's expulsion. In any event, at the time of the expulsion decision, there were severe doubts as to the stability of the applicants' marriage. It was not certain to what extent the second applicant knew about the details of the crime committed by her husband. The relationship between the spouses was considered to be problematic. The second applicant had also not reacted to an invitation to state her views on her husband's expulsion. The first applicant had not substantiated why it was necessary for his wife and child that he remain in Germany, in particular as his wife financially supported the family and had, already prior to the first applicant's imprisonment, arranged for their daughter to be cared for by a third person while she was at work. 27. The daughter's interest in her father's remaining in Germany could also not be considered as more important than the public interest in his expulsion. The right to have contact with his daughter was only protected in so far as that right had been exercised in the past. Despite regular meetings between the applicant and his daughter, which were apparently being continued, there was no indication that the daughter depended on these contacts. Having regard to the long periods of time which had elapsed between the visits and the fact that the daughter had not lived with the applicant since his arrest more than three years earlier, it appeared that they had a relationship based merely on occasional encounters (Begegnungsgemeinschaft). Under these circumstances, the applicant had failed to substantiate that his ties with his daughter amounted to a strong parent-child relationship that would warrant his remaining in Germany. 28. On 28 May 2002 the Lower Saxony Administrative Court of Appeal (Oberverwaltungsgericht) upheld that decision and rejected the first applicant's request for leave to appeal. 29. On 12 December 2002 the Federal Constitutional Court refused to accept the applicant's complaint for adjudication. 30. On 13 January 2003 the first applicant lodged a request for an interim order with the aim of obtaining a temporary suspension of deportation (Duldung). On 6 February 2003 the Hanover Administrative Court dismissed this request, stating firstly that his expulsion was not imminent as the first applicant was still serving his prison sentence. In any event, the applicant's request was unfounded. Referring to its own judgment of 13 February 2002, which had been upheld by the Administrative Court of Appeal, the Administrative Court held that the deportation order was in accordance with the law and that there was no cause for a suspension of the deportation. On 26 February 2003 the first applicant lodged an appeal. Following consultation of the case file, the applicant's counsel withdrew this appeal on 10 March 2003. 31. On 27 February 2003 the Hanover Regional Court, sitting as a post-sentencing chamber (Strafvollstreckungskammer), ordered the first applicant's release on probation. Based on psychological expert reports and on the submissions of the prison authorities, the Regional Court concluded that if the first applicant continued to abstain from abuse of alcohol, the risk that he might commit further crimes was comparatively low. It assumed that the four years spent in prison may have contributed to a complete cure from his former addiction and considered that he had comprehended the extent of his crime. While admitting that his relationship with the second applicant had probably deteriorated during the time spent in prison, the Regional Court considered it noteworthy that the couple had so far not divorced, nor had either of the spouses petitioned for a divorce. 32. Following the first applicant's release from prison on 2 April 2003 the applicants lived together with their child. According to the applicants' submissions, they started to follow couple therapy in March 2004. On 15 March 2004 the Kingdom of Morocco, on the Municipal Public Order Authority's request, issued a passport substitute document in order to allow the first applicant's deportation. After that the first applicant left his family and went into hiding. 33. On 18 March 2004 the applicant filed a request with the Municipal Authority to set a time-limit on the exclusion from German territory, which was a legal consequence of his expulsion. 34. On 24 July 2004 the applicant was arrested and on 16 September 2004 he was deported to Morocco. 35. On 9 August 2005 the Municipal Public Order Authority of Hanover limited the applicant's exclusion from the German territory to twelve years from the time of deportation, that is until 16 September 2016. The applicant's request for an earlier time-limit was rejected. The applicant was further granted the option to apply for a fresh examination of his request in 2013. 36. In February 2006 the first applicant re-entered German territory. On 16 March 2006 he was arrested on suspicion of theft accompanied by violence committed under the influence of alcohol. According to police investigations, he had reached into a cash register in a bar in order to procure the means to acquire more alcohol. The applicant remained in detention pending deportation to Morocco. 37. By a letter of 13 February 2007 the applicants' counsel informed the Court that the second applicant wished to withdraw her complaint. 38. The rights of entry and residence for foreigners were, at the relevant time, governed by the Aliens Act (Ausländergesetz). Under section 47 § 1, no. 1, of the Aliens Act, a foreigner was to be deported when he had been sentenced to a minimum of three years' imprisonment for having wilfully committed one or more criminal offences. If he was married to a German citizen, a foreigner could only be deported if serious reasons of public safety and order justified his expulsion (section 48 § 1). This was generally the case where section 47 § 1 was applicable. 39. Under section 8 § 2, a foreigner who had been deported was not permitted to re-enter German territory. A time-limit on the exclusion period was usually (in der Regel) granted upon an application by the deportee. 40. Section 53 § 4 stipulated that a foreigner could not be deported if such deportation would not be authorised under the European Convention on Human Rights. 41. Under section 55 § 2, a foreigner could be granted a temporary suspension of deportation (Duldung) for as long as there were legal or factual reasons making his deportation impossible. 42. The suspension of deportation did not affect the foreigner's duty to leave the country. The time-limit for such a suspension could not exceed one year, but it was renewable (section 56 §§ 1-2). 43. Since 1 January 2005 the entry and residence rights of foreigners have been governed by the Residence Act (Aufenthaltsgesetz). | 0 |
train | 001-92955 | ENG | RUS | ADMISSIBILITY | 2,009 | DATSER v. RUSSIA | 4 | Inadmissible | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | The applicant, Ms Valentina Aleksandrovna Datser, is a Russian national who was born in 2001 and lives in Biysk, Altay Region. The application is lodged on her behalf by her father, Mr Aleksandr Ervinovich Datser. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, 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 was born to Ms Yelena Donova and Mr Aleksandr Datser, a Russian citizen of German ethnic origin. The applicant’s mother was HIV-positive; she also suffered from tuberculosis, hepatitis and a number of other diseases. On 18 January 2001 the applicant was born in the Town Hospital no. 2. The birth was premature and the applicant suffered from serious health problems, in particular, respiratory troubles, a non-expanding lung, third-degree prenatal malnutrition, central nervous system affliction caused by oxygen deprivation in utero, foetal infection, conjugated jaundice and rickets. The mother chose not to put the father’s name on the birth certificate because the applicant was born out of wedlock and the father was serving a prison sentence at the time. On 23 January 2001 the mother, being unable to perform parental duties, waived her parental authority in favour of the Biysk Town Council. On the same day the applicant was transferred to the pathology ward for babies of the Town Hospital no. 2. On 24 January 2001 the applicant was diagnosed with cerebral oedema. On 16 February 2001 the Biysk Town Council ordered the transfer of the applicant into State care and her placement in the Biysk Orphanage (Дом ребенка). However, the applicant remained in the Town Hospital no. 2. On 27 April 2001 she was transferred to the Biysk Central Town Hospital. She was kept in an isolation ward in the infectious diseases section of the hospital as a child born to an HIVpositive mother. According to the applicant’s father, the ward was overcrowded, the babies were underfed, they were not taken out for walks and did not have outdoor clothing, and sanitary requirements were not respected. He also alleged that the applicant’s health had deteriorated in the hospital and that her development was retarded. The applicant’s father submitted no documents to corroborate his allegations and it appears that he did not visit the applicant in the hospital. According to the Government, in the Biysk Central Town Hospital the applicant was placed in a ward that measured 24 square metres with two other babies with similar diagnosis: prenatal contact with an HIV-positive mother. The ward corresponded to the requirements of the Ministry of Healthcare. It contained a bed for each baby, a cupboard, a nappy changing table, toys and baby care products. Babies were provided with both indoor and outdoor clothes. Crockery was provided individually for each baby. It was cleansed in compliance with sanitary requirements. The ward was washed two or three times every day with special products authorised for use in children’s hospitals. Thorough cleansing of the wards was conducted once in seven days. During this time the babies were placed in a different ward which had already been cleansed. Nurses washed, dressed and bathed the babies and changed their linen on a daily basis. They took them out for walks in accordance with sanitary requirements and medical indications. Nurses also attended to the babies so they could develop various skills corresponding to their age, such as sitting up, walking or holding a spoon. On being admitted to the Biysk Central Town Hospital the applicant was examined by an immunologist and a neuropathologist. She was diagnosed with prenatal damage to the nervous system of hypoxic genesis, pyramidal insufficiency, psychomotor and speech retardation, rickets and anaemia. She underwent HIV tests on 31 August and 2 October 2001 and 14 March and 8 August 2002, all of which were negative. She underwent blood tests on 10 August and 16 October 2001, 22 January and 22 April 2002 and a biochemical blood test on 3 October 2001. In the Biysk Central Town Hospital the applicant also underwent electrocardiogram and ultrasonic scanning of internal organs. She was also examined a number of times by otolaryngologists, ophthalmologists, surgeons, neuropathologists and dermatologists. The applicant was examined daily by a doctor and permanently cared for by the ward’s nurse and a hospital attendant. The nurse fed the applicant six or seven times a day and carried out medical interventions prescribed by the doctor. All parenteral interventions were carried out using disposable instruments. The babies’ temperatures were taken daily. The Government enclosed extracts from the applicant’s medical file and the Biysk Central Town Hospital’s internal documents to corroborate their submissions. On 7 August 2002 the applicant was transferred from the Biysk Central Town Hospital to the Biysk Orphanage. On 28 August and 2 September 2002 the applicant was examined by a paediatrician who stated, in particular, that her state of health was satisfactory, she was receiving sufficient nutrition, could walk independently, spoke in syllables and played with toys. On 31 December 2001 the applicant’s mother died of tuberculosis. Some time later the applicant’s father was released from prison and returned to the town. He brought proceedings seeking the acknowledgement of his paternity vis-à-vis the applicant. On 21 August 2002 the Vostochny District Court of Biysk established paternity on the part of the applicant’s father. On 17 September the Town Council ordered the applicant’s transfer to her father’s custody and the next day he took the applicant from the orphanage. On 27 November 2002 the father brought proceedings before the Vostochny District Court of Biysk on the applicant’s behalf against the social security office and the finance office of the Town Council, claiming non-pecuniary damages for the applicant’s allegedly unlawful placement in the Biysk Central Town Hospital. He maintained that, instead of having been transferred to a specialised institution, the Biysk Orphanage, his daughter had been kept for 600 days in the isolation ward of the hospital, as a result of which she had allegedly contracted conjugated jaundice, damage to the central nervous system, dystrophy, chicken pox and anaemia and her development was retarded. He claimed, on behalf of the applicant, 3,000,000 Russian roubles (RUB) in respect of non-pecuniary damage. On an unspecified date the Vostochny District Court granted the applicant’s father’s request to order a medical expert examination of the applicant with the purpose of establishing a cause and effect relationship between the applicant’s placement in the hospital and her state of health. It was ordered at the father’s expense. However, he refused to pay for it, and the court proceeded with the case without conducting the examination. On 26 February 2003 the Vostochny District Court dismissed the claim in full as unsubstantiated. The court established that the placement of the applicant in the hospital was lawful and served the interests of the child. The father appealed. On 16 April 2003 the Altay Regional Court upheld the decision of 26 February 2003. The courts at both instances examined the applicant’s father’s allegations that her placement at the Biysk Central Town Hospital was unlawful. They did not examine the allegations of inadequate conditions and treatment in the hospital since those had not been properly raised. The Altay Regional Court specifically noted in its decision of 16 April 2003 that the applicant’s father did not make a claim for damages against the Biysk Central Town Hospital, which remained open to him. On an unspecified date in 2002 the father wrote a letter to the regional office of the Federal Security Service seeking institution of criminal proceedings against various officials of the Town Council alleging that, while the applicant’s mother was pregnant with her, certain doctors or social workers had tried to persuade her to have an abortion. On 25 November 2002 the Deputy Town Prosecutor decided not to open a criminal investigation in that respect. The applicant complained to a higher prosecutor about the refusal. On 21 December 2002 the Prosecutor’s Office of the Altay Region informed the applicant’s father that his complaint was dismissed and the refusal to open criminal investigation was upheld. The applicant’s father did not appeal to a court. The applicant’s father maintained that their family was constantly discriminated against on the ground of their German origin. In particular, the applicant had allegedly been denied free hospitalisation in the town hospital when she had bronchitis. Furthermore, a municipal official had allegedly shouted at them, suggesting that they should “pack themselves off to Germany”. On 20 January 2003 the father applied to the Biysk Prosecutor’s Office seeking institution of a criminal investigation. He alleged that on 6 January 2003 a group of people, according to him, social security workers accompanied by a policeman, had come to his flat, had tried to abduct the applicant and had stolen 10,000 United States dollars. On 23 January 2003 the complaint was transferred to the Biysk town police department. On 6 February 2003 the police opened a criminal investigation into the alleged theft. On 7 April 2003 the investigation was suspended for failure to identify the culprits. The applicant’s father then complained to the Vostochny District Court that the Biysk Prosecutor’s Office had taken no action in connection with his allegations of trespassing and “attempted hostage taking”. On 28 July 2003 the Vostochny District Court allowed the complaint. The decision was upheld by the Altay Regional Court on 4 September 2004. On 20 October 2003 the Biysk Prosecutor’s Office refused to institute criminal proceedings into the allegation of trespassing and “attempted hostage taking”. The applicant’s father complained about the refusal to the Vostochny District Court. On 2 December 2003 the Vostochny District Court dismissed the complaint and found the refusal to be lawful. The Altay Regional Court upheld the decision on 15 January 2004. The decision to suspend the investigation into the alleged theft of 7 April 2003 was quashed on an unspecified date. However, the investigation was again suspended on 20 May 2005. The applicant’s father also tried unsuccessfully to institute several sets of criminal proceedings against police and prosecution officials involved in the investigation. Article 96 § 3 of the Code of Civil Procedure provides that a court or a justice of peace may exempt a party to the proceedings from payment of, inter alia, costs related to expert fees or reduce such costs, taking into account the party’s financial state. | 0 |
train | 001-103585 | ENG | UKR | ADMISSIBILITY | 2,011 | LYSAYA v. UKRAINE | 4 | Inadmissible | Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert | 1. The applicant, Ms Lyudmila Anatolyevna Lysaya, is a Ukrainian national who was born in 1968 and lives in Bokovo-Platovo, in the Lugansk region. She was represented before the Court by Mr N. K. Kozyrev, a lawyer practising in Lugansk. The Ukrainian Government (“the Government”) were represented by their Agent, Ms I. Shevchuk. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 10 September 2000 the applicant’s husband, Mr L., who had no previous criminal record, was apprehended on suspicion of theft. The same day he confessed to having been an accomplice in a theft committed with two other individuals. 4. On 13 September 2000 the prosecutor of Antratsyt charged the applicant’s husband with theft and decided to place him in the Temporary Detention Centre of the Antratsyt Police Department (the ITT) in cell no. 6, which he shared with three other detainees, Mr S., Mr A. and Mr Kh. 5. On 14 September 2000 the applicant’s husband was examined by a medical team at his own request. A doctor gave him an injection of chloromazine, finding that the applicant’s husband was suffering from minor bodily injuries and hallucinations as a result of alcohol intoxication. 6. On 17 September 2000 at 10.25 a.m. the ITT administration requested medical assistance for the applicant’s husband. He was transferred by ambulance at 10.40 a.m. to the emergency unit of the Gorlivka Central Hospital, where he died on 18 September 2000. 7. According to the autopsy report of 19 September 2000, the applicant’s husband died from serious multiple bodily injuries, namely; head and chest injuries, a brain haemorrhage, a broken chest bone, broken ribs on both sides, injuries to his lungs inflicted by fragments of broken ribs and chest bones, and an internal haemorrhage into the kidneys and stomach. 8. On 2 October 2000 the applicant lodged a complaint with the General Prosecutor’s Office against the officers of the Antratsyt Police Department for murdering her husband. 9. On 12 October 2000 the Antratsyt Prosecutor’s Office instituted criminal proceedings into the death of the applicant’s husband. 10. On 13 October 2000 the Prosecutor of Antratsyt sent a petition to the Head of the Antratsyt Police Department, referring to violations of regulations in the Antratsyt ITT, in particular the placing of persons without any previous criminal record with those who had been convicted before, and failure of the ITT officers to comply with their duties properly and to react effectively to breaches of discipline by detainees. The Prosecutor requested that the officers responsible for the situation involving the applicant’s husband be disciplined. 11. On 17 October 2000 the Antratsyt Police Department conducted an internal inquiry, which resulted in disciplinary sanctions against some of the police officers. The results of the disciplinary proceedings were reviewed and overruled on 24 October 2000 by the Lugansk Regional Police Department, which issued an order acknowledging that the failure of the officers of the Antratsyt police station to isolate the applicant’s husband and the violation of police regulations had led to serious circumstances. They decided to impose stricter disciplinary sanctions on those responsible and their superiors. As a result, four officers were downgraded in their positions, nine officers were warned about their partial non-compliance with the requirements of their posts, and two more officers were reprimanded. 12. On 30 October 2000 the investigation charged Mr S. with inflicting bodily harm on the applicant’s husband. 13. On 20 November 2000 an additional forensic medical examination was ordered by the investigator to define which injuries had been inflicted on the applicant’s husband by each of his cellmates. 14. On 22 November 2000 the investigation charged Mr A. with inflicting bodily harm on the applicant’s husband. 15. On 27 November 2000 the investigation conducted an on-site reconstruction of the crime with Mr S. 16. On 20 December 2000 the additional forensic medical examination was carried out. 17. On 25 December 2000 the prosecutor Zh. refused to institute criminal proceedings against the police officers of the Antratsyt Department for lack of proof of their involvement in the crime 18. On 25 December 2000 the applicant filed a claim for damages against Mr S., Mr A. and Mr Kh. 19. On 26 December 2000 the investigation charged Mr Kh. with inflicting bodily harm on the applicant’s husband. 20. On 27 December 2000 the applicant studied the case file, which contained all the procedural decisions taken prior to that date. 21. On 30 December 2000 the investigation was completed and the criminal case was sent to the Antratsyt Town Court (“the Antratsyt Court”) for examination. 22. On 19 January 2001 the Antratsyt Court held a preparatory hearing and accepted the case for examination. 23. On 8 February 2001, the Non-Governmental Committee for the Protection of Constitutional Rights and Freedoms of Citizens allowed the applicant’s request for assistance in the protection of her rights in the proceedings and authorised Mr Kozyrev to act in the criminal proceedings as a “public accuser” in her interests. The same day the above-mentioned NGO requested the Antratsyt Court to admit Mr Kozyrev as a “public defender” in the criminal proceedings concerning the death of the applicant’s husband. 24. In the course of the proceedings, the applicant alleged that her husband had been tortured by the police, had had a broken skull and metal objects under his nails. On 3 April 2001 an additional forensic medical examination, ordered by the court, provided further clarifications in relation to the previous expert opinions. The expert confirmed that the applicant’s husband had sustained numerous injuries, but denied the existence of the broken skull and presence of metal objects under the nails of the victim, as alleged by the applicant. 25. On 15 June 2001 the Antratsyt Court found Mr S., Mr A. and Mr Kh. guilty of inflicting bodily injuries on the applicant’s husband, causing his death. The court also found that the police officers had had no reason to beat the applicant’s husband, as he had already pleaded guilty by the time of the incident. It also found that the applicant’s husband had been suffering from chronic alcoholism and had been very aggressive towards the other cellmates. It found that the injuries had been inflicted by the persons who were held in the same cell with the applicant’s husband, who had been defending themselves against his aggressive behaviour, which had been caused by his alcohol-related dependence (delirium tremens). The court stated that the applicant’s husband had sustained the following injuries on 14 September 2000: a cerebral haemorrhage, haemorrhage of both eyelids, left auricle and lips, a broken nose, an injury to the lower eyelid, abrasion of the lumbar region, a haemorrhage of the right kidney capsule and bruises to the lumbar region, all of which amounted to “moderate bodily injuries” for the purposes of assessing the impact on his health. The court further established that on 14-15 September 2000 the applicant’s husband had been severely beaten by Mr S. and had had a conflict with other detainees. Moreover, it found that on 16 September 2000 Mr S. had tied the applicant’s husband up with a shirt and left him lying injured on the floor of the cell until the next morning. The court sentenced Mr S., Mr A. and Mr Kh. to seven, three and two years of imprisonment. The judgment also mentioned that no civil claim had been lodged in the case. 26. On the same day the Antratsyt Court made a separate ruling concerning shortcomings in the work of investigation. It noted that the allegations of the applicant as to signs of torture had not been fully checked at the pre-trial stage and therefore the court had had to order an additional forensic examination to verify the applicant’s allegations (see paragraph 24 above), although that examination could have been carried out at the pre-trial stage. 27. On 21 June 2001 Mr S. lodged an appeal in cassation with the Lugansk Regional Court. Not denying the fact that he had beaten the applicant’s husband, he claimed that he had acted in self-defence and therefore requested a re-examination of the case. 28. Having been informed that Mr S. had lodged an appeal against the judgment of 15 June 2001, the applicant decided not to appeal against that judgment. She did not submit any written submissions to the appeal of Mr S. According to the applicant she had expected to present her arguments orally, but she had not been duly notified of the date of the hearing. According to the Government, the relevant notification had been sent to the applicant. 29. Following amendments to the Code of Criminal Procedure, which entered into force on 29 June 2001 and introduced three levels of jurisdiction in lieu of two, the Lugansk Regional Court (now the Lugansk Regional Court of Appeal) examined the case as a second, appellate instance on 7 September 2001. Mr Kozyrev, who had allegedly found out about the hearing by chance, was not allowed to present his arguments to the Lugansk Regional Court of Appeal, since he was not legal counsel for the applicant or any other party, while the procedural figure of public accuser, in which capacity Mr Kozyrev had entered the proceedings in the first instance, had been completely abolished following the above-mentioned amendments to the Code of Criminal Procedure. The court, in the absence of the parties, upheld the judgment of 15 June 2001 with minor amendments. It found no evidence that injuries had been inflicted on the applicant’s husband by police officers. 30. The applicant appealed in cassation to the Supreme Court. She maintained that her husband had been killed by the police officers and the sentenced persons had confessed to a crime that they had not committed. She further complained that she could not present her arguments to the court of appeal as she had not been duly summoned to it. 31. On 11 July 2002 the Supreme Court rejected the applicant’s appeal in cassation against the judgment of 15 June 2001 and the decision of 7 September 2001, respectively, as being unsubstantiated. It also found the conclusions of the lower courts well-founded. 32. Prior to 29 June 2001 the criminal proceedings in Ukraine had comprised two levels of jurisdiction: a first-instance court and a court of cassation. After a judgment had been given by a first-instance court, the parties had seven days to lodge an appeal in cassation. 33. The Code defined the roles of “public accuser” and “public defender”, which were introduced in Soviet times with the aim of achieving a more active participation of the public in criminal proceedings. Under Article 265 of the Code of Criminal Procedure representatives of non-governmental organisations and groups of employees could participate in judicial proceedings (not at the stage of investigation) both on the side of the prosecution and on the side of the defence. The court could rule to allow a representative of an NGO to participate as a “public accuser” in the court hearings on behalf of his or her organisation. Under the said Article the public accuser was entitled to give testimonies, to examine evidence, make requests, express his or her opinion about the requests of other participants in the proceedings, to request withdrawals, to take part in the court deliberations, and give his or her opinion. The public accuser was not entitled to appeal against a judgment of a court in a criminal case in which he or she had participated. The role of public accuser was complementary to that of the prosecutor and the representative of the aggrieved party. 34. Following the Amendment Act of 21 June 2001 (which entered into force on 29 June 2001), criminal proceedings are examined at two or three levels of jurisdiction depending on the seriousness of the case. If the case was first decided in a local court, the decision is appealable to the regional court of appeal and then to the Supreme Court, as a court of cassation. The Act also repealed the provisions concerning the roles of “public accuser” and “public defender” in their entirety. | 0 |
train | 001-92570 | ENG | MKD | CHAMBER | 2,009 | CASE OF BOGDANSKA DUMA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 4 | Violation of Article 6 - Right to a fair trial | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 4. The applicant was born in 1959 and lives in Skopje. 5. On 1 February 1993 Mr. F.D., the applicant’s former husband, bought a state-owned apartment and a garage (“the property”). By a deed of gift of 29 December 1994 (“the 1994 gift”), Mr F.D. transferred one notional half of the property into the applicant’s possession. The spouses divorced in 1996. By court decisions of 18 April and 5 September 2001 respectively, the 1994 gift was rescinded. 6. The present case concerns two sets of proceedings concerning the property at issue. 7. On 13 July 1995 Mr H.D. and Mrs V.D., Mr F.D.’s parents (“the plaintiffs”), brought a civil action against the applicant and Mr F.D. to establish their title to the property and to rescind the 1994 gift. The plaintiffs alleged that they had transferred to their son the right to buy the property and that they had paid the price. 8. Of six hearings scheduled between 3 November 1995 and 19 May 1997, none was rescheduled on the applicant’s request. 9. Sixteen hearings fixed between 19 May 1997 and 20 November 2000 were adjourned because of incorrect service of the court summons, late exchange of applications by the parties, belated submissions or the failure of the national authorities and the parties to respond to court orders in time. A hearing fixed for 25 May 1998 was postponed due to the applicant’s absence for work-related reasons. 10. On 20 November 2000 the Skopje Court of First Instance upheld the plaintiffs’ claim and recognised their title to the property. It rescinded the 1994 gift and declared that Mrs V.D. had the title to one notional half of the property. The court established that Mr H.D. had tenancy of the property since 1972 and that the plaintiffs had authorised the defendants to buy the property under the condition of caring for them and living under the same roof. As the applicant had divorced her husband and ceased to live with the plaintiffs, the court held that the right to buy the apartment remained groundless and considered it as if it had not been established. 11. On 28 June 2001 the Skopje Court of Appeal accepted an appeal by the applicant and remitted the case for a fresh consideration. It established that the lower court had not given sufficient reasons for its decision. It further ordered a stay of the proceedings pending assessment of the validity of the sale agreement of 1 February 1993, the subject of other proceedings. 12. Between 19 November 2001 and 15 September 2005 the first-instance court listed twenty-three hearings which were re-scheduled for similar reasons as those described in paragraph 9 above. The applicant did not attend four hearings. During this time, the applicant claimed title to four fifths of the property, as a joint property acquired through marriage. She further proposed an out-of-court settlement on two occasions and requested the court to expedite the proceedings. 13. The proceedings resumed on 4 December 2006 when a new judge was assigned to sit in the case. The court listed six hearings until 18 May 2007. The proceedings are still pending before the Skopje Court of First Instance. 14. On 4 April 2002 Mr F.D. requested annulment of a deed of gift of 18 July 2001 (“the 2001 gift”) under which the applicant had transferred into the possession of their two daughters her notional half of the property. Referring to the annulment of the 1994 contract, Mr F.D. claimed that the applicant had not been entitled to dispose of the property. On 5 April 2001 Mr F.D. extended his claim against their daughters. On 17 November 2002, one of the daughters, Ms I.D., came of age. 15. On 22 November 2002 the Skopje Court of First Instance granted Mr F.D.’s action and annulled the 2001 gift. It further ordered their daughters to restore the property into Mr F.D.’s possession. Lastly, it ordered the applicant not to dispose of the property. The court established that the applicant had made the 2001 gift while the proceedings regarding the 1994 gift had been pending on appeal. It ruled that the applicant accordingly had known or ought to have known that she could not make the 2001 gift while the proceedings in respect of the 1994 gift were pending. It dismissed the applicant’s objection that her lawyer had not been provided with explicit authority to represent Ms I.D. In this respect, it held that the applicant had been her daughters’ statutory guardian and they all acted as a single party to the proceedings. The court concluded that they had not had conflicting interests, but that the applicant had acted on behalf of her daughters. 16. On 27 March 2003 the Skopje Court of Appeal upheld the lower court’s decision concerning the annulment order and injunction. It found no reasons to depart from the established facts and legal reasoning given by the lower court in respect of the deed of gift. It ruled, however, that the lower court had wrongly ordered the applicant’s daughters to restore the property into Mr F.D.’s possession. The applicant unsuccessfully requested the public prosecutor to lodge with the Supreme Court a request for the protection of legality. 17. On 23 May 2003 the Skopje Court of First Instance dismissed the remainder of Mr F.D.’s claim. 18. These proceedings ended on 14 October 2004 when the first-instance court’s decision concerning trial costs became final. | 1 |
train | 001-90321 | ENG | SVK | ADMISSIBILITY | 2,008 | FURDIK v. SLOVAKIA | 4 | Inadmissible | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | The applicant, Mr Milan Furdík, is a Slovakian national who was born in 1941 and lives in Banská Bystrica. He was represented before the Court by Ms M. Čulenová, a lawyer practising in Bratislava. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs M. Pirošíková. The facts of the case, as submitted by the parties, may be summarised as follows. On 30 July 2005 the applicant’s daughter, Ms Vanda Furdíková, who was then 27 years old, died as a result of injuries which she sustained while climbing the Široká veža peak in the High Tatras. The peak’s summit is at 2,461 metres above sea level. Ms Furdíková and her partner started the climb in excellent weather conditions at 9 a.m. on 30 July 2005. Both climbers were sufficiently experienced for the climb. At 12.14 p.m. Ms Furdíková fell when a block of rock came loose. She remained hanging on the rope with her head pointing downwards some 25 metres below her co-climber. Some 120 metres below her two other climbers, Mr. and Mrs. J., were preparing to start the same climb and witnessed the accident. At 12.16 p.m. and at 12.18 p.m. Mrs J. attempted to contact the Air Rescue Service and the Mountain Rescue Service using a mobile phone. Both lines were busy. After another attempt she reached the Mountain Rescue Service at 12.19 p.m. She was told that a helicopter would be sent immediately and that it would arrive at the place of the accident in 20-25 minutes. The accident had also been reported to the operations centre of the Mountain Rescue Service in Poprad by a tourist passing near the foot of the mountain. The records indicate that the operations centre received the first emergency call about the accident at 12.15 p.m. Between 12.15 and 12.25 p.m. the co-climber fixed the ropes with a view to preventing Ms Furdíková from any further falls and descended by rope to the latter. Ms Furdíková was badly injured, but she remained conscious and communicated with her partner until 4 p.m. At 12.23 p.m. Mr. and Mrs. J. decided to climb up to Ms Furdíková and her partner. At 12.30 p.m. the duty officer of the Mountain Rescue Service informed Mr J. by phone that the helicopter would arrive in some 20 minutes as it was on a different rescue mission in Smrekovica at that time. At 1 p.m. the doctor of the Air Rescue Service called Mr J. to tell him that the rescue team was on its way. The three climbers supported Ms Furdíková, hydrated her and communicated with her. At 1.17 p.m. the rescue service helicopter landed in Poprad to fill the fuel tank and to prepare the equipment needed for the rescue of Ms Furdíková. At 1.40 p.m. the helicopter took off from Poprad. On its flight to the mountain it landed in Starý Smokovec at 1.45 p.m., to board one member of the Mountain Rescue Service. It reached the place of the accident at 2 p.m. At 2.02 p.m. the pilot informed the land operator that strong turbulence was preventing Ms Furdíková from being rescued directly from the helicopter in flight. A reinforcement of the rescue team and special equipment were required in order to reach the injured person. The helicopter returned to Poprad. Between 2.25 and 2.45 p.m. a member of the Mountain Rescue Service with the necessary equipment joined the rescue team and the fuel tank was refilled. At 3.30 p.m. another two members of the Mountain Rescue Service boarded the helicopter in Starý Smokovec. At 3.45 p.m. the rescue team was dropped on the summit of the mountain. The helicopter flew off to attend to another accident. Several minutes later the three climbers who had stayed with the injured person spotted the members of the rescue team some 15 metres above them. The Government submitted that the team reached Ms Furdíková at 3.47 p.m. According to the climbers involved, the rescue team reached the injured at approximately 4 p.m. By that time Ms Furdíková had lost consciousness. The Government submitted that Ms Furdíková had by that time already reached the stage of clinical death. The members of the rescue team and the climbers fixed Ms Furdíková to a transport stretcher. She died at 4.10 p.m. Her body was lowered to the foot of the mountain by ropes at 4.45 p.m. A forensic doctor concluded, on 4 August 2005, that her death had been caused by the shock resulting from the injuries and by bleeding, and by a third degree embolism. The report indicated that Ms Furdíková had dislocated her right thigh bone, that the soft tissues of her right arm and thigh had been massively contused and that she had suffered from an intracranial haemorrhage. The applicant requested the Health Care Supervisory Office (Úrad pre dohľad nad zdravotnou starostlivosťou) to examine whether appropriate medical assistance had been provided to his daughter. On 30 September 2005 the Prešov branch office of that institution replied to the applicant that no shortcomings had been established in the providing of medical assistance to Ms Furdíková. The letter stated that the helicopter team had been trained and equipped in accordance with the relevant law. The doctor, who had entered the climbing area of the mountain despite the fact that he had not been obliged to do so, found that Ms Furdíková had died before she was released from the rope and put on a transport stretcher. Resuscitation had not been possible in the situation. The question as to whether the life of the injured person could have been saved had there been an earlier intervention was purely hypothetical. The letter further stated that nothing indicated that the actions of the Air Rescue Service and the Mountain Rescue Service had not been duly coordinated. According to the Mountain Rescue Service, it had been more efficient to have recourse to Air Rescue Service in the case of the applicant’s daughter. In a letter of 19 September 2005 the Minister of the Interior informed the Health Care Supervisory Office that he had discovered no shortcomings in the action of the Mountain Rescue Service which fell under the authority of his Ministry. On 3 October 2005 the sister of Ms Furdíková challenged the conclusions of the Prešov branch office. On 7 November 2005, in its protocol, an expert commission under the authority of the President of the Health Care Supervisory Office found an infringement of the relevant health care legislation by the Air Rescue Service. The commission held that the operator of the Air Rescue Service had proceeded erroneously when sending a helicopter based in Poprad to intervene at the very extreme point of its operation area in Smrekovica while a different helicopter based in Sliač had been available for the same territory. The commission qualified the operator’s misjudgment as a “human factor” failure. It had resulted in a delay of 53 minutes during which the helicopter based in Poprad had not been available for operations in the High Tatras. On 14 November 2005 the Health Care Supervisory Office informed the Ministry of Health of the commission’s findings. The Ministry was requested to bring administrative proceedings against the Air Rescue Service and to impose a fine for the latter’s failure to comply with its duties. The Ministry of Health discontinued the proceedings, on 28 June 2006, holding that the Air Rescue Service had not contravened any of the duties imposed by law. Between 17 and 25 August 2005 the Supervision Office of the Ministry of the Interior examined the way in which the operators of the Mountain Rescue Service had organised the rescue of the applicant’s daughter. The report indicates that the operators had correctly decided to organise the rescue in co-ordination with the Air Rescue Service. To that effect they had contacted the latter at 12.22 p.m., immediately after the incident had been reported. In particular, access to the place of the incident had been difficult. The rescue team would have needed three and a half hours to reach it on foot. In addition, the operators had correctly presumed that the assistance of the Air Rescue Service was required with a view to ensuring the rapid transportation of the injured person to hospital. The members of the Mountain Rescue Service had been prepared to intervene in co-operation with the Air Rescue Service within ten minutes after the receipt of the information about the incident. The Supervision Office found no shortcomings in the way in which the Mountain Rescue Service had acted. On 30 July 2005 criminal proceedings were brought within the Poprad District Police Directorate in the context of the accident as a result of which the applicant’s daughter had died. The investigator questioned thirteen witnesses. He considered a forensic report and questioned a forensic expert. Records of communications and reports on the rescue action were submitted by the Air Rescue Service and the Mountain Rescue Service. The investigator also considered other documentary evidence including reports of the Slovak Hydrometeorological Institute and the Slovak Aviation Office. On the basis of the evidence obtained the police investigator concluded, on 30 January 2006, that the death of the applicant’s daughter was the result of the injuries which she had suffered during the climb. Criminal liability of a third person in that context was not established. The criminal proceedings were therefore discontinued. The applicant filed a complaint. He argued, inter alia, that the investigator had disregarded the above protocol of the expert commission of the Health Care Supervisory Office. On 20 February 2006 a prosecutor of the District Prosecutor’s Office in Poprad, after having obtained additional documentary evidence, dismissed the applicant’s complaint. The decision stated that the rescue helicopter had been intervening at a different place within its operation area at the time when the emergency call about the incident of the applicant’s daughter had reached the operations centre. It had started attending to the incident in the High Tatras immediately after it had ended the previous rescue action. The expert commission’s conclusion that a different helicopter could have been used for the intervention in Smrekovica did not provide a sufficient basis for prosecuting any person for injury to health. The prosecutor found no shortcomings in the way in which the rescue action had been carried out. Reference was made to a report indicating that the doctor had attended to the victim directly in the exposed climbing area despite the fact that he had not been obliged to do so and that the scope of the climber’s injuries were such that only immediate intervention at a specialised health care centre could have saved her life. On 15 June 2006 a prosecutor of the Regional Prosecutor’s Office in Prešov upheld the above conclusion that no criminal offence had been committed. The letter admitted, however, that the rescue of the applicant’s daughter had not been organised in an optimal manner. In particular, the decision to send the helicopter based in Poprad to a remote place, albeit within its operation area, had not been correct. It was also questionable whether the helicopter should not have deposited the rescue climbers on the summit of the mountain immediately instead of attempting to rescue the injured person directly from the air. With reference to the statement of a forensic expert the prosecutor held that those considerations could not affect the position in the case. In particular, the saving of the life of the injured person would only have been possible in the case of immediate medical intervention which had not been possible for objective reasons. On 13 November 2006 the General Prosecutor’s Office, with reference to the above conclusions, dismissed the applicant’s claim that appropriate medical assistance had not been provided to his daughter in a timely manner. The letter stated that there was no justification for the criminal proceedings to be resumed. At the request of the sister of Ms Furdíková, the Security Commission of the Czech Mountaineering Association carried out an analysis of the accident and of the subsequent events. The report dated 7 October 2005 states, inter alia, that the decision of the three climbers present not to attempt to lower Ms Furdíková to the foot of the mountain by ropes had been correct given that they had been informed that a professional rescue team would arrive shortly. However, that information had turned out to be false. The speediness of the rescue in such cases was of primordial importance. Timely medical intervention could probably have saved the life of the injured climber. There were obvious mistakes as regards the professional rescue system. The most important one seemed to be the late arrival of the helicopter for which no satisfactory explanation existed at the time when the report was drafted. The report further contains recommendations on action to be taken by mountaineers in cases of similar accidents. In July 1998 the Council of the European Society for Emergency Medicine adopted a Manifesto for Emergency Medicine in Europe. It provides, inter alia, that emergency medical care of a high standard should be available to every person in need in all situations and at all times. This requires a dedicated system which provides appropriate care for all acutely ill or injured persons. In a speech given at the Congress of Emergency and Disaster Medicine held in Germany in 1998, Professor Dr. B. Domres, President of the German Association of Disaster Medicine, stated, inter alia, that one of the essential elements of the rescue chain was the statutory definition of delays in first-aid intervention while taking into account the territorial and geographical situation of the country concerned. While it was not realistic to require that an emergency team should reach a person whose life was in danger within 10-15 minutes in all European states, that period should be set as a standard in densely populated and highly developed countries. The applicant submits that, as from the moment when an accident is reported, a physician attached to an emergency service is required to start life-saving intervention within 10 to 12 minutes in various Länder in Germany, within 15 minutes in the Czech Republic and within 8 minutes in the United Kingdom. Pursuant to Article 15 § 1, everyone has the right to life. Article 40 guarantees to everyone the right to protection of health. Article 127 enacted with effect from 1 January 2002 provides: “1. The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2. When the Constitutional Court finds that a complaint is justified, it shall deliver a decision stating that a person’s rights or freedoms set out in paragraph 1 were violated as a result of a final decision, by a particular measure or by means of other interference. It shall quash such a decision, measure or other interference. When the violation found is the result of the failure to act, the Constitutional Court may order that [the authority] which violated such rights or freedoms should take the necessary action. At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order that such an authority abstain from violating fundamental rights and freedoms ... or, where appropriate, order that those who violated the rights or freedoms set out in paragraph 1 restore the situation existing prior to the violation. 3. In its decision on a complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 were violated.” ... In accordance with its established practice, the Constitutional Court lacks jurisdiction to examine a complaint lodged by natural or legal persons when the determination of the point in issue involves the preliminary question of conflict of legal rules (see, for example, I. ÚS 96/93, decision of 16 November 1993; II. ÚS 806/00, decision of 16 November 2000; II. ÚS 19/2001, decision of 22 March 2001; or IV. ÚS 11/04, decision of 22 January 2004). Act 576/2004 governs health care and health services. Pursuant to section 4(3), health care is provided correctly where, without delay, medical intervention occurs which is necessary for the correct identification of a disease and for ensuring timely and efficient treatment with a view to healing or improving the state of a person with due regard to the current state of medical science. Act 578/2004 Coll. governs, inter alia, persons providing health services. Under section 11(1), the Ministry of Health gives permission for the operation of an aerial ambulance as an emergency health service. Section 79(1)(b) obliges persons providing health services to give to any person indispensable medical assistance without any unjustified delay. Act 579/2004 Coll. governs the emergency health service, that is urgent assistance to persons whose life or health is at immediate threat (section 1). The emergency health service comprises operation centres and providers of emergency health services. The latter run emergency ambulances on the basis of an authorisation issued by the Ministry of Health and form part of the integrated rescue system of Slovakia (section 2). Operation centres are established by the Ministry of Health, and they direct and co-ordinate the emergency service in a manner which makes it possible to maintain its fluid and permanent character. They are entitled to order the provider of a health service to intervene (section 3). Persons providing health services in an emergency are obliged, inter alia, to establish a response centre in the district concerned so that an ambulance can leave within one minute from the receipt of an order by the operations centre or co-ordination centre involved. The time-limit within which an aerial ambulance is to leave for an emergency intervention is to be laid down in a special regulation (section 5). According to the information available, no regulation governing the aforementioned point has been issued. A person authorised to provide medical assistance in the case of an emergency can be fined by the Ministry of Health in the case of failure to meet one of the obligations under the Act (section 6). At the relevant time the details concerning the emergency medical service were set out in the Regulation of the Ministry of Health no. 741/2007, as amended. The Regulation specified the requirements as regards the equipment and staffing of operation centres, emergency medical stations and ambulances of the emergency medical service including the aerial ones. Annex 3 to the Regulation provided that six stations of aerial emergency medical service were to be established, namely in Bratislava, Banská Bystrica, Nitra, Žilina, Poprad and Košice. Act 544/2002 governs the Mountain Rescue Service. It is established under the authority of the Ministry of the Interior from the budget of which it is financed (section 2). Pursuant to section 4(1)(a), the Mountain Rescue Service organises and carries out the rescue of persons, in particular in co-ordination with the Air Rescue Service. It forms a part of and carries out duties within the integrated rescue system in Slovakia (section 4(2)(a)). Under section 17 of Act 581/2004 an Office is established which, among other things, is charged with the supervision, in the context of public administration, of the provision of health care (“the Health Care Supervisory Office”). It carries out its duties impartially and independently of public authorities or other persons (section 18(2)). Under section 18(1)(b), the Health Care Supervisory Office controls whether health care is provided correctly as required by section 4(3) of Act 576/2004. Where the Office has established shortcomings in the provision of health care, it can initiate the imposition of sanctions on the provider by the respective public authority. Under Article 11, natural persons have the right to protection of their personal rights (personal integrity), in particular their life and health, civil and human dignity, privacy, name and personal characteristics. Under Article 13 § 1, natural persons have the right to request that unjustified infringements of their personal rights be ended and that the consequences of such infringements be eliminated. They also have the right to appropriate just satisfaction. Article 13 § 2 provides that, in cases where the satisfaction obtained under Article 13 § 1 is insufficient, in particular because the injured party’s dignity or social standing has been significantly diminished, the injured party is also entitled to financial compensation for non-pecuniary damage. Pursuant to Article 15, after the death of the injured party the right to the protection of his or her personal integrity passes to his or her spouse and children or, in the case of there being none, to his or her parents. In an action in the Nitra District Court (file no. 10C 142/2002) a mother claimed, among other things, financial compensation for non-pecuniary damage in connection with the death of her daughter. She relied on the previous conviction for manslaughter of a car driver who had run over her daughter. In a judgment of 15 May 2006 the District Court accepted that the plaintiff had suffered damage of a non-pecuniary nature and awarded her 200,000 Slovakian korunas (SKK) by way of compensation. In an action in the Žiar nad Hronom District Court (file no. 7 C 818/96) a mother claimed, among other things, financial compensation for non-pecuniary damage caused to her and her son in connection with the latter’s violent death. She relied on the defendant’s previous conviction for the extremely violent and racist murder of her son. The District Court concluded that the plaintiff and her son had suffered non-pecuniary damage and in a judgment of 9 September 2004 it awarded the plaintiff SKK 100,000 in respect of the non-pecuniary damage which she had suffered and SKK 200,000 in respect of the non-pecuniary damage caused to her son. On 19 January 2005 the Regional Court in Banská Bystrica upheld the first-instance judgment. In the Prešov District Court proceedings file no. 6C 67/2004 the plaintiff claimed compensation for non-pecuniary damage sustained as a result of the fact that her mother had died during childbirth due to the incorrect actions of the physician on duty. On 17 May 2006 the District Court partially granted the claim. It relied on expert opinions concluding that the plaintiff’s mother had not received appropriate health care as required by the law. It ordered the defendant medical institution to pay SKK 400,000 to the plaintiff in compensation for non-pecuniary damage. The judgment became final on 6 November 2006. Act 514/2003 Coll. governs liability for damage caused in the context of the exercise of public authority. Section 2 provides that the Act extends to decision-making and official actions of public authorities related to the rights and interests protected by law and the obligations of natural or legal persons. Public authorities for the purpose of the Act comprise State organs, local self-administration bodies, public-law institutions and also natural or legal persons whom the law has entrusted with the exercise of public authority. Under section 3(1), State liability under the Act comprises, inter alia, incorrect official action. Section 9(1) qualifies as an incorrect official action, inter alia, a public authority’s failure to take an action within the time-limit set, inactivity of a public authority or any other unlawful interference with rights and interests of natural or legal persons protected by law. Pursuant to paragraph 2 of section 9, any person who has suffered damage as a result of incorrect official action is entitled to compensation. Section 17 provides for (i) compensation for pecuniary damage including loss of profit and, (ii) where the finding of a violation of a right does not constitute sufficient satisfaction, also compensation for damage of a nonpecuniary nature. | 0 |
train | 001-86505 | ENG | GBR | ADMISSIBILITY | 2,008 | THOMSON v. THE UNITED KINGDOM | 4 | Inadmissible | Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä | The applicant, Mr Brian Thomson, is a British national who was born in 1946 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 10 August 1995. In April 2001, the applicant made a claim for widows’ benefits. On 10 April 2001 the applicant was informed that his claim had been disallowed as he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law. The applicant was not in receipt of child benefit at the time of his claim. The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007. | 0 |
train | 001-61681 | ENG | TUR | CHAMBER | 2,004 | CASE OF NURAY ŞEN v. TURKEY (No. 2) | 3 | No violation of Art. 2 with regard to death;Violation of Art. 2 with regard to lack of effective investigation;No violation of Art. 3;Violation of Art. 13;No violation of Art. 14;Not necessary to examine Art. 34 (former Art. 25);Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award | Viera Strážnická | 8. The applicant was born in 1951 and, at the time of lodging her application, lived in Nizip, Gaziantep, Turkey. She now lives in Paris, having apparently been granted asylum in France. The applicant stated that she made the application not only on her own behalf but also on behalf of her daughter and deceased husband. The case concerns the applicant’s allegations that her husband, Mehmet Şen, was abducted, tortured and killed by members of the security forces. 9. The facts surrounding the death of Mehmet Şen, are in dispute between the parties. 10. The facts as presented by the applicant are set out in Part A below. The facts presented by the Government are contained in Part B. The witness evidence taken by Delegates of the Commission at a hearing in Ankara is summarised in Part C. The summary of the other evidence submitted by the parties, in documentary form, which the Court considers relevant is to be found in Part D. 11. The applicant’s husband, Mehmet Şen, was a Turkish national of Kurdish origin. He was an active member of the Democracy Party (the “DEP” Party) in Turkey until it withdrew from local elections. He had been the Party’s candidate for the post of the Mayor of Ayran (Birecik, Şanlı Urfa) in the 1994 local elections. 12. Throughout his involvement with the DEP, Mehmet Şen was followed and threatened by plain-clothed police and this continued after the withdrawal of his candidacy. On 25 March 1994 Mehmet Şen informed the applicant that he was not being followed by the usual plain-clothed policemen but by other people whom he said might be “hit-men”. 13. On 26 March 1994 at approximately 5 p.m., two plain-clothed policemen had a drink at the Çağdaş café in Birecik, which was owned by Mehmet Şen and Rasim Ağpak. At approximately 7 p.m., a Doğan SLX car (registration number 34 PLT 30) blocked the door of the café. Three plain-clothed persons entered, leaving the car engine running with a fourth person remaining in the vehicle. One of the three persons asked Rasim Ağpak whether he was Mehmet Şen. When he answered negatively, the person approached Mehmet Şen, who confirmed his identity and showed his identity card. Before the nine people in the café, the abductors stated that they were plain-clothed police who were there to take Mehmet Şen to the Security Directorate. Mehmet Şen was grabbed by the arms and taken away in the waiting car. It was later ascertained that a second car with four persons inside had left with the Doğan SLX vehicle. 14. Upon hearing the news of the abduction, the applicant contacted, inter alia: (a) the Nizip Anti-Terrorism Department, who denied holding Mehmet Şen or any knowledge of the abduction; (b) the Gaziantep Security Directorate who also denied all knowledge; and (c) the Gaziantep Branch of the Human Rights Association, with a request that they look into the matter. 15. Other persons also contacted the Gaziantep Security Directorate on the applicant’s behalf, but were told that Mehmet Şen was not in custody. 16. On 28 March 1994 the applicant applied to the Nizip Prosecution by way of petition, reporting that Mehmet Şen had been abducted. 17. On 30 March 1994 an unknown person telephoned the “Özgür Gündem” newspaper and the Gaziantep Branch of the DEP, saying that Mehmet Şen’s body was at the Gaziantep State Hospital. The applicant went to the hospital and, on examining the corpse, concluded that her husband had been killed under torture. She saw the body with the right eye gouged out, the right side of the head crushed to pieces, a broken right arm, broken fingers, marks of blows to the body, and a bullet wound to the head and one to the neck, with no traces of blood, implying that the shots had been fired after death. 18. An autopsy report concluded that there was a bullet wound to the left side of the chest, a bullet wound above the right eyebrow, fired at almost point blank range, exiting the body from the back of the head, a bullet wound to the left cheek, fired at a distance of 95 cm, which had travelled through the body and lodged in the rib cage, that there were no other wounds, blows to the body or head, and that death had been caused by the bullet to the head. 19. On 31 March 1994 the applicant and the DEP Member of Parliament for Siirt, Naif Güneş, met the representative of the Governor of Gaziantep. The Gaziantep Security Director and the Provincial Gendarmes Commander were also present. The Gendarmes Commander said that the body of Mehmet Şen had been found by a shepherd near the village of Karpuzkaya in the Şehit Kamil District of Gaziantep, and that the gendarmes had collected the body. The State Prosecutor, Naci Ayaz, gave the applicant the same information. He also stated that the body had had no identity card on it, and therefore the autopsy report was headed “unidentified body”. 20. However, the applicant was informed that a person at the hospital had witnessed four plain-clothed policemen take Mehmet Şen’s body to the hospital morgue on the night of 29 March 1994. 21. On 13 April 1994 the Gaziantep Branch of the Human Rights Association, on behalf of the applicant, made an application to the Governor of Gaziantep and the State Prosecution. On 22 April 1994, the Governor replied that it had not been possible to determine any suspect or suspects but that the inquiries were continuing. The State Prosecution also indicated that the inquiry into the death was continuing. 22. The applicant was not satisfied with the inquiries and the answers she had been given. The official information she had received was allegedly inconsistent with her own. She therefore continued contacting the State for answers. She was informed on 26 May 1994 by the State Prosecutor that there had been no developments. 23. According to the statements of Osman Özer, Durmuş Kaplan, Maksut Yıldırım, Rasim Ağpak and Abit Şahin, who had been present when Mr Şen was abducted on 26 March 1994, three people entered the café where Mehmet Şen was playing cards. One of them asked where he could find Mr Şen. When Mehmet Şen presented himself, he was asked to show his identity card. Then the person in question came closer to Mr Şen and showed him a card, the details of which the witnesses could not see. Osman Özer and Maksut Yıldırım also stated that the persons who came into the café had not openly presented themselves as plain-clothed policemen, so they could not say for certain that they were. Rasim Ağpak stated that Mehmet Şen had not asked any questions or resisted the abductors. It was as if he had known them. 24. On 29 March 1994 Mehmet Şen’s body was found near the quarry of Karpuzkaya on the Kahramanmaraş-Gaziantep highway construction site. On the same day an autopsy was carried out. The autopsy report concluded that death had resulted from a fractured skull, the destruction of the cellular tissues of the brain and an internal haemorrhage due to a bullet wound. There were no signs of assault or torture. 25. The Nizip Public Prosecutor started an investigation into the killing of Mehmet Şen. On 18 May 1994 a decision of non-jurisdiction was issued and the file was sent to the Gaziantep Public Prosecutor. According to the preliminary findings, Mehmet Şen had not been taken into custody by the security forces. The car in which he was driven away carried a false registration number. The investigation was still pending in June 1996. 26. The facts of the case being in dispute between the parties, three Delegates of the Commission took evidence in Ankara between 16 and 18 June 1998. The applicant appeared before the Delegates, as did ten other witnesses for one or other party. Certain other witnesses had been summoned but failed to appear. The evidence of those who attended the hearing may be summarised as follows: 27. Mrs Şen was born in 1951 and had been married to Mehmet Şen since 1971. She had been a teacher and he ran the Çağdaş coffee house in Nizip, owned by his brother. He had had no personal enemies or debts. Nor had he been involved in any vendetta. 28. Mr Şen became politically active around 1991, helping to create the HEP Party and the DEP Party in 1992. The DEP withdrew from the 1994 local elections due to the intimidation of its members (threats, detention and murders). 29. Her husband had been a leading member of DEP and, when he stood as a candidate for the post of the Mayor of Ayran in early 1994, he was threatened by the Gendarmes Station Commander of that constituency (who may have been called Sergeant-Major Orhan), and regularly picked up by the police for questioning. He was so intimidated that he resorted to carrying a licensed gun and rarely went out alone. He was taken to the police station many times and harassed. He sold the gun eventually as he was detained several times at night with a view to ascertaining whether the gun had been involved in incidents. However, this was just part of the harassment to which he was subjected. 30. Two days before he was abducted, Mr Şen told his wife that he was being followed by hit-men, men who were not his previous surveillance officers. He had been alerted to this possibility by an acquaintance who had been detained and interrogated about Mr Şen, and about whom the interrogators had said that Mr Şen would be “done away with”. Some seven people had been killed in the recent past by unknown perpetrators because of their DEP affiliation and/or membership of the Kurdistan National Assembly. These hit men were not recognised by Mr Şen, who had known most of the local policemen. They were of medium height and able-bodied, carrying radios and guns. Mrs Şen had understood her husband to mean that they were contra-guerrillas operating under State authority, as confirmed in the later Susurluk report. 31. On 16 March 1994 Mrs Şen was informed of her husband’s abduction 5 minutes after its occurrence by Osman Özer, one of the café’s employees. Mr Özer told her that two strangers had been in the café for tea. They seemed tense, made a telephone call and left. Then a Doğan SLX car (registration number 34 PLT 30) stopped in front of the café, blocking the door. Of the four unknown people in the vehicle, one stayed in the driver’s seat with the engine running, another, carrying a gun and a radio, waited at the door. That man was well dressed and middle-aged. Two others, casually dressed, strong looking and with apparent special training, walked towards Rasim Ağpak, who looked rather like Mr Şen, and then moved on to Mr Şen, who identified himself. The two flashed identity cards at the people in the café. The armed man at the door spoke into his radio, “OK, Sir, we’ve got him”, and then said to Mr Şen, “You’re coming with us to police headquarters. We have business with you.” Mr Şen tried to ask questions but was dragged towards the door by the two men, holding him under his armpits. He was put in the back of the car, which drove off immediately. Despite the shock and panic of the people in the café, they managed to note down the registration number of the car. 32. These matters were discussed over and over again in the following days with Osman Özer, Rasim Ağpak, Maksut Yıldırım and Durmuş Kaplan because Mrs Şen wanted to learn as much as possible about the details of the incident. It was during such discussions with others that she learnt that another car, with four other plain-clothed people in it, drove off behind the first. She had not talked to Abit Şahin, who had also witnessed the events, as she did not know him. 33. The people in the café had said that the abductors had been policemen because of the gun, the radio, the identity cards they had shown everyone and what they had said. However, the café witnesses were taken from their homes in the ensuing days, at 2 o’clock in the morning, for interrogation, and statements were demanded of them. This had intimidated them. 34. Immediately after Mr Özer’s call, Mrs Şen called the Nizip Police Headquarters and the Anti-Terrorism Department. They said that they had not taken him into custody and had no information about him. They confirmed that they would investigate. She tried contacting the Mayor, a Member of Parliament, a delegation from Switzerland and DEP members, for them to make inquiries about her husband’s fate. 35. Mrs Şen’s inquiries with the Urfa, Gaziantep and Birecik Police proved fruitless. Travelling had been difficult at the time because of roadblocks and identity checks, through which only the security forces could pass easily. She nevertheless went to Adana after she had been told by a lawyer called Çağatay Özaslan that the car number plate was a forged one used by the Adana Police. The Public Prosecutor there was not helpful. He referred to a DEP Member of Parliament who had been killed and added, “What can I tell you? What can I do?” She was advised to go home and wait. 36. She then met a DEP member called Müskün Kurucu who told her that the Gaziantep branch of the DEP had telephoned to say that she should return home immediately. On her arrival, she was told that the body of her husband was in the morgue at the State hospital. The Gaziantep DEP and the newspaper “Özgür Gündem” had been telephoned by a well-spoken Turkish lady who had provided this information. Mr Şen’s relatives were called and Mrs Şen met her sister-in-law and father-in-law at the hospital, where a crowd had gathered, cordoned off by the police. 37. Mrs Şen was not informed of the circumstances surrounding the recovery of the body. Subsequently, the Public Prosecutor of Gaziantep, Mr Naci Ayaz, informed her that the body had been found by the gendarmerie in the rural area of Karpuzkaya, in the Şehit Kamil District of Gaziantep. The body was unidentifiable, as it had no personal belongings or identity card on it, until the inner pocket of the suit, which the corpse was wearing, was ripped open to disclose Mr Şen’s name, written by his tailor on the lining. However, Mrs Şen said that the suit had not been tailor-made, but had been a ready-to-wear purchase from a shop. She did not recall the gendarmes mentioning this matter to her. She therefore insisted on further information as to how her husband’s body had been identified. She was told that her husband’s belongings were to be kept for the investigation. A ring and watch were returned to her father-in-law in the autumn of that year. 38. The sight of her husband’s body was horrible: the right side of his head had been smashed; his right eye was not in place; his right hand fingers and arm appeared broken, and there was a hole through his throat with no blood around it. She saw only one bullet wound. She insisted on having a copy of the autopsy report, which she was not given until long after the burial, and which did not correspond to her observations (such as its description of two other bullet wounds to the face). 39. Mrs Şen told the Public Prosecutor that her husband had been tortured, and insisted that a murder investigation be conducted. However, the Public Prosecutor would not listen to her and no statement or information was sought from her. As she persisted in visiting the Prosecutor regularly, a statement was taken from her a month later on 26 April 1994. However, no progress whatsoever was made in the investigation, even years later. 40. After her husband had been killed, her house was put under constant surveillance, all visitors being recorded, and many asked by the policemen on duty why they were visiting such terrorists. Her 12-year-old daughter had been stopped as she was leaving school and asked by plain-clothed policemen whether her mother used her as a courier and what kind of papers she was carrying. She was so scared by this and the idea that she might be killed like her father, that she stopped attending school. 41. Mrs Şen received threatening telephone calls at that time. The caller said that he was a contra-guerrilla and that she would be killed too. She changed the locks on the doors to her home as her husband had had his house keys on him when he had been abducted. She and her daughter were away on 28 May 1994 when special policemen unsuccessfully tried to enter the house, according to the employees of the bakery situated on the ground floor of her building. The police then went to the house of Mrs Şen’s friends where her daughter was staying and asked why they had taken in a terrorist’s daughter. The father of that family was placed in custody for four or five days and interrogated about his relationship with the Şen family. 42. Mrs Şen was warned not to go home as there was a purple civilian car waiting at the corner of the street and that she would be taken away. Since then she has not returned home even to recuperate her belongings or souvenirs of her husband. Out of the same concerns, she was living separately from her daughter. 43. She was taken into custody on 10 November 1995 in Diyarbakır and interrogated for 11 days about her alleged membership of the PKK (the Kurdistan Workers’ Party) (see her other application to the Convention organs – Nuray Şen v. Turkey, no. 41478/98, judgment of 17 June 2003). 44. Mr Şen was an elderly gentleman, born in 1916. He was the father of the deceased Mehmet Şen. His son had not told him of his fears for his life prior to his abduction, nor of the difficulties he had faced as a politician. He had had no enemies whatsoever. Everyone liked him. 45. Mr Şen was informed the morning after the event that his son had been seized by policemen the evening before. He intuitively knew that he was dead. He went to Nizip. His daughter-in-law had gone to Adana in search of her husband. In Nizip he heard from Gaziantep that his son had been killed. 46. Mr Şen went to the Gaziantep Hospital to identify the body. He did not meet Nuray Şen there. He could not bear to look at his son’s tortured corpse, but noticed that an eye was missing, apparently caused by a bullet wound, and that he had a fractured finger. His son’s clothing was bloodstained. Apparently he had been killed by the police, perhaps because of his candidacy for Mayor. 47. The police ordered him to remove the body, but he did not do so until the following day. A great crowd gathered. They took the body back to the village and buried it. There were police and gendarmes everywhere on alert, who behaved disrespectfully. Nuray Şen was at the funeral. 48. One or two months later he was called to appear before the Prosecutor and Judge to receive his son’s personal possessions. He took the watch and ring but not the clothes which were soaked in blood. The only inquiry made later was by the Gendarmes Station Commander, Sergeant-Major Orhan, about Nuray Şen’s stay with him for 9 or 10 days, which dates the gendarmes deliberately recorded wrongly. 49. Mr Şen was born in 1970. He was no relation to the deceased Mehmet Şen and did not know him. 50. In May 1994 the witness was stopped at a police roadblock at the exit from Nizip, where everyone’s identity was checked. One could not leave Nizip without going through this checkpoint. He was also given a body search and asked why he was carrying a copy of the newspaper “Özgür Ülke”. He alleged that, because of his surname and the possession of the newspaper, he was taken into a field by three officers and tortured with beatings for two or three hours. In view of this experience, he could understand how Mehmet Şen had died. 51. Mr Aktaran was born in 1958 and was a Public Prosecutor at Gaziantep a year after the events, from February to August 1995. 52. The investigation into the death of Mehmet Şen was opened by the Gaziantep Chief Prosecutor, Naci Ayaz. The file was subsequently transferred to him. It contained witness statements taken by the police, Mrs Şen’s statement to the Prosecutor and the autopsy report, but provided no serious leads as to the perpetrator of the crime. There was no ballistic expertise of the bullet found in Mr Şen’s body or of the empty cartridge found near his corpse. No evidence had been taken from police witnesses because none had been identified as being implicated in the death. The suggestion that Mr Şen had been involved in vendettas was not taken up as it had no serious basis. 53. On receiving the file, the witness found lacking an inquiry into the registration number of the car in which Mr Şen had been abducted – a honey-coloured vehicle with a registration containing the letters PLT, PUC or PUD. This inquiry revealed that either the car had had false number plates or that the witnesses had been mistaken about the registration number. He did not seek other information following the evidence of the eyewitness Osman Özer as to a green car with the number 34 PVC 30 or 34 PVD 30. He was unaware of any significant discrepancies in the overall evidence on this or other points. 54. Mr Aktaran considered that he and his colleague had conducted a satisfactory investigation in the circumstances. Prosecutors do not need to take further evidence from people whose statements have already been taken by the police. At the outset he had been open-minded about the applicant’s allegation that the security forces might have been involved in the incident. However, there had been nothing in the various statements taken to suggest that an inquiry into any particular officers was required. He placed a permanent search warrant on the file, so that the investigation would remain open for another 20-25 years should new evidence appear. 55. Mr Kelleci was born in 1973 and at the material time was working as a reporter for the Gaziantep office of the “Özgür Gündem” newspaper. He had been acquainted with Mr Şen. 56. In a general operation against the “Özgür Gündem” newspaper on 11 December 1993, the witness was taken into custody and held for some six days. On the fourth day of his interrogation, the name of Mehmet Şen was mentioned with a threat “to finish him off” or “do him in” along with two other named persons. Mr Şen’s name was cursed. The witness thought that the remarks were intended to be passed on to Mr Şen. He later informed Mr Şen of this threat and advised him to take care. 57. The next time he saw Mr Şen was at the morgue. His newspaper had been telephoned with the news by a well-spoken Turkish lady. He had taken the call himself. When he saw the corpse, of which he took photographs, he remarked the strange position of the wrists, which looked fractured. He did not see the injured side of the face which was turned parallel to the table. No autopsy had been performed on the body at that stage. 58. On returning home from the morgue, he received an anonymous telephone call also threatening him with death. 59. Mr Kelleci accompanied Mrs Şen and a delegation to the Governor’s office on 31 March 1994. Afterwards, the witness saw the Gaziantep Gendarmes Commander, Chief of Police Hüseyin Çapkın and the Deputy Governor. They stated that Mr Şen’s death was possibly linked to gambling debts and had not been perpetrated by the State. He told them of the death threat he had personally received but it was not taken seriously. They persisted with the gambling debt theory and assured him that Mr Şen’s murderer would be found. 60. Mr Alan was born in 1958 and was a tailor by profession in Gaziantep, as well as the Chairman and District Leader of the DEP Party at the material time. He knew Mehmet Şen from their common political activities. In those days there had been many killings by unknown perpetrators which, together with the bombing of the Party’s headquarters in Ankara, led to their withdrawal from the imminent elections. 61. Mr Şen came to his shop four days before his abduction and offered to repair his car. When driving it away, the witness noticed that Mr Şen was being followed by a white police car, a Renault Toros. This had happened to him too. The occupants were obviously plain-clothed policemen, whom he could identify if he saw them again. All Party members were under great pressure at that time. Even after the Party’s withdrawal from the elections, it continued: he was taken into custody at midnight on 29 March 1994, four days after Mr Şen’s abduction, and challenged about disseminating propaganda for the Welfare Party instead. 62. On the drive into custody, he was told that Mr Şen had “changed worlds”, and that he would be “sent to the place where he is”. He had understood the remarks to mean that Mr Şen was dead and that he would be killed too. (He had not heard of the recovery of Mr Şen’s corpse at that stage, so he was not too sure.) Panicking, the witness claimed to have made certain telephone calls before he had been taken from his house, including a call to the normal police. He was then punched and, before the car left town, it turned round and deposited him at the police anti-terrorism department, some 220 meters from his house. 63. Mr Alan was held in police custody for 16 days. The custody records indicating a shorter period were incorrect. He was interrogated under torture. Mr Şen was not mentioned but Mr Alan was told that his Party was “finished in Nizip”. He was subsequently remanded in custody for three months, accused of being, inter alia, a member of, and aiding and abetting, the PKK. On release, these charges were dropped and a remaining charge of possessing a gun without a licence was still pending. 64. Dr Erkol was born in 1962. She had worked as an expert in forensic medicine and as a lecturer at the Medical Faculty of Gaziantep University since 1990. 65. Dr Erkol performed the autopsy on Mehmet Şen, whose identity was unknown at that time, as was that of his killer. Given the frequent blood feuds in the area, she suspected that the murder was another of that kind. She was struck by the fact that the victim had been blindfolded. Dr Ahmet Aslan, an unspecialised physician, assisted her at the autopsy. The Public Prosecutor, Naci Ayaz, whom the witness described as a meticulous and responsible professional, attended the procedure. 66. The body, fully clothed, was inspected on site and photographed by Dr Aslan and the Prosecutor. It was then taken to the hospital for examination. The bloodstains on the victim’s jacket indicated that he had been shot whilst clothed and still alive. The clothes were removed at the morgue. Dr Erkol had been told prior to the autopsy, and then saw herself, that the name of Mehmet Şen had been written in biro on the inside pocket of the jacket, but that was insufficient evidence of identity. She did not follow the local news, so had not heard about Mr Şen’s abduction. It was not her responsibility to identify the corpse. 67. The body was X-rayed to verify the placement of any bullets still lodged in it. The X-rays were not kept. There were two bullet wounds to the head, one bullet having remained lodged in the chest. They had caused extensive fracturing, brain damage and haemorrhaging, resulting in death, some 36 hours to four days before the autopsy. It would appear that Mr Şen had been killed two or three hours after his last meal. It was not possible to be more precise about the time of death given the limited facilities available in Gaziantep. The bullet which had entered and exited the skull had torn the victim’s eye out. Neither the arms nor fingers had been fractured, but their distorted position would have been due to the onset of rigor mortis. 68. The remaining bullet would have been kept. It was probably of a wide calibre – 9 mm – fired from a short-barrelled gun, within a 95 cm range of the body. A ballistic analysis could prove valuable only if linked to a suspect weapon and a comparative study. 69. The body showed no trace of ill-treatment. In the absence of any obvious external signs or allegations of torture, no examination of the internal organs was conducted. However, the body had begun to decompose, presenting signs of post-mortem discolouring, distortion through rigor mortis, and, with the bullet injuries and autopsy incisions, was a very ugly sight. An untrained person might understandably misconstrue these elements as evidence of ill-treatment. Moreover, the body was not washed down after the autopsy, so it may have looked even bloodier. Washing was for the hoca, a religious leader on duty at the morgue, or the family to perform. The hole in the throat seen by Mrs Şen would have been an autopsy incision. 70. People cannot enter the morgue without the Prosecutor’s authorisation, other than perhaps a very close relative who might be allowed to view the body by the hoca. She could not tell from the poor photocopy of the photograph taken by the journalist, Mr Kelleci, purportedly of Mr Şen’s corpse in the morgue, whether that photograph had been taken before or after the autopsy. However, judging by the position of one of the hands in the photograph, it was probable it had been taken before the autopsy had been conducted. 71. It transpired that the photographs provided by the Government at this point in the hearing, and in respect of which the witness noted several contradictions with the autopsy findings, were not of Mr Şen’s corpse. 72. Mr Güdül was born in 1947 and was the official chauffeur for the law courts. He also accompanied the Prosecutor at autopsies. 73. In the present case he had driven the Prosecutor to where the body had been found. It was on the road construction site but accessible by car, albeit very dusty because of the nearby sand quarries and frequent heavy lorry traffic. There were gendarmes at the scene, as well as a finger print expert, a clerk and a doctor. The Prosecutor made a record which included the position of the body. This procedure took about an hour. The body was lying on its back, clothed. There was a yellow, car-polishing cloth over its eyes. There was blood on the ground which had come from the back of the head. The body was transported by ambulance to the Gaziantep State Hospital morgue as an on-site autopsy was not possible. There had been no discussion as to its identity. 74. He was sure that no one saw the corpse at the morgue other than the officials concerned. He described the same X-ray, medical procedures and findings as Dr Erkol, having been present throughout. He did not recall the name of Mr Şen being inscribed inside his jacket. He had had no idea who the individual was. That was a police matter. For him it was just an ordinary incident. He did not recall being present when Mr Şen’s father arrived at the morgue to identify the corpse, although his signature had been on the relevant document. The circumstances had been very distressing at the time. 75. Mr Pekbalcı was born in 1956 and was a farmer by profession. He had been working on the road construction site, obtaining materials from the quarry using explosives. He had had a fright after one particular detonation when he spotted a corpse about 10 m away from him, which, without approaching it, he reported to the Gendarmes Station of Aktoprak. He signed a statement to that effect at the station. The place where the body was found was accessible by car but was frequented mostly by lorries. He had been working with İbrahim Kilit at the time. 76. Mr Sünbül was born in 1970 and was a Gendarmes Non-commissioned Officer. At the material time he was Station Commander at the Şehitarif Sub-station which was attached to the Central District Station in Gaziantep. His superior was Hüseyin Kanat, the District Gendarmes Commander. 77. Mr Sünbül had been at his station when MM Pekbalcı and Kilit reported the presence of a corpse on the Tekfen highway construction site. He took statements from them and then went with a unit of his men to the location. There they found the clothed body of a man, some 45-50 years old, lying on his back, with firearm wounds to his head and face. He checked the throat artery, confirming death, cordoned off the area and notified his superiors. Although there appeared to be two bullet wounds, only one cartridge was found, despite a thorough search of the immediate vicinity. He had no idea of the time of death or how long the body had been there. The person in charge of the criminal laboratory at the Provincial Gendarmes Headquarters took photographs. These would still be in the gendarmes’ files if they had not been sent to the Public Prosecutor. 78. The next day he typed up a report from his notes about the corpse, which had not been identified as no identity papers had been found, although Mr Şen’s name had been written on the jacket. The Prosecutor must have been shown that. He had not been aware of Mrs Şen’s missing person report the day before. His station had not been informed of that. The abduction had taken place in Nizip and his station would not have been informed unless directly asked to make inquiries. He presumed that his superiors had conducted the necessary inquiries after he had told them about the name in the jacket. 79. Mr Sünbül sent the empty cartridge case, together with the person’s ring and watch and the documents he had prepared, to the Public Prosecutor that day. The blindfold was also transmitted. It had the name and number of a petrol station on it, about which inquiries were made by his superior officer. No analysis was carried out of the soil near the corpse for the fibres of other clothes or the like. He could not recall whether casts were made of the footprints near the body. 80. The body’s location had been accessible by car. The area consisted of compacted earth on which there were footprints. Only the site workers frequented the area and the body had been well hidden from view. There were no vehicle tracks within an 8 to 10 m perimeter of the corpse. 81. He did not recall whether there had been checkpoints in place on the day the body was found. Subsequently, he interviewed local villagers and site workers in an unsuccessful effort to gather information about the incident. It would have been possible to have transported Mr Şen to the site using secondary roads and thus avoiding the road-blocks on the main route. If he had been informed of Mr Şen’s abduction, he would have instructed the checkpoints under his control to look out for him. At the checkpoint, people’s identity cards would be checked manually against a list of wanted persons. The officers could also search vehicles and persons who were suspect. 82. Mr Kanat was born in 1969 and he was the Şehit Kamil District Gendarmes Commander at the material time, with six stations under his command, including a large central station. The workload was very heavy. 83. After being notified of the incident by the Station Commander, he in turn notified the Provincial Gendarmes Commander and the regiment’s operations centre. He accompanied the Public Prosecutor to the scene, which had already been secured on his instructions by the Station Commander. The regiment’s team of crime specialists arrived in separate vehicles and carried out a systematic and detailed investigation. The photographs which they had taken should have been retained at the Gaziantep Central Gendarmerie. They would have been sent to the Public Prosecutor if requested. They were kept principally to assist in identifying the body and showing them to people assisting with the inquiries. 84. Mr Kanat confirmed Mr Sünbül’s description of the corpse, the bullet wounds, the empty cartridge and the name written inside the jacket. The body seemed to have been in place for some time – perhaps 15 or 16 hours. He thought that a ballistic test had been made at a later date. The results would be in the Prosecutor’s file. The blindfold was marked with the name of a service station called Petrol Ofisi, from which it was thought that the victim could have been from Nizip. However, he had not heard of the abduction of Mr Şen beforehand. The area was searched for footprints or other leads. Footprints were found near the body which could have been those of the people who had discovered it. However, they were not recent enough for casts to be made. 85. On the instructions of the Prosecutor, they searched the body and found a small piece of paper in the inner pocket of the jacket with the name Mehmet Şen written on it. It could also have been the case that the name had been written in very small letters on the pocket lining. Perhaps a dry cleaner had done this. They took the blindfold and notified the regiment’s operations’ centre to confirm the person’s identity. This was not confirmed until the witness returned to the main station in Gaziantep. He was not present at the autopsy but did attend the funeral. 86. After establishing that the deceased person was Mehmet Şen, Mr Kanat went to Nizip where he started his inquiries. According to the statements of witnesses, the victim was last seen playing cards at the coffee shop. Three people entered the café and then left with him by car. The vehicle bore the registration number 35 PLT (or PLV) 30 which, following inquiries by the provincial police headquarters, proved to be false. Other similar numbers were searched unsuccessfully. He rejected any suggestion that the security forces in the area had been operating in vehicles with false number plates. All their vehicles had official plates. Inquiries were also made as to the identity of a woman who worked in a nightclub, and who was mentioned in the statements taken, but a check on all the nightclubs proved fruitless. Nothing suspicious was reported by the local stations or the check-points on the main road. In any event, it would not have been possible for them to check every passing vehicle as traffic was heavy. Besides, the killer could have taken the secondary roads with no roadblocks. 87. At first he did not consider the possibility that the death had been perpetrated by officials. He thought that this was a settling of scores within the “organisation”, particularly as the victim had been a candidate in local elections, and such unpleasant incidents frequently occurred at the time. Later however he did make unofficial background inquiries into Mrs Şen’s allegation of official involvement, particularly concerning police employees, but he found no evidence to support her claims. He thus rejected this theory. He made no contact himself with Mrs Şen, the café employees or any DEP Party members. Statements were taken by his subordinates about the murder. The police also took statements, possibly because of the abduction offence which had occurred within their jurisdiction. No records were drawn up of inquiries which proved fruitless. So, for example, if someone had gone to the aforementioned petrol station but inquiries there had revealed nothing pertinent, no record of that visit would have been made. 88. More than ten people had been murdered by firearms during the three years he was stationed in the area. Most of the perpetrators of those crimes had been found. The killer of an unknown person, whose head had been crushed beyond recognition, was not found, like the murderer of Mr Şen. These two incidents were unusual. He had heard that seven members of the DEP Party had been murdered, but did not know if it had occurred at the material time. He had not heard of groups of contra-guerrillas employed unofficially to eliminate political opponents or activists, other than what he had read in newspapers. 89. Certain key witnesses failed to appear before the Delegates of the Commission: the eyewitnesses to the abduction of Mr Şen from the coffee shop, namely Osman Özer, Rasim Ağpak, Maksut Yıldırım, Durmuş Kaplan and Abit Şahin, who were to have been summonsed through the applicant’s representatives, and the principal Public Prosecutor in the case, Naci Ayaz, summonsed through the Government Agent. Mr Ayaz refused to attend the hearing because of a heavy workload. 90. The applicant declared that her husband had been abducted from his place of work by plain-clothed policemen on 26 March 1993 around 7 p.m. and that she had had no news of him since. There had been seven eyewitnesses to the event. The applicant also lodged a formal criminal complaint. The Prosecutor immediately ordered the Nizip Security Directorate, urgently, to make the necessary inquiries and take the pertinent statements. On 30 March 1994 the Prosecutor issued a similar instruction to the Gaziantep Population Service. That day, he also issued the burial certificate and authorisation. On 18 April 1994, the Prosecutor requested an urgent reply to his instructions from the Nizip Security Directorate. 91. The Prosecutor, Naci Ayaz, instructed the Gaziantep Gendarmerie to make an in-depth, discreet investigation into the murder, to identify the assassins, and to respect their defence rights on arrest, to take the evidence of eyewitnesses and to transmit the results to him. 92. Mr Kilit described how his colleague, Selahattin Pekbalcı, had found the corpse of Mehmet Şen while working nearby on 29 March 1994, and he had driven over with his lorry to see it and immediately notified the gendarmes. He did not get out of the lorry to examine the corpse more closely. Mr Pekbalcı stated that he had been recuperating cables for explosives work and, while walking down the highway, he had spotted the corpse. He then informed Mr Kilit and accompanied him to the gendarmerie. 93. Mr Mehmet Sünbül, a Gendarmes Sergeant, recorded that Mr Pekbalcı had said to him that he had spotted the corpse on the highway construction site but had been too scared to go over to it. Mr Sünbül had made a sketch of the site and the placement of the corpse. That record also contained details of the few personal effects found on the deceased, which effects included a ring and watch. 94. Mr Sünbül had made a sketch of the site and the placement of the corpse. He recorded that the body of an unidentified person had been found. The deceased was Mehmet Şen, killed by a bullet to the head. The crime had probably been committed some 24 to 36 hours before the body was discovered. The identity and number of the assassins were unknown. The minutes described, inter alia, how the gendarmes had been informed of the incident and the state of the corpse (see also paragraph 95 below). 95. The Gendarmes Command had informed the Prosecutor’s Office by telephone that the body of an unidentified man had been found, shot, 2 km from the village of Karpuzkaya. Prosecutor Naci Ayaz and other officials went to the scene of the incident at the highway construction site. The area had been cordoned off. The state of the body was described and the evidence of Mehmet Sünbül was taken. He said that around 2 p.m. that day two construction workers had come to the Gendarmes Station and reported the body. He went with his team and the two workers to the scene. He found the body of a man of around 40 years of age, and gave other details about the corpse. An empty cartridge had been found a metre away. He noted that the name Mehmet Şen had been written in biro on the lining of the inside pocket of the deceased’s jacket. Photographs were taken of the body and the scene. The doctor present said that an autopsy could not be conducted there and then as night was falling, so the body was taken to the State Hospital. 96. The state of the corpse and its clothing were described. The cause of death was found to have been a bullet wound to the skull, causing major brain damage and haemorrhaging, some 36 hours to 4 days before the examination. 97. The report, written by Mr Hüseyin Kanat, described the finding of the body of an unknown person who had been murdered with a 9 mm calibre pistol. The deceased’s clothes and personal effects were depicted. On 29 March 1994 around 2 p.m. a telephone call was received at the gendarmerie from someone calling himself Mehmet Şen (sic), reporting the finding of a male corpse. The Chief Prosecutor was immediately informed. After an investigation, it was established that the person had been killed on 28 March 1994. 98. The report, also written by Mr Hüseyin Kanat, gave the identity of the victim, his wife and their address. It mentioned the abduction on 26 March 1994 and that inquiries were continuing. 99. The Prosecutor, Naci Ayaz, described the finding of an unidentified corpse near the Karpuzkaya village on 29 March 1994 and the subsequent identification of the body by Necip Şen, the father of the victim, the next day. 100. The property found on or near the deceased was listed. It included a 9 mm empty cartridge, cigarettes and a lighter, and a windscreen cloth from the Bucak petrol station. 101. Mr Kaplan stated that he had known Mehmet Şen for some 5 to 10 years. Mr Şen had been his associate in running the Çağdaş Café. On 26 March 1994 around 4 or 5 p.m., Mr Şen had been playing cards in the café with others. Mr Kaplan had been at another table. Three unknown men came into the café. Two stayed at the door and the third approached Mr Şen. While asking to see his identity, the man showed him his. The latter had had his back to Mr Kaplan and was carrying a walkie-talkie. One of the men at the door told him to hurry up, whereupon Mr Kaplan looked at him. He described that individual. Mr Şen left the café with them, quite normally, in a car with a registration number beginning with the numbers “34”. Before meeting Mr Şen, Mr Kaplan had known that he had been a heavily indebted gambler. Mr Şen’s brother in Germany paid his debts. Mr Şen knew a certain İnci Doğan, a hostess at the night club in Gaziantep. Mr Kaplan had previously discussed with Mr Şen the latter’s DEP Party candidature for the post of the Mayor of Ayran. 102. Mr Kaplan confirmed his statement above (paragraph 101) and added that he had not seen whether an actual identity card had been shown to Mr Şen by the stranger who had approached him; nor did he hear the reason why Mr Şen was being taken away. Mr Şen had not seemed perturbed, however. Because of gambling debts amounting to 50-100 million Turkish lira, Mr Şen had sold two bakeries which he had owned, and his home and café were mortgaged. 103. Mr Özer declared that he had known Mehmet Şen for 2 or 3 years. He was one of his associates in the running of the Çağdaş Café. On 26 March 1994 around 4 or 5 p.m., they had been playing cards with two others when three unknown men came into the café. Mr Özer described two of them. One man came over to the card table and asked for Mehmet Şen, who identified himself. On request, Mr Şen showed his identity card, which the man kept, and then showed his, asking Mr Şen to follow him, which he did without protest. The man said to them, “It’s not serious.” The four left in a metal green coloured Doğan SLX, registration number 34 PVC (or PVD) 30. He immediately notified Mrs Şen, but was unable to tell her who the men were. He added that he had read in the newspapers that Mr Şen had been a DEP Party candidate for the post of the Mayor of Ayran. 104. Mr Özer essentially confirmed his statement of 1 April 1994 (paragraph 103 above), whilst amending the car registration number to 34 PLT (or PVT) 30, and adding that Mr Şen had had gambling debts and had been involved in a long-standing vendetta. 105. Mr Şahin said that he had been a waiter at the Çağdaş Café. On 26 March 1994 Mehmet Şen had been playing cards with others there. All Mr Şahin had seen, around 7 p.m., was Mr Şen leaving with two other people, whose backs were turned to him and whom he was incapable of recognising or identifying. He had heard it said that these people had presented themselves as policemen. 106. Mr Yıldırım had been playing cards with Mehmet Şen at the Çağdaş Café on 26 March 1994 when, around 5.15 p.m., a man had entered the café and asked Rasim Ağpak if he were Mr Şen, whereupon the latter identified himself. The individual showed Mr Şen a document enclosed in an identity wallet, and told him that he had to accompany him, which he did. Mr Yıldırım had not taken note of the individual or his appearance as he had had his back half-turned away from the man. Before leaving, Mr Şen asked Mr Özer for some money, but Mr Yıldırım had not looked at him at that point in order to avoid any embarassment. He had not been worried by any of this as he had been absorbed by the excitement of the card game. After drinking some tea, Mr Yıldırım went home. He knew that Mr Şen had been involved in a vendetta for years and that he liked going to nightclubs and gambling, thereby spending the money he made from the bakery which his brother had given him. 107. Mr Ağpak said that on 26 March 1994, around 5.15 p.m., someone came up behind him while he was playing cards at the Çağdaş Café, asking whether he was Mehmet Şen. Before Mr Ağpak could turn round to see who was speaking to him, Mr Şen identified himself. Within a few seconds, Mr Şen had left the café. Mr Ağpak could not remember what the stranger had looked like or whether he had shown an identity card. He had continued playing cards as the matter did not concern him. 108. On the basis of the statements made by the eyewitnesses, MM Kaplan, Özer, Yıldırım and Ağpak, a sketch was made of the inside of the Çağdaş Café where they had all been sitting when Mr Şen was taken away, the streets outside and the placement of the abduction vehicle, registration number 34 PLT 320 or 34 PVT 30. 109. It was recorded that the investigations, including a car registration check, had so far not disclosed the identity of the killers of Mehmet Şen, but that inquiries were continuing. 110. The report recounted that on 29 March 1994 the body of an unknown man was found 2 km from the village of Karpuzkaya. The autopsy revealed that he had been killed on 28 March 1994 by a gunshot wound to the head. Investigations discovered that the victim had been Mehmet Şen who, on 26 March 1994, had been abducted from a night club by three people in a car bearing the false registation number 34 PLT 30. Since then there had been no news of him. 111. It was noted that the gold wedding ring and wristwatch belonging to Mehmet Şen were to be handed to his heirs. a) on 4 April 1994 to the Gaziantep Human Rights Association 112. The applicant stated that her husband had been abducted from his café on 26 March 1994 around 7 p.m. by three people claiming to be plain- clothed policemen, in a honey-coloured Doğan SL car, registration number 34 PTL 30. Her enquiries of the local authorities revealed nothing. She later learnt of and saw his tortured body at the morgue of the Gaziantep State Hospital. The applicant recounted her husband’s fears on 25 March 1994 about two men who had been following him, and the eyewitness accounts of two strangers being in the café drinking coffee on the afternoon of the abduction. She suspected that her husband had been abducted, tortured and killed by contra-guerillas. 113. This statement essentially contained the applicant’s original allegations described above (see paragraphs 11-22 and 27-39). She added that she was now convinced that her husband had been abducted, tortured and killed by contra-guerillas because of his political beliefs and activities for the DEP Party. 114. This statement essentially contained the applicant’s original allegations described above (see paragraphs 11-22 and 27-39). She claimed that four people had abducted her husband (rather than the three previously mentioned, paragraph 112 above). She could conceive that her husband had been murdered because of his political affiliations and ambitions, but was now of the view that it had been the work of contra-guerrillas. Seven DEP Party members had been abducted and murdered to date. She confirmed her criminal complaint and asked that her husband’s killers be brought to justice. 115. The applicant recounted how her father-in-law, Necip Şen, had been called to the office of the Birecik State Prosecutor and handed his son’s ring and watch. He was informed that no progress had been made in the identification of his son’s murderers. However, on the many occasions on which the applicant had gone to the Gaziantep Prosecutor’s Office for a progress report, she had been told that no personal possessions had been found on her husband’s corpse. She therefore deduced that the Turkish State knew of her husband’s murder / murderers, and demanded to be told, inter alia, how the State had obtained the ring and watch, from whom, and for how long they had kept them, as well as the identity of the murderers and her husband’s last words. 116. Mrs Şen alleged that her father-in-law had been mentally tortured by the Urfa Anti-terrorist Department in January 1995 to give information about her current whereabouts and activities. Her relatives in Nizip and Gaziantep were being put under similar pressure. So she could no longer go home or work. Since giving an interview to Amnesty International, she had been denounced as a PKK member at a press conference given by a Turkish Government spokesman, relayed in the press and on television. Her death warrant had thereby been signed by the State and she requested international support. (The applicant later made other statements to the Convention organs, alleging her ill-treatment, which statements were dealt with separately in application no. 41478/98, decision of 30 April 2002.) 117. Mr Dirik was recorded as saying that people had knocked on his door at 3.30 a.m. on the same day as Mehmet Şen’s abduction, 26 March 1994. İsmail Kelleci, a journalist at the “Özgür Gündem” newspaper, had been told by the Gaziantep Security Directorate in December 1993 that they knew what Arif Dirik and Mr Şen had been doing, that their patience had run out and that they were going to kill the two of them. Mr Dirik declared that he could no longer go home and that, if any action was taken against him, it would be the responsibilty of Hüseyin Çapkın and the Gaziantep Security Directorate. 118. In response to their inquiries, the Association was informed that it had not been possible to determine the identity of the offenders, but that the investigation was being pursued in many directions in order to cast light on the incident. 119. The letter enclosed the latest statements (three), records (four) and a rough sketch that had been drawn up for the investigation file. 120. The Nizip Prosecutor stated that he had no geographical jurisdiction in the matter of the murder of Mehmet Şen. Accordingly, he referred the file to the Gaziantep Prosecution. 121. In response to a request for information, the Governor explained that Mrs Şen had filed a petition with the Nizip Prosecutor on 28 March 1994 concerning the abduction of her husband. A body was found on 29 March 1994. The autopsy established that the victim had been shot, and inquiries revealed that the deceased was Mehmet Şen. The security forces denied any involvement in the matter. Any allegation to the contrary was an absolute, slanderous lie. Allegations by Mrs Şen that she had been ill-treated were also untrue. An investigation into the registration number, 34 PLT 30, of the car in which Mr Şen had been taken away, revealed false plates. 122. The Prosecutor, Zekâi Aktaran, instructed the gendarmerie to make an in-depth, discreet investigation into the murder, to identify the assassins, and to respect their defence rights on arrest, to take the evidence of eyewitnesses and to transmit the results to him. 123. The gendarmes recorded that little progress had been made in the investigation concerning the murder of Mehmet Şen. No new clues had been revealed by their inquiries, which were continuing. 124. Lieutenant Hüseyin Kanat reported to the Gaziantep Prosecutor that no progress had been made in the identification of the corpse found shot on 29 March 1994. Moreover, no information had been gleaned concerning the murderer(s). The gendarmes had no clues or evidence which could throw any light on the case. The investigation would continue. 125. Prosecutor Zekâi Aktaran requested the directorate to run a search on a metallic green Doğan SLX car, registration number 34 PUC (PUD) 30, or a honey-coloured Doğan SLX car, registration number 34 PTL 30. The directorate replied on 18 April 1995 that these registration numbers belonged to other vehicles of different makes and colours. 126. The warrant stated that the search for the guilty person(s) had continued but their identity had not been established. The search would be kept open until time-barred on 30 March 2014, in accordance with Article 102 (1) of the Criminal Code. A letter of inquiry would be addressed to the gendarmerie every three months in the meantime. 127. The reports recorded that on-site inspections of the scene of the crime had been made but no new elements had been discovered. The local villagers had been unable to shed light on the facts of the case and inquiries would continue. 128. The destruction of the respective 1995 and 1997 monthly progress reports concerning attempts to identify the perpetrators of the murder on 28 March 1994, in the region of the Karpuzkaya village, was noted. 129. The reports recorded that the investigation into the murder of Mehmet Şen had been concluded without the perpetrators being found, but that efforts to do so would continue. Some of these reports mentioned the patrol visits to the village of Karpuzkaya, 2.5 km from where the body of Mr Şen had been found. The villagers recalled the incident, but had not known the deceased and could not provide any further information, other than the idea that the incident could have been caused by passers-by on the inter-city road. 130. The reports repeated the preceding gendarmes progress reports. 131. Mr Oruç submitted a similar statement to that of Mr Yusuf Şen (paragraph 50 above) and Halil Alan (paragraphs 60-63 above): He had been taken into custody (authority unspecified) on 30 March 1995, on suspicion of being active for the PKK. He alleged that he was asked whether he knew Mehmet Şen who, because of his illegal activities, they had killed. He was then warned that, if he failed to confess, he would suffer the same fate. (He had not appeared before the Delegates to testify to this, as had been proposed at one stage by the applicant’s representatives.) 132. Mrs Dirik said that Mehmet Şen had been a family friend. He had telephoned her one or two days before his kidnapping in an anxious state. He had wished to speak to her husband who was not in. After his abduction, her husband went with Nuray Şen to Adana to inquire whether Mehmet Şen was in police custody there. While he was away, around 2 to 3 a.m. at night, her doorbell rang and there was a loud banging on her door. Peering through the curtains, she saw two men and a taxi. She made a couple of telephone calls and was advised not to open the door. She thought it could have been the police, as her husband would have used his key and he had previously been threatened and taken into custody because of his political and trade union activities. Eventually the strangers left. The next morning she saw that the doorbell had been broken. At the Human Rights Association the following day, she heard that the tortured corpse of Mehmet Şen had been found. On being informed of this, her husband never returned to Gaziantep. 133. Mr Dirik confirmed his wife’s statement above (paragraph 132 above). Prior to the events in question, on 10 December 1993 İsmail Kelleci had been detained in an operation against the “Özgür Gündem” newspaper. Mr Kelleci had told Mr Dirik that the police had asked whether he knew him and Mehmet Şen, to which Mr Kelleci replied that he knew the latter. The police allegedly stated that Mr Dirik would soon be killed. Mr Dirik had been taken into custody several times, fortunately with others; otherwise he feared he might have disappeared too. He had been a refugee in Germany since Mr Şen’s death. 134. The Amnesty Report alleged gross violations of human rights being inflicted on civilians in south-east Turkey in the context of the 10 year old conflict between Turkish Government forces and the PKK. It reported disappearances, extrajudicial executions and torture in police and gendarmes stations. 135. The Government informed the Commission that, on 10 November 1995, the applicant had been taken into custody on suspicion of being a member of the PKK, and was the subject of a criminal investigation by the Prosecution Service of the Diyarbakır State Security Court. 136. The Government informed the Commission, inter alia, that the investigation into the death of Mehmet Şen, under file no. 1994/3941, by the Gaziantep Prosecution Service was still pending, the perpetrators of the crime not yet having been identified. 137. The Government informed the Commission that an investigation had been carried out by the Public Prosecutor, under file no. 1996/4823, into the applicant’s allegations to the Commission on 25 April 1995 that she had been tortured during her detention between 10 and 21 November 1995. The medical examinations which had been conducted at the time, on her arrest and release, showed no evidence of any violence to her person and, therefore, the Prosecutor had closed the investigation. 138. The reports stated that the bullet examined was of the SPB make, 9x19 mm calibre, which could not be traced to any other previous incident involving unknown perpetrators. The report was accompanied by a covering letter dated November 1997 (actual day illegible), from the Gaziantep Central Gendarmes Command, explaining that an empty cartridge marked “Parabellum SPB”, found at the scene where the body of Mehmet Şen had been discovered, had been sent for an expert examination. 139. The relevant domestic law and practice are set out in the judgment of Tepe v. Turkey of 9 May 2003 (no. 27244/95, former Second Section). | 1 |
train | 001-60934 | ENG | NOR | CHAMBER | 2,003 | CASE OF Y v. NORWAY | 1 | Violation of Art. 6-2;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | null | 9. The applicant was born in 1977 and lives in Spain. 10. On 1 October 1997 the applicant was charged (under Articles 193, first alternative, and Articles 229 and 233, first and second sub-paragraphs of the Penal Code-straffeloven) of having committed on Saturday, 6 May 1995, offences of violent assault, sexual assault and homicide against his cousin Ms T. (aged 17). 11. The Karmsund District Court (herredsrett), sitting with 2 professional judges and 3 lay judges, held a hearing from 20 October to 19 November 1997, during which 84 witnesses and 5 experts were heard. On 27 November 1997 the District Court convicted the applicant of the charges and sentenced him to 14 years’ imprisonment. Moreover, under Article 3-5 of the Damage Compensation Act 1969, the District Court ordered the applicant to pay NOK 100,000 in compensation to Ms T.’s parents for pain and suffering and additional inconvenience. 12. The applicant appealed to the Gulating High Court (lagmannsrett), which held a hearing between 4 May and 18 June 1998, during which it took oral evidence from 115 witnesses, 2 of whom were experts appointed by the High Court. Statements by 10 expert witnesses were submitted. Giving its verdict, the jury answered all the questions put to it in the negative. When the jury’s verdict is that the person is not guilty, but the court finds that he is undoubtedly guilty, the court may unanimously decide that the case shall be retried before other judges. The professional judges withdrew and deliberated for approximately 50 minutes, before they came back to announce that they accepted the jury’s verdict. The High Court thence acquitted the applicant of the charges. 13. On the following day, after hearing the pleas of counsel for the applicant and for the victim’s parents lasting approximately one hour, but without further evidence being submitted by the parties or taken by the court, the High Court judges unanimously upheld the District Court’ decision to award NOK 100,000 in compensation to Ms T.’s parents. On this point the High Court relied on the following considerations: “It has been established in case-law that in such a serious case as the present one, and where the question of guilt has been decided in favour of the accused, a condition for making an award of compensation for non-pecuniary damages is that it must be clear on the balance of probabilities that the accused has committed the infringements specified in the indictment, see Norsk Retstidende 1996:864. Considering the evidence adduced in the case as a whole, the High Court finds it clearly probable that [the applicant] has committed the offences against Ms T. with which he was charged and that an award of compensation to her parents should be made under Article 3-5 (2) of the Damage Compensation Act. With respect to the compensation matter the High Court finds the following circumstances established. On Friday, 5 May 1995 the applicant went to the cinema in Kopervik with some of his friends. Around midnight he was in the centre of town. The same night Ms T. had attended a Christian event at Avaldsnes. After this event she hitchhiked to the centre of Kopervik, where she arrived around midnight. She talked to some friends who were in the main street of Kopervik and then left the centre at approximately 12.10 a.m. About the same time [the applicant] left the main street and went for a short while to one of his friend’s house. Thereafter he cycled towards his home. He caught up with his cousin, Ms T., and they continued together. [They] lived about 1 km from one another. They took a road called Gamle Sundsveg. This is a short cut to Ms T.’s home, but a detour for [the applicant]. ... When they approached the habitation in Sund they stopped. [The applicant] stroked Ms T.’s breasts. She rejected him, kicked his bike, yelled at him and continued on her own. [The applicant] feared that, should Ms T. find his conduct completely unacceptable, it would have disastrous consequences for him when his conduct would be known. He thought about earlier incidents of flashing and obscene behaviour and got scared of the consequences. He charged after her and performed the acts described in the indictment. The High Court considers that his acts had their origin in an explosion of emotion, combined with a sexual attraction to Ms T. According to forensic expert statements, it is established that by the time she was on the road she had already suffered lethal injury. It has not been fully ascertained whether she was dead when he dragged her from the road to the bushes in a field. Here he lifted a 23-kg stone and hit her at least twice on the head. There was blood on both sides of the stone. The accused himself stated that he had the evil idea to conceal her face, so she could not tell anyone, by any means, what he had done. He then left the scene, washed himself clean from the blood and earth in [a lake] nearby and then cycled at random towards Kopervik. After a while he cycled towards his home and encountered a witness. ... She stated that this was at around 1.45 a.m. A neighbour, who was the owner of the field, found Ms T. the next morning. ... The police were called. An extensive investigation was carried out and [the applicant] was summoned for questioning at an early stage. He was considered suspect, particularly because the police had some knowledge about his previous sexual acts, of which one incident had led to a formal complaint. At the end of January 1997 [the applicant] gave a new statement to the police and changed his version as to the time of his arrival at home and his choice of roads from the town centre back home. It was inter alia against this background that [the applicant] was apprehended on 8 February 1997. On 10 February 1997 he was placed in custody with a prohibition on correspondence and visits. At the court hearing he accepted his remand in custody. Ten days later [the applicant] delivered to his defence counsel at the time two notes stating that he had killed Ms T. Counsel is thought to have asked the defendant whether he could recall this. He denied it and counsel handed the notes back to [the applicant]. A few days later he confessed and gave detailed information about the course of events and the background. During questioning on 2 March 1997, after having gone through the statements with his counsel, he declared that he was guilty of a crime in accordance with the confession. Approximately one month later the confession was repeated to psychiatric experts. After having been transferred to Bergen regional prison, he began to doubt the accuracy of his confession. ... During a police inquiry on 11 August 1997, his counsel gave notice that [the applicant] would not maintain his previous statement.” 14. The applicant sought to appeal against the High Court order that he pay compensation, according to the rules of the Code of Civil Procedure 1915 (tvistemålsloven). Ms T.’s parents and the applicant, represented by their respective counsel, took part in these proceedings, but not the prosecution. On 1 February 1999 the Appeals Selection Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) refused the applicant leave to appeal in so far as it concerned the High Court’s assessment of the evidence, but granted leave in so far he was challenging the High Court’s procedure and interpretation of the law. 15. By a judgment of 24 September 1999 the Supreme Court, by 3 votes to 2, rejected the appeal. 16. The majority, Mr Justice Skogstad, joined by Mrs Justice Gjølstad and Mrs Justice Coward, stated: “Appeal concerning the procedure Apart from the fact that neither the wording of the Code of Criminal Procedure nor the preparatory works suggest that an authorisation to pass judgment on civil claims in spite of a defendant’s acquittal should depend on the reasons for the latter, I cannot find any real grounds to support this proposition. Although it is evident that – in cases like the one at hand – it must be a condition for passing judgment on compensation for non-pecuniary damage that it is clear on the balance of probabilities that the act has been committed [handlingen er begått], the evidentiary standard is not as strict as that applying to a criminal conviction. I have problems seeing that in cases where the defendant has been acquitted, because it has not been found proven that the act has been committed [handlingen er begått], should be placed in a somewhat different position than where there are other grounds for acquittal – as for example where the conduct is not punishable, where it has not been established that the defendant acted with the required criminal guilt, where the defendant is not found to be liable under the criminal law, or where there is self-defence or any other ground of exemption from criminal liability. Should it not be permissible to adjudicate civil claims in criminal proceedings in which the defendant has been acquitted because it has not been established that he has committed the act that was the factual basis for the indictment [begått handlingen], the consequence would be that the claim must be brought up in separate civil proceedings. However such a lawsuit is both time consuming and expensive [and] .... the aggrieved party’s possibilities to pursue such claims will depend on his economic situation. I find no attraction in such a solution. I should also point out that if one were to operate a rule whereby an acquittal on the ground that it has not been established that the defendant has committed the act that was the factual basis for the indictment [har begått den handling han er tiltalt for] is treated differently than acquittals on other grounds, it might give rise to difficulties in instances where the case has been tried by a High Court sitting with a jury, as in the present case. A verdict of conviction requires that at least seven of the ten jurors have answered ‘yes’ to the question of guilt and, regardless of whether the jury has answered ‘yes’ or ‘no’, no grounds are given for the verdict. In most instances one will have more or less well-founded perceptions, but never total certainty, as to why the jury has answered in the negative. On several occasions the courts have had to deal with the question whether a civil claim can be adjudicated in spite of the defendant having been acquitted in the criminal case. On those occasions, where the question has been submitted to the Supreme Court or the Appeals Selection Committee, it has not been a condition for dealing with the civil claim in connection with the criminal case that the [criminal] court ... has found it established that the defendant has committed the act that was the factual basis for the indictment [har begått den handling tiltalen gjelder]. ... In my opinion, in the light of existing legal sources, there cannot be any doubt that, under the Code of Criminal Procedure 1981, it is not a condition for adjudicating a civil claim in connection with criminal proceedings that the court in [the latter] proceedings has found it proven that the defendant has committed the act that was the factual basis for the indictment [har begått den handling saken gjelder]. ... Consequently, no procedural errors were committed when the High Court, in spite of [the applicant’s] acquittal in the criminal proceedings, passed judgment on the civil claim. ... Appeal concerning the application of the law The appellant has based his appeal on law on the argument that it would be contrary to the presumption of innocence in Article 6 § 2 of the Convention if the court, after the defendant has been acquitted in the criminal case, passes judgment for compensation for non-pecuniary damage in the same case. In any event, he submits, it must be contrary to the presumption of innocence to give such reasoning on the compensation matter as done by the High Court. ... [Article 6 § 2] is primarily addressed to judges in criminal proceedings and its main message is that judges shall not prejudge the defendant as having committed the crime of which he is indicted, or that there shall be no prejudgment through statements by public authorities (see Frowein/Peukert: “Europäische Menschenrectskonvention”, “ECHR”, 2. edition (1996) page 280 and following, and Rehof/Trier: Menneskerett – Human Rights (1990), page 164). Both according to legal doctrine and the case-law of the Strasbourg institutions, the provision may also have importance after the criminal case has been terminated (see Harris/O’Boyle/Warbrick: “Law of the ECHR” (1995), pages 246-247 with further references to practice). For instance, in the Sekanina v. Austria judgment, the Court stated that if the defendant has been acquitted by a final judgment, the courts might not, in a subsequent case concerning compensation for unjust prosecution, base its judgment on the fact that the accused is guilty. However, how far these points of view go is somewhat uncertain. While it is the accused and the State who are parties to the compensation proceedings regarding unjust prosecution, such proceedings can be seen as a prolongation of the criminal case. In my view, however, the presumption of innocence can hardly apply to civil proceedings between the accused and the person who has been prejudiced or has suffered damage by the act [which was] the factual basis for a criminal charge in respect of which the defendant has been acquitted [en handling som siktede er frifunnet for]. In any event, it must be evident that Article 6 § 2 of the Convention cannot bar the courts – in a civil case (for example a case for compensation; on dismissal or parental responsibilities) – from establishing facts regarding the course of events in question, even if it should disclose the occurrence of a criminal offence and even if the person against whom the claim is directed has been acquitted of the offence in a preceding criminal case (see, inter alia, Lorenzen/Rehof/Trier: “Den Europæiske Menneskeretskonvention med kommentarer” “The ECHR with comments” (1994), page 199, and Frowein/Peukert, op. cit. page 285). Should the presumption of innocence apply at all to civil proceedings between the aggrieved party and the accused, it must at any rate be a condition for finding a violation of Article 6 § 2 that a decision establishing criminal guilt has been taken. Were the court in a civil case not permitted to base its decision on the fact that the person acquitted of a criminal offence, has in fact committed the act [begått handlingen], the acquittal would deprive the victim, or the person who has suffered damage, of the possibility to obtain a judicial review of claims that he or she might have against the accused. This would, in my view, be contrary to the fundamental right to a fair hearing in Article 6 § 1. [The applicant] has argued that a distinction must be made between cases where a civil claim is being reviewed together with the criminal matter and cases where the claim is examined in separate civil proceedings. I do not agree that there is any basis for making such a distinction. The system whereby civil claims may be raised in the criminal case is based upon well-founded considerations of procedural economy and ... can also benefit the defendant. In criminal proceedings the accused is, as a main rule, entitled to defence counsel paid for by the State and, bearing in mind also the thoroughness with which evidence is presented in a criminal trial, the accused, in the event of a civil claim being determined together with the criminal matter, enjoys particular protection against being wrongly judged. If the defendant is acquitted in the criminal case but is ordered to pay compensation for non-pecuniary damage, the accused will be left with a feeling of not having been ‘totally acquitted’. But it should not matter to him whether the compensation claim is determined in connection with the criminal proceedings or in ensuing civil proceedings. ... As mentioned above, the presumption of innocence under Article 6 § 2 of the Convention can, in my view, hardly be applied in a civil case between the person acquitted and the aggrieved party. Bearing in mind the nature of this case, I do not, however, find it necessary to take a definite stance on this question, the High Court did not in my view base its decision in the compensation claim on a finding of criminal guilt, which under any circumstance must be a condition for a violation of Article 6 § 2. ... The appellant has pleaded that the courts in practice will have difficulties in applying different evidentiary standards to criminal conviction and compensation. Moreover, he has submitted that when, as in this case, it is a requirement for making an award of compensation for non-pecuniary damage that it is clear on the balance of probabilities that the the accused has committed the act [begått handlingen], the evidentiary requirement is so close to that applying to a criminal conviction that this in itself contributes to casting a suspicion of criminal liability. I have difficulties in understanding these arguments. The fact that the evidentiary requirements are different in various relations is nothing special for cases such as the present one. ... [I]t is based on the general view that a qualified probability is required in order for the court to ground its decision on a fact that is strongly incriminating ... The fact that a stricter standard of proof applies in order to protect the interests of the defendant cannot entail a breach of the Convention.” 17. The minority of the court, Mr Justice Flock joined by Mr Chief Justice Smith in the main reasoning and the conclusion, expressed the following opinion: “I am ... of a different opinion as to the main issue in the case. In my view, the appeal on procedure ... should be upheld. When a court primarily has found that the defendant was not the perpetrator of ‘the act with which the case is concerned’, the court may not, in my opinion, in the same judgment order the defendant to pay compensation for non-pecuniary damage on the ground that he nevertheless has performed the same ‘act’. Under the 1981 Code of Criminal Procedure – as noted by the first voting Justice – it was authorised to pass judgment on civil claims even though the defendant had been acquitted of the criminal act. ...The former [limitation in this respect] was repealed. However, in my view, the far reaching application of the new rule made by the High Court in this case does not necessarily follow from the statute or from former Supreme Court rulings. Besides, it would be more consistent with the presumption of innocence under Article 6 § 2 of the Convention, now incorporated into Norwegian law, if the court did not both brand the defendant as the perpetrator of the act under civil law and acquit him of criminal liability in the same judgment. Against this background, the best solution would be to interpret the possibility – and the corresponding duty for the courts – under the statute to adjudicate civil claims in the criminal case with the qualification that the most extreme consequences should be avoided. Below I shall deal with each of the reasons for my position. When the 1981 Code improved the possibilities of the aggrieved party to have civil claims determined in connection with the criminal proceedings, some instances were mentioned in the preparatory work of claims that could be adjudicated even though the defendant had been acquitted. This was, inter alia, where the purpose, intent or gross negligence required by the Penal Code had not been proved but where it had been shown that the defendant had displayed sufficient negligence to be held liable to pay compensation. However, the preparatory works did not include ... those instances where the defendant had been acquitted because it had not been established that he or she had performed the act as cited in the indictment. This would be the most frequent reason for acquittal in, for example, cases of aggravated sexual assault against minors ... and where compensation for non-pecuniary damage is a recurrent issue. Special questions arise in this kind of acquittal. A conviction and an order to pay compensation are not only different legal consequences based on different aspects of the case, but also, in the same case and on the same evidence, the court assesses the evidence twice with the possibility of reaching different results. Legally, this would be justified by the fact that the evidentiary requirements for criminal conviction are stricter than those with respect to an order to pay compensation for non-pecuniary damage. However, this situation is so special – and was excluded under the former legislation – that one would expect that the subject be discussed, or at least be explicitly mentioned, in the preparatory works. As this was not the case, it can be deduced that the legislators probably did not have such cases in mind, or at least did not regard them as essential when the rules were amended in 1981. It is undoubtedly correct that the Supreme Court – and other courts in our country – in certain rulings have noted that an award can be made for pecuniary and non-pecuniary damage even if the defendant has been acquitted in the same case. ... However, ... I can hardly see ... that there is such an established case-law in this area as to prevent certain limitations being made in the interpretation of the law. As regards the presumption of innocence in Article 6 § 2 of the Convention, it is somewhat uncertain how far this requirement extends in Norwegian law. ... When taking a decision in the present case, one is faced with the need to strike a balance between, on the one hand, the accused’s interests and, on the other hand, those of the victim and his or her closest relatives. It is important to take into account the fact that the 1981 revision was intended to strengthen the victim’s position. However, I find that an acquittal for having committed the incriminated act – and in particular an act of murder – must clearly appear from the judgment. This is such a prominent consideration that it should in my view be predominant in the interpretation of the law. ... In following this reasoning, some issues of delimitation will arise as to when the court should abstain from determining civil claims together with an acquittal. The limitation, that is implied in my opinion, on the possibility to adjudicate such claims is inter alia that it must be ascertainable that the acquittal is based on a finding that there is insufficient evidence to show that the accused committed the offence of which he/she was charged. This might be a problem in all cases before the High Court where the question of guilt is decided by a jury, without a reasoned verdict.” 18. Under Norwegian criminal law there are four basic conditions that must be met in order to establish criminal liability: (1) the accused has committed the proscribed act or omission (actus reus) which is contrary to a provision of the Penal Code or to a special statutory penal provision in force at the time when the act was committed; (2) there are no exonerating circumstances (e.g. self-defence); (3) the accused has acted with intent (mens rea), unless otherwise expressly stated in the relevant penal provision; and (4) the accused was of sound mind at the time of the commission of the offence. 19. As a general rule, the prosecution has to prove these four elements beyond reasonable doubt. Any reasonable doubt shall benefit the accused (in dubio pro reo). 20. Under the Norwegian jury system, when an accused is acquitted the jury is not entitled to disclose whether any of its members held a different opinion, and no records are kept which could disclose that a negative answer as to the applicant’s guilt was not unanimous. The criminal system knows only two conclusions in a criminal case—guilt or acquittal (see Articles 365, 366, 372 and 373 of the Code of Criminal Procedure). There is no third alternative, which was known in some other European countries, where a criminal charge could result in the finding that there was not sufficient evidence for establishing guilt. 21. In so far as is relevant, Article 376A of the Code of Criminal Procedure reads: “If the jury’s verdict is that the person is not guilty, but the court finds that he is undoubtedly guilty, the court may unanimously decide that the case shall be retried before other judges. At the new trial the High Court shall be constituted as a composite court (meddomsrett)...” Composed of three new judges and four lay judges, the “composite court” examines the case afresh. In contrast to a trial court sitting with a jury, it gives reasons not only for its decision on civil liability to pay compensation, but also with regard to criminal liability. 22. Article 376 of the same Code provides: “If the jury’s verdict is that the accused is not guilty and if the court does not take a decision pursuant to Article 376A, it shall render a judgement of acquittal.” No reasons are given for an acquittal. Regardless of whether the accused has been acquitted or is convicted, the High Court is to determine any civil claim made in the criminal proceedings, for instance claims for compensation, without the participation of any members of the jury. That is, civil claims are decided exclusively by the three professional judges who have taken part in the criminal case. The court will determine the claim on the basis of the evidence adduced during the trial but may receive or order the submission of further evidence if necessary. Evidence already produced in the criminal case but relevant to the compensation issue will not be heard again. Reasons are given for the judges’ decision on compensation. 23. Under the Code of Criminal Procedure 1981, a civil claim may be pursued in connection with a criminal trial, provided that the claim arises from the same set of facts. Consequently, the civil claim of a victim may be decided either in connection with a criminal case or in separate proceedings. Article 3 reads: “Any legal claim that the aggrieved person or any other injured person has against the person charged may, in accordance with the provisions of chapter 29, be pursued in connection with such cases as are mentioned in Article 1 or Article 2, provided that the said claim arises from the same act that the case is concerned with. On the said conditions the following claims may also be pursued: The claims specified in the first and second paragraphs are deemed to be civil claims and shall be dealt with in accordance with the provisions of chapter 29...”. Other provisions concerning civil compensation claims may be found in Chapter 29 of the Code of Criminal Procedure, notably the following: “§ 427. In a public case the prosecuting authority may on application pursue such civil legal claims as are specified in Article 3. ... When civil legal claims are pursued against a person other than the person charged, the person concerned assumes the position of a party to the case in so far as this issue is concerned. ... § 428. Any person who has any such civil legal claim as is specified in Article 3 may himself pursue it in connection with a public case if a main hearing is held. ... § 435. A separate appeal against the decision of civil legal claims shall be brought according to the provisions of the Civil Procedure Act. The same applies to a reopening of the case.” 24. Under the Damage Compensation Act 1969, the purported victim may, regardless of the outcome of the criminal proceedings, claim compensation for pecuniary and non-pecuniary damage. Article 3-5, as in force at the relevant time, read as follows: “Anyone who, with intent or gross negligence has a. Caused personal injury or b. Committed ... an act of misconduct as mentioned in Article 33, may ... be obliged to pay the victim such a lump sum as the court deems would constitute reasonable compensation (oppreisning) for the pain and suffering and other non-pecuniary damage caused thereby. ... A person who with intent or gross negligence has caused the death of another person, may be ordered to pay such compensation to the deceased’s ... parents.” Article 3-3, referred to in the above provision, expressly applies to misconduct mentioned in, amongst others, Article 193 of the Penal Code. A claim for compensation for nonpecuniary damage submitted by a victim under Article 3-5 of the Act, is subject to his or her showing that the alleged perpetrator, with intent or gross negligence, committed the wrongful act. The test is normally the balance of probabilities and the burden of proof lies with the claimant. This burden may be heavier where liability may have serious consequences for the respondent’s reputation, though it will be less than for criminal liability. The competent court has to determine liability in the light of all the evidence available at the time of the adjudication of the case. 25. The objective constitutive elements of acts which may give rise to both criminal liability and civil liability to pay compensation are not always the same. The subjective constitutive elements in principle differ: normally criminal liability requires intent whereas liability to pay compensation requires gross or simple negligence. There may be exonerating circumstances – such as self-defence, necessity, provocation or ignorance – which exclude criminal liability but which do not exclude liability to pay compensation. A person of unsound mind may be exempted from criminal liability but not necessarily from civil liability to pay compensation (see Norges Offentlige Utredninger (Official Norwegian Report) 2000:33 “Erstatning til ofrene hvor tiltalte frifinnes for straff” (Compensation to Victims in Cases where the Accused has been Acquitted of the Criminal Charge), study by Mr J. T. Johnsen, Professor of Law, Chapter 1, sub-chapter 1.3.2). The purposes of the criminal law and the law on compensation are not identical. While deterrence and restoration are important considerations in both areas of law, the former places emphasis on retribution and the latter on the spreading of financial loss. The two systems also supplement one another in important respects. While criminal law sanctions are particularly designed to deter the actual and potential offenders from committing offences, those of the law of compensation are particularly designed to meet the aggrieved person’s need for economic redress (ibidem, Chapter 1, sub-chapter 1.2.1). | 1 |
train | 001-5117 | ENG | HUN | ADMISSIBILITY | 2,000 | FARKAS v. HUNGARY | 4 | Inadmissible | Benedetto Conforti | The applicant is a Hungarian national born in 1965 and living in Kunszentmiklós, Hungary. He is a businessman. He is represented before the Court by Mr. J. Somogyi, a lawyer practising in Budapest. The facts of the case, as submitted by the parties, may be summarised as follows. A. The application concerns the circumstances of the applicant’s arrest by four members of the Kunszentmiklós Police on 29 April 1995 and his alleged ill-treatment subsequently at the Kunszentmiklós police station. As to the actual course of these events, the Government and the applicant submitted conflicting versions. a. The applicant’s account of the relevant events On 29 April 1995, at about 6 p.m., the applicant was working in the yard of his house, when he saw Mr. R. approach, running on the street. Two police officers wearing uniforms and holding guns were chasing Mr. R. The applicant asked one of the policemen why they were chasing Mr. R. In response the policemen ordered the applicant to drop the wooden bar he was holding in his hand. He complied with the order. Thereupon he was ordered to lie down on the ground. He, being afraid, attempted to run away, during the course of which the other policeman present hit him in the face. He nevertheless managed to break free and escape to the neighbouring gardens. Realising that two further police officers had meanwhile arrived on the premises, he eventually went out on the street again and lay down on the ground. Subsequently he was handcuffed and brought to the Kunszentmiklós police station. He alleges that during the drive to the police station Police Officer F. hit him once in the stomach. At the police station his hands were handcuffed behind his back and, subsequently, Police Officer F. and the police officer who had previously taken the action against him in front of his house systematically beat him up. During the beating he fell on the floor, where he was kicked several times and his head was banged against the floor, which resulted in a bleeding bruise on his forehead. A person wearing plain clothes stepped on his dislocated foot. Thereupon he was instructed to wash himself, go outside and tell his relatives waiting there that he had not been hurt and that they should leave. He did not comply with this instruction. b. The Government’s account of the events On 29 April 1995 Police Officers R. and F. were on duty in Kunszentmiklós. They halted a car for an identity check of the driver and his passenger. This latter person, however, did not comply with the police officers’ instruction but jumped out of the car and started to run away. While chasing him, the police officers reached the street where the applicant lives. Here the applicant appeared, holding a wooden bar in his hands. According to the police officers and a civil guard present, the applicant yelled at them, blocked their way and hit with the wooden bar in the direction of Police Officer R.’s head. Thereupon Police Officer F. took out his service gun and ordered the applicant to drop the wooden bar. He dropped the wooden bar and ran away. Police Officer R. ran after him, caught him and attempted to stop him grasping him by his left shoulder. The applicant turned around and, with his right fist, he hit Police Officer R. on the left cheek. Thereupon the police officer tried to push the applicant down on the ground, but the latter hit him again on the left cheek twice, managed to break free and ran away. In this moment the applicant’s relatives and neighbours showed up in the street; the preceding events had consequently not been eye-witnessed by anyone other than the police officers and the civil guard. Police Officer R. went on trying to subdue and hand-cuff the applicant in order to prevent further violence but he could not overcome his resistance. Eventually, the applicant broke free and ran into the spectators’ crowd where he disappeared. Police Officer R. followed the applicant into the crowd and saw him fall on the ground accidentally. By the time he got near the applicant lying on the ground in order to handcuff him, several women - some relatives and acquaintances of the applicant - leant over the applicant, covering him with their bodies and preventing his handcuffing. While the police officers were trying to pull these women away, the applicant broke free again and ran away. Jumping over several fences, he soon reappeared in another direction in the street. In this moment two further policemen arrived on the premises upon the acting police officers’ call for back-up. Presumably owing to exhaustion, the applicant meanwhile lay down on the stony earth road further down the street, where the above-mentioned women leant over him again, covering him with their bodies. The proceeding police officers finally managed to handcuff the applicant, whom they brought to the Kunszentmiklós police station. According to the testimonies given in the course of the ensuing investigations by the police officers involved and the civil guard present, the applicant had injuries on his face when handcuffed; in turn, he was not ill-treated at the police station. c. Subsequent events on 29 April 1995 Later that day Dr. F. was called to the Kunszentmiklós police station, who, at 10.35 p.m., examined the applicant and prepared a medical report on his injuries. Subsequently he left to fetch his instruments in order to suture the applicant’s wound on the forehead. The applicant alleges that thereupon a police officer handcuffed him again and went on hitting and kicking him. After Dr. F. had returned and sutured the applicant’s wound over the eye, the latter was brought to the Bács-Kiskun County Police Department’s Prison in Kecskemét. d. Medical reports and opinions evaluating the applicant’s injuries In his report of 29 April 1995, Dr. F. stated that the applicant had the following injuries: abrasions, bruises and suffusions of the face, the forehead, the neck, the shoulders, the right upper arm, the chest and the back, a swollen reddish discoloration and suffusion in the upper stomach region, as well as a ruptured wound over the right eye. In Dr. F.’s opinion, these injuries were to heal within seven days. On 2 May 1995 Dr. T. examined the applicant in the Kecskemét prison. In his report Dr. T. described altogether nineteen counts of contusions and abrasions scattered on the applicant’s head, arms, chest, back, trunk and legs. On 28 May 1995 the Bács-Kiskun County Police Department appointed a medical expert to give his opinion on the previous medical reports concerning the applicant’s injuries. The expert found that the applicant’s injuries, as described by Dr. F. on 29 April and by Dr. T. on 2 May, could be due to the struggle between the applicant and the police officers and the applicant’s falling down on harsh ground in the context of his arrest. In turn, the expert found no reference in the reports to any injury, which could be attributed to any brutality other than the circumstances of the applicant’s arrest. On 10 August 1995 Professor D., a forensic pathologist appointed by the Kecskemét Branch Office of the Szeged Prosecution’s Department of Investigation (“the Branch Office”), issued an opinion as to the nature of the applicant’s injuries. He found that the contusions and abrasions on the applicant’s body, as described in the medical reports of 29 April and 2 May, could be due to punches or to falling down on harsh ground. The swollen lesion in the gastric area had been likely to derive from a punch on the applicant’s stomach. The injuries altogether could be the consequences of the applicant’s forcible immobilisation and handcuffing. From a forensic medical aspect it could not be proven if the injuries had been suffered in the context of the applicant’s arrest or of any potential subsequent ill-treatment. On 20 September 1995 the Forensic Pathology Department of the Semmelweis Medical University issued a forensic medical opinion in the case. According to this opinion, the applicant’s injuries must have been due to at least eighteen counts of forcible impact and it could not be excluded that these impacts had been punches. However, in the Forensic Pathology Department’s view, the medical report prepared by Dr. F. on 29 April 1995 was not precise enough to underlie a forensic opinion as to the cause of the applicant’s injuries. e. Proceedings in pursuit of the applicant’s allegations of ill-treatment On 9 and 11 May 1995, respectively, the applicant laid charges of ill-treatment and of light bodily assault against the police officers involved. The ensuing proceedings took place before the Branch Office. On 6 September 1995 the Branch Office discontinued the investigation upon the charges laid by the applicant. The Branch Office, relying on forensic medical expertise and witness evidence - given by the police officers and the civil guard present at the incident -, found that the applicant’s injuries could be due to the fight between the police officers and the applicant upon the occasion of the latter’s arrest, when hindering the lawfully proceeding police officers in arresting Mr. R. The Branch Office held that it could not be proven beyond doubt that the applicant’s injuries had been caused by ill-treatment rather than in the course of his lawful arrest. On 27 September 1995 the applicant lodged a complaint against the decision of 6 September 1995. He criticised the fact that the Branch Office had held no hearing in the case. Moreover, he submitted the forensic medical opinion prepared by the Forensic Pathology Department of the Semmelweis Medical University on 20 September 1995. On 13 October 1995 the Kunszentmiklós District Public Prosecutor’s Office dismissed the applicant’s complaint. The Prosecutor’s Office pointed out that it had not been possible to prove beyond doubt that his injuries had been caused as alleged and that the investigation had been, therefore, lawfully discontinued. To the extent that the decision of the Branch Office had concerned the applicant’s charges of light bodily assault, the Prosecutor’s Office quashed the decision of 6 September 1995 and transferred the case to the Kunszentmiklós District Court in order that it should proceed with the applicant’s charges in private prosecution proceedings. On 9 November 1995 the applicant lodged a revisionary complaint with the Attorney General’s Office. In January 1996 the Attorney General’s Office dismissed this complaint. On 29 February 1996 the Kunszentmiklós District Court, in preparatory proceedings, discontinued the private prosecution proceedings against Police Officers F., R. and S. The District Court found unsubstantiated the applicant’s charge of light bodily assault brought against the police officers. On 16 April 1996 the Bács-Kiskun County Regional Court dismissed the applicant’s appeal. The Regional Court, while upholding the discontinuation of the proceedings, quashed the reasoning of the first-instance decision on the ground that it had constituted a pre-judgment of the case in breach of Article 10 (2) of the Code of Criminal Procedure. The Regional Court held that the original charges laid by the applicant, namely those of ill-treatment and of light bodily assault, concerned one and the same event. His charge of ill-treatment was to be pursued in public prosecution proceedings but the relevant investigation had been discontinued and no indictment had been brought against the police officers on this account. In the instant private prosecution proceedings, however, the unlawful origins of the injuries inflicted in the context of the police action against him could not be established. A decision on this question having been a pre-requisite of examining the merits of the charge of light bodily assault, the proceedings were without an object. f. Criminal proceedings against the applicant Shortly after the events of 29 April 1995 the Head of the Kunszentmiklós Police instituted criminal proceedings against the applicant, charging him with having violently hindered the arrest of Mr. R. Subsequently the Branch Office prosecuted the applicant on account of the offence of violence against persons acting in official capacity. On 30 April 1995 an investigator of the Branch Office heard the applicant as defendant concerning the circumstances of his arrest the day before. On this occasion the applicant did not allege that, subsequent to his arrest, he had been ill-treated at the police station. On 3 May 1995 the Branch Office heard Police Officer R. and Mr. S., the civil guard involved in the events of 29 April 1995. Police Officer R. who stated that the applicant’s injuries had been due solely to the struggle in the context of his arrest. Mr. S. stated that, when handcuffed, the applicant had already had some abrasions on the face and that between the applicant’s arrival at the police station and his own departure therefrom at about 8 p.m. he had witnessed no ill-treatment of the applicant. On 11 May 1995 the applicant was heard again in the presence of his lawyer. On this occasion the applicant stated that during the drive from the premises of his arrest to the police station, Police Officer F. had hit him once in the stomach, and that on his arrival at the police station, the police officer had poured some water on him. When in the building, Police Officer R. had sprayed some tear-gas in his eyes and then together with Police Officer F. he had started to hit and kick him. Subsequently he had been forced to wash himself. In a few minutes Dr. F. had arrived who had not examined him, but had had a look at his face and had stated that the wound over his eye needed to be sutured. After the doctor’s departure, Police Officer S. had kept on kicking him. Also on 11 May 1995 the Branch Office heard Dr. F. who stated that when he had examined the applicant on 29 April 1995 between approximately 8 p.m. and 10 p.m., the latter had made no reference to any ill-treatment suffered at the police station. Dr. F. also stated that when having examined the applicant, he had observed no trace of wetness on the applicant’s clothes, neither had he seen any sign of a conjunctivitis due to contamination by tear-gas. Moreover, on 11 and 26 May and 15 June 1995 four relatives of Mr. R. were heard as eye-witnesses. These persons stated that, when arrested in front of his house on 29 April, the applicant had not had any injuries. On 11 August 1995 the Branch Office heard Police Officer O. who had arrived on the premises of the applicant’s arrest upon the call for back-up. He reinforced the above testimonies of Police Officer R. and Mr. S. and stated that, when handcuffed, the applicant had already had some bleeding injuries on the face. On 26, 27 and 28 August, 30 September, 7 and 28 November 1997 the Kecskemét District Court held hearings in the case. When heard as a witness on 27 August 1997, Dr. F. stated that in his view the applicant’s injuries had been inflicted before he had first seen him on 29 April 1995, rather than during the interval between this inspection and the examination at about 10 p.m. Moreover, when heard as a witness on 28 August 1997, the author of the forensic medical opinion of 28 May 1995 sustained his earlier opinion in the sense that from a medical aspect it could neither be verified nor excluded that the applicant’s injuries had been due to punches. On 28 November 1997 the Kecskemét District Court convicted the applicant of the offences of violence against persons acting in official capacity and of light bodily assault. It sentenced the applicant to one year’s imprisonment, the execution of which was suspended for three years. As to the applicant’s allegations of ill-treatment, the District Court noted that thirteen counts of his fifteen injuries were due to the struggle in the context of his arrest, whereas the cause for the remaining two injuries, namely a wound on his right eyelid and an abrasion on the left side of his forehead, remained unclear. Since, however, the medical reports had identified no injuries typical of physical abuse and no other evidence had emerged in support of the applicant’s allegations, the District Court found them unsubstantiated. On 29 June 1998 the Bács-Kiskun County Regional Court upheld the first-instance judgment, while reducing the probationary period to one year. B. Relevant domestic law and practice According to Article 349 of the Civil Code, official liability [of the State administration] may be established only if the relevant ordinary remedies have been exhausted or have not been fit to prevent damages. In its decision no. Pf.I.20.128/1992, the Supreme Court held that inappropriate police measures may give rise to official liability under Article 349. | 0 |
train | 001-57895 | ENG | GBR | GRANDCHAMBER | 1,994 | CASE OF MURRAY v. THE UNITED KINGDOM | 2 | No violation of Art. 5-1;No violation of Art. 5-2;No violation of Art. 5-5;No violation of Art. 8;No violation of Art. 13 | John Freeland;N. Valticos;R. Pekkanen | 9. The six applicants are members of the same family. The first applicant, Mrs Margaret Murray, and the second applicant, Mr Thomas Murray, are husband and wife. The other four applicants are their children, namely their son Mark Murray (born in 1964), their twin daughters Alana and Michaela Murray (born in 1967) and a younger daughter Rossina Murray (born in 1970). At the relevant time in 1982 all six applicants resided together in the same house in Belfast, Northern Ireland. 10. On 22 June 1982 two of the first applicant’s brothers were convicted in the United States of America ("USA") of arms offences connected with the purchase of weapons for the Provisional Irish Republican Army ("Provisional IRA"). The Provisional IRA is included among the organisations proscribed under the special legislation enacted in the United Kingdom to deal with terrorism in Northern Ireland (see paragraph 35 below). 11. On 26 July 1982 at approximately 6.30 a.m. Corporal D., a member of the Women’s Royal Army Corps, attended an Army briefing at which she was told that the first applicant was suspected of involvement in the collection of money for the purchase of arms for the IRA in the USA, this being a criminal offence under section 21 of the Northern Ireland (Emergency Provisions) Act 1978 ("the 1978 Act") and section 10 of the Prevention of Terrorism (Temporary Provisions) Act 1976. The corporal was instructed to go to the first applicant’s house, arrest her under section 14 of the 1978 Act (see paragraphs 36-38 below) and bring her back to the Army screening centre at Springfield Road in Belfast. 12. At 7 a.m. Corporal D., who was unarmed but accompanied by five armed soldiers, arrived by Army vehicle at the applicants’ home. The first applicant herself answered the door and three of the male soldiers, together with Corporal D., entered the house. Corporal D. established the identity of the first applicant and asked her to get dressed. Corporal D. went upstairs with the first applicant. The other applicants were roused and asked to assemble in the living room. The soldiers did not carry out any search of the contents of the house, but made written notes as to the interior of the house and recorded personal details concerning the applicants. At about 7.30 a.m. in the hallway of the house Corporal D., with one of the soldiers acting as a witness, said to the first applicant, "As a member of Her Majesty’s forces, I arrest you." On being asked twice by the first applicant under what section, Corporal D. replied, "Section 14." 13. The first applicant was then driven to the Army screening centre at Springfield Road, Belfast. She was escorted into a building and asked to sit for a short time in a small cubicle. At 8.05 a.m. she was taken before Sergeant B. who asked her questions with a view to completing part 1 of a standard form to record, inter alia, details of the arrest and screening procedure and personal details. The first applicant refused to answer any questions save to give her name and she refused to be photographed. The interview ended four minutes later. She was then examined by a medical orderly who endeavoured to establish whether she suffered from certain illnesses, but she again refused to co-operate and did not answer any of his questions. 14. At 8.20 a.m. she was taken to an interview room and questioned by a soldier in civilian clothes in the presence of Corporal D. She was asked, inter alia, about her brothers and her contacts with them, but she still refused to answer questions. After the interview, which ended at 9.35 a.m., she was returned to the reception area and then taken back to the medical orderly who asked her if she had any complaints. She did not reply to this query. At some stage during her stay in the centre she was photographed without her knowledge or consent. This photograph and the personal details about her, her family and her home were kept on record. She was released at 9.45 a.m. without being charged. 15. The standard record form, called the "screening proforma", recorded the first applicant’s name, address, nationality, marital and tenancy status, the chronological details about her arrest, the names of the Army personnel involved, the names of the other applicants and their relationship to her, her physique and her attitude to the interview. Under the heading "Additional information ... concerning the arrestee (as reported by the arresting soldier)", it stated: "Subject is the sister of C... M... who was arrested in USA. Questioned on the above subject." Nothing however was recorded under the heading "Suspected offence". It noted that the applicant had refused to answer questions and that no information had been gained from the interview. 16. Some eighteen months later, on 9 February 1984, the first applicant brought an action against the Ministry of Defence for false imprisonment and other torts. 17. In those proceedings one of the principal allegations made by the first applicant was that her arrest and detention had been effected unlawfully and for an improper purpose. Her allegations were summarised in the judgment of Murray J. given on 25 October 1985: "The plaintiff’s counsel launched a series of attacks on the legality of the plaintiff’s arrest and detention which varied in thrust between the very broad and the very narrow. In the former class, for example, was an attack in which they alleged that the use of section 14 of the [1978 Act] in this case was an example of what they called ‘an institutionalised form of unlawful screening’ by the military authorities, with the intention of obtaining what counsel termed ‘low level intelligence’ from the plaintiff, and without (a) any genuine suspicion on the part of those authorities that she had committed a criminal offence or (b) any genuine intention on their part of questioning her about a criminal offence alleged to have been committed by her." 18. In support of this case the first applicant’s counsel not only called and examined the applicant herself but extensively cross-examined the two witnesses called on behalf of the defendants, namely Corporal D. and Sergeant B. 19. The evidence given by the first applicant is recorded in a note drafted by the trial judge, there being no transcript of the first day of the trial as a result of a technical mishap with the recording equipment. The first applicant explained how she had found the conditions of her arrest and detention distressing for her. She had been angry but had not used strong language. She testified that whilst at the Army centre she had refused to be photographed, to be weighed by the medical orderly, to sign any documents and to answer questions, whether put by Sergeant B., the medical orderly or the interviewer, apart from giving her name. She had made it clear that she would not be answering any questions. She alleged that Sergeant B. had told her in so many words that the Army knew that she had not committed any crime but that her file had been lost and the Army wanted to update it. She said that she had been questioned about her brothers in the USA, their whereabouts and her contacts with them, but not about the purchase of arms for the Provisional IRA or about any offence. She accepted that she had been in contact with her brothers and had been to the USA, including a visit that year (1985). She believed that the Army had wanted to obtain information about her brothers. On leaving the centre, she had told the officials that she would be seeing them in court. 20. As appears from the transcript of her evidence, Corporal D. gave an account of her briefing on the morning of the arrest. She stated that at the briefing she had been told the first applicant’s name and address and the grounds on which she was wanted for questioning, namely her suspected involvement in the collection of money for the purchase of weapons from America. She testified that "my suspicions were aroused by my briefing, and my belief was that Mrs Murray was suspected of collecting money to purchase arms". Under cross-examination Corporal D. maintained that the purpose of an arrest and detention under section 14 of the 1978 Act was not to gather intelligence but to question a suspected person about an offence. She stated that her suspicion of the first applicant had been formed on the basis of everything she had been told at the briefing and which she had read in a document which had been supplied to her then. Corporal D. stated that she would not have effected the arrest unless she had been given the grounds on which she was expected to arrest the person. Under repeated questioning, Corporal D. maintained that she had been informed at the briefing, and that she had formed the suspicion, that the applicant had been involved in the collection of money for the purchase of arms from America. 21. Corporal D. was further examined about the interrogation of the first applicant at Springfield Road. She stated that she recalled that questions had been asked of the applicant by the interviewer and that the applicant had refused to answer any questions put to her. She recalled that the interviewer had asked a few more questions when he returned to the room after leaving it but that she could not really remember what they were about. Counsel for the defence returned to the question of the interview of the applicant towards the end of his examination of Corporal D. in the following exchange: Q. "... Now while you were, just going back for a moment to the time when what I might call the interview, that’s when the three of you were in the room, and the two occasions you’ve said she had to leave, you took her to, she wanted to go to the lavatory. Do you just have no recollection of any of the questions that were asked?" A. "I don’t remember the questions as they were asked. There was a question regards money. A question regards America." No cross-examination by the first applicant’s counsel was directed to this reply of the witness. 22. Sergeant B. was examined and cross-examined about his completion of part 1 of the standard record form when standing at the reception desk. He said that the first applicant had stated her name but refused to give her address or date of birth or any further information. He expressly denied the applicant’s allegation that he had said to her that he knew she was not a criminal and that he just wanted to update her files which had been lost. He gave evidence that information recorded in 1980 on the occasion of a previous arrest of the first applicant had in any event not been lost, since it had been used to complete the details on the first page of the form when she had refused to answer any questions. Under cross-examination Sergeant B. did not accept that the main purpose of questioning a person arrested under section 14 of the 1978 Act was to gather general information about the background, family and associates of the arrested person. He maintained that persons were only arrested and detained if there existed a suspicion against them of involvement in a criminal offence. 23. The issue of the interview of the first applicant was specifically addressed in the final submission of defence counsel, in which the following exchange is partially recorded in the transcript: "MR. CAMPBELL: My Lord ... your Lordship has the grounds upon which the arresting officer carries out (inaudible) she then gives evidence and is present throughout the interview ... now I talk about the interview on the very last stage. JUDGE: At the table? MR. CAMPBELL: At the table, and said that in the course of that interview money and arms that these matters were raised, I can’t ... hesitate to use the (inaudible) now that is one point. The other point is this, that this was a lady who on her own admission was not going to answer any questions. She agreed during cross-examination that that was the attitude and so one finds that an interview takes place with somebody who is not prepared to answer any questions but at least the questions are raised with her concerning the matter on which she was arrested. JUDGE: Is the substance of that then that because of her fairly firm refusal you would say to answer any questions there was never any probing examination of her collecting money for example? MR. CAMPBELL: No my Lord because she ... as she said she wasn’t going to answer any questions." 24. In his judgment of 25 October 1985 Murray J. gave detailed consideration to the evidence of Corporal D. and Sergeant B. on the one hand and the first applicant on the other. Murray J. "could not possibly accept the [first applicant’s] evidence" that she had been told by Sergeant B. that she was not suspected of any offence and that he was just updating his records. He similarly rejected the applicant’s claim that Corporal D. at no time genuinely suspected her of having committed an offence. In the light of the evidence of Corporal D. herself, who was described as a "transparently honest witness", the judge was "quite satisfied that on the basis of her briefing at Musgrave Park she genuinely suspected the [first applicant] of having been involved in the offence of collecting money in Northern Ireland for arms". 25. Murray J. also rejected the first applicant’s claim that section 14 of the 1978 Act had been used with a view to screening in order to gain low-level intelligence: he accepted the evidence of Corporal D. and Sergeant B., which had been tested in cross-examination, that the purpose of the applicant’s arrest and detention under the section had been to establish facts concerning the offence of which she was suspected. Murray J. also believed the evidence of Corporal D. that there were questions addressed to the matters of which the applicant was suspected. He stated: "As regards the interviewer, the plaintiff accepted that he was interested in the activities of her brothers who shortly before the date of the interview had been convicted on arms charges in the USA connected with the Provisional IRA but the [first applicant], who seems to have been well aware of her rights, obviously had decided not to co-operate with the military staff in the centre. In particular she had decided (it seems) not to answer any of their questions and in this situation, and with the short detention period permitted by the section, there was little that the interviewer or any of the other staff in the centre could do to pursue their suspicions." 26. Murray J. likewise rejected the first applicant’s argument that the photographing of her gave rise to a cause of action. His understanding of the law was that merely taking the photograph of a person, even against their will, without physically interfering with or defaming the person was not tortious. 27. The first applicant’s action before the High Court was therefore dismissed. 28. The first applicant thereupon appealed to the Court of Appeal. She again challenged the legality of her arrest on the grounds, inter alia "(1) that the arresting officer did not have, or was not sufficiently proved to have, the requisite suspicion; (2) that she did not have sufficiently detailed knowledge or understanding of what was alleged against the plaintiff to warrant the conclusion that it was an offence which would justify arrest". In its judgment of 20 February 1987 the Court of Appeal unanimously rejected both these grounds. In delivering judgment, Gibson LJ noted: "[The trial judge had] found, and his finding was amply justified by the evidence, that [Corporal D.] genuinely suspected the plaintiff of having been involved in the offence of collecting money in Northern Ireland for arms to be purchased in America for use by a proscribed organisation." In particular, as to the second ground Gibson LJ observed: "Suspicion is something less than proof, and may exist without evidence, though it must be supported by some reason." 29. The Court of Appeal further unanimously rejected the first applicant’s complaint that the purpose of her arrest and detention, and the whole purport of her questioning, was a fishing expedition unrelated to the matters of which she was suspected and designed to obtain low-grade intelligence about the applicant and others. In rejecting this complaint, the Court of Appeal took account of the evidence which had been adduced on both sides: "Corporal D. who was present during the interview had very little recollection of the course of the questions. The only other witness as to the conduct of this interview was the [first applicant]. Her account also is sketchy, though in somewhat more detail. What is clear from both witnesses is that the [first applicant] was deliberately unhelpful and refused to answer most of the questions. What is certain is that she was asked about her brothers ... who in the previous month had been convicted of offences connected with the purchase of firearms in the USA for use by the IRA [and for which offences they had been sentenced to terms of two and three years’ imprisonment]. It is clear that it was for such a purchase that the [first applicant] was suspected of having collected money, as she stated the interviewer asked her whether she was in contact with them. There is no doubt, therefore, that the interviewer did attempt to pursue the subject of the suspicion which had been the occasion for her arrest but was unable to make any headway." 30. The first applicant’s appeal to the Court of Appeal also concerned certain related matters such as the legality of the search of the applicants’ house, in respect of which the Court of Appeal found that there was a sufficient basis in section 14(3) of the 1978 Act (see paragraphs 36 and 38(d) below). The Court of Appeal held that the implied authority granted to the Army under section 14 included a power to interrogate a detained person and, as a practical necessity, a power to record personal particulars and details concerning the arrest and detention. It further found that the standard record form known as the "screening proforma" contained no information which might not have been relevant to the resolution of the suspicion. As regards the applicant’s complaint that she had been photographed without her knowledge, the Court of Appeal stated as follows: "The act of taking the photograph involved nothing in the nature of a physical assault. Whether such an act would constitute an invasion of privacy so as to be actionable in the United States is irrelevant, because the [first applicant] can only recover damages if it amounts to a tort falling within one of the recognised branches of the law on the topic. According to the common law there is no remedy if someone takes a photograph of another against his will. Reliance was placed on section 11(4) of the [1978] Act by counsel for the [first applicant] ... This provision gives power to the police to order [in addition to the taking of a photograph] the taking of finger prints without the necessity of charging the person concerned and applying for an order of the magistrate under article 61 of the Magistrates Courts (Northern Ireland) Order 1981, which contains no comparable provision as to the taking of photographs. The taking of finger prints otherwise than by consent must involve an assault and I am satisfied that section 11(4) was enacted not to legalise the taking of photographs without consent, but to legalise the taking of photographs or finger prints in circumstances where there would otherwise have been an illegal assault. It does not involve the implication that the taking of a photograph without violence and without consent is actionable." 31. The first applicant was granted leave by the Court of Appeal to appeal to the House of Lords. This appeal was rejected on 25 May 1988 (Murray v. Ministry of Defence, [1988] Weekly Law Reports 692). 32. In the House of Lords the applicant did not pursue the allegation that she had not been arrested on the basis of a genuine and honest suspicion that she had committed an offence. She did however pursue the complaint, previously raised before the Court of Appeal, that since she was only lawfully arrested at 7.30 a.m. she had been unlawfully detained between 7.00 and 7.30 a.m. The House of Lords found that a person is arrested from the moment he is subject to restraint and that the first applicant was therefore under arrest from the moment that Corporal D. identified her on entering the house at 7 a.m.. It made no difference that the formal words of arrest were communicated to the applicant at 7.30 a.m. In this respect Lord Griffiths stated (at pp. 698H-699A): "If the plaintiff had been told she was under arrest the moment she identified herself, it would not have made the slightest difference to the sequence of events before she left the house. It would have been wholly unreasonable to take her off, half-clad, to the Army centre, and the same half-hour would have elapsed while she gathered herself together and completed her toilet and dressing. It would seem a strange result that in these circumstances, whether or not she has an action for false imprisonment should depend upon whether the words of arrest are spoken on entering or leaving the house, when the practical effect of the difference on the plaintiff is non-existent." 33. The first applicant had also maintained that the failure to inform her that she was arrested until the soldiers were about to leave the house rendered the arrest unlawful. This submission was also rejected by the House of Lords. Lord Griffiths held as follows (at pp. 699H-701A): "It is a feature of the very limited power of arrest contained in section 14 that a member of the armed forces does not have to tell the arrested person the offence of which he is suspected, for it is specifically provided by section 14(2) that it is sufficient if he states that he is effecting the arrest as a member of Her Majesty’s forces. Corporal D. was carrying out this arrest in accordance with the procedures in which she had been instructed to make a house arrest pursuant to section 14. This procedure appears to me to be designed to make the arrest with the least risk of injury to those involved including both the soldiers and the occupants of the house. When arrests are made on suspicion of involvement with the IRA it would be to close one’s eyes to the obvious not to appreciate the risk that the arrest may be forcibly resisted. The drill the Army follow is to enter the house and search every room for occupants. The occupants are all directed to assemble in one room, and when the person the soldiers have come to arrest has been identified and is ready to leave, the formal words of arrest are spoken just before they leave the house. The Army do not carry out a search for property in the house and, in my view, they would not be justified in doing so. The power of search is given ‘for the purpose of arresting a person’, not for a search for incriminating evidence. It is however a proper exercise of the power of search for the purpose of effecting the arrest to search every room for other occupants of the house in case there may be those there who are disposed to resist the arrest. The search cannot be limited solely to looking for the person to be arrested and must also embrace a search whose object is to secure that the arrest should be peaceable. I also regard it as an entirely reasonable precaution that all the occupants of the house should be asked to assemble in one room. As Corporal D. explained in evidence, this procedure is followed because the soldiers may be distracted by other occupants in the house rushing from one room to another, perhaps in a state of alarm, perhaps for the purpose of raising the alarm and to resist the arrest. In such circumstances a tragic shooting accident might all too easily happen with young, and often relatively inexperienced, armed soldiers operating under conditions of extreme tension. Your Lordships were told that the husband and children either had commenced, or were contemplating commencing, actions for false imprisonment arising out of the fact that they were asked to assemble in the living-room for a short period before the plaintiff was taken from the house. That very short period of restraint when they were asked to assemble in the living room was a proper and necessary part of the procedure for effecting the peaceable arrest of the plaintiff. It was a temporary restraint of very short duration imposed not only for the benefit of those effecting the arrest, but also for the protection of the occupants of the house and would be wholly insufficient to found an action for unlawful imprisonment. It was in my opinion entirely reasonable to delay speaking the words of arrest until the party was about to leave the house. If words of arrest are spoken as soon as the house is entered before any precautions have been taken to search the house and find the other occupants, it seems to me that there is a real risk that the alarm may be raised and an attempt made to resist arrest, not only by those within the house but also by summoning assistance from those in the immediate neighbourhood. When soldiers are employed on the difficult and potentially dangerous task of carrying out a house arrest of a person suspected of an offence in connection with the IRA, it is I think essential that they should have been trained in the drill they are to follow. It would be impracticable and I think potentially dangerous to leave it to the individual discretion of the particular soldier making the arrest to devise his own procedures for carrying out this unfamiliar military function. It is in everyone’s best interest that the arrest is peaceably effected and I am satisfied that the procedures adopted by the Army are sensible, reasonable and designed to bring about the arrest with the minimum of danger and distress to all concerned. I would however add this rider: that if the suspect, for any reason, refuses to accept the fact of restraint in the house he should be informed forthwith that he is under arrest." 34. Before the House of Lords the first applicant also pursued a claim that her period of detention exceeded what was reasonably required to make a decision whether to release her or hand her over to the police. In this regard the applicant complained that the standard record form (the "screening proforma") constituted an improper basis for questioning a suspect on the ground that it asked questions not directly relevant to the suspected offence; it was also suggested that the evidence did not show that the questioning of the applicant was directed to the matters of which she was suspected. The allegation was unanimously rejected by the House of Lords. Lord Griffiths observed as follows (at pp. 703F-704C): "The member of the forces who carried out the interrogation between 8.20 and 9.35 a.m. was not called as a witness on behalf of the Ministry of Defence. There may have been sound reasons for this decision associated with preserving the confidentiality of interrogating techniques and the identity of the interviewer, but be that as it may, the only evidence of what took place at the interview came from Corporal D. and the [first applicant] and it is submitted that this evidence is insufficient to establish that the interview was directed towards an attempt to investigate the suspicion upon which the [applicant] was arrested. Corporal D. was present at that interview, she was not paying close attention but she gave evidence that she remembered questions about money which were obviously directed towards the offences of which the [applicant] was suspected. The [applicant] also said she was questioned about her brothers. The judge also had before him a questionnaire that was completed by the interviewer. ... There is nothing in the questionnaire which the Army may not reasonably ask the suspect together with such particular questions as are appropriate to the particular case ..." The conclusion of the trial judge that the applicant had not been asked unnecessary or unreasonable questions and the conclusion of the Court of Appeal that the interviewer had attempted to pursue with the applicant the suspicion which had been the occasion of the arrest, but had been unable to make any headway, were held by the House of Lords to be justified on the evidence. 35. For more than twenty years the population of Northern Ireland, which totals about one and a half million people, has been subjected to a campaign of terrorism. During that time thousands of persons in Northern Ireland have been killed, maimed or injured. The campaign of terror has extended to the rest of the United Kingdom and to the mainland of Europe. The 1978 Act forms part of the special legislation enacted over the years in an attempt to enable the security forces to deal effectively with the threat of terrorist violence. 36. The first applicant was arrested under section 14 of the 1978 Act, which at the relevant time provided as follows: "(1) A member of Her Majesty’s forces on duty may arrest without warrant, and detain for not more than four hours, a person whom he suspects of committing, having committed or being about to commit any offence. (2) A person effecting an arrest under this section complies with any rule of law requiring him to state the ground of arrest if he states that he is effecting the arrest as a member of Her Majesty’s forces. (3) For the purpose of arresting a person under this section a member of Her Majesty’s forces may enter and search any premises or other place - (a) where that person is, or (b) if that person is suspected of being a terrorist or of having committed an offence involving the use or possession of an explosive, explosive substance or firearm, where that person is suspected of being." A similar provision had been in force since 1973 and had been considered necessary to deal with terrorist activities in two independent reviews (Report of the Diplock Commission 1972 which recommended such a power and a Committee chaired by Lord Gardiner 1974/1975). 37. In 1983 Sir George Baker, a retired senior member of the judiciary, was invited by the Government to review the operation of the 1978 Act in order to determine whether its provisions struck the right balance between the need, on the one hand, to maintain as fully as possible the liberties of the individual and, on the other, to provide the security forces and the courts with adequate powers to enable them to protect the public from current and foreseeable incidence of terrorist crime. In the resultant report specific consideration was given to, inter alia, including a requirement in section 14 of the 1978 Act that an arrest should be based upon reasonable suspicion. While expressly recognising the risk that the facts raising the suspicion might come from a confidential source which could not be disclosed in court in a civil action for wrongful arrest, Sir George Baker concluded that the inclusion of a requirement of reasonableness would not in fact make any difference to the actions of the military and recommended an amendment to the 1978 Act accordingly. That recommendation was implemented in June 1987. 38. The scope and exercise of the section 14 powers were considered by the domestic courts in the proceedings in the present case. The applicable law, as stated by the judgments in these proceedings, is that when the legality of an arrest or detention under section 14 is challenged (whether by way of habeas corpus or in proceedings for damages for wrongful arrest or false imprisonment), the burden lies on the military to justify their acts and, in particular, to establish the following elements: (a) compliance with the formal requirements for arrest; (b) the genuineness of the suspicion on which the arrest was based; (c) that the powers of arrest and detention were not used for any improper purpose such as intelligence-gathering; (d) that the power of search was used only to facilitate the arrest and not for the obtaining of incriminating evidence; (e) that those responsible for the arrest and detention did not exceed the time reasonably required to reach a decision whether to release the detainee or hand him over to the police. 39. Section 11 of the 1978 Act, which concerns police arrest, provides in paragraph 4: "Where a person is arrested under this section, an officer of the Royal Ulster Constabulary not below the rank of chief inspector may order him to be photographed and to have his finger and palm prints taken by a constable, and a constable may use such reasonable force as may be necessary for that purpose." 40. In the general law of Northern Ireland, as in English law, it is lawful to take a photograph of a person without his or her consent, provided no force is used and the photograph is not exploited in such a way as to defame the person concerned (see paragraphs 26 and 30 in fine above). The common-law rule entitling the Army to take a photograph equally provides the legal basis for its retention. 41. As was confirmed in particular by the Court of Appeal and the House of Lords in the present case, the standard record form (known as the "screening proforma") was an integral part of the examination of the first applicant following her arrest, and the legal authority for recording certain personal details about her in the form derived from the lawfulness of her arrest, detention and examination under section 14 of the 1978 Act (see paragraph 30, first sub-paragraph in fine, and paragraph 34 above). The implied lawful authority conferred by section 14 of the 1978 Act to record information about the first applicant equally provided the legal basis for the retention of the information. | 0 |
train | 001-22377 | ENG | NOR | ADMISSIBILITY | 2,002 | KLEUVER v. NORWAY | 3 | Inadmissible | Georg Ress | The first applicant is a Dutch national, born in 1964 and living in The Hague, the Netherlands. The second applicant is her son born on 11 November 1990. The applicants are represented before the Court by Mr Knut Rognlien, a lawyer practising in Oslo. The first applicant’s father died when she was at the age of 11. Thereafter her mother remarried. According to her doctor the first applicant was treated several times by a psychiatrist as she was very depressive, especially in the years 1987, 1988 and 1989. As part of the treatment she was from time to time provided with medication. The first applicant had a sister and a stepbrother. The latter, who died in 1989, was according to the first applicant shot dead by the police while in police custody in Belgium. Following her brother’s death the first applicant became further psychologically imbalanced and went on sick leave for two weeks. Her mother attempted suicide (by taking pills) and had alcohol problems. At the time of the events described below the first applicant had no previous criminal record and had been in gainful employment as a secretary since the age of 18. She had a partner with whom she did not cohabit. On 27 February 1990, the first applicant explains that she bought on a street in The Hague a Citroen 2CV from a person who she knew just as “John”. She had the car registered and drove towards Scandinavia in the evening of the same day. The week beforehand, she had deliberately tried to become pregnant and when she left she was aware that she had succeeded in this. She was pregnant with the second applicant. On 1 March 1990, the Norwegian Police stopped her having been notified by the Danish customs authorities that she had given them peculiar information concerning her travel destination, etc. The first applicant was arrested after the police had found 4.951 Kg of amphetamine in the Citroen 2CV that she had driven from the Netherlands to Norway. The drug had a particularly high degree of purity; some 63-71 weight per cent, with a street value assessed at NOK 5,000,000. The first applicant stated to the police that she had neither knowledge of Norway nor any acquaintances in the country, she was in possession of a limited amount of money upon arrest and had no credit card, to her employer in the Netherlands she had said that she had to go on a holiday with her mother who had been to hospital after taking an overdose. On 3 March 1990 she was remanded in custody at Bredtvedt National Prison. On 31 May 1990 she was transferred to Drammen District Prison, as she had made an attempt to flee, assisted by two persons visiting her from the Netherlands who had left a filing tool under the prison fence. On 4 July 1990 she was transferred back to Bredtvedt Prison. After a hearing on 10 and 11 September 1990, the Eidsivating High Court (lagmannsrett) jury answered the charges in the negative, whereupon the judges sitting in the case unanimously set aside the first applicant’s acquittal by the jury as obviously erroneous and ordered a retrial. In order to facilitate the applicant’s particular situation and to co-ordinate future measures vis-à-vis the mother and child, several discussions were held between representatives from the child care authorities, the relevant hospital, the prosecution, the police and her lawyer, who throughout the first applicant’s stay in Norway, until she unilaterally decided to send the second applicant to his grandmother in the Netherlands, were in close co-operation with one another. To this end also a meeting was held at Bredtvedt Prison between all the persons concerned, including the first applicant and her lawyer. She was able to communicate fluently in English. After the first applicant’s attempted flight, security became an issue and different options were considered. Between 14 August and 8 November 1990, the first applicant went eight times to Aker Hospital in Oslo for prenatal checks, including ultra sound examinations. Most times she was accompanied by uniformed police officers and was obliged to wear handcuffs during her transportation and while in the waiting room with other patients. She felt humiliated vis-à-vis other patients because of the presence of uniformed police and the use of handcuffs. The handcuffs were removed before the actual medical examinations and, with one exception, before she entered the examination room. Some times the first applicant was accompanied by plain-clothed police officers from the anti-drugs squad who did not apply handcuffs, as they felt they had sufficient knowledge of her and her case to keep her under constant surveillance without applying handcuffs. The first applicant found it unacceptable that she could not always be accompanied by the latter police officers. On one occasion, when the applicant had an ultra sound examination, two male police officers followed her into the examination room, as it was on the ground floor with windows whereby one could leave the building. One of the officers then assisted as an interpreter at the request of the midwife who did not master English. He inter alia explained to the first applicant what could be seen on the screen during the examination. The examination was limited to a plain ultra sound examination. Only at a later time did the first applicant complain about the police officers’ presence in the room during the ultra sound examination. On 11 November 1990 the first applicant gave birth to the second applicant at Ullevål Hospital in Oslo, one of the best-equipped hospitals in the country. During her hospitalisation, which lasted some nine days, she was guarded by two police officers. At that time there had already been one incident in Norway where a female detainee had fled in connection with giving birth at a hospital. There were other incidents were a detainee had fled when taken to hospital for medical reasons. On one such occasion, at the least, the detainee had been armed. Shortly before the first applicant gave birth, the two uniformed police officers followed her at a close distance as she and the female deputy director of the prison, serving as her support person, walked up and down the corridor. While the first applicant gave birth, the two officers sat outside the delivery room. The door to the room was closed and a folding screen was positioned between the first applicant’s bed and the door. At the first applicant’s request, the deputy director attended the birth as her support person. The latter was a psychologist specialised in social psychology who had spent much time talking to and assisting the first applicant during her detention. In retrospect it had been observed that, on the whole, the efforts made by the prison staff in order to accommodate the first applicant’s wishes and needs had almost been at the expense of those made vis-à-vis other prisoners. The first applicant’s mother came to visit and assist her daughter the day after the second applicant was born. On 19 November 1990 the first applicant was released from the hospital and transferred back to the prison. It was not deemed suitable that the son stay with his mother in Bredtvedt prison, which did not have the necessary facilities. This institution was considered unsuitable for keeping small children, in view of inter alia its architectural disposition, the outdoor areas, the sanitary conditions and the composition of the prison population. The latter comprised all categories of detainees, including mentally unstable persons held in security detention. A number of detainees were struggling with poor mental health, infectious diseases, consumption of intoxicating substances as well as deviant behaviour. The second applicant was instead placed in the Aline Child Care Centre offering high quality services for the mother and the newborn. The Centre was situated in Oslo at a relatively close distance to the Bredtvedt prison. Arrangements were put in place to enable the baby to be fed with his mother’s milk. Until 17 December 1990 the first applicant was transported 5 times a week to visit the boy at the Centre for 1 1/2 hour each time. On a few occasions, she was accompanied by police officers. Some times, as was the case during the prenatal checks, the officers wore uniform and applied handcuffs on the first applicant until she received her son. On other occasions her guardians were plain cloth police officers from the anti-drug squad who did not apply handcuffs on her. Thereafter, for a month, the boy was brought to the prison for 2 ½ hours a day on weekdays and 4 ½ hours a day on weekends. From 22 to 25 January 1991, the second applicant was hospitalised at Ullevål Hospital because of a lung virus. Its paediatric ward was located on the ground floor. The first applicant was able to visit him once for a duration of 20 minutes, on which occasion she was wearing so-called transport cuffs – that was a chain attached to a foot and the opposite arm. Under these conditions she was permitted to be alone with the baby in a separate room while being observed by the police only through a screen. However, she could hold her baby, but was allegedly unable to nurse him and put him back in bed. Afterwards the mother received her son in the prison every day. On her return to the prison after the above-mentioned visits, the applicant was regularly body searched, although some prison guards omitted to do this. The searches were carried out in accordance with standard practice. In a separate room she had to undress completely before a female prison officer, who, without any physical contact with her, inspected her hair, ears, mouth, arm pits and the crotch and made her squat and swing to and fro to ensure that she would not bring any unauthorised items into the prison. After 17 December 1990, such searches were occasionally also carried out after the boy had visited his mother in prison. The Aline Child Care Centre had on 28 December 1990 received information suggesting that the son showed signs of nervousness, and it was thought that it might be due to drug abuse by his mother Because she had refused 3 times to allow a body search, the first applicant was placed in an isolation cell only equipped with a mattress, for a duration of a couple of hours and once for some 24 hours. She made a complaint in writing. As of 3 January 1991 she was no longer searched after her son’s visits as she accepted to give urine samples enabling the prison administration to verify possible drug abuse. The tests proved negative. On 5 February 1991, after a retrial, the High Court convicted the applicant and sentenced her to 6 years’ imprisonment, from which the 342 days already spent in custody were to be deducted. This was deemed to be a relatively lenient sentence for such a serious drug offence, the reasons being her pregnancy, the birth in detention on remand and the fact that it would be an extra burden for her to serve a long prison sentence in a foreign country, with language difficulties and the absence of close relatives. On 10 February 1991, at the initiative of the first applicant, the second applicant left Norway with his maternal grandmother, who then assumed the care for the second applicant in the Netherlands. This was before her conviction and sentence had gained legal force and before the Norwegian authorities had taken a stance on where the first applicant should serve her sentence. The prosecution, for its part, had in a letter of 7 February 1991 to the prison authorities expressed the view that, since she was a Dutch national without any links to Norway, the service of the sentence should not be postponed; otherwise she would have to remain in detention on remand. Although there was no general agreement about the serving of sentences between the Netherlands and Norway, the prosecution was not opposed to the first applicant serving the sentence in her home country. The first applicant was allowed to call (free of charge) her mother and son for 20 minutes a week, in accordance with the applicable rules. On 25 May 1991 she sought to have the time extended. Her request was rejected by the Prison Director on 4 June 1991, which decision was upheld by the Prison Board on 14 October 1991, as there were no extraordinary circumstances to warrant an extension of the time offered. As of 30 October 1991, she was granted an extra call per week at her own expense. As of 21 February 1992, the first applicant was transferred to a wing with a more lenient regime, on a contractual basis of good behaviour. Thereafter, there was no time restriction on her use of the telephone. On 5 June 1992 the first applicant requested a pardon from the Ministry of Justice, which request was rejected. It was observed that the condition of her health and the interests of the mother and child in being reunited could not outweigh the interest of avoiding giving an undesirable signal with respect to the use of pregnant women as drug couriers. Her subsequent appeal against this refusal was successful, having regard to her depressive and psychotic mental state and concerns about the child’s future care and development. The first applicant was released on 17 July 1992 and returned to the Netherlands where she reunited with her son. In the meantime, she had several times been visited in the prison by her son and mother who had come from the Netherlands. Prior to being pardoned, the first applicant had already brought proceedings against the State seeking a declaration (fastsettelsessøksmål) of a violation of Articles 3 and 8 of the Convention, as well as compensation. Her claim was rejected by the Oslo City Court (byrett) in February 1993 and dismissed by the Eidsivating High Court in September 1993, which decision was upheld by the Appeals Selection Committee of the Supreme Court in October 1994. She then sought compensation under a different procedure, requesting an executory judgment (fullbyrdelsessøksmål). By judgment of 17 January 1997, the High Court upheld the City Court’s above-mentioned judgment, as did the Supreme Court in a judgment on 2 July 1998. Before the Supreme Court, the first applicant unsuccessfully challenged the participation of one of its judges, Mr Justice Pedersen. The judge in question, who normally served as President of Eidsivating High Court, had as a temporary (konstituert) judge occupied a seat in the Supreme Court from 1 May to 6 July 1998, vacated by a judge who had retired, and had replaced another judge on sabbatical leave from 17 August to 31 December 1998. On each occasion, the Supreme Court had first inquired of him whether he might be willing to take on the assignment and, after he had given an affirmative answer, the King, sitting in Government Cabinet, had taken the decision to appoint him as a replacement judge for the period in question. At the material time Mr Pedersen had not applied for any vacant seat in the Supreme Court. | 0 |
train | 001-58149 | ENG | FRA | GRANDCHAMBER | 1,998 | CASE OF REINHARDT AND SLIMANE-KAÏD v. FRANCE | 2 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed | C. Russo;John Freeland;R. Pekkanen | 8. Mr Slimane-Kaïd was formerly the chairman of two public limited companies Provex S.A. (“Provex”) and Servec S.A. (“Servec”), respectively engaged, in particular, in buying equipment for export and in industrial coachbuilding. On 26 January 1982 he had also formed with Mrs Reinhardt a private company called Urka S.A.R.L (“Urka”), whose registered office was at the latter’s home address and main activity the hire and sale of equipment of all types both in France and overseas. On 1 July 1982 Mr Slimane-Kaïd had replaced Mrs Reinhardt as manager of that company. 9. Under two commercial agreements the Iveco company was to sell industrial vehicles to Provex and deliver “cab chassis” on bailment, with Iveco being named as bailee, to coachbuilders designated by either Provex or Servec. It was stipulated that at the end of the bailment and on receipt of payment, Iveco would deliver to Provex and Servec the vehicle test certificates (feuilles des mines) of the vehicles concerned and the certificates of sale. 10. The description of the facts set out in this and the next paragraph is based on the documents from the domestic proceedings produced to the Court. On 28 April 1984 two hundred and eighty-seven vehicles belonging to Iveco were delivered on bailment to Servec’s premises. The periods of bailment were due to end on 5 June, 5 July, 5 August and 5 September 1984; on those dates Provex and Servec were to take up the purchase option on the vehicles and to obtain delivery of the test certificates for each vehicle and the certificates of sale specific to Iveco. At Iveco’s request, a bailiff inspected Servec’s premises and drew up an official report on 11 May 1984. A court-appointed expert carried out an inspection on 25 July 1984 and an interim attachment was made on 28 August 1984. It was found on the first of those three dates that 155 vehicles were missing, on the second that 198 were missing and on the third that 211 were missing. Iveco obtained restitution of only 43 vehicles; the others had been registered and sold. 11. On 27 July 1984 an Iveco representative reported certain of these matters to the Versailles Regional Criminal Investigation Department (“RCID”). Inquiries were made by Detective Inspector Renaud. In a report of 24 September 1984 he said that the test certificates and certificates of sale of 116 Iveco vehicles that had been filed by Provex for registration purposes with the prefecture were forgeries; he went on to say that offences may have been committed under the companies acts and insolvency legislation in connection with Servec /Provex and to conclude that a judicial investigation was necessary. 12. On 25 September 1984 the Chartres public prosecutor made a written application for an investigation to be opened into offences by an unnamed person of misappropriation and procuring the issue of administrative documents by means of false information, certificates or statements. Mr Candau, the investigating judge, who was assigned to the case that day, sent instructions on 27 September 1984 to the head of the Versailles RCID to “... continue the investigation with a view to identifying the persons who committed the offences, their co-principals and accomplices...”. 13. On 2 October 1984 Mr Slimane-Kaïd was taken into police custody and questioned. On 4 October 1984 the Versailles RCID’s report was received, Mr Slimane-Kaïd was charged with misappropriation and procuring the issue of administrative documents by means of false information, certificates or statements, and remanded in custody (until 8 January 1985, when the investigating judge ordered his release under judicial supervision). On the same day the investigating judge sent instructions to the Versailles RCID to pursue the investigation. 14. On 2 October 1984 the Chartres public prosecutor made a written application for an additional investigation to be opened into offences of forgery of private, commercial or banking documents by Mr Slimane-Kaïd, who was suspected of having falsified the relevant test certificates and certificates of sale. 15. On 12 October 1984 Iveco – which had joined the proceedings as a civil party claiming damages on 9 October – made oral submissions and a director of Provex was heard as a witness. On the same day and on 15 October 1984 Mr Slimane-Kaïd’s lawyer wrote to the investigating judge enclosing documents for the file. Iveco’s lawyer did likewise on the latter date. 16. Mr Slimane-Kaïd was questioned on 15 and 16 October 1984 and an Iveco executive was heard on 17 October. On 22 October a confrontation was held between Mr Slimane-Kaïd and an Iveco executive and on 9 November 1984 Mr Slimane-Kaïd was questioned again and charged with forgery of private, commercial or banking documents. 17. On 10 November 1984 Mr Slimane-Kaïd’s lawyer wrote to the investigating judge enclosing documents for the file. Iveco’s lawyer did likewise on 13 December 1984. 18. Since the investigators suspected Mr Slimane-Kaïd of further offences, a second preliminary inquiry was started on 3 October 1984 into his activities at Provex, Servec and Urka. 19. Between 9 October 1984 and 27 March 1985 the Versailles RCID carried out a number of searches and seizures at Mr Slimane-Kaïd’s home address and on the premises of Provex; but they also carried out searches and seizures on 16 October 1984 at Mrs Reinhardt’s home (the registered office of Urka) – while she was in custody – and on 18 October 1984 in a house rented by Urka. On 14 November 1984 Mrs Reinhardt was questioned by a police investigator. 20. On 2 November 1984 the investigating judge had made an order transmitting the file to the public prosecutor for submissions (ordonnance de soit-communiqué). On 11 December 1984 the Chartres public prosecutor made an application for additional charges to be preferred against Mr Slimane-Kaïd for misappropriating company assets, offences equivalent to negligent bankruptcy (for failure to declare within the statutory time-limit that the company was unable to meet its liabilities), fraudulent bankruptcy (for misappropriation of part of the company’s assets), false accounting and fraud. On 14 December 1984 Mr Slimane-Kaïd was charged with those offences. 21. On 19 December 1984 the investigating judge sent instructions to the head of the Versailles RCID to pursue the investigation into all the offences with which Mr Slimane-Kaïd had been charged. 22. Mr Slimane-Kaïd was questioned on 3 and 7 January 1985. 23. The Versailles RCID sent the investigating judge its report on 1 February 1985 after carrying out the instructions. On the same day, Mr G., who had been held in custody since 30 January, was charged with forgery of private, commercial or banking documents and released under judicial supervision. He was suspected of issuing false invoices to Provex and Servec and supplying Mr Slimane-Kaïd with the means for committing a like offence. 24. On 1 February 1985 the investigating judge sent instructions to the Versailles RCID to pursue the investigation into the offences with which Mr Slimane-Kaïd and Mr G. had been charged. The Versailles RCID sent in its report on 7 February. 25. Mrs Reinhardt was arrested on 6 February 1985; the next day, following an application by the Chartres public prosecutor for a further investigation to be opened, she was charged with aiding and abetting the misappropriation of company assets and of handling misappropriated company assets. She was suspected of having given Mr Slimane-Kaïd four blank cheques between July and December 1983 drawn on Urka’s bank account for a total of 1,735,000 French francs – which she had signed and which Mr Slimane-Kaïd was to make out and endorse – and of having benefited from monies fraudulently obtained from that company. 26. On 7 February 1985 the investigating judge sent instructions to the Versailles RCID to pursue the investigation into the offences with which Mr Slimane-Kaïd, Mr G. and Mrs Reinhardt had been charged. 27. On 25 March 1985 Mr Slimane-Kaïd’s lawyer sent a letter to the investigating judge enclosing documents for the file. 28. On 31 May 1985 the Versailles RCID sent in its report pursuant to the investigating judge’s instructions of 7 February 1985. 29. Mr Slimane-Kaïd and Mr G. were questioned on 4 and 5 December 1985 respectively and Mrs Reinhardt – who had been summoned to appear before the investigating judge on 4 December 1985, but had not done so – on 11 February 1986. 30. On 25 March 1986 the investigating judge made an order transmitting the file to the public prosecutor for submissions. 31. On 16 July 1986 Mr Slimane-Kaïd wrote to the investigating judge enclosing documents for the file. 32. In a further application of 21 July 1986 the Chartres public prosecutor requested the investigating judge to pursue the investigation into the offences with which Mr Slimane-Kaïd, Mr G. and Mrs Reinhardt had been charged and to interview Mr Slimane-Kaïd, Mr G. and the managing director of the VPL company. 33. On 25 September 1986, following a complaint lodged on 17 July 1986 by VPL (which joined the proceedings as a civil party claiming damages) against a person or persons unknown for misappropriation and forgery of commercial documents, the senior investigating judge at Chartres made an order transmitting the file to the public prosecutor for submissions. 34. On 29 September 1986 the Chartres public prosecutor applied for an investigation to be opened for misappropriation and forgery of commercial documents by a person or persons unknown. The investigation was to be conducted by Judge Candau. 35. On 7 January 1987 both investigations were assigned to a different judge, Judge Halphen. He heard VPL’s representative on 5 February 1987. 36. On 16 February and 18 March 1987 Mr Slimane-Kaïd and his lawyer wrote to the investigating judge enclosing documents for the file in connection with the first set of proceedings. 37. Mr Slimane-Kaïd was questioned on 11 June and 8 July 1987. 38. On 1 July VPL’s lawyer had sent documents to the investigating judge requested by the latter in a letter of 9 June 1987. 39. Mr Slimane-Kaïd’s lawyer wrote to the investigating judge on 10 September 1987 regarding the hearing of witnesses and inquiries in the first investigation. On 22 September 1987 Iveco’s lawyer produced documents for the file. 40. Instructions were sent on 7 October 1987 to the Versailles RCID for inquiries to continue into the offences with which the three suspects had been charged. 41. On 28 October 1987 the investigating judge ordered that an expert’s report be commissioned on the signatures at the foot of the certificates of sale. The expert filed his report on 31 December 1987. It was served on Iveco on 29 April 1988. 42. On 11 April 1988 Mr Slimane-Kaïd wrote to the investigating judge informing him that he had changed lawyers. 43. On 25 April 1988 the Versailles RCID’s report pursuant to the instructions of 7 October 1987 was received. 44. On 5 May 1988 Mr Slimane-Kaïd wrote to the investigating judge informing him that he had changed lawyers. 45. On 25 May 1988 he was questioned and charged in connection with the second investigation with misappropriation and forging commercial documents. 46. On 16 June 1988 he wrote to the investigating judge informing him that he had changed lawyers. 47. On 29 June 1988 he again appeared before the investigating judge. 48. On 7 and 22 July and 26 September 1988 Mr Slimane-Kaïd or his lawyer wrote to the investigating judge in connection with additional inquiries and the production of documents for the file. 49. On 5 December 1988 a confrontation was held between Mr Slimane-Kaïd and the VPL representative. 50. On 26 and 29 December 1988, 12 and 30 January, 27 and 28 February and 6 and 7 March 1989, Mr Slimane-Kaïd or his lawyer wrote to the investigating judge in connection with additional inquiries and the production of documents for the file. 51. On 16 March 1989, in connection with the first investigation concerning Mr Slimane-Kaïd, the investigating judge instructed the Chartres police superintendent to “inspect the Iveco vehicle registration file for the first six months of 1969 and the first six months of 1970” and “to seize and place official seals on the originals of the test certificates”. 52. On 20 March 1989 VPL’s lawyer wrote to the investigating judge and produced documents for the file. 53. On 30 March 1989 the investigating judge heard an Iveco representative. Documents were produced for the file. 54. On 13 April 1989 the Versailles RCID’s report on the instructions of 16 March 1989 was sent to the investigating judge. 55. On 5 June 1989 Mr Slimane-Kaïd’s lawyer wrote to the investigating judge enclosing documents for the file relating to the first investigation; a lawyer acting for one of the civil parties did likewise on 16 June 1989. 56. On 26 June 1989 the investigating judge heard Mr Slimane-Kaïd, who both at that hearing and under cover of a letter of 7 July 1989 produced documents for the file. 57. On 25 July 1989 Mr Slimane-Kaïd requested an expert audit of Iveco’s accounts. The request was renewed by his lawyer on 26 July, but turned down by the investigating judge on 28 July 1989. Mr Slimane-Kaïd appealed against that decision on 1 August 1989 but, following submissions on 19 September 1989 by the Principal Public Prosecutor at the Versailles Court of Appeal, the President of the Indictment Division of that court refused, in an order of 26 September 1989, to refer the request to the Indictment Division. 58. On 9 August 1989 Iveco’s lawyer had written to the investigating judge and produced documents for the file. Mr Slimane-Kaïd’s lawyer did likewise on 19 September 1989 in connection with the second investigation. 59. By an order of the president of the Chartres tribunal de grande instance on 23 October 1989, Judge Halphen was replaced by Judge Defarge. On 3 November Judge Defarge ordered the transmission of the file to the public prosecutor for submissions with a view to joinder of the two sets of proceedings; the public prosecutor sought an order to that effect the same day. On 6 November 1989 the investigating judge made two orders: the first for joinder of the two sets of proceedings and the second for transmission of the file to the public prosecutor. On 28 November 1989 the public prosecutor made final submissions requesting the committal of Mr Slimane-Kaïd, Mr G. and Mrs Reinhardt to the criminal court. On 14 December 1989 Judge Defarge made a committal order. 60. The Chartres Criminal Court held a hearing on 11 June 1990. On 25 June 1990 Mr Slimane-Kaïd’s lawyer wrote to the president of that court enclosing documents for the file, as did Iveco’s lawyer on 8 August 1990. Mr Slimane-Kaïd’s lawyer forwarded further documents on 25 August. On 12 September 1990 the criminal court decided to extend its deliberations until 14 November1990. On 22 and 25 October 1990 respectively Iveco and Mr Slimane-Kaïd’s lawyers wrote to the president of that court enclosing documents for the file. 61. Judgment was delivered on 14 November 1990. Mr Slimane-Kaïd was found guilty of misappropriation, forging private, commercial or banking documents, fraud, false accounting and misappropriation of company assets and sentenced to five years’ imprisonment, three of which were suspended; he was barred from carrying on any business activity for ten years. Mr G. was given a sentence of eighteen months’ imprisonment for forging private, commercial or banking documents and aiding and abetting the forgery of commercial documents and Mrs Reinhardt a one-year suspended sentence for aiding and abetting the misappropriation of company assets. The court declared the civil party claims of Iveco and VPL inadmissible. 62. Mr Slimane-Kaïd appealed to the Versailles Court of Appeal on 14 November 1990, as did the public prosecutor's office, Mrs Reinhardt, Mr G. and Iveco on 15, 16, 20 and 26 November 1990 respectively. 63. According to the Government, on 22 January and 8 February 1991 a summons was issued requiring a representative of VPL to appear, but the company could not be located. Mrs Reinhardt, Iveco, the liquidator of Servec (Mr Pierrat) and Mr Slimane-Kaïd were summonsed on 8, 15 and 19 February and 8 March 1991 respectively. 64. At the hearing on 21 March 1991 Mrs Reinhardt, Mr Slimane-Kaïd and Iveco lodged their submissions. The hearing was adjourned to 3 October 1991 to enable summonses to be served on Mr G. and VPL. Summonses were issued against Mr G. on 16 April 1991 and, according to the Government, against VPL on 25 September 1991, but neither could be located. 65. On 3 October 1991 the hearing was adjourned for the last time to 6 February 1992 to enable summonses to be served on VPL and Mr Mariani, the liquidator acting in the joint liquidation of Provex, Provex S.A.R.L. and Urka. Summonses were issued against VPL on 5 November 1991 and 8 January 1992. 66. On 2 April 1992 the Versailles Court of Appeal acquitted Mr Slimane-Kaïd on the count of misappropriation of company assets, upheld the guilty verdict on the other counts and confirmed the sentence. It increased Mrs Reinhardt’s sentence to a term of eighteen months’ imprisonment, suspended, and reduced Mr G.’s sentence to one year. It upheld the judgment of the trial court in all other respects. 67. Mrs Reinhardt and Mr G. lodged appeals on points of law with the Court of Cassation that same day. Mr Slimane-Kaïd and Iveco did likewise on 3 and 6 April. Mr G. also appealed. The case file was sent to the Court of Cassation on 29 April 1992 and assigned to a reporting judge on 2 June 1992. Iveco lodged written pleadings on 31 August 1992, followed by Mr G. and Mrs Reinhardt on 1 September 1992. On 12 October 1992 Iveco lodged one, and Mr Slimane-Kaïd two, written pleadings. The reporting judge filed his report on 20 November 1992 and the advocate-general was appointed on 30 November. Mr Slimane-Kaïd filed written pleadings on 18 February and 9 March 1993. VPL and Mr Mariani filed pleadings on 11 March 1993. 68. According to the Government, it is unlikely that the advocate-general prepared his submissions in writing as he intended to present them orally at the hearing. The Government further maintained that at the hearing of the Court of Cassation on 15 March 1993, which took place without the applicant’s representatives being present, the reporting judge addressed the court and oral submissions were made by the advocate-general. 69. In a decision delivered on 15 March 1993, the Court of Cassation, relying on the reporting judge’s report, the parties’ pleadings and the submissions of the advocate-general, dismissed the appeals of those who had been convicted. 70. The Court of Cassation is composed of the president, the divisional presidents, the judges, the auxiliary judges, Principal State Counsel, the Principal Advocate-General, the advocates-general, the senior registrar and the divisional registrars (Article L. 121-1 of the Judicature Code). It is divided into five civil divisions and one criminal division, each comprising a divisional president, judges, auxiliary judges, one or more advocates-general and a divisional registrar (Articles L. 121-3, R. 121-3 and R. 121-4). The divisions are subdivided into sections, in which formation most appeals are heard. 71. Judgments of an Indictment Division and judgments delivered by an assize court, a criminal court or a police court sitting as a court of last instance may, if they are not in accordance with the law, be set aside on an appeal on points of law by either the public prosecutor's office attached to the court which delivered the judgment or the party adversely affected (Article 567 of the Code of Criminal Procedure). In criminal cases, Principal State Counsel at the Court of Cassation may appeal to that court only for the purposes of clarifying the law (pourvoi dans l’intérêt de la loi). In such cases, he appeals either on formal instructions from the Minister of Justice (Article 620) or of his own motion against a judgment delivered by an assize court, a criminal court or a police court sitting as a court of last instance where none of the parties has entered an appeal within the set time-limit (Article 621); in the event of an appeal by Principal State Counsel of his own motion, if the appeal is allowed the judgment is reversed but the parties may not rely on the Court of Cassation’s ruling to contest execution of the judgment that has been set aside (ibid.). 72. As soon as the case file is received by the registry of the Criminal Division of the Court of Cassation, the president of that division appoints a reporting judge (Article 587 of the Code of Criminal Procedure) from among the judges and the auxiliary judges; the latter have a vote at deliberations on appeals in which they are appointed as reporting judge (Article L. 131-7 of the Judicature Code). 73. The reporting judge draws up a written report in which he carries out a thorough review of the case, sets out the legal arguments deduced from the grounds of appeal, indicates what research he has carried out into legal opinion and case-law on the basis of the grounds of appeal and states his recommendations. He also prepares a draft judgment, which is distributed to each of his colleagues as a basis for discussion at deliberations. The case file lodged by the reporting judge is sent by the registry, with the report and draft judgment, to the advocate-general assigned to the case by Principal State Counsel. Counsel for the parties are informed of the recommendation in the report (appeal to be declared inadmissible, or to be dismissed, allowed in part or in full) by an entry in the list of cases that is distributed a week before the hearing to lawyers practising in the Conseil d’Etat and Court of Cassation. In principle, any additional pleading filed at this stage will be declared inadmissible (Article 590 of the Code of Criminal Procedure). However, the Court of Cassation has a discretion and it appears that examples of its declaring inadmissible pleadings filed late are rare (see Y. Monnet, Principal Advocate-General at the Court of Cassation, “Pourvoi en cassation”, Juris-classeur procédure pénale, 1993, fascicule 40). 74. Principal State Counsel's Office at the Court of Cassation does not act as a prosecuting authority before that court. Except in appeals made for the purposes of clarifying the law, it acts only as a party joined to the criminal proceedings. Its role is not to argue the prosecution’s case but to ensure that the law is correctly applied (see “Pourvoi en cassation”, cited above, and P. Malibert, Ministère Public, Juris-classeur procédure pénale, 1994). Mr Charbonnier, Advocate-General at the Court of Cassation, thus explains that whereas the role of the prosecution consists, in principle, of law enforcement and upholding the law, the role of Principal State Counsel's Office at the Court of Cassation is confined to the latter task. In that capacity it is required to ensure that the law is correctly applied when it is clear and correctly construed when ambiguous (L. Charbonnier, “Ministère Public et Cour suprême”, La semaine juridique, Doctrine (1991), Ed. G. no. 43). 75. The duties of State Counsel in the Court of Cassation are “personally conferred on Principal State Counsel” (Article R. 132-1 of the Judicature Code). Save for directions to lodge an appeal for the purposes of clarification of the law, Principal State Counsel does not receive any instructions regarding the performance of his duties (see for example the speech made on 6 January 1995 by Mr Jéol, Principal Advocate-General at the Court of Cassation, at the formal ceremony marking the beginning of the judicial year, La documentation française, Paris 1995, and the “Ministère Public et Cour suprême” article cited above). Principal State Counsel “assigns the Principal Advocate-General and the advocates-general to the divisions in which he considers they may most usefully serve” (Article R. 132-2). The Principal Advocate-General and the advocates-general “speak on behalf of Principal State Counsel in the divisions to which they have been appointed” (Article L. 132-3). In important cases their submissions are communicated to Principal State Counsel, who, if he is not in agreement and the advocate-general refuses to amend them, may delegate another advocate-general or make submissions himself at the hearing (Article R. 132-3). It appears, however, that that provision has never been applied and that in practice the advocates-general are, therefore, free to decide on the tenor of their submissions (see the “Pourvoi en cassation” article cited above). In his speech of 6 January 1995 (referred to above) Mr Jéol explained: “[the] value of the work [of the advocate-general], which is performed after the reporting judge has completed his task, is as a ‘second opinion’. Either the advocate-general agrees with the report, in which eventuality the decision to be taken will be clearer, or he disagrees, and will have triggered the necessary debate. In all cases his role is somewhat ‘maieutic’.” 76. The advocate-general’s submissions do not have to be in writing. 77. The list of hearings is fixed weekly. A single advocate-general deals with all cases on the list for the week he is on duty. He informs the relevant lawyers practising in the Conseil d’Etat and Court of Cassation, who, if they wish to make oral submissions, must advise the president before the hearing. 78. A few days before the hearing a preparatory “meeting” is held between the president and the senior judge of the division and the advocate-general on duty for that week; they systematically review the cases on the list and exchange views (see the “Pourvoi en cassation” and “Ministère Public et Cour suprême” articles cited above and the speech given on 10 January 1997 by Mr Burgelin, Principal State Counsel at the Court of Cassation, entitled “L’avocat général à la Cour de cassation et la Convention européenne de sauvegarde des Droits de l’Homme”, Gazette du palais, 2324 May 1997). It appears to be customary after the meeting for the advocate-general to inform the lawyers acting in the case of the tenor of his submissions (see the speech entitled “L’avocat général à la Cour de cassation et la Convention européenne de sauvegarde des Droits de l’Homme” cited above). In parallel, the reporting judge’s report is studied in detail by the offices of the president and the senior judge, which give a reasoned opinion in writing. Their opinion, together with the submissions of the advocate-general, are communicated to the reporting judge a few days before the hearing (see the “Pourvoi en cassation” article cited above). 79. Hearings of the Criminal Division are held in public and the procedure is the same as that in the other courts (Article 601 of the Code of Criminal Procedure). The procedure before the Court of Cassation is nevertheless in written form; the parties’ lawyers are not required to appear at hearings. In the Criminal Division there is an oral hearing only in the (rare) cases where the parties’ lawyers have expressly requested one. At the hearing the reporting judge is the first to address the court. He reads out his report but does not disclose his recommendations. If there are to be oral submissions, counsel for the appellant addresses the court first followed by counsel for the respondent; they may not submit any new legal argument. The advocate-general is the last to address the court; he makes submissions that are confined to legal issues and may concern the consideration of a ground of appeal raised by the court of its own motion (Article 602 of the Code of Criminal Procedure; and see the “Pourvoi en cassation” article cited above). It would appear that where oral submissions are made it is customary to allow the parties to reply to the advocate-general’s submissions, either orally or by a note addressed to the court in deliberations (see the speeches of Mr Jéol and Mr Burgelin referred to above). 80. After the public hearing, the members of the court deliberate in private. The reporting judge gives his opinion; the other judges and the president then express their views. Following a vote on whether the recommendations of the report should be adopted, the draft judgment, which each judge will have received eight days beforehand, is then considered (Article 603 of the Code of Criminal Procedure; and see also the “Pourvoi en cassation” article cited above). The advocate-general generally attends the deliberations. In that connection, Mr Burgelin explained in his speech of 10 January 1997 (cited above): “... practice on this point is settled. If it is an important case that has (exceptionally) been pleaded by counsel, the advocate-general leaves the courtroom at the same time as the parties and the public in order clearly to demonstrate that the judges deliberate alone. In ordinary cases, the advocate-general usually remains in his seat but does not take part in the debate. His presence results from purely practical considerations relating to the number of cases, which is often substantial, to be heard at each sitting. It has no special signification” (see also Mr Jéol’s speech referred to above). 81. The judgment in its adopted form is then finalised and delivered at a public hearing, in most cases immediately after the deliberations. | 1 |
train | 001-60597 | ENG | TUR | GRANDCHAMBER | 2,002 | CASE OF GÖÇ v. TURKEY | 1 | Violation of Art. 6-1 on account of the absence of an oral hearing;Violation of Art. 6-1 on account of the non-communication of the opinion of the Principal Public Prosecutor;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Gaukur Jörundsson;Luzius Wildhaber;Paul Mahoney | 11. At the material time the applicant was employed as a clerk in the İzmir 2nd Court of Taxation. On 18 July 1995 the İzmir Civil Court of General Jurisdiction forwarded the name and workplace of the applicant to the İzmir public prosecutor's office, stating that the applicant was suspected of having stolen and falsified court documents relating to a decided divorce case. 12. On 25 July 1995 the office of the public prosecutor referred the case to the İzmir Security Directorate. 13. At 5.10 p.m. on 25 July 1995 the applicant was taken into police custody and detained at the İzmir Security Directorate. He was accused of the above offences. The applicant gave a statement in which he denied that he had been involved in the incident relating to the court's case file. The applicant later claimed that he was not permitted to contact his family or consult a lawyer and that he was insulted and beaten for two hours. 14. Two other suspects were also detained and statements were taken from them. A statement was also taken from A.B., a party to the divorce proceedings. 15. On 27 July 1995 an investigation record was drawn up for the applicant and the two other suspects. At 5 p.m. on the same day the applicant was released pursuant to the decision of the public prosecutor. The two other suspects were kept in custody. 16. In the evening of 27 July 1995, following his release, the applicant went to the İzmir State Hospital. He was subsequently granted four days' sick leave by his employer. The medical report prepared at the hospital referred to the fact that the applicant was suffering from a common skin disease caused by the inflammation of the roots of his facial hair. 17. On 31 July 1995 the office of the public prosecutor of Karşıyaka decided not to bring charges against the applicant (takipsizlik kararı) for lack of evidence. The decision was served on the applicant on 19 August 1995. 18. The public prosecutor took a statement from the applicant on 28 August 1995. In his statement the applicant declared that he had applied to the Ministry of Justice to have proceedings brought against the individual who had reported him to the authorities. 19. On 29 August 1995 the public prosecutor decided not to bring charges against the person named by the applicant. 20. On 5 September 1995 the applicant filed a complaint under Law no. 466 with the Karşıyaka Assize Court (Ağır Ceza Mahkemesi) against the Treasury requesting 200,000,000 Turkish liras (TRL) by way of compensation for his detention between “24 and 27 July 1995”. In the petition, the applicant's lawyer stated, inter alia, that the applicant, while in detention, had been tortured and ill-treated by being beaten and insulted for two hours and deprived of his right to contact his family and a lawyer. As a result of his injuries, the applicant had had to take four days' sick leave. Furthermore, the applicant's reputation had suffered. He did not rely on any specific section of Law no. 466. 21. On 14 September 1995 the three-judge Karşıyaka Assize Court appointed one of its members (naip hakim) to investigate the case and draft a report. The judge designated for this purpose verified, inter alia, that the office of the public prosecutor of İzmir had dropped the charges against the applicant. He also obtained information about the applicant's personal, financial and social status. The judge found that the evidence obtained was sufficient to enable him to draft his report and decided in the exercise of his discretion under section 3 of Law no. 466 that it was unnecessary to hear the applicant. The public prosecutor was asked for his written observations on the applicant's claim. On 7 December 1995 the public prosecutor, as required by Law no. 466, submitted his opinion to the Karşıyaka Assize Court. The public prosecutor noted that the applicant was taken into custody on 25 July 1995, and not on 24 July 1995 as claimed, and was released on 27 July 1995. The public prosecutor recommended that the applicant be granted compensation for non-pecuniary damage in an amount to be assessed by the court. This opinion was not served on the applicant. 22. The judge stated in his report of 7 December 1995 to the President of the Karşıyaka Assize Court, inter alia, that the applicant had been detained for two days from 25 July to 27 July 1995 and upon his release had obtained a medical report which indicated that he had been assaulted (darp edildiği). The judge noted that the applicant had been given four days' sick leave by his employer. He further observed that, at the time when he was taken into custody, the applicant had been working in the İzmir 2nd Court of Taxation, had been paying TRL 3,000,000 in rent, was divorced and had two children. The judge concluded: “The complainant requested that he be granted the sum of TRL 200,000,000 in compensation. In determining the amount of compensation the court should consider both the complainant's economic and social position as well as the intensity of his emotional suffering. In the light of the above facts, I propose that the court grant the amount of compensation requested by the complainant.” 23. On 7 December 1995 the Karşıyaka Assize Court found that the applicant had been detained for two days and qualified for compensation. In its judgment, the court took note of all the complaints set out in the petition lodged by the applicant's lawyer as well as the content of the judge's report and the written submissions of the public prosecutor (see paragraphs 21 and 22 above). The court concluded that “... at the time he was taken into custody, the applicant had been working in the İzmir Tax Court, had been paying TRL 3,000,000 in rent, and was divorced with two children. The complainant requested that the court award him TRL 200,000,000, including interest, for the non-pecuniary damage suffered. The court considers that, in determining the amount of compensation, it should have regard both to the complainant's economic and social position as well as the intensity of his emotional suffering. In the light of the above facts and having considered the above criteria, the court concludes that the sum of TRL 10,000,000 should be awarded to the complainant”. The court also awarded the applicant TRL 1,500,000 for his legal costs. 24. The applicant's lawyer and the Treasury both appealed against the award. The applicant's lawyer contended on appeal that the amount of compensation was insufficient reparation for his wrongful arrest and detention. He did not challenge the dates of detention as determined by the court. The Treasury considered that the amount awarded was excessive. According to the relevant rules governing the functioning of the Court of Cassation in litigation of this nature, the case file at the Karşıyaka Assize Court was referred to the competent division of the Court of Cassation through the intermediary of the office of the public prosecutor at the Court of Cassation. On 17 October 1996 the Principal Public Prosecutor submitted his opinion on the merits of both parties' appeals. In his written opinion (tebliğname) to the Sixth Criminal Division of the Court of Cassation (Yargıtay), the Principal Public Prosecutor stated that, having regard to the first-instance proceedings, the evidence collected, the subject matter of the claim and the discretion of the first-instance court, neither of the parties had grounds for appeal. He advised that both appeals be rejected and that the first-instance judgment be approved, being in compliance with procedural rules and law. This opinion was not submitted to the applicant. 25. On 7 November 1996 the Sixth Criminal Division of the Court of Cassation, having regard, inter alia, to the opinion of the Principal Public Prosecutor, upheld the judgment of 7 December 1995. 26. According to information submitted by the Government, the applicant never applied to obtain the compensation awarded to him by the Karşıyaka Assize Court. 27. Article 19 of the Constitution provides: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law: ... The arrested or detained person must be brought before a judge within forty-eight hours at the latest or, in the case of offences committed by more than one person, within fifteen days ... These time-limits may be extended during a state of emergency ... ... A person deprived of his liberty, for whatever reason, shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful. Compensation must be paid by the State, as the law shall provide, for damage sustained by persons who have been victims of treatment contrary to the above provisions.” 28. Under Article 128 of the Code of Criminal Procedure, an arrested person must be brought before a judge within twenty-four hours or, where the offence has been committed by more than one person, within four days. 29. Section 1 of Law no. 466 on the payment of compensation to persons 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 law; (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-limit laid down by statute for that purpose; (4) who have been deprived of their liberty without a court order after the statutory time-limit 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 period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only.” 30. By virtue of section 2 of Law no. 466, a claimant must apply for compensation to the local assize court within three months, setting out the facts complained of and indicating the amount claimed. The claim is lodged against the Treasury. 31. According to section 3 of the same Law: “The competent court ... shall appoint one of its members upon the submission of the petition for compensation. The appointed member shall first examine whether the request was lodged within the statutory time-limit. Where the appointed member finds that the request was lodged within the statutory time-limit he shall collect all evidence including the case file and the judgment [concerning the criminal proceedings]. If necessary, he shall take oral evidence from the claimant. The appointed member shall transfer the case file to the office of the public prosecutor for his opinion after collecting all the evidence. Upon the receipt of the public prosecutor's written opinion, the court shall give its decision without holding a hearing. The petitioner has the right to lodge an appeal against the court's decision within one week after he is notified of this decision.” 32. A claimant is entitled to seek compensation for both pecuniary and non-pecuniary damage arising from unlawful detention. A pecuniary claim must be documented. Non-pecuniary damage is awarded on the basis of the claimant's personal, financial and social status. 33. The relevant parts of Article 438 of the Code of Civil Procedure provide: “The Court of Cassation shall examine the appeal without holding a hearing. The Court of Cassation shall notify the parties of the date of the oral hearing, if either of the parties requested a hearing in their petitions, in the following cases: ... – in actions in which the amount requested is more than 200,000,000 Turkish liras. ...” 34. In the Turkish legal system, when a judgment of a first-instance court is appealed, the case file is first sent to the Office of the Principal Public Prosecutor at the Court of Cassation. The Principal Public Prosecutor, who is independent of the executive and of the parties, submits an opinion (tebliğname) on the case to the competent division of the Court of Cassation. The submission of the opinion by the Principal Public Prosecutor is regulated by Article 28 § 2 of the Code of the Court of Cassation no. 2797. According to the Government, the opinion is prepared by the assistants of the Principal Public Prosecutor and is included in a short document which indicates that the file has been seen by the first-instance court and advises whether the latter's judgment should be quashed or upheld. The opinion of the Principal Public Prosecutor is not binding on the division of the Court of Cassation which will consider the appeal. | 1 |
train | 001-81328 | ENG | LUX | CHAMBER | 2,007 | CASE OF WAGNER AND J.M.W.L. v. LUXEMBOURG | 2 | Violation of Art. 6;Violation of Art. 8;Violation of Art. 14+8;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings | Christos Rozakis | 5. The applicants were born in 1967 and 1993 respectively and are resident in Luxembourg. 6. On 6 November 1996 the Family Court of the province of Huamanga (Peru) pronounced the adoption of the second applicant, then aged three years and previously declared abandoned, by the first applicant. The judge listed the various stages of the adoption procedure which had been completed in accordance with the legal conditions. By the judgment the child acquired the status of daughter of the first applicant, ceased to belong to her blood family and henceforth bore the forenames and names J.M.W.L. In accordance with the legal conditions and the agreement drawn up between the technical secretariat for adoptions in Peru and the Luxembourg-Peru Association, the latter was declared responsible for monitoring the child and, if necessary, for the legalisation of the adoption in Luxembourg. 7. The judgment of the Family Court of the province of Huamanga was declared enforceable – according to the certificate issued by that court on 14 December 1996 – and entered in the civil status register of AyacuchoHuamanga. 8. In May 1997 the first applicant, who lived alone in Luxembourg with the adopted child, gave birth to a daughter. On 13 November 2006 her lawyer stated that she was now the mother of four children attending school and still lived in Luxembourg. 9. On 10 April 1997 the applicants brought proceedings against the Attorney General's Department before the Luxembourg District Court. They requested the court to declare that the Peruvian judgment was enforceable in the Grand Duchy as though it were a judgment ordering full adoption delivered by the competent Luxembourg court; they stated that the purpose of the application for enforcement was to ensure that the child could be registered in the civil status register in the Grand Duchy, acquire the nationality of her adoptive mother and be granted definitive leave to remain in Luxembourg. 10. On 11 February 1998 the District Court declared the application for enforcement admissible as it had been properly submitted by originating summons. In that regard, the court stated the following: “An application for enforcement of a foreign judgment is a principal legal claim different in nature from the application that gave rise to the foreign judgment. The court dealing with the application for enforcement does not examine the merits of the application submitted to the foreign court, but confines itself to verifying that the decision satisfies the relevant international procedural requirements. The application for enforcement of an adoption judgment, which is different in nature from the application to adopt, is not subject to the objection procedure in [the relevant article] of the Code of Civil Procedure, under which applications to adopt may be made by petition ...” 11. The court decided that a court dealing with an application for enforcement of an adoption judgment delivered by a foreign court must first of all ascertain whether the foreign court was competent by reference to the rules determining its jurisdiction. On that point, the court concluded that the adoption had been pronounced by the court that was competent according to Article 370 of the Luxembourg Civil Code. 12. As for the law applicable to the merits of the case, the court first of all recalled the positions taken by the parties to the proceedings. Thus, the Attorney General's Department maintained that the court should ascertain whether the foreign court had applied the law designated by the Luxembourg system of private international law. As the adoptive parent was of Luxembourg nationality, the conditions for adoption were governed by Luxembourg law; and Article 367 of the Luxembourg Civil Code did not permit full adoption by an unmarried person. The Attorney General's Department concluded that in pronouncing full adoption by the first applicant, as an unmarried person, the Peruvian court had failed to apply Luxembourg law. The applicants were of the view that the court should confine itself to examining whether the adoption pronounced in Peru had been made according to the procedures prescribed by the laws of Peru. They submitted, in particular, that the final paragraph of Article 370 of the Luxembourg Civil Code must be interpreted as meaning that “the Luxembourg international rule on conflict expressly recognises as valid an adoption made abroad by an authority competent under the laws of that country, ... provided that the local procedure and local provisions were complied with”. The court decided that the final paragraph of Article 370 of the Civil Code introduced a rule on jurisdiction and also maintained its rules on the conflict of laws. It added that according to Article 370 of the Civil Code the adoption by the first applicant, of Luxembourg nationality, was governed by Luxembourg law with respect to the requisite conditions for adoption. The court concluded that the court dealing with an application to enforce the decision must ascertain whether the adoption had been pronounced in accordance with Luxembourg law with respect to those conditions. 13. The court then stated that it had adjourned the deliberations on 11 November 1997 to enable the parties to submit their observations on the following preliminary questions which it proposed to refer to the Constitutional Court: “1. The law on adoption, more particularly Article 367 of the Civil Code, allows a married couple to adopt a child fully and prohibits full adoption by an unmarried person. Is that law consistent with Article 11(3) of the Constitution, which provides that 'the State guarantees the natural rights of human beings and the family' and Article 11(2) of the Constitution, which states that 'Luxemburgers are equal before the law'? 2. Is the right to found a family a natural right of human beings and the family? 3. Is the right to found an adoptive family a natural right of human beings and the family? 4. Does the right to found a family include the right to found a single-parent family? 5. Is the right to found a family a right of only married human beings? 6. Does the principle of equality before the law allow full adoption to be authorised for married persons to the exclusion of unmarried persons? 7. Do Articles 11(2) and (3) of the Constitution establish rights of an unmarried person to full adoption on the same terms as those applicable to a married couple?” 14. The court confirmed that it must examine the correct application of Article 367 of the Civil Code and its conformity with the Constitution before adjudicating on the application for enforcement. In order to do so, the court requested the applicants to clarify their actual family situation, on the following grounds: “By submissions of 15 December 1997 Ms Jeanne Wagner's representative maintained that the Wagner family existed in fact and in law and that it was not a single-parent family. He also submitted that nowadays 'the more general acceptance by society of unmarried cohabitation has led to an increase in the number of children living in a single home with a father and mother who are not married. It is less and less certain that the parents need to be married in order for the child to grow up in a home with a father and a mother'. If those submissions have any meaning, Ms Jeanne Wagner is living as part of a couple without being married. ... The assertion of the existence of a family which is not a single-parent family is new and not substantiated by any evidence. The social inquiry report of 6 August 1997, which was submitted to the court on 28 October 1997, states that Ms Jeanne Wagner gave birth to a daughter in May 1997. That report on the adaptation of the adopted child in her new family in Luxembourg examines only the relationship between the mother and the child. It does not mention the existence of a man in Ms Wagner's home or any relationship between the adopted child and Ms Wagner's partner. The pre-adoption report drawn up on 30 April 1996, also by social worker [B.], states as the general reason for adopting the conviction that 'children are the purpose of life'. Ms Wagner was approaching her thirtieth birthday and decided 'not to wait to meet the ideal man in order to have children but to adopt a child on her own, in the knowledge that her family would help her ...' As the reason for adopting a Peruvian child, the social worker observed that in Luxembourg Ms Wagner encountered many obstacles, mainly the fact that she was not married. 'The only country which has an agreement with Luxembourg and which consents to adoption by an unmarried woman is Peru and thus Ms Wagner contacted the Luxembourg-Peru Association and prepared the file through that association'. The social worker recommended that the adoption should be approved, as the child found a welcoming home 'within that “single-parent” family'. The reports filed by the applicant therefore mention only a family consisting of the mother and two children. It is important to refer to the Constitutional Court questions which are appropriate to the adoptive parent's actual family situation. Adoption by a family consisting of an unmarried couple may receive a different reply from that given to adoption by an unmarried mother living alone. It is therefore for the adoptive parent to establish her actual family situation and to establish that her family is not a single-parent family.” 15. The hearing was resumed on 10 March 1998. 16. In its judgment of 1 April 1998, the court first of all set out the views expressed by the applicants in relation to the proposed preliminary questions. Thus, the applicants, first, emphasised that the court was dealing with an application for enforcement and not an application to adopt and, second, took issue with the proposed questions because they emphasised the rights of the mother, whereas the real issue was the rights of the child adopted following the Peruvian judgment. The applicants also observed that the first applicant had given birth to a child in May 1997, and proposed the following preliminary questions: “1. Is the right to secure from the Luxembourg courts recognition of a family relationship validly established abroad for the purposes of securing recognition that the adopted child has the same political and civil rights as a biological child of the adoptive mother a natural right of the human being, and more particularly of an adopted child? 2. In so far as Article 367 of the Luxembourg Civil Code must, in spite of the substance of Article 370, final paragraph, be considered to constitute an obstacle to the recognition of a full adoption lawfully made abroad by an unmarried mother of Luxembourg nationality, and must be so considered in spite of the substance of Articles 7 and 21 of the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20 November 1989, as approved by the Law of 20 December 1993, does not the principle of equality before the law set forth in Article 11(3) of the Constitution require recognition of that full adoption in so far as such recognition is necessary in order for the adopted child to be able to enjoy all her political and civil rights to the same extent as her biological collaterals? Does the principle of equality before the law allow a difference in treatment to be created by the law, in particular with respect to the entry of the adoption in the civil status register, the issuing of the certificate of nationality and the situation regarding succession, in complete legal certainty between a non-marital child and an adopted child of the same mother?” 17. The court then gave judgment in the following terms: “The court must ascertain whether the conditions prescribed by Luxembourg law for adoption were satisfied at the time when the adoption was pronounced by the Peruvian judge. In fact, Ms Wagner is an unmarried woman who, according to Article 367 of the Civil Code, cannot undertake a full adoption. The question that arises is therefore whether the prohibition on full adoption by an unmarried person is compatible with the constitutional rights in Article 11(3) and (2), that is to say, any rights enjoyed by the mother, and not by the child. When ensuring that the decision to be enforced satisfies the relevant international procedural requirements, the court must examine whether the foreign court was in a position to pronounce the adoption by reference to the conditions on adoption provided for by the relevant Luxembourg legislation. The establishment of a constitutional right to adopt without discrimination between married persons and unmarried persons does not preclude the specific assessment of the physical and mental situation of the persons wishing to adopt and of their capacity to raise and contribute to the development of a child. It may be that the right to family life is not recognised where the best interests of the child would be in danger. The existence of a right is distinct from its actual exercise. As Ms Wagner is an unmarried woman not living as part of a couple, the questions which correspond to her family situation relate to a single-parent family. The questions envisaged by the court on 11 November 1997 are therefore relevant to the outcome of the dispute. Examination of the existence of “a right to secure recognition” in Luxembourg “of a legal parent-child relationship validly established abroad” assumes that the valid creation of an adoptive parent-child relationship within the meaning of Luxembourg law is established. The first preliminary question proposed by Ms Wagner is irrelevant, as the lawfulness of the Peruvian adoption has not been established. Examination of the second question proposed must be reserved. As matters now stand, the questions envisaged by the court on 11 November 1997 should be referred.” 18. On 13 November 1998 the Constitutional Court declared the questions numbered 2 to 7 (paragraph 13 above) inadmissible. As for the first question, it decided that Article 367 of the Civil Code was not contrary to the Constitution, for the following reasons: “Regarding Article 11(3) of the Constitution: ... Article 11(3) of the Constitution states that the State guarantees the natural rights of human beings and the family; ... natural rights are those flowing from human nature and exist, even without a legislative text; ... applied to the family, they include the right to procreate and the right to live together; ..., in parallel, the legislature has established, by adoption, a substitute legal parent-child relationship which, while it demands proper motives on the part of the adoptive parents, must above all be advantageous for the person adopted; ... [adoption] has its basis in positive law and not in natural law; ... it is therefore for the legislature to put in place all the conditions and limits necessary for its proper functioning and satisfying the interests of society and of the adoptive family; Regarding Article 11(2) of the Constitution: ... Article 11(2) of the Constitution provides that 'all Luxemburgers are equal before the law'; ... that constitutional principle, which is applicable to every individual affected by Luxembourg law if personality rights are concerned, is not to be understood in an absolute sense, but requires that all those in the same factual and legal situation be treated in the same way; ... the specific treatment is justified if the difference in condition is effective and objective, if it is in the public interest and if the extent of its application is not unreasonable; ... the specific treatment is lawful in the present case as it is based on a genuine distinction resulting from the civil status of the persons, on an increased guarantee in favour of the adopted child as a result of the number of persons holding parental authority in the case of married persons and on reasonable proportionality owing to the fact that simple adoption remains available to an unmarried person in compliance with the procedural and substantive requirements provided for by law;” 19. On 2 June 1999 the district court dismissed the application for enforcement, on the ground that the Peruvian adoption judgment had been delivered contrary to the Luxembourg law applicable according to the rule on the conflict of laws set forth in Article 370 of the Civil Code. 20. The court upheld the argument of the Attorney General's Department that the Peruvian judge had not applied Luxembourg law by pronouncing full adoption by an unmarried Luxembourg woman. 21. The court concluded that there was no need to consider whether the Peruvian decision was contrary to public policy. In that regard, however, it made the following observation: “... according to the pre-adoption social inquiry report of 30 April 1996, Ms Wagner chose to adopt in Peru, through the Luxembourg-Peru Association, since Peru permits adoption by an unmarried woman, whereas she encountered various obstacles to adoption in Luxembourg, mainly because she was not married. Ms Wagner therefore decided to obtain indirectly, by enforcement of the adoption in Peru, what she was unable to obtain directly by an application to adopt in Luxembourg. However, a judgment obtained by circumventing the statutory requirements cannot be enforced.” 22. The court then dealt with the second preliminary question which had been proposed by the applicants at the earlier hearing: “The judgment of April 1998 reserved the alternative preliminary question proposed by Ms Wagner. In the event that Article 367 of the Civil Code precluded full adoption, Ms Wagner proposed that the Constitutional Court should examine whether the principle of equality allowed a difference in treatment to be created by law, notably with respect to the entry of the adoption in the civil status registers, the issuing of a certificate of nationality and the situation regarding succession between the non-marital child and the adoptive child of the same mother. In her submissions lodged after the decision of the Constitutional Court, Ms Wagner maintained that proposal for a preliminary question.. Under [the relevant section] of the ... Constitutional Court (Organisation) Act, a court before which a party has raised a question relating to the constitutionality of a law is not required to refer the matter to the [Constitutional] Court if the question is wholly unfounded or if the [Constitutional] Court has already ruled on a question having the same subject-matter. ... As the [Constitutional] Court decided [in its judgment of 13 November 1998] that adoption was not a constitutional right but was a matter for legislation, and on the basis that the law may introduce a distinction between persons having different civil status, the preliminary question proposed by Ms Wagner is wholly unfounded. The question also seeks to secure a review of the compatibility of the law on adoption, which prohibits full adoption by an unmarried person, with the principle of equality and the right to family life. The [Constitutional] Court held that biological filiation and adoptive filiation were different in nature, the former coming under natural law protected by the Constitution and the latter created by the legislature. It also decided that the principle of equality applied to those in the same factual and legal situation. As an adoptive child is in a legal and factual situation distinct from that of a non-marital child and as the principle of equality assumes that the situation of the persons is the same, the proposed question is unfounded. There is thus no reason to refer the question to the Constitutional Court..” 23. Lastly, the court rejected the argument put forward by the applicants on the basis of the Convention on the Rights of the Child, for the following reasons: “Ms Wagner maintains that public policy and the Convention on the Rights of the Child require that the adoption decision be enforced. As the best interests of the child are to be a primary consideration, in application of Article 3 of the Convention, the adopted child should have the same rights as her 'biological' sister, the mother's non-marital child. The interests of the child may be assessed by the legislature. Luxembourg law accepts that it is in the interests of children to be fully adopted by a married couple and not by an unmarried person. The court must therefore apply that statutory provision.” 24. On 7 July 1999 the applicants appealed against the judgments of 11 February 1998, 1 April 1998 and 2 June 1999. 25. They requested the Court of Appeal to declare the judgment of the Huamango Family Court of 6 November 1996 enforceable in Luxembourg and to order that the forthcoming judgment be entered in the civil status registers. 26. In support of their appeal, the applicants maintained first of all that Article 367 of the Civil Code – a rule of strictly territorial application determining the conditions of an application for full adoption coming within the jurisdiction of the Luxembourg courts – was not a reason to dismiss an application for enforcement of a foreign decision, since the court dealing with the application to enforce the decision had no power of review and was not empowered to alter the effects of the adoption pronounced by the Peruvian court. They further maintained that under Article 370, final paragraph, of the Civil Code a foreign adoption decision could be enforced in Luxembourg provided it had been delivered by a competent court according to the rules on the conflict of laws and the procedures of the country of origin. Thus, the final paragraph of Article 370 was not a simple rule on jurisdiction but a rule on the conflict of laws. 27. The applicants also maintained their request that the preliminary question which they had formulated before the district court be referred to the Constitutional Court. 28. In a section entitled “Public policy implications”, the applicants contended that the procedure for securing recognition of the effects of a full adoption pronounced abroad differed from the procedure for pronouncement of an adoption in Luxembourg, so that the impact of the questions of public policy arose in different terms and did not have the same weight. Next, relying on the Convention on the Rights of the Child, they submitted that the best interests of the child consisted in favouring the effects of a full adoption, in particular the right to acquire Luxembourg nationality and to share in the succession of the adoptive family on the same basis as a legitimate or non-marital child. While they acknowledged that a new simple adoption could be made in Luxembourg, they emphasised that it would grant less substantial rights to the child, particularly in relation to succession and the acquisition of Luxembourg nationality. In the applicants' submission, it was specifically public policy that required enforcement, so that the adoptive child would be granted the same rights as her biological sister and so that legal calm rather than uncertainty would reign in the families. They cited a decision of the district court, which, in a different context, had held that an interference with the right for the father and mother to maintain relations with their children was not justified by one of the objectives set forth in Article 8 § 2 of the Convention. They contended that in this case the judgment at first instance – which gave priority to Luxembourg law over an international convention as a ground for refusing to order enforcement – penalised the minor child and was incompatible with Article 8 of the Convention. 29. By judgment of 6 July 2000 the applicants' appeal was declared unfounded. The Court of Appeal held, in the first place, the following: “By way of preliminary point, it should be observed that while foreign judicial decisions on the status of persons enjoy immediate substantive effectiveness in the Grand Duchy of Luxembourg, provided only that they satisfy the relevant international procedural requirements, they none the less may and even must be enforced in order to render them incontestable and enforceable by execution and to enable the acts necessary to enforce them to be carried out. In this case, recognition of the Peruvian adoption decision is sought, not only to ensure that the adopted child has the same succession rights as those recognised by Luxembourg law to a legitimate or non-marital child, but also to avoid problems arising in the future as a result of the fact that the child has not lost Peruvian nationality by the effect of her adoption in her country of origin and, in the absence of a decision recognising the foreign judgment, does not acquire Luxembourg nationality, at least for the time being, and cannot in those circumstances benefit from the advantages conferred on nationals of the countries of the European Union.” 30. The Court of Appeal then analysed the scope and significance of the final paragraph of Article 370 of the Civil Code and reached the following conclusion: “The [District] Court was correct to take the view that the Luxembourg court dealing with the application to enforce the Peruvian judgment must ascertain whether the adoption was made in conformity with the Luxembourg rules on the conflict of laws, as provided for in Article 370 of the Civil Code, and to dismiss the application on the ground that the Peruvian judgment pronouncing full adoption in favour of an unmarried Luxembourg national is in flagrant contradiction with the Luxembourg law on the conflict of laws, which provides that the conditions for adoption are governed by the national law of the adoptive parent. It is therefore unnecessary to examine further the other conditions required for enforcement, namely conformity to international public policy and circumvention of the law.” 31. The Court of Appeal also concluded that the applicants were wrong to rely on the Convention on the Rights of the Child, for the following reasons: “Article 7 of that Convention, approved by the Law of 20 December 1993, provides in paragraph 1 that the child is to be registered immediately after birth and is to have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents. Article 21 provides that States Parties that recognise and/or permit the system of adoption are to ensure that the best interests of the child shall be the paramount consideration, and sets out the obligations placed on the Contracting States in that regard (paragraphs (a) and (b) of that article). The Court agrees with the Attorney General's representative, who maintains ... that Articles 7 and 21 cannot be applied directly in order to secure recognition of a foreign full adoption decision pronounced in breach of our national laws. ... The [applicants] are wrong to rely on the abovementioned Articles of the Convention to secure recognition of a foreign adoption made in compliance with its legal rules, which, it is emphasised, are very strict, but in breach of Luxembourg law, which rightly or wrongly maintains the principle that full adoption by an unmarried person is prohibited, since Article 21 does not require the States Parties to alter their national legislation in that sense, a fortiori because it is not established that such a change in the legislation would be in the paramount interest of the child, quite apart from any political or moral considerations which influence the legislative choices according to current thinking. Article 7, on which the applicants rely, concerns at most only the effects of the adoption, but has no bearing on whether an adoption decision satisfies the relevant international procedural requirements. ...” 32. Last, the Court of Appeal considered that the first-instance court had been correct not to deem it appropriate to refer the preliminary question formulated by the applicants to the Constitutional Court. 33. On 8 December 2000 the applicants appealed on a point of law. 34. On 14 June 2001 the Court of Cassation dismissed the appeal, for the following reasons: “The first ground of appeal, alleging “breach, if not misapplication of the law, in the present case of Article 370, final paragraph of the Civil Code, which provides that in the event of conflict between the rules of competence prescribed respectively by the national law of the adoptive parent and by that of the adopted child, the adoption is validly concluded according to the procedure prescribed by the law of the country in which the adoption took place and before the authorities competent under that law, in that the judgment considered that the word 'procedure' had only the meaning of 'procedural rule' and did not include the substantive conditions whereas, first part, the text of Article 370 speaks in unequivocal terms of 'procedures' and not restrictively of 'procedural rules', so that the scope of the legislative text cannot be restricted by the implicit addition thereto of words which it does not contain, in this case the word 'rule'; second part the word 'procedure' employed by the legislature in the specific context of the final paragraph of Article 370 is not limited to procedural rules in the strict sense, but covers both the latter and the substantive rules, and therefore legal 'procedures' in the broad, flexible and general sense, the legislature having clearly displayed its intention to properly encompass in the word 'procedure' both the substantive conditions and procedural conditions properly so called”; But ... in agreeing with the court of first instance that the Peruvian full adoption decision was delivered in contradiction to the Luxembourg law on the conflict of laws, which provides in paragraph 2 of Article 370 of the Civil Code that the conditions that must be satisfied in order to adopt are governed by the national law of the adoptive parent, the Court of Appeal made a correct application of the law without being in breach of the legislative text referred to in the two parts of the ground of appeal; ... it follows that the ground of appeal cannot be upheld; The second ground of appeal, alleging “misapplication, if not violation of Article 8 of the [Convention], which provides that there is to be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others, and of Article 89 of the Constitution, which provides that every judgment must state the reasons on which it is based, in that the judgment did not even examine the appellants' plea based on Article 8 paragraph 2 of the [Convention], when the best interests of the child ought to have led the decision under appeal, on the assumption that Article 370, final paragraph, of the Civil Code is not to be interpreted as meaning that an adoption lawfully concluded abroad cannot be repudiated, to refuse to apply the Luxembourg domestic rule, which prevents an unmarried woman of Luxembourg nationality from fully adopting a minor child, in such a way as to apply Luxembourg law to her, and that the intention of the Luxembourg legislature to require an unmarried woman to marry if she wishes to undertake full adoption of a child, in such a way as to ensure that that child enjoys all the privileges attached to Luxembourg and Community nationality constitutes an unnecessary interference with family life ...” But ... first, the Court of Appeal was not required to respond to the ground of appeal set out in the document initiating the appeal under the heading “Public policy implications”, as that question had become devoid of purpose by the very effect of its decision not to apply the foreign law; ..., second, owing to their dubious, vague and imprecise nature, the arguments relating to Article 8 paragraph 2 of the Convention on Human Rights contained in the document initiating the appeal did not constitute a ground of appeal requiring a response; Whence it follows that the plea cannot be upheld.” 35. On 5 August 2003 the applicants requested the Minister for the Family, Social Solidarity and Youth to take the necessary measures to enable the adoption pronounced by the Peruvian judgment of 6 November 1996 to be entered as a full adoption recognised by the Luxembourg authorities in the civil status register with competence ratione territoriae in application of the Hague Convention of 29 May 1993. 36. On 12 August 2003 the Minister declared that the provisions of the Hague Convention were not applicable to the applicants' request. 37. On 13 September 2003 the applicants sought judicial review of that decision. 38. By judgment of 19 January 2004 the administrative court of first instance (Tribunal administratif) annulled the ministerial decision, for the following reasons: “...the [Hague Convention of 29 May 1993] was adopted by Luxembourg law on 14 April 2002 and entered into force on 1 November 2002 in the Grand Duchy of Luxembourg, on which date it is common ground that the Convention was already in force with respect to Peru; ... from 1 November 2002 the Hague Convention has therefore been in force between the two countries concerned by the present case: Peru, the State of origin, and the Grand Duchy of Luxembourg, the receiving State, as defined in Article 2 of the Convention; ... the Convention states in Article 41 that it is to 'apply in every case where an application pursuant to Article 14 has been received after the Convention has entered into force in the receiving State and the State of origin'; ... Article 14 of the Convention states that '[p]ersons habitually resident in a Contracting State, who wish to adopt a child habitually resident in another Contracting State, shall apply to the Central Authority in the State of their habitual residence'; ... it follows from the Explanatory Report drawn up by Mr G. Parra-Aranguren, the Venezuelan representative in the proceedings of the 17th Hague Conference which culminated in the Convention of 29 May 1993, and more particularly paragraphs 584 and 585 thereof (doc. Parl. 4820, page 95), that a second paragraph had indeed been envisaged at a particular time during the drafting of what became Article 41, but that that paragraph was abandoned for the reasons explained more fully in that report as follows: '584. Working document no. 100, submitted by the Permanent Bureau, suggested a second paragraph for the article with the following text: “A Contracting State may at any time by declaration extend the application of Chapter V (Recognition) to other adoptions certified by the competent authority of the State of the adoption as having been made in accordance with the Convention”. The idea behind the proposal was to give a rule to answer the question as to the validity of adoptions already made in the Contracting States when a State becomes a Party to the Convention. 585. Some participants considered that proposal ambiguous and suggested its deletion or its clarification, at least, but others sustained it. The Observer for the International Commission on Civil Status observed that it was unnecessary and dangerous, because the formulation might permit a wicked conclusion, if interpreted a contrario, since the natural consequence of a State becoming a Party to the Convention is to recognise adoptions already made in the Contracting States. Therefore, the “declaration” provided by the second paragraph could be interpreted as permitting the non-recognition of such adoptions and, for this reason, the proposal was rejected'; ... ... for the purposes of application ratione tempore it is appropriate to distinguish the situation of the application properly so called of the Convention in the words of Article 41 concerning adoption procedures to be initiated and that relating to adoptions previously carried out, which by definition no longer have to follow the procedure provided for in Article 14 of the of the Convention, and raising more particularly aspects of recognition and re-entry on the competent registers of civil status; ... although the text of Article 41 gives rise to no doubt concerning the applicability of the Convention in all cases where an application referred to in Article 14, in initial act of the procedure there referred to, was received after the entry into force of the Convention in the receiving State and in the State of origin, reliance on that Convention for other aspects relating more particularly to the recognition and entry of adoptions previously carried out in the State of origin do not fall directly under the wording of Article 41; ... the fact that two States, by definition the State of origin and the receiving State, have become parties to the Convention and have adopted it in such a way that it has entered into force in both States means that these States have thereby adopted the provisions of the Convention as being henceforth required to be the general law, at a superior level, having to govern the respective relationships concerning the nationals of both States in adoption matters; ... the adoption of such a superior general law in adoption matters consists by the very organisation of the Convention, in the light of the objectives which it pursues, a favor adoptioni to which these two States have thus subscribed in the best interests of the adoptive children concerned; ... it follows that an application for recognition and entry in the relevant registers of civil status of an adoption carried out before the entry into force of the Convention in the State of origin is governed by the provisions of the Convention contained more particularly in Chapter V, entitled “Recognition and effects of the adoption”, from the time when the relevant application, submitted not with a view to adoption but with a view to recognition and entry of an adoption which has already taken place, was submitted after the entry into force of the Convention in the receiving State and the State of origin; ... the applicant has also placed on the file a certificate issued by the competent authority of the Contracting State in which the adoption took place, capable of being read as being consistent with the Convention; ... it follows from all the foregoing developments that the contested ministerial decision was wrong ... to refuse to undertake a more thorough examination of the abovementioned application of 5 August 2003 by rejecting the application of the provisions of the Hague Convention of 29 May 1993, which had been in force between Peru and the Grand Duchy of Luxembourg since 1 November 2002; ... the contested ministerial decision must therefore be annulled for violation of the law; ... since preference should be given to any solution found at a non-contentious level and since the Minister did not afford herself the opportunity to examine the merits of the application in question more thoroughly, the case should be sent back to the Minister for further consideration ...;” 39. On appeal by the Minister for the Family, Social Solidarity and Youth, the higher administrative court (Cour administrative) on 1 July 2004 varied the judgment of the administrative court of first instance and declared the action for annulment unfounded, for the following reasons: “Upon reading the Hague Convention, it must be found that there is no clause as to the possible application of the provisions of that Convention in a case where, at the time of the facts, that is during the implementation of the adoption procedure, it was ratified by only one of the States involved in an intercountry adoption and entered into force only in that State. On the contrary, Article 41 of the Hague Convention expressly states that '[t]he Convention shall apply in every case where an application pursuant to Article 14 [of the Convention] has been received after the Convention has entered into force in the receiving State and the State of origin'. Furthermore, it should be observed that Article 14 of the Convention obliges persons wishing to adopt a child in another State to apply first of all to the Central Authority in the State of their habitual residence, and thereby to take the first step in an intercountry adoption procedure. In the light of those clear and precise provisions, it is impossible to grant the application as submitted to the Minister for the Family by the present respondents and seeking to have the Hague Convention applied to an intercountry adoption procedure which took place at a time when the Hague Convention was in force only with respect to the State of origin of the child to be adopted, namely, Peru, and not with respect to the receiving State of that child, namely, the State in which the adoptive mother was resident, that is, Luxembourg. That finding is supported by the fact that the mechanism as put in place by the Hague Convention, with the specific aim of ensuring recognition in the receiving State of an adoption carried out in the State of origin, is based on close cooperation between the competent authorities of both States thus concerned ... The fact that the certificate of conformity issued by the Peruvian central authority concerning the abovementioned adoption decision is similar to that required by ... the Hague Convention, for the purpose of ensuring that the adoption carried out in one of the Contracting States of the Hague Convention is recognised in the other Contracting States, does not in itself suffice to render the provisions of the Convention applicable and to ensure that the adoption carried out in Peru is recognised in Luxembourg, since by definition that certificate was unable to attest that all the formalities provided for by the Hague Convention had been complied with, since the procedure regulated in that Convention as being mandatory could not be followed when Luxembourg was not a party to the Convention at the time when the adoption procedure took place in Peru.” 40. In their observations, which were received at the Court on 18 February 2005, the applicants stated that they would “lodge in the near future an applicant for simple adoption according to Luxembourg law, as a precautionary measure”. At the hearing before the Court, they stated that that application had in the meantime led to a simple adoption judgment (delivered on an unspecified date) which did not take account of the full adoption pronounced in Peru. 41. This Convention, which entered into force in Luxembourg and Peru before the facts, provides the following in its relevant Articles. “1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.” “States Parties that recognise and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall: (a) Ensure that the adoption of a child is authorised only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent information, that the adoption is permissible in view of the child's status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary; (b) Recognise that inter-country adoption may be considered as an alternative means of child's care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin; (c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption; (d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it; (e) Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.” 42. The relevant extracts of Recommendation 1443 (2000), entitled “International adoption: respecting children's rights”, read as follows: “The Assembly ... fiercely opposes the current transformation of international adoption into nothing short of a market regulated by the capitalist laws of supply and demand, and characterised by a one-way flow of children from poor states or states in transition to developed countries. It roundly condemns all crimes committed in order to facilitate adoption, as well as the commercial tendencies and practices that include the use of psychological or financial pressure on vulnerable families, the arranging of adoptions directly with families, the conceiving of children for adoption, the falsification of paternity documents and adoption via the Internet. It wishes to alert European public opinion to the fact that, sadly, international adoption can lead to the disregard of children's rights and that it does not necessarily serve their best interests. In many cases, receiving countries perpetuate misleading notions about children's circumstances in their countries of origin and a stubbornly prejudiced belief in the advantages for a foreign child of being adopted and living in a rich country. The present tendencies of international adoption go against the UN Convention on the Rights of the Child, which stipulates that if a child is deprived of his or her family the alternative solutions considered must pay due regard to the desirability of continuity in the child's upbringing and to his or her ethnic, religious, cultural and linguistic background. ...” 43. The principles and effects of full adoption may be summarised as follows (see G. Ravarani, “La filiation”, Feuille de liaison de la conférence Saint-Yves no. 75, March 1990). 44. As a matter of principle, adoption is by a married couple. Thus, Article 367 of the Civil Code provides as follows: “An application to adopt may be made by a married couple who are not judicially separated, one of whom is at least twenty-five and the other at least twenty-one years old, on condition that the adoptive parents are fifteen years older than the child whom they propose to adopt and that the child to be adopted is under the age of sixteen.” 45. Full adoption by a single person is an exceptional situation. The law provides for only one possibility: that of full adoption applied for by a spouse in favour of the child of his or her spouse. 46. Article 368 of the Civil Code provides as follows: “Adoption shall confer on the adopted child and on his or her descendants the same rights and obligations as though he or she were born of the marriage of the adoptive parents. That legal parent-child relationship shall replace his or her original parent-child relationship and the adopted child shall cease to belong to his or her blood family ...” 47. The adoptive parents alone are invested, with respect to the adopted child, with all the rights of parental authority. 48. Prior to the Law of 23 December 2005, adoption conferred on the child the surname of the husband. Since that Law, the effect of Article 57 in conjunction with Article 368-1 of the Civil Code is that the adoptive couple choose the name to be given to the adopted child; the child may acquire either the name of his or her father, or the name of his or her mother, or both names together, in whichever order the adoptive parents may choose, with a maximum of one name for each parent. 49. The child has the same inheritance rights in respect of his or her adoptive parents as the legitimate children. From a taxation point of view, the adoptive child is not required to pay inheritance tax where he or she inherits in the direct line. 50. Under section 2(1) of the Law of 22 February 1968 on nationality, as amended, a child who has been fully adopted by a Luxemburger obtains Luxembourg nationality. Bill no. 5620 on Luxembourg nationality, which is currently before Parliament, confirms the terms of that provision. 51. The same mutual maintenance obligations are created between the adoptive parents and the adopted child as those existing between blood relatives. 52. The transcription of the adoption judgment takes the place of a birth certificate for the adopted child. It contains no indication of the child's original filiation. The original birth certificate is marked “adoption”. 53. The principles and effects of simple adoption may be summarised as follows (G. Ravarani, op. cit.). 54. Although it constitutes the general rule for adoption, simple adoption is much rarer than full adoption. It normally occurs only where full adoption is impossible, for example where the person to be adopted is over the age of 16 or where the person wishing to adopt is single. 55. The conditions are the same as in the case of full adoption, except that simple adoption by one person is possible. More than one person cannot adopt the same child, except in the case of a married couple. Article 344 of the Luxembourg Civil Code provides the following: “An application to adopt may be made by any person over the age of twenty-five.” 56. While simple adoption in many respects resembles full adoption – it confers a new family on the adopted child –, it differs from full adoption on one essential point: the adopted child does not lose his or her family of origin. Article 358 of the Civil Code provides as follows: “The adopted child shall remain in his or her family of origin and keep all his or her rights within that family, including hereditary rights.” 57. Like full adoption, simple adoption has the effect of integrating the adopted child into his or her new family. However, the adopted child is not fully assimilated to a biological descendant, even though a link of kinship is created between the adoptive parent and the adopted child. The law further provides that this link extends to the adopted child's descendants (Article 361 of the Civil Code). Since the law makes no specific provision in that regard, however, it must be acknowledged that the adoption does not create a link of kinship between, on the one hand, the adopted child and the ascendants of the adoptive parent and, on the other, the adopted child's collaterals. 58. As regards parental authority, Article 360 of the Civil Code sets forth the following provisions: “The adoptive parent alone has, with respect to the adopted child, all the rights of parental authority, including the right to administer the adopted child's estate and to consent to the adopted child's marriage. Where the adoption was by a married couple or where the adoptive parent is the spouse of the adopted child's father or mother, the rights referred to in the preceding paragraph shall be exercised in accordance with the rules applicable to the legitimate father and mother. Where there is only one adoptive parent or where one of the two adoptive parents dies, the adopted child's estate shall be administered in accordance with the law and under the supervision of the court. Where the adoptive parent or the survivor of the adoptive parents dies, is declared absent or loses the right to exercise parental authority, a guardianship order shall be made.” 59. Article 359 of the Civil Code provides that simple adoption confers the adoptive parent's name on the adopted child. In the event of adoption by a married couple, the same rules as those applicable to full adoption apply. 60. Article 363 of the Civil Code establishes the principle that the adopted child and his or her descendants have the same inheritance rights in the adoptive parent's family as a legitimate child. Conversely, the following exceptions are applicable. – Under Article 363, the adopted child and his or her descendants are not entitled to receive a reserved portion of the estate of the adoptive parent's ascendants. – If the adopted child dies without descendants or a surviving spouse, the assets given by the adoptive parent or inherited under the adoptive parent's estate revert to the adoptive parent or to his or her descendants, provided that those assets still exist in kind at the time of the adopted child's death. If the adoptive parent has died and left no descendants, those assets belong to the adopted child's relatives (that is to say, his or her descendants or the members of his or her family of origin), to the exclusion of the adoptive parent's other heirs (Article 364). The other assets left by the adopted child go to his or her family and not to the adoptive parent's family (Article 364). Article 364 paragraph 2 provides that “if, during the lifetime of the adoptive parent and after the death of the adopted child, the children or descendants left by the adopted child die without issue, the adoptive parent [may recover the assets which he or she had given to the adopted child], but the right to do so is personal to the adoptive parent and cannot be transferred to his or her heirs, even in the descending line.” – As for the tax regime applicable to the succession, whereas children who have been fully adopted are treated in the same way as the legitimate descendants, Article III of the Law of 13 July 1959 amending the rules on adoption, the fiscal provisions of which have not been repealed, draws a distinction between different categories of persons who have been the subject of simple adoption: those in the first category listed (namely (i) adopted childs who are the children of a first marriage of the adoptive parent's spouse and those children's descendants, and also non-marital children adopted by their progenitor and those children's descendants; (ii) adopted childs who are children of persons killed by enemy action or war orphans; (iii) adopted childs who during their minority and for six years or less have received care and assistance without interruption from the adoptive parent, and their descendants; and (iv) adopted childs whose adoption was applied for before they reached the age of 16 and their descendants) are treated in the same way as legitimate descendants. Those in the second category (namely, all those not specially listed by the law) do not enjoy the same tax advantages; the law treats them as nephews and nieces, with the consequence that tax at 9% is applicable in their case. 61. Under section 2(2) of the Law of 22 February 1968 on Luxembourg nationality, as amended, a child aged under 18 who has been the subject of simple adoption by a Luxemburger acquires Luxembourg nationality where he or she is stateless or where, following the adoption, he or she loses his or her nationality of origin by operation of the foreign law. Under sections 19 and 20 of that Law, a child who was the subject of simple adoption by a Luxemburger and who at that time did not lose his or her nationality of origin may acquire the status of Luxemburger by opting to do so, provided that he or she has been habitually resident in the Grand Duchy during the year preceding the declaration of intent to exercise the option and has been habitually resident there for at least five consecutive years. Section 2 of Bill no. 5620 on Luxembourg nationality, which is currently before Parliament, provides as follows: “A child under the age of 18 who has been the subject of simple adoption by a Luxemburger ... shall acquire Luxembourg nationality; ...” 62. The adopted child and his or her descendants have a duty to maintain the adoptive parent if he or she is in need, and the adoptive parent has a duty to maintain the adopted child and his or her descendants. If the adopted child dies without leaving descendants, his or her estate has an obligation to maintain an adoptive parent who is in need at the time of the adopted child's death (Article 362 of the Civil Code). 63. Unlike the position in the case of full adoption, there is no need to draw up a new document which does not state the adopted child's original filiation. The adopted child keeps his or her original birth certificate, but it – and, where appropriate, his or her marriage certificate and the documents relating to the civil status of his or her legitimate descendants born before the adoption – will bear a note in the margin indicating the adoption. 64. Article 370 of the Luxembourg Civil Code provides the following: “Adoption is open to Luxemburgers and to foreigners. The conditions that must be satisfied in order to adopt are governed by the national law of the adoptive parent or parents. In the case of adoption by a married couple who are of different nationalities or are stateless persons, the applicable law is that of the place of joint habitual residence at the time of the application to adopt. The same law is applicable where one of the spouses is a stateless person. The conditions that must be satisfied in order to be adopted are governed by the national law of the adopted child, save where the adoption confers the nationality of the adoptive parent on the adopted child, in which case the conditions are governed by the national law of the adoptive parent. The effects of the adoption are governed by the national law of the adoptive parent or parents. Where the adoption is by a married couple who are of different nationalities or are stateless persons, or where one spouse is a stateless person, the applicable law is that of the place where both spouses were habitually resident at the time when the adoption took effect. In the event of conflict between the rules on competence laid down by the national law of the adoptive parent and that of the adopted child, the adoption is validly concluded according to the procedures prescribed by the law of the country in which the adoption took place and before the authorities competent under that law.” 65. In a recent case a married couple had obtained from the Attorney General's Department a certificate attesting that they satisfied all the statutory conditions to undertake a full adoption in Peru. The husband died during the proceedings and the widow obtained from the Attorney General's representative a certificate of eligibility to adopt on her own behalf, so that the Peruvian authorities were inclined to entrust the child to her. The Luxembourg District Court declared the widow's application to adopt inadmissible, on the ground, inter alia, that the document attesting to her eligibility to adopt had not been drawn up by the competent authority of the receiving State. However, in a judgment of 28 June 2006, the First Division of the Court of Appeal, sitting as a civil court, decided as follows: “... the appellant produced the documents relating to the adoption pronounced in Peru ..., namely the adoption decision ... and also the certificate of conformity of the adoption with the Hague Convention referred to in Article 23(1) of [the Hague Convention]. It follows from that certificate of conformity, issued on 15 February 2005, that the Peruvian authorities were mistaken as to the identity of the competent authority of the receiving State ..., which is the district court of the place of residence of the future parent(s) and not the Attorney General's representative attached to that court, ... as to the nature of the document issued on 4 January 2005 by the Attorney General's representative, which was to be understood as a certificate of eligibility to adopt ... and not as a document expressing the agreement of the central authority of the receiving State that the adoption procedure could continue ... However, according to [the Hague Convention], the certificate referred to in Article 23 guarantees the international effectiveness of the adoption. It is the irrebuttable proof of the lawfulness of the adoption decision, recognition of which in the Contracting States can be refused only if the adoption is manifestly contrary to its policy in the light of the best interests of the child ... Contrary to the general rule, whereby foreign decisions relating to the status and capacity of persons, which are not required to be enforced, are subject to an ex post facto control ascertaining the competence of the foreign authority and the correctness of the procedure followed, and also the competence of the law applied to the merits in accordance with the rules on the conflict of laws of the receiving country and, last, public policy, the convention system of recognition by operation of law ascertains exclusively the conformity of the adoption with public policy within the meaning of the private international law of the receiving State ... In order for an adoption to be manifestly contrary to public policy within the meaning of the private international law of the requested State, it must constitute a flagrant breach of the fundamental values and principles of that State. Furthermore, even if it is established, that breach should still be tempered by consideration of the best interests of the child. Recognition cannot be refused on the ground that the certificate drawn up by the authorities of the country of origin disregards a breach, even a very serious breach, of the provisions of the Convention. ... The mistakes made by the Peruvian authorities as to the Luxembourg authorities .. and as to the scope of the certificate of eligibility to adopt issued ... by the Attorney General's representative constitute a serious breach of the provisions of the Convention, but have no bearing on the fundamental principles which govern adoption in Luxembourg law. The fact that the Peruvian decision has the effects of a Luxembourg full adoption, notably by severing the child's pre-existing filiation and by its irrevocable nature, is not prejudicial to Luxembourg's international public policy. Under the terms of Article 370, paragraph 5, of the Civil Code, the effects of the adoption are governed by the national law of the adoptive parent or parents. Article 26 of the [Hague Convention] varies that provision by providing that the recognition of an adoption includes not only recognition of the filiation between the child and his or her adoptive parents and parental responsibility for the child, but also the termination of the pre-existing filiation between the child and his or her mother and father, if, as in the present case, the adoption has that effect in the State where it was made. That particular effect of adoption cannot be called into question in the requested State. In addition, Article 26(2) requires that any State in which a full adoption produces its effects is to confer on the child rights equivalent to those resulting from the provisions of its own law on full adoption, irrespective of the law applicable in that State to the effects of the adoption ... That may have the effect of requiring the receiving State to recognise the termination of the ties between the child and his or her family of origin, even if such an effect would not be produced if the adoption had taken place in that State. The aim was to give the child the most favourable status ... As it must be recognised by operation of law, the Peruvian adoption decision produces binding effects. ...” 66. Among the forty-six member States of the Council of Europe, none prohibits adoption by unmarried persons outright. 67. Ireland and Italy accept adoption by unmarried persons in very exceptional circumstances. Iceland and Lithuania permit unmarried persons to adopt a child in “exceptional circumstances”. 68. A second group of countries permit adoption by unmarried persons, but only if certain conditions are met. Thus, in Armenia, only unmarried women may adopt; in Malta, an unmarried man cannot adopt a female child. 69. In a third group of countries, including Luxembourg, adoption by unmarried persons is permitted generally, but their capacity to adopt is limited to an adoption which does not entail the termination of the family ties with the family of origin. Thus, in Georgia, Lithuania and Russia, adoption by an unmarried person does not terminate the relationship with the original parent of the opposite sex to that of the adoptive parent. 70. In the other European countries there are no restrictions on adoption by unmarried persons. 71. The member States do not confer the same effects on an adoption judgment delivered abroad. While some States accept that the judgment delivered abroad produces the same effects in the internal legal order as it would produce in the State in which it was delivered, other States will authorise the parties to make application for the effects to be “adapted” to domestic law and, last, a third group of States will accept the production of effects only according to their own domestic law. 72. A panorama of comparative law makes it possible to group the member States in two distinct categories: 73. First, in Ireland and Italy the refusal would be based on the prohibition of full adoption by single persons. 74. Second, in certain Nordic countries the refusal would be based on a prohibition on principle of adoption carried out according to the procedure followed in the present case by the first applicant. Where a Danish, Finnish, Icelandic or Swedish citizen wishes to adopt a child abroad, he or she must first seek authorisation from the national authorities of his or her own country before being able to contact the authorities of the State in which he or she wishes to adopt a child. Where that prior authorisation is lacking, the domestic laws of the Nordic countries uniformly provide that the judgment delivered abroad will not be recognised. 75. In some States the foreign judgment would produce the effects determined by the domestic law of the State in which it was delivered (that is the case in Switzerland and Estonia). 76. Next, in other States, the effects of the foreign judgment could be adapted to national law (that is the case in the Netherlands). 77. Last, in the majority of States the foreign judgment would produce only the effects determined by the national laws of the countries in which it would be enforced. Thus, irrespective of the effects which a judgment may produce in the country in which it was delivered, in the domestic law of the member States it will produce only the effects authorised by national law. The national court will therefore have to adapt the foreign adoption to one of the modes of adoption recognised by domestic law. The foreign adoption will therefore produce the same effects as an adoption under domestic law. That is so, in particular, in Germany, Belgium, Bulgaria, Croatia, Spain, France, Malta, Portugal and Romania. 78. Among the guiding principles of the proceedings, Article 62 of the new Code of Civil Procedure, which entered into force on 16 September 1998, provides as follows: “The court may invite the parties to provide any legal explanations which it may deem necessary for the outcome of the case.” 79. The rights guaranteed by the Convention and the Protocols thereto may be invoked directly before the Luxembourg courts. Thus, the Court of Cassation has ruled as follows (Cass. 17.1.1985, no. 2/85): “... the rules laid down in Articles 8 and 14 of the Convention, read together, not only create obligations on the part of the Contracting States but also produce direct effects in the internal legal order for individuals and confer on litigants individual rights which the national courts must safeguard.” | 1 |
train | 001-110272 | ENG | GBR | CHAMBER | 2,012 | CASE OF WOOLLEY v. THE UNITED KINGDOM | 3 | Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - Conviction) | George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano | 5. The applicant was born in 1953 and is currently detained at HMP Dovegate, Uttoxeter. 6. On 19 December 2002 the applicant was convicted at Birmingham Crown Court of an offence of conspiracy to cheat the public revenue. On 20 December 2002 he pleaded guilty to two offences of concealing proceeds of criminal conduct to retain them or to avoid prosecution; and removing property from the jurisdiction to retain proceeds of criminal conduct or to avoid prosecution. On the same date, he was sentenced to nine years’ imprisonment in respect of the conspiracy offence, with no separate penalty imposed for the other two offences. 7. On 14 December 2003 the Court of Appeal dismissed the applicant’s appeal against sentence. 8. On 23 February 2005 the applicant walked out of HMP Sudbury, an open prison, and fled to Switzerland. At that time he had served 41 months and 12 days of the sentence. A total of 66 months and 18 days remained to be served. On 3 March 2005 a warrant for the applicant’s arrest in respect of the offence of escape from lawful custody was issued by Birmingham Magistrates’ Court. 9. Also on 3 March 2005, Birmingham Crown Court made a confiscation order in respect of the applicant’s conviction for conspiracy to cheat the public revenue in the sum of GBP 9,497,784.02. The amount specified in the order was to be paid by the applicant by 3 April 2006, with four years’ imprisonment to be served in default of payment, consecutively to the nine-year term of imprisonment already imposed. Although the applicant was not present, he was represented by senior counsel. 10. On 4 April 2005 the applicant was refused leave to appeal against the confiscation order. In February 2007 the full court of the Court of Appeal refused the applicant’s renewed application for leave to appeal against the confiscation order. 11. On 3 April 2007 an enforcement and receivership order was made against the applicant in order to seek to recover the sums specified in the compensation order, as only GBP 195,000 had been recovered by the Official Receiver. 12. On 6 February 2008 the United Kingdom Government issued a request to the Swiss Government for the applicant’s extradition, pursuant to the European Convention on Extradition 1957 (“the ECE”), as a convicted person and as an accused person. The request was made on the basis that the applicant had been convicted of conspiracy and money laundering offences and was accused of an offence of escape from lawful custody. 13. An accompanying witness statement by a Revenue and Customs Prosecutor set out the offences of which the applicant had been convicted, together with the relevant law. It noted that the applicant’s return was sought in order to serve the remainder of the sentence of nine years’ imprisonment imposed on him. It referred to the confiscation order and concluded: “... It is established law that a default sentence so imposed constitutes part of the overall penalty. [The applicant’s] return to the United Kingdom is therefore sought in respect of any activation of the default sentence which may become necessary.” 14. In diplomatic notes dated 31 March 2008 and 18 April 2008, the Swiss Federal Office of Justice asked the British authorities for further information relating to the acts committed by the applicant. On 1 April 2008 and 3 June 2008 the British Embassy replied to the questions. 15. On 12 June 2008 an arrest warrant was issued by the examining magistrate in Vaud Canton, Switzerland. The applicant was arrested pursuant to that warrant on 19 June 2008. 16. By diplomatic note dated 13 August 2008, the Swiss Federal Office of Justice asked the following question of the United Kingdom authorities: “... whether the extradition of the [applicant] is also being requested for charges of evasion and for non-payment of the confiscation sum ordered by Birmingham Crown Court on 3 March 2005.” 17. By diplomatic note of 28 August 2008 to the Swiss Federal Office of Justice, the British Embassy in Berne enclosed the response of Her Majesty’s Revenue and Customs Prosecution Office (“Prosecutor’s Office”). The response was in the following terms: “It is important to make clear that there is no charge, in existence or proposed, for evasion or non-payment of the order. The extradition of Mr Woolley is not sought in respect of non-payment of the confiscation order which was made against him; it is sought in respect of one charge of escape from lawful custody and to finish serving the term of imprisonment passed on him in respect of the offence of conspiracy to cheat. The confiscation order was part of the sentence passed on Mr Woolley. The effect of the relevant legislation is that such orders are treated in the same way as fines. When a Crown Court imposes a fine on any person, they may allow that person time to pay the fine but they must make an order fixing a term of imprisonment which that person must serve as a last resort if the sum they owe has not been paid or recovered. The confiscation order in this case was made on 3 March 2005, the judge allowed Mr Woolley time to pay until 3 April 2006, and set a term of imprisonment in default of 4 years. The order remains outstanding and this office has been taking steps to enforce it. Activation of a default sentence is one of the many means available to the court to enforce outstanding orders. The court can initiate activation of its own volition or the prosecutor can invite the court to do so. Before activating the default sentence, judges are under a duty to enquire into the defendant’s proposals for payment and to determine whether any of the other methods of enforcement might be effective. [The applicant] would have the opportunity to make representations throughout this process. [The applicant] still has the option to pay the confiscation order at any time and if his assets are insufficient to meet the confiscation order he may apply to the High Court for a certificate of inadequacy. If one is granted, he may then apply to the Crown Court to reduce the amount of the confiscation order ...” 18. On 26 September 2008 the Swiss Federal Office of Justice issued its decision on extradition. The decision noted: “1. On 21 April 2005, Interpol London requested the arrest and extradition of the party concerned to serve the remainder of a prison sentence of nine years handed down by Birmingham Crown Court on 20 December 2002 for fraud and money laundering. 2. In a diplomatic note of 6 February 2008, the British Embassy in Bern requested the extradition of the party concerned.” 19. It continued: “13. In a diplomatic note of 28 August 2008, the British Embassy informed the FOJ [Federal Office of Justice] that the extradition of the party concerned was not being requested for non-payment of the amount of the confiscation ordered by way of the decision of 3 March 2005 of Birmingham Crown Court, but was being requested for the absconding.” 20. The decision noted that for extradition to be ordered, the offence for which it was sought had to be an offence in both countries. As regards the offence for which the nine-year sentence was imposed, the Federal Office of Justice considered in some detail the facts behind the offence. It noted the applicant’s objection that the request for extradition was not clear regarding whether it was also requested for the offence of absconding and for non-payment of the amount confiscated which were not punishable under Swiss law. 21. The Federal Office of Justice ruled that since the Swiss Criminal Code did not punish a person who absconded, the extradition would not be granted for the act of absconding. It noted that the extradition was not requested for the non-payment of the confiscation order and that there was no need to ask the British authorities to give any guarantees, as nothing suggested that they would not adhere to the rule that a person could only be tried for the offence for which he had been extradited. 22. It granted the extradition for the acts described in the extradition request of the British Embassy of 6 February 2008 and its additional documents of 1 April and 3 June 2008, excluding the acts of absconding. 23. On 29 October 2008 the applicant appealed to the Swiss Federal Criminal Court. On 5 February 2009 the Federal Criminal Court upheld the decision of the Federal Office of Justice. It summarised the facts of the case, and noted that the British Embassy had declared that extradition was only being sought for the acts of absconding, and not for non-payment of the confiscation order. 24. In response to the applicant’s criticism of the decision of the Federal Office of Justice for failing to exclude extradition for the purpose of initiating proceedings regarding the non-payment of the confiscation order, the court noted that the British authorities had expressly stated that extradition was not requested for non-payment of the amount in the confiscation order and held that this statement was sufficiently clear and appropriate for the purposes of removing the applicant’s doubts. 25. On 10 February 2009 the applicant appealed to the Swiss Federal Supreme Court. On 26 February 2009 the Federal Supreme Court ruled that the appeal was inadmissible. In its judgment, it summarised the findings of the Federal Criminal Court: “... The applicant authority had clearly waived the right to apply for extradition for the sentence relating to non-payment of the confiscation [order] ...” 26. On 10 March 2009 the applicant was extradited to the United Kingdom and returned to prison to complete his sentence. 27. In April 2009 the Prosecutor’s Office applied to Birmingham Magistrates’ Court to enforce the four-year term of imprisonment imposed on the applicant in default of payment of the confiscation order. 28. On 5 May 2009 the head of the Swiss Federal Office of Justice sent an email to the Prosecutor’s Office stating that this would amount to a violation of the rule of specialty. 29. On 29 July 2009 the Prosecutor’s Office wrote to the Swiss authorities indicating that it intended to proceed with an application to enforce the four-year term of imprisonment. It noted that the extradition request concerned the offence of conspiracy to cheat the public revenue (“the extradition offence”), of which the applicant had been convicted, and the offence of escape from lawful custody, of which the applicant was accused. The request for extradition in respect of the latter offence was refused. As regards the non-payment of the confiscation order, the letter indicated: “While the extradition request was under consideration, a question was put by the Swiss authorities ... as to whether [the applicant’s] ‘extradition is also being requested for charges of evasion and for non-payment of the confiscation sum ordered by Birmingham Crown Court on 3 March 2005’. In our response we sought to explain that there were no charges for the non-payment of the order, the order was part of the sentence for the extradition offence and if the order were not to be satisfied this would result in the activation of the default sentence. As the sentence for non payment was part and parcel of the sentence imposed for the extradition offence, it was not possible, or necessary, to seek his extradition in relation to it; as part of the sentence for the extradition offence it was covered by the terms of the extradition request. It appears from the documentation that we have had sight of that Mr Woolley was returned on the basis that the default sentence referred to above may not be imposed. This decision appears to be made on a misunderstanding of the requesting State’s position as is set out in the documents provided to the Federal Office of Justice in support of the extradition request.” 30. Referring to section 50 of the Criminal Appeal Act 1968 (see paragraph 55 below), the Prosecutor’s Office explained that the sentence for the extradition offence was made up of more than one component, and covered the prison sentence for the wrongdoing, the financial penalty in the confiscation order and the custodial penalty that flowed from the non-payment. The letter concluded: “I take this opportunity to assure the Government of the Swiss Confederation that the UK is committed to its international obligations and has no intention of dishonouring the principle of specialty. However, for reasons which I trust are apparent from what is set out herein, imposition of the default sentence in these circumstances cannot be considered to be a breach of the UK’s specialty obligations, either as set out in the Convention or in UK domestic legislation.” 31. On 24 August 2009 the Federal Office of Justice wrote to the British Embassy indicating that if the UK authorities intended to ask for the extension of the extradition to include the non-payment of the confiscation order, they would have to proceed in accordance with Article 14 of the ECE (see paragraph 67 below). 32. On 4 September 2009 the Prosecutor’s Office’s application to enforce the default term came before the Magistrates’ Court. The applicant argued that the proceedings were barred by the rule of specialty, which restricts prosecution or punishment of an extradited person to the offence for which extradition was granted. The District Judge considered the applicant’s claim to be arguable but was of the view that only the High Court had jurisdiction to consider an abuse of process argument. He therefore adjourned the proceedings to allow the parties to bring judicial review proceedings. 33. On 18 September 2009 the applicant lodged a claim for judicial review seeking an order that the District Judge be prohibited from proceeding to examine the Prosecutor’s Office’s application because the proceedings were an abuse of process; and an order that the District Judge be prohibited from proceeding to examine the Prosecutor’s Office’s application because it constituted a breach of section 151 of the Extradition Act 2003 (“the 2003 Act” – see paragraphs 60-63 below). 34. On 25 September 2009 the Prosecutor’s Office lodged a claim for judicial review seeking, inter alia, a declaration that the application to enforce the default term did not constitute an abuse of process and a declaration that the application to enforce the default term did not constitute a breach of section 151 of the 2003 Act. 35. On 5 October 2009 the High Court granted leave in respect of the Prosecutor’s Office’s application. The two claims were later joined and consideration of the applicant’s request for leave was adjourned for consideration by the full court at the substantive hearing in the Prosecutor’s Office’s claim. 36. On 19 November 2009 a hearing took place in both claims. The court heard argument from counsel for both parties. At the conclusion of the hearing, the High Court granted the Prosecutor’s Office’s application for judicial review, refused the applicant’s application for permission to apply for judicial review and indicated that it would hand down a reasoned judgment in due course. 37. On 12 January 2010 the Magistrates’ Court resumed the hearing of the Prosecutor’s Office’s application. The District Judge ordered the applicant to serve the four-year term. 38. On 15 January 2010 the High Court handed down its reasoned judgment in the judicial review claims. It noted that this was not a case where it was being suggested that there had been “a deliberate abuse” of the extradition proceedings or that the Swiss authorities were deliberately misled or that the extradition proceedings were improperly manipulated. 39. The court held that it was entirely satisfied that the default term formed part of the original sentence, since it was an integral part of the confiscation order which, it was common ground, was unarguably part of the original sentence. It considered the argument that enforcement of the default term involved proving the commission of a further separate offence to be wholly artificial and had no hesitation in rejecting it. 40. As to the applicant’s alternative argument that if the default term did form part of the original sentence and proceedings to enforce it were a process in which the applicant would be dealt with for the original offences, then there should be a mechanism for dealing with the express reservation of the Swiss authorities, the court was again satisfied that there was no substance in this submission, and held that the Swiss reservation was the result of their misunderstanding of the extent of the United Kingdom’s “clearly expressed request”. 41. The court summarised the various exchanges between the Swiss and British authorities prior to the applicant’s extradition and agreed with counsel for the Prosecutor’s Office that the British diplomatic note of 28 August 2008, read as a whole, made it perfectly clear that extradition was not required in respect of any charge of non-payment of the confiscation order, since there was no such actual or proposed charge because the order in question formed part of the sentence imposed for the offences of which the applicant had been convicted and in respect of which his extradition was being sought. It continued: “In other words, it was not necessary to seek extradition specifically for the non-payment because the confiscation order was merely part of the sentence for the offences for which he was to be extradited and was not a separate charge in its own right.” 42. It concluded that the imposition of the default term would offend neither the rule of specialty in section 151 of the 2003 Act nor under Article 14 of the ECE. 43. As to the argument that the enforcement of the default term constituted an abuse of process, the court found: “33. ... In the light of our decision that there is no infringement of the rule of specialty in this case, we have come to the firm conclusion that there is no abuse of process involved in proceeding to enforce the default term against Mr Woolley in the circumstances of this case, notwithstanding the misunderstanding of the position by the Swiss authorities and their expressed reservation.” 44. It concluded that the decisions and comments of the Swiss courts in respect of the default term for non-payment of the confiscation order were simply not binding on the courts of the United Kingdom and the rule of specialty had not been infringed. For the reasons given, the court was satisfied that the United Kingdom had not deliberately misled the Swiss authorities, that it had always made its intentions clear and that there had been no improper or unfair manipulation of the processes of extradition or for the enforcement of the default term. 45. On 4 February 2010 the applicant applied to the High Court for certification of points of law of general public importance and for leave to appeal against the judgment of the High Court. On 16 February 2010 the court refused the applications. 46. On 19 March 2010, by letter to the British Embassy, the Swiss Federal Office of Justice reiterated: “By means of the diplomatic note dated 28 August 2008, the Embassy sent the DFJP [Swiss Federal Department of Justice and Police] a letter from the British authorities showing that extradition was not required for the non-payment of the confiscation order. In accordance with this letter, this aspect has been withdrawn from the extradition proceedings and has not been dealt with in the decision. Therefore, extradition has not been granted for the non-payment of the confiscation order.” 47. The Federal Office of Justice indicated that if the British authorities had enforced the four-year default term of imprisonment for non-payment of the confiscation order, this would amount to a breach of the rule of specialty. 48. In April 2010, as a result of early release provisions, the applicant reached his release date in respect of the nine-year term of imprisonment imposed for the extradition offence. He is currently in detention pursuant to the default term of imprisonment imposed in respect of the non-payment of the confiscation order. 49. On 26 June 2010 the British Embassy in Berne forwarded a Diplomatic Note to the Swiss Government reiterating its contention that the activation of the default term did not violate the principle of specialty. 50. On 14 September 2010 the Swiss Federal Department of Justice responded to the Note. It indicated that it disagreed with the interpretation of the British authorities and courts of the rule of specialty and reiterated that in its view subjecting the applicant to the default term of imprisonment violated that rule. It requested the British authorities either to request an extension of their extradition request pursuant to Article 14 of the ECE (see paragraph 67 below) or to release the applicant. 51. At the relevant time, section 71 of the Criminal Justice Act 1988 (“the 1988 Act”) provided for the making of confiscation orders. It imposed a duty on the court where the possibility of imposing a confiscation order arose to act as follows before sentencing: “(1A) The court shall first determine whether the offender has benefited from any relevant criminal conduct. (1B) ... if the court determines that the offender has benefited from any relevant criminal conduct, it shall then– (a) determine ... the amount to be recovered in his case by virtue of this section, and (b) make an order under this section ordering the offender to pay that amount.” 52. The effect of section 75 of the 1988 Act and section 139 of the Powers of Criminal Courts (Sentencing) Act 2000 was that if the Crown Court imposed a confiscation order, it could make an order allowing time for the payment of the amount of the fine. It was also required to make an order fixing a term of imprisonment which the subject of the fine was to undergo if any sum which he was liable to pay was not duly paid or recovered. 53. Section 75(5A) of the 1988 Act provided: “Where the defendant serves a term of imprisonment or detention in default of paying any amount due under a confiscation order, his serving that term does not prevent the confiscation order from continuing to have effect, so far as any other method of enforcement is concerned.” 54. The provisions on confiscation orders in the 1988 Act were repealed and replaced on 24 March 2003 by the Proceeds of Crime Act 2002. The changes are not relevant to the present case. 55. Section 50 of the Criminal Appeal Act 1968 (as amended) deals with the meaning of “sentence”. It provides: “(1) In this Act ‘sentence’, in relation to an offence, includes any order made by a court when dealing with an offender including, in particular– ... (e) a confiscation order under Part VI of the Criminal Justice Act 1988 ...” 56. Section 76 of the Magistrates’ Court Act 1980 gives the Magistrates’ Court the power to issue a warrant of commitment to activate the default sentence imposed by the Crown Court in the event of non-payment. 57. Under Swiss law, an obligation on an individual to pay a certain sum of money can arise in civil, administrative or criminal law. 58. In the context of such obligations arising under civil or administrative law, no penalty can be imposed on a debtor in default other than ordinary enforcement proceedings to obtain the forced sale of the debtor’s assets in order to extinguish the debt and any applicable interest. 59. In the context of criminal law, a person may be required to pay a sum of money by way of a fine following conviction for a criminal offence. If the fine is unpaid, the party in default will receive an equivalent prison sentence, which extinguishes the fine. If a convicted person has financially benefited from a criminal offence, a compensatory claim equivalent to the benefit can be imposed. In case of default, the relevant sum is recoverable under Swiss law on debt enforcement and bankruptcy. There is no provision for a term of imprisonment to be served in default. 60. At the relevant time, the applicant’s extradition was governed by section 151 of the Extradition Act 2003. Section 151 applied if a person was extradited to the United Kingdom from certain States (including Switzerland). Section 151(2) provided: “The person may be dealt with in the United Kingdom for an offence committed before his extradition only if– (a) the offence is one falling within subsection (3), or (b) the condition in subsection (4) is satisfied.” 61. Subsection (3) defined relevant offences as: “(a) the offence in respect of which the person is extradited; (b) an offence disclosed by the information provided to the [extraditing] ... territory in respect of that offence; (c) an offence in respect of which consent to the person being dealt with is given on behalf of the [extraditing] territory.” 62. The condition set out in subsection (4) was that: “(a) the person has returned to the territory from which he was extradited, or (b) the person has been given an opportunity to leave the United Kingdom.” 63. Section 151(5) clarified that a person is “dealt with” in the United Kingdom for an offence if he is tried there for it or he is detained with a view to trial there for it. 64. As of 25 January 2010, section 151 of the 2003 Act was replaced by section 151A, in similar terms. 65. The European Convention on Extradition 1957 (“the ECE”) governs extradition between Switzerland and the United Kingdom. Under Article 1 of the Convention: “The Contracting Parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order.” 66. Article 2 deals with the need for dual criminality and provides that extradition is to be granted in respect of offences punishable under the laws of both the requesting Party and the requested Party. 67. Article 14 deals with the principle of specialty: “1. A person who has been extradited shall not be proceeded against, sentenced or detained with a view to the carrying out of a sentence or detention order for any offence committed prior to his surrender other than that for which he was extradited, nor shall he be for any other reason restricted in his personal freedom, except in the following cases: a. when the Party which surrendered him consents. A request for consent shall be submitted, accompanied by the documents mentioned in Article 12 and a legal record of any statement made by the extradited person in respect of the offence concerned. Consent shall be given when the offence for which it is requested is itself subject to extradition in accordance with the provisions of this Convention; b. when that person, having had an opportunity to leave the territory of the Party to which he has been surrendered, has not done so within 45 days of his final discharge, or has returned to that territory after leaving it. ...” | 0 |
train | 001-4685 | ENG | GBR | ADMISSIBILITY | 1,999 | BYRNE v. THE UNITED KINGDOM | 4 | Inadmissible | Nicolas Bratza | The applicant is an Irish national, born in 1936 and living in Dublin. He was the husband of Anne Byrne. He is represented before the Court by Mr G. O’Neill, a lawyer practising in Dublin. On 17 May 1974 Anne Byrne was killed in a terrorist bombing in Dublin. The cars used for the bombing were stolen in Belfast, Northern Ireland on the same day. The Irish authorities conducted extensive inquiries but were unable to bring charges against any person. The files remain open. The Royal Ulster Constabulary (RUC) in Northern Ireland has conducted an inquiry into the theft of the vehicles and related offences which did not produce any results. However, there was no formal murder inquiry by the RUC. On 6 July 1993 ITV, a television station in the United Kingdom, broadcast a programme in which the adequacy of the RUC inquiry was discussed. | 0 |
train | 001-69216 | ENG | TUR | CHAMBER | 2,005 | CASE OF YASİN ATEŞ v. TURKEY | 3 | Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | Feyyaz Gölcüklü | 10. The applicant, a Turkish citizen of Kurdish origin, was born in 1931. At the time of the events giving rise to the present application, he lived in the town of Kulp, located within the administrative jurisdiction of the province of Diyarbakır, in south-east Turkey. 11. The facts of the case, particularly concerning events which took place on 13 June 1995, are disputed by the parties. 12. The facts as presented by the applicant are set out in Section B below (see paragraphs 13-33). The Government's submissions concerning the events are summarised in Section C below (see paragraphs 34-41). The documentary evidence submitted by the parties is summarised in Section D below (see paragraphs 42-74). 13. In 1995 the applicant's son, Kadri Ateş, lived in Diyarbakır where he worked for Zahit Trade, a business which sold foodstuffs wholesale to small businesses and security and military establishments in the region. 14. At about 6 a.m. on 13 June 1995 Kadri Ateş, together with his colleague Burhan Afşin, left Diyarbakır to go to the town of Kulp to sell foodstuffs. They used a small lorry owned by Zahit Trade. They were accompanied by Kadri's father-in-law Vehbi Demir, his paternal uncle Kemal Ateş and a man called Memduh Çetin. At Seyrantepe, Kemal Ateş disembarked from the vehicle due to overcrowding and continued his journey in another vehicle. 15. The lorry came off the Diyarbakır-Bingöl highway at the Lice turn-off and headed towards the town of Lice. At about 7.40 a.m., one kilometre before the Lice-Kulp fork, the vehicle slowed to a halt as a result of a police minibus blocking the width of the road. Thereafter, four police officers surrounded the van with firearms and proceeded to carry out an identity check of all the occupants. This resulted in Memduh Çetin and Burhan Afşin being ordered out of the lorry and taken by a police minibus to the police checkpoint at the entrance to the Lice district. The other occupants were told to follow in the lorry. 16. The four men were told to wait at the police checkpoint at Lice without receiving an explanation for their detention. Kemal Ateş, who had by then arrived at the police point in the other vehicle, sought an explanation but was stopped by the police. After about 10-15 minutes a grey-coloured Renault saloon car, with the registration number 06 MEH, arrived. Four plain-clothed police officers with pistols got out. One of the police officers was a 29-30 year old, of medium height, wearing a grey jumper and holding a walkie-talkie. This police officer proceeded to ask who owned the lorry and what names each of the men were known by in the village from where they came. Kadri Ateş replied “Gebooğulları” and Vehbi Demir replied “Galevan”. 17. Thereafter the plain-clothes police officers informed the men that they were to be taken back to Diyarbakır, to the Financial Branch of the Police, as there was a problem concerning some cheques. Vehbi Demir and Memduh Çetin said to the police that they had simply boarded the lorry as passengers and had nothing to do with any cheques. However, they, together with Burhan Afşin, were ordered to drive the lorry back to Diyarbakır, in front of the Renault. Kadri Ateş was placed into the back of the Renault, in between two police officers. 18. The vehicles stopped outside the Regional Traffic Directorate, located at the entrance to Diyarbakır, where the four men were told to remain in their respective vehicles. Three officers then entered the Directorate. About 20 minutes later two more police cars arrived with three men in each vehicle, who proceeded to talk with the police who had detained the men in the Lice District. The two cars were similar to the Renault. 19. At this point Kadri Ateş, who was still in the Renault, indicated to Vehbi Demir and Memduh Çetin that they were in danger by biting his lip. As a result, Memduh became distressed and panicked, saying “They are going to kill me”. He was given permission to go to the toilet, which led to all four men being placed in the hallway of the Directorate. 20. After 10-15 minutes two plain-clothes police officers from the two cars that had arrived later entered the hall, carrying firearms. They asked “Which of you are Kadri Ateş and Vehbi Demir?” Both men identified themselves and were ordered to go with the officers to one of the cars which had arrived later. A tall man next to the officer with the walkie-talkie ordered them to turn to face the car whereupon they were blindfolded by a heavily-built officer who then pushed them into the back of the car and proceeded to sit next to them. 21. The officer with the walkie-talkie sat in the front of the vehicle, and enquired as to whether they knew what offences they had committed to which Vehbi replied, “No”. Kadri said, “It was the Mekap shoes.” The police officer then enquired where they were taking the shoes. Kadri replied, “There were fifty pairs. I was taking them to the mountains”. The officer then proceeded to punch Kadri, stating, “Son of a whore, are there still such macho men left in the south-east?” 22. The car then set off. The officer informed them that they were being taken to the military and added “Do you know what the military do ... you'll find out when you get there.” He then instructed the driver to turn onto the Ergani road. The car eventually stopped outside the Riot Police Directorate where they were taken to a cell in which Vehbi, still blindfolded, was handcuffed to the door. He heard the officer order Kadri to strip. 23. Thereafter, Vehbi heard Kadri's screams and cries which continued for two to four hours. Vehbi was then ordered to strip, after which he was tortured for about an hour: he had his testicles squeezed, was hosed down with cold water and electric shocks were applied to him. He was then interrogated by a “Commander” in front of approximately 15 people. 24. Gürgün Can, Ateş's cousin and business partner, was also placed in custody. On the second day, Vehbi was placed in another cell next to an inmate whom he correctly suspected was Can. His blindfold was removed. Thereafter both men were subjected to noise being played on a tape machine at an unbearably high level. 25. On the 15th day of custody Vehbi was taken for interrogation and again subjected to beatings, during which he continued to deny all accusations. His interrogators then stated, “You're very lucky. Haven't you heard? We have killed Kadri. He kicked the bucket. If they hadn't killed him, we'd have murdered you”. Thereafter they informed him, “Your time is up... You have two choices. Either you will go to join Kadri, or we'll send you to prison and you'll kill ten people with the poison we will give you”. They further added, “Look, there are teams here. If we surrender you to them, they will kill you like Kadri”. 26. Vehbi was taken to an unknown place. At the entrance his interrogators told him, “Don't you know where this is? Look, there are teams here. If we surrender you to them, they will kill you like Kadri”. Vehbi continued to assert his innocence, whereupon his interrogator said, “I'm telling you, you only have two choices. Either I will surrender you to the teams, or you'll agree to go to the prison.” At that point Vehbi was taken inside and placed in a cell where he was told, “If your friend had not died, we'd have killed you now. It appears you are lucky.” 27. On the 16th day of custody Vehbi was given a typed statement to sign. The next evening he was taken to the Dağkapı health clinic where he was threatened and told not to make any allegations, but the doctor, in any event, did not examine him. 28. On 30 June 1995 15 people were brought before the Diyarbakır State Security Court (hereinafter “the Diyarbakır Court”); Vehbi, Memduh Çetin and Gürgün Can were among them. The first two were released by the Prosecutor whereas Can was released by a judge. Burhan Afşin was remanded in custody. 29. On 20 June 1995, that is seven days after Kadri Ateş was detained, the applicant applied to the Diyarbakır Court to obtain information concerning the detention of his son. He was informed that his son was not in custody and was referred to the Diyarbakır Security Directorate where he received the same information. 30. The applicant was subsequently informed by the Prosecutor in the town of Lice that Kadri Ateş had died in a clash between security forces and the PKK. The applicant had the body of his son exhumed from the Lice cemetery and buried him in his home town of Kulp. 31. An official Incident and Apprehension Report stated that the four men had been observed at around 7.45 p.m. in an Isuzu lorry, with the registration number 34 ERS 82, travelling along the Bingöl road. They had subsequently been detained for suspected participation in terrorist activities, namely the dropping off of supplies to PKK members at the Aksu petrol station between the Lice turn-off and Duru Gendarmerie Station, at about 9 p.m. 32. The report stated that Vehbi Demir, Memduh Çetin and Burhan Afşin were taken to Diyarbakır for interrogation, while Kadri Ateş was handed over by the Gendarmerie to the Security Special Action Teams to help, voluntarily, set up an ambush at the said petrol station. The report further stated that at about 11.45 p.m. five armed PKK members came to the petrol station and an armed clash ensued in which Kadri Ateş was killed. 33. The applicant is convinced that Kadri Ateş did not die in a clash but was killed in custody under torture. Vehbi Demir witnessed Kadri being taken into custody by the police and heard him being tortured. 34. On 13 June 1995 the Diyarbakır Security Directorate received information to the effect that a small lorry with the registration number 34 ERS 82 would be carrying logistical equipment to PKK terrorists and that the terrorists would meet with Kadri Ateş, Memduh Çetin, Vehbi Demir and Burhan Afşin, who would be travelling in the lorry. 35. Necessary security measures were taken and at about 7.35 p.m. the lorry was stopped at the Lice-Kulp fork and Kadri Ateş was questioned. He stated that he was going to deliver the equipment to the terrorists at a location close to the Aksu petrol station near the Lice-Kulp fork at approximately 9 p.m. Thereafter he was arrested in order to be taken to the meeting point. The others were taken to the Diyarbakır Security Directorate for questioning. 36. Upon reaching the meeting point, the necessary security measures were taken and at approximately 11.45 p.m. five terrorists arrived to collect the equipment from Kadri Ateş. At that point the police asked the terrorists to surrender. However, instead of surrendering, the terrorists opened fire at the security forces and the firing continued for approximately half an hour. Kadri Ateş made an attempt to escape from the security forces but was shot and killed in the crossfire. Two terrorists were also shot and killed but the others managed to escape. 37. A search was carried out at the scene by soldiers from the Lice District Gendarmerie Headquarters. During the search, two Kalashnikov rifles with serial numbers 1971 PO4 and 1977 SS 239119, 81 cartridges and eight chargers were found. Various logistical supplies were also found in the lorry which belonged to Kadri Ateş and these supplies were handed over to the competent judicial authorities. 38. On 14 June 1995 the office of the Lice Prosecutor carried out autopsies on the bodies of the three deceased persons. 39. On 21 June 1995 the applicant went to the Prosecutor's office in Lice where he was shown the photographs of his son. In these photographs, the body of the applicant's son was seen lying next to the bodies of the two terrorists. The applicant formally identified his son. 40. On 30 June 1995 Fetih Aktaş, Cengiz Yılmaz, Burhan Afşin, Gürgün Can and Vehbi Demir were questioned by the Diyarbakır Court Prosecutor, who on 5 July 1995 filed an indictment with that court in which the five men were accused of the offence of membership of a terrorist organisation. 41. On 16 November 1995 the Diyarbakır Court acquitted the five men for a lack of sufficient evidence. 42. The following information appears from the documents submitted by the parties. 43. According to the custody ledgers, Vehbi Demir was arrested at midday, and Gürgün Can at 3 p.m., on 13 June 1995. 44. A handwritten incident report was drawn up and signed by six special police team members and two gendarmes at 5 a.m. on 14 June 1995. There is no information in the document to establish the identities of these officers. According to the report, Kadri Ateş, Vehbi Demir, Memduh Çetin and Burhan Afşin were arrested on 13 June 1995 during an investigation into the actions of the PKK. Kadri Ateş reportedly told the arresting officers that he was planning to meet with members of the PKK at 9 p.m. the same day at the Aksu petrol station and deliver to them the supplies which he had in the back of his lorry (registration number 34 ERS 82). Kadri Ateş was also reported to have told the arresting officers that he was willing to accompany them to the petrol station where they could set up an ambush in order to apprehend the PKK members. The other three arrested persons were then transferred to Diyarbakır for questioning. The police and gendarme officers, together with Kadri Ateş, went to the petrol station where they took up their positions – Kadri Ateş at the place where, according to his agreement with the PKK members, he was supposed to wait, and the police hiding in the vicinity. 45. Five PKK members arrived at the petrol station at 11.45 p.m. When asked by the police officers to surrender, the PKK members opened fire and an armed clash ensued. At that point police officers made an attempt to approach Kadri Ateş in order to take him away from the scene. However, he started running towards the PKK members and was shot in the crossfire. The clash continued for approximately 30 minutes. Bodies of two of the terrorists and their weapons were found at the scene after the clash had ended. The body of Kadri Ateş, who had been shot a number of times, was also lying next to those of the two PKK members. 46. On the same day Mr Özcan Küçüköz, the Prosecutor of the Lice district, in whose jurisdiction the killings had taken place, visited the Gendarme Commando Division in Lice where the three bodies had been taken. He was accompanied by Dr Ömer Varol. The Prosecutor and the doctor examined the bodies and drew up a report in which they recorded their findings. Each of the three bodies was given a number because their identities were not known. (The body of Kadri Ateş was number three.) The bodies were also photographed. 47. Rigor mortis had set in in bodies number one and two but post mortem hypostasis was not observed. As regards body number three, neither rigor mortis nor post mortem hypostasis was observed. 48. Examination of body number one revealed that the right frontal region and the parietal region of the brain were completely destroyed, whereas the occipital region was partly destroyed. There was also an injury below the right knee, caused by a rocket missile. The body bore no marks of blows. 49. In the course of the examination of body number two, two bullet entry wounds on the chest, a number of bullet entry wounds in the throat and one bullet entry wound on the left foot, as well as the corresponding exit wounds were observed. The body bore no marks of blows. The report further states that this person was wearing “terrorist clothing”. 50. Finally, the examination of body number three revealed a bullet entry wound in the occipital region of the brain and a corresponding exit wound on the chin; a bullet entry wound four millimetres below the left collar bone and a corresponding exit wound below the collar bone; an injury on the right shoulder, measuring 10 x 10 centimetres, caused by a firearm, and finally two shrapnel injuries below the right collar bone. 51. The doctor concluded that the cause of death for bodies number one and three was the destruction of vital organs, and for body number two acute blood loss caused by the firearm injuries. He added that the cause of the deaths was so obvious as to leave no doubt in his mind and therefore there was no reason to carry out classical autopsies. 52. The Prosecutor, after having examined the bodies, issued burial licenses and instructed a municipal worker to arrange for the burial of the bodies of the “three terrorists who had no relatives”. 53. Also on 14 June 1995 the Lice Prosecutor sent a letter to the commander of the Lice Gendarme Headquarters and asked for copies to be forwarded to him of the documents pertaining to the investigation which the commander had carried out into the incident. It further appears from this letter that the gendarme commander had informed the Prosecutor by telephone earlier in the day about the “killing of three terrorists whose identities are not known”. 54. On 21 June 1995 the applicant went to the office of the Prosecutor in Lice where he was shown the photographs of the three bodies. He identified body number three as that of his son Kadri Ateş. He also asked for permission to bury his son in his home village. 55. On the same day the Lice Prosecutor had the Lice municipality exhume the body of Kadri Ateş. It was handed over to the applicant. 56. On 23 June 1995 Captain Şahap Yaralı, the commander of the Lice Gendarme Headquarters, sent a letter to the Lice Prosecutor, in reply to the latter's letter of 14 June 1995 (see paragraph 53 above). Mr Yaralı wrote that at 6 p.m. on 13 June 1995 his station had been informed by telephone that a number of logistical supplies would be delivered to members of the PKK at the Aksu petrol station in a lorry. No information had been given about the make or the registration number of the lorry. An operation had been planned by the security forces in the area. At 11.45 p.m. a number of PKK members had arrived at the Aksu petrol station in an Isuzu lorry, with the registration number 34 ERS 82. The terrorists, when asked to stop by members of the security forces, had responded by opening fire. A short armed clash had ensued and, during the search which had been carried out after the clash, the bodies of three terrorists had been found. Two Kalashnikov rifles and ammunition belonging to the terrorists had also been retrieved at the scene. The supplies in the lorry had later been destroyed by the soldiers. 57. Captain Yaralı annexed to his letter, inter alia, an on-site incident report and a number of documents which had apparently been found in the lorry. The Government did not make these documents available to either the Commission or the Court. Captain Yaralı further forwarded to the Prosecutor the Kalashnikov rifles and the ammunition retrieved at the site of the armed clash. 58. On 26 June 1995 the Lice Prosecutor drew up records of confiscation in which the items sent to his office by Captain Yaralı were listed. These items included order forms, consignment ledgers and bills belonging to Zahit Trade (item no. 1995/8), the Isuzu lorry with the registration number 34 ERS 82 (item no. 1995/9), and the rifles and ammunition found at the site of the operation (item no. 1995/7). 59. On 30 June 1995 a statement was taken from Vehbi Demir by the Prosecutor at the Diyarbakır Court. Mr Demir denied being a member of the PKK but added that Kadri Ateş had had connections with them. He also stated that on 13 June 1995 Kadri Ateş had been giving him a lift in his lorry to the town of Kulp when the vehicle had been stopped by members of the security forces near the town of Lice. He, Kadri Ateş, Burhan Afşin and Memduh Çetin had been arrested on the spot. 60. On 5 July 1995 the Prosecutor at the Diyarbakır Court filed an indictment with that court, accusing Fetih Aktaş, Cengiz Yılmaz, Burhan Afşin, Gürgün Can and Vehbi Demir of membership of a terrorist organisation, namely the PKK. In this indictment, Kadri Ateş was referred to as the “terrorist who was arrested on 13 June 1995 together with Gürgün Can by members of the security forces, and who was later killed at the Aksu petrol station while trying to run away from the security forces during the armed clash between the terrorists and the security forces”. Burhan Afşin, Gürgün Can and Vehbi Demir were accused of attempting to take 54 pairs of Mekap shoes to terrorists on 13 June 1995 in a lorry with the registration number 34 ERS 92, before being arrested by members of the security forces. The indictment also made reference to a number of statements taken from Burhan Afşin, Gürgün Can and Vehbi Demir. With the exception of the statement taken from Vehbi Demir, these statements have not been made available to the Convention bodies. 61. On 18 July 1995 the Lice Prosecutor decided that he lacked jurisdiction to prosecute “the three terrorists killed in the operation on 13 June 1995”, and sent the file to the Prosecutor's office at the Diyarbakır Court. According to this decision, a number of terrorists had arrived at the Aksu petrol station at 11.45 p.m. in an Isuzu lorry, with the registration number 34 ERS 92, and three of the terrorists had been killed. The body of one of the deceased had subsequently been identified as that of Kadri Ateş. 62. On 11 August 1995 the Prosecutor at the Diyarbakır Court instructed the Lice Prosecutor, the Lice gendarme headquarters, the Diyarbakır police headquarters and, finally, the Diyarbakır gendarme headquarters to search for the perpetrators of the incident “during which three of the terrorists were killed in the armed clash between the terrorists and the security forces”. The Prosecutor asked to be kept informed every three months of any possible developments in the investigation. 63. On 20 September 1995 the commander of the Duru gendarme station, near which the incident had taken place, sent a report to the Lice Gendarme Headquarters. According to this report, a group of terrorists had approached the lorry to take delivery of logistical supplies. When asked by members of the security forces to surrender, the terrorists had opened fire. After the incident three of the terrorists had been found dead. The report finally stated that it had not yet been possible to establish the identities of the “perpetrators of the incident”. This report was forwarded to the Prosecutor's office at the Diyarbakır Court on 26 September 1995 by the commander of the Lice Gendarme Headquarters. In his covering letter, the commander referred to a letter apparently sent to him by the Prosecutor on 15 September 1995. 64. On 16 November 1995 the Diyarbakır Court held that there was insufficient evidence to conclude that the five defendants had aided and abetted a terrorist organisation, and it ordered their acquittal. The court noted that the defendants had confessed, in statements taken from them by the police while they were in custody, to having committed the offence in question. The court noted that the defendants had later denied the contents of their earlier statements. Copies of the statements taken from the defendants during the criminal proceedings have not been made available to the Convention bodies. The Diyarbakır Court further ordered the return of the confiscated Isuzu lorry (registration number 34 ERS 82) to its owner because it had not been established that the lorry had been used in the commission of an offence. The decision became final on 23 November 1995. 65. On 27 January 1998 the judge at the Nizip Criminal Court of First Instance asked the Prosecutor at the Diyarbakır Court to forward to him a copy of the report of the examination carried out on the body of Kadri Ateş (see paragraphs 46-52 above). The judge asked for this report to be sent to him “before the forthcoming hearing on 14 April 1998”. 66. On 6 May 1998 the Prosecutor at the Diyarbakır Court sent the requested report to the Nizip judge. 67. On 2 June 1998 the Prosecutor at the Diyarbakır Court repeated the above mentioned instructions to the Lice Prosecutor, the Lice gendarme headquarters, the Diyarbakır police headquarters and finally the Diyarbakır gendarme headquarters (see paragraph 62 above). 68. On the same day he also sent a letter to the Lice Prosecutor saying that neither the ownership of the Isuzu lorry nor the manner in which the terrorists had acquired and used it had yet been established. He further asked the Lice Prosecutor to carry out a ballistics examination of the rifles and the bullets, numbered as item no. 1995/7 (see paragraph 58 above). 69. On 3 September 1998 the Prosecutor at the Diyarbakır Court asked the Lice Prosecutor to forward to his office the confiscated items registered as nos. 1995/7-9 (see paragraph 58 above). 70. On 29 September 1999 the Diyarbakır branch of the Pensions' Directorate sent a letter to the Prosecutor at the Diyarbakır Court informing him of their intention to bring a civil action against those responsible for the killing of Kadri Ateş to claim compensation. The Prosecutor was asked to send to the Pensions' Directorate the documents pertaining to the investigation into the killing of Kadri Ateş. 71. On 7 October 1999 the Prosecutor at the Diyarbakır Court forwarded to the Pensions' Directorate the documents requested, and informed the latter that the perpetrators had not yet been arrested. The Prosecutor further stated that logistical supplies had been taken to the petrol station by terrorists who had refused to surrender to the security forces. 72. On 4 November 1999 the Prosecutor at the Diyarbakır Court drew the Lice Prosecutor's attention to the fact that the owner of the Isuzu lorry had still not been established (see paragraph 68 above). He also repeated his request of 3 September 1998 and urged the Lice Prosecutor to forward to his office the items registered as nos. 1995/7-9 (see paragraph 58 above). He finally repeated his instructions of 2 June 1998 to carry out ballistics examinations on the rifle and the ammunition. 73. Also on 4 November 1999 the Prosecutor at the Diyarbakır Court repeated his instructions to the Lice Prosecutor, the Lice gendarme headquarters, the Diyarbakır police headquarters and finally the Diyarbakır gendarme headquarters (see paragraph 62 above). The Prosecutor further instructed the investigating authorities to establish the identities of the three dead terrorists and “to apprehend them”. 74. The applicant submitted to the Court copies of statements taken from the applicant and also from Vehbi Demir by the applicant's Turkish lawyer. The statement taken from Vehbi Demir formed the basis of the applicant's submissions summarised in Section B above (see paragraphs 13-33). 75. A full description of the relevant domestic law and practice, as well as relevant international reports, may be found in Salman v. Turkey ([GC], no. 21986/93, §§ 59-74, ECHR 2000-VII). | 1 |
train | 001-83583 | ENG | RUS | CHAMBER | 2,007 | CASE OF ISMAILOVA v. RUSSIA | 3 | Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life) | Loukis Loucaides | 6. The applicant was born in 1972 and lives in the town of Makhachkala. 7. The applicant married in 1990. The applicant and her husband were nominal but non-practising Muslims at that time. 8. Two children, a boy and a girl, were born to the couple in 1993 and 1997 respectively. 9. It appears that the family lived at a house of the paternal grandparents in the village of Novomugri, Sergokalinskiy District of the Republic of Dagestan. 10. Being upset with various difficulties in the relations with her husband who was a seaman and frequently away at sea, in June 1999 the applicant started associating with the Jehovah's Witnesses. 11. In June 2000 the mounting tensions between the spouses over the applicant's religious interests resulted in the applicant's decision to leave the matrimonial home together with the children. The applicant and children started living with the maternal grandparents. 12. In December 2000 the applicant was baptised as a Jehovah's Witness. 13. There appear to have been only occasional contacts between the applicant's husband and the children between June 2000 and July 2001. As the applicant's husband failed systematically to provide financial support for the upbringing of the children, in early 2001 the applicant filed in court a request for maintenance. On 26 April 2001 the court ordered the husband to pay for the support of the children. 14. On 1 July 2001 the children went to visit their paternal grandparents and on 26 August 2001 the grandparents refused to return the children to the applicant. The applicant submits that she has had no regular access to the children since then. 15. On 17 September 2001 the father filed a divorce petition in the Leninskiy District Court of Makhachkala (“the District Court” – Ленинский районный суд г. Махачкала). 16. He also submitted that he was ready to provide the children with better living and moral conditions than the applicant, that the applicant had taken the children to religious meetings with a view to converting them to the faith of the Jehovah's Witnesses, that the children had become irritable and did not want to return to their mother, and requested the court to grant him custody of both children. 17. In response, the applicant accepted that the marriage had irretrievably broken down but contested the husband's claim for custody. 18. At a preliminary hearing the District Court ordered a report on the issue of custody of the children to be prepared by the Custody and Guardianship Agency attached to Leninskiy District Council of the town of Makhachkala (“the Custody and Guardianship Agency” – Орган опеки и попечительства при Администрации Ленинского района г. Махачкалы). 19. A letter of instruction dated 24 October 2001 contained a request to report on the applicant's living conditions and to give a conclusion concerning “the possibility of leaving the children with her, having regard to the fact that [the applicant] attends [meetings of] the sect 'Jehovah's Witnesses'”. 20. On 4 December 2001 an official, U., drew up a report on the preliminary inquiry into [the applicant's] living conditions. The report described the three room flat measuring in total 68.5 square metres in which the applicant, her two parents and three brothers were living and then stated: “... Additional information about [the applicant's] family: [the applicant] attends [meetings] of the organisation 'Jehovah's Witnesses'; members of the organisation sometimes meet at her home and study the relevant literature. [The applicant's] parents are critical of her religion. I deem it, in the interests of the minor children, to be more advisable for them to live with their father ... in the village of Novomugri, Sergokalinskiy District.” 21. On an unspecified date the District Court added the report of 4 December 2001 to the case-file. 22. On 11 December 2001, upon the District Court's request, the Leninskiy District Council of the Town of Makhachkala (“the District Council” – Администрация Ленинского районного г. Махачкалы) submitted to the court observations (заключение) in which it advised that custody of the children should be granted to their father. 23. The District Council reasoned as follows: “The Custody and Guardianship Agency attached to Leninskiy District Council of the town of Makhachkala established that [the applicant] resided in her parents' house... In 1990 she had married Mr Magomed Gazimagomedov, from whom she bore two minor children: Abdul Gazimagomedov, born in 1993, and Aminat Gazimagomedova, born in 1997. The spouses resided in the village Novomugri of the Sergokalinskiy District. She worked in a neighbour village as a school teacher; his work was related to sea trips. As of June 2000 spouses Gazimagomedovy de facto interrupted their marital relations. The children started living with their mother in Makhachkala. Long before their divorce, [the applicant] began attending [meetings of] the religious organisation 'Jehovah's Witnesses'. Her attendance at [these] meetings which involved travelling [to other towns] was the reason for the discord and break-up of the family. Villagers and relatives spoke out against the conduct of [the applicant]. When living with the children in Makhachkala, contrary to her parents' will, she did not refrain from regularly attending the meetings of the 'Jehovah's Witnesses'. She began actively advocating the ideas of this organisation. Sometimes her fellow believers gather together at her parents' home and they study the relevant literature. She would also take her children to the meetings. After attending these meetings, the children became shy and irritable, they perceived the surrounding world and natural phenomena in the way the 'Jehovah's Witnesses' teaching presents it (the children were afraid of the 'Worldwide Flood' whenever it rained, they called the [applicant's] mother-in-law 'Satan', they would not attend their classmates' birthdays or other celebrations because the religion did not permit this). The children's father ... was seriously concerned that the children's association with their mother threatened their upbringing; he was against their returning to Makhachkala. The minor children are presently living with their father. [The son] is now getting good marks at [school]... On the basis of the aforementioned, considering the fact that the parents must provide each child with the possibility of growing healthy, physically and spiritually, and based on the interests of the minor children, the Custody and Guardianship Agency deems it advisable for the children to reside with their father.” 24. On 15 March 2002 the District Court terminated the marriage between the applicant and her husband and granted custody of the children to their father. 25. The District Court reasoned as follows: “... [The spouses] married on 6 December 1990, then resided in different locations, and since 1997 in a private house of Gazimagomedov in the village of Novomugri of the Sergokalinskiy District of the Republic of Dagestan. [They] have children in marriage: Abdula, born on 30 May 1993, and Aminat, born on 15 January 1997. In June 2000, having gone to visit her parents, [the applicant] joined the organisation 'Jehovah's Witnesses'. The family began to have problems and since that time they have not been living together as husband and wife. The family has split apart. The court fixed them a period for reconciliation but the parties failed to reunite and have requested to terminate their marriage. It follows that the family cannot be preserved and the marriage should be dissolved. From the submissions of [the applicant] and her mother ... it transpires that the members of the 'Jehovah's Witnesses' organisation come to the flat in which [the applicant] and her parents reside a few times a week to conduct their activities. Furthermore, [the applicant] attends the weekly meetings of the 'Jehovah's Witnesses'. [The applicant's mother] was questioned in court and confirmed the fact that at the beginning her grandchildren had been very afraid of rain and wind and had been saying that a 'Worldwide Flood' and an earthquake would take place. That is when [the applicant's mother] learned that [the applicant] had been taking the children to meetings of the sect 'Jehovah's Witnesses'. From the case-file documents and the parties' submissions it transpires that at present [the applicant's husband] resides, along with his parents, in the village of Novomugri in a two-storey house. The household in fact belongs to him. For a few months of the year he works at sea and the same amount of time he spends at home. The children have been living with him and his parents. According to a certificate of a Novomugri Secondary School, [the applicant's son] has excellent results at school. [The applicant] works as a teacher and has good references. From a report on [her] living conditions it transpires that a three-room flat is occupied by the applicant, her parents and [the applicant's] three brothers. The members of the 'Jehovah's Witnesses' organisation gather at the same place and study the relevant literature. According to a report on [the applicant's] living conditions and the observations of the Custody and Guardianship Agency, 'the parents are obliged to provide their children with an opportunity to grow physically and spiritually healthy; regard being had to the interests of [the children], the Custody and Guardianship Agency considers it appropriate to grant custody [of both children] to their father'. The court too is of the view that, having regard to the fact that [the children] have been living with their father for more than five years and have not yet attained the age of 10, and also in the interests [of the children] as defined by sections 54-56 and 61-66 of the RF Family Code, that custody should be granted to their father...” 26. The applicant and her counsel appealed against the judgment of 15 March 2002 to the Supreme Court of the Republic of Dagestan (“the Supreme Court” – Судебная коллегия по гражданским делам Верховного суда Республики Дагестан). 27. In her grounds of appeal she argued that the first-instance judgment was discriminatory in that it had been based on the applicant's affiliation to the Jehovah's Witnesses, that the first-instance court's findings were perverse, unsustainable and misconstrued, that the court had failed to take account of all the factors which were relevant to the case according to section 65 (3) of the Family Code (the father's frequent absence owing to his work at sea, the applicant's demonstrated pedagogical competence as a professional school teacher, a prior and recent history of both parents' involvement in the upbringing of their children, the father's allegedly immoral adulterous behaviour, etc.) and that the court had acted on the presumption of the Jehovah's Witnesses being a dangerous organisation. 28. The applicant also cited domestic jurisprudence in child custody cases and the judgment of 23 June 1993 of the European Court of Human Rights in the case of Hoffmann v. Austria. 29. On 17 April 2002 the Supreme Court, sitting in a composition of three professional judges, examined the applicant's appeal and by two votes to one rejected it as unfounded. 30. In particular, the majority established the following: “... In making the decision that the father should have custody of the children, the trial court came to the sound conclusion that this was in the best interests of the children. The court decision is based on the conclusion of the Custody and Guardianship Agency and the case circumstances established in court. Thus the court established that the children's mother ... who is a member of the Jehovah's Witnesses organisation, took the children with her to the sect's meetings, and involved them in associating with the sect's members at their homes. She thereby violated the requirements of Article 28 of the Constitution of the Russian Federation, under which everyone is guaranteed freedom of conscience and religion. Under Article 17 (2) of the Constitution fundamental human rights are unalienable and belong to everyone at birth. The [court] finds irrelevant [the applicant's] arguments that the court, by its decision, has deprived her of the right to educate her children because of her religion and membership of the Jehovah's Witnesses organisation. Pursuant to Article 17 (3) of the Constitution and Article 65 (1) of the Family Code, [the applicant's] exercise of her constitutional rights, including the right to practice any religion and her parental rights, must not impinge on the rights and freedoms of others or conflict with the interests of the children. The right of a parent to educate a child from whom he or she is living apart, is guaranteed by section 66 of the Family Code, which defines the procedure for a parent to exercise parental rights. The court also established that [the applicant's husband's] financial status and housing conditions are better than those of [the applicant]. [The applicant's husband] is employed, lives with his parents, and owns a two-storey house with the necessary living conditions for the children. [The paternal grandparents] do not object to their grandchildren living with them. [The applicant] works as a history teacher in [a school] in Makhachkala. She lives in her parents' 48-square-metre, three-bedroom flat, along with her father, mother and three brothers, born in 1977, 1983, and 1985. The Custody and Guardianship Agency concluded that it was in the best interests of the children that they remain in the custody of their father... [The applicant's] argument, stated in her appeal, that the granting of custody to the father would have negative repercussions on the children's emotional state in the future, was not substantiated. The argument that the religious organisation Jehovah's Witnesses has state registration, benefits society, and so forth, cannot be taken into consideration since it is irrelevant to the matter being examined by the court. There are no reasons in [the applicant's] appeal to reverse [the first-instance judgment] handed down in the case...” 31. The dissenting judge gave the following opinion: “... I hold that the decision handed down by the first-instance court was subject to reversal owing to the failure to investigate the circumstances specified in section 65 (3) of the Family Code of the RF.” 32. The applicant's subsequent attempts to seek reconsideration of the decisions in her case by way of supervisory review were unsuccessful. 33. All her respective requests were dismissed as unfounded. 34. The latest decision in this respect was taken by the Supreme Court of the Republic of Dagestan on 28 November 2003. 35. The applicant alleged that her former husband had remarried and that his new wife had not attempted to assume the role or responsibilities of step-mother. In the absence of the father, who was frequently away at sea, the paternal grandmother had effectively become the sole carer. 36. The applicant further alleged that she was allowed to visit her children only occasionally and could never remain with them alone. 37. The Government submitted that, according to the information provided by the head of the Sergokalinskiy local administration of the Republic of Dagestan, the applicant's children resided with their father and paternal grandparents in a two-storey private house. They had all necessary facilities for the upbringing and education of the children. Their father had remarried and had had a third child. The applicant's children had developed emotional ties with the third child. 38. Article 28 of the Russian Constitution of 12 December 1993 reads: “Everyone shall be guaranteed the right to freedom of conscience, freedom of religion, including the right to profess, either alone or in community with others, any or no religion, to choose, have and disseminate religious or other convictions freely and to act according to them.” 39. Section 65 (on the exercise of parental rights) of the Family Code of the Russian Federation provides as follows: “3. The place of the children's residence, if the parents live apart, shall be established by an agreement between the parents. In the absence of an agreement, the dispute between the parents shall be resolved in court, proceeding from the children's interests and taking into account the children's opinion. In doing so, the court shall take into account the child's affection for each of his parents and for his brothers and sisters, the child's age, the moral and other personal characteristics of the parents, the relations existing between each of the parents and the child, and the possibility of creating optimal conditions for the child's upbringing and development (the parent's kind of activity and work regime, their material situation and family status, etc.).” 40. Section 66 (on the exercise of parental rights by the parent residing separately from the child) of the Code provides as follows: “1. The parent residing separately from the child shall have the right to communicate with the child and to take part in his upbringing and in resolving the issue of the child's education. The parent with whom the child lives shall not prevent the child's communication with the other parent, unless such communication damages the child's physical and mental health or his moral development. 2. The parents shall have the right to enter into a written agreement on the way the parent residing apart from the child may exercise his or her parental duties. If the parents cannot reach an agreement, the dispute shall be resolved in court with the participation of the guardianship and trusteeship body, upon the claim of the parents (or one of them). 3. In the event of failure to abide by the court decision, the measures stipulated by the civil procedural legislation shall be applied to the respective parent. In the case of persistent failure to comply with the court decision, the court shall have the right, upon the claim of the parent residing separately from the child to take a decision on passing the child over to that parent, proceeding from the child's interests and taking into account the child's opinion. 4. The parent residing separately from the child shall have the right to obtain information on his or her child from the educational establishments and medical centres, from the institutions for the social protection of the population and from other similar institutions. The information may be refused only if the parent presents a threat to the child's life and health. Refusal to provide information may be disputed in court.” | 0 |
train | 001-59612 | ENG | POL | CHAMBER | 2,001 | CASE OF JEDAMSKI v. POLAND | 4 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Georg Ress | 9. On 22 December 1992 the Łódź Bank of Development (Łódzki Bank Rozwoju), submitting a bill of exchange payable to bearer which required the applicant to pay on demand 19,777,167,300 old Polish zlotys (PLZ), asked the Łódź District Court (Sąd Rejonowy) to issue an order for payment against him. 10. On 14 January 1993 the court granted the plaintiff’s request and ruled that the applicant was to pay the sum in question within seven days from the date of service of the order or, alternatively, within the same time-limit, to lodge an appeal against the said order. 11. On 23 January 1993 the applicant lodged an appeal with the Łódź District Court, submitting that the order was premature since the bill of exchange had been endorsed by him to secure the payment of a loan which, according to the terms of the relevant agreement, was to have been paid off on 31 December 1992. He also requested the court to stay the enforcement of the order. 12. On 28 January 1993 the plaintiff asked the court to issue a writ of execution in respect of the order of 14 January 1993. On 1 February 1993 the court issued a provisional writ of execution (i.e. under which assets, by way of security, could be attached to protect claims). The final writ of execution was made on 12 May 1993. Subsequently, on an unknown date, the plaintiff asked the court to issue two further such writs, maintaining that it had to institute enforcement proceedings against the applicant before several different courts because his real and personal property was situated in various towns. 13. On 12 October 1993 the case was referred to the Łódź Regional Court (Sąd Wojewódzki) which, under the rules of civil procedure governing jurisdiction, was competent to deal with the case in ordinary civil proceedings. 14. On 20 October 1993 the Łódź Bank of Development was taken over by the BIG Bank SA (Bank Inicjatyw Gospodarczych SA) and, from that date onwards, the BIG Bank SA replaced it as a plaintiff in the proceedings. 15. Later, from 8 March to 29 August 1994 the proceedings were stayed at the parties’ joint request. 16. On 23 September 1994 the Łódź Regional Court issued one writ of execution and dismissed the remainder of the plaintiff’s application. On 23 November 1994, on the applicant’s appeal, the Łódź Court of Appeal (Sąd Apelacyjny) upheld the first-instance decision. On an unknown later date the case-file was transmitted to the Regional Court. 17. On 16 June 1995 the Regional Court ordered that evidence be obtained from an expert in banking accountancy. The expert submitted his report to the court on 29 August 1995. After having served copies of the report on the parties, the court listed a hearing for 20 December 1995. 18. At that hearing, on the applicant’s request, the court stayed the proceedings. The applicant produced documents showing that, in the meantime, on 13 December 1994, his wife had sued both parties to the proceedings in the Łódź Regional Court. She was seeking the annulment of the relevant loan agreement. The plaintiff bank first unsuccessfully opposed the application for a stay and then appealed against the decision staying the proceedings. The appeal was rejected on 11 March 1996. 19. Meanwhile, on 26 December 1995, the applicant asked the court to lift the stay, in his words, “immediately”. He maintained that the claim for payment against him could be determined without a prior ruling on whether or not the loan agreement had validly been concluded. 20. On 9 February 1996 the applicant asked the Regional Court to resume the proceedings. On 15 April 1996 the court refused to lift the stay because it considered that the determination of the applicant’s case depended on the outcome of the proceedings relating to the annulment of the loan agreement and that there was, therefore, a sufficient basis for the stay, as defined by Article 177 § 1 (1) of the Code of Civil Procedure. The applicant did not contest this decision. 21. During the stay of the proceedings the trial court made several procedural orders. It stayed the enforcement of the order of payment (by a decision of 13 May 1996 which was upheld on appeal on 12 July 1996). It dealt with the applicant’s request for the order securing the claim to be amended and rendered in that respect a decision on 2 December 1996. It also ruled on two plaintiff’s requests for the decision staying the enforcement of the order of payment to be quashed (giving decisions of 15 April 1996 and 29 January 1998 respectively). 22. On 13 October 1998 the applicant informed the court that the proceedings concerning his wife’s claim for declaring the loan agreement null and void had been terminated. He asked the court to resume the proceedings and to fix a hearing date. 23. The court listed a hearing for 17 February 1999. On 23 February 1999 it gave judgment and awarded the plaintiff 1,954,097.49 new Polish zlotys (PLN). It also awarded the costs of the proceedings against the applicant. Both parties appealed. 24. On 19 October 1999 the Łódź Court of Appeal rejected the plaintiff’s appeal as it considered that it had no legal interest in challenging the judgment granting the relief requested. It further dismissed the applicant’s appeal. 25. On 2 December 1999 the applicant filed a cassation appeal (kasacja) with the Supreme Court (Sąd Najwyższy). According to information obtained by the Court from the registry of the Civil Chamber of the Supreme Court, the applicant’s case was registered under file no. II CKN 25/00 and his cassation appeal was dismissed on 26 January 2001. 26. On 11 February 1993, acting under the provisional writ of execution of 1 February 1993 (see also paragraph 12 above) and on a request by the creditor, i.e. the Łódź Bank of Development, the Bailiff of the Warsaw District Court (Komornik Sądu Rejonowego) made an order attaching the applicant’s shares in the Bank of Development of Export (Bank Rozwoju Eksportu) and cash (an unknown sum) deposited in the Central Brokerage Bureau of the Bank PeKaO S.A. (Centralne Biuro Maklerskie Banku Polska Kasa Opieki S.A.), by way of security for the creditor’s claim for payment of PLZ 19,777,167,300 pending in the Łódź Regional Court. On 26 February 1993 the applicant lodged a complaint against the actions taken by the bailiff (skarga na czynności komornika), relying on Article 767 of the Code of Civil Procedure. On 10 September 1993 the court dismissed the applicant’s complaint. 27. On 8 September 1993, acting under the final writ of execution of 12 May 1993 (see also paragraph 12 above) and on a request by the BIG Bank SA, the Bailiff of the Warsaw District Court instituted enforcement proceedings against the applicant, with a view to selling the assets attached on 11 February 1993. According to the applicant, the total value of the attached assets was about 2,000,000 US dollars, that is to say, some 7,000,000 Polish zlotys (PLN). 28. On 20 September 1993 the applicant, again relying on Article 767 of the Code of Civil Procedure, made the second complaint against the actions taken by the bailiff in the enforcement proceedings to the Warsaw District Court. He submitted that those actions had been incorrect and unlawful since the bailiff had enforced the order for payment of 14 January 1993 against matrimonial property, whereas the final writ of execution had been issued against the applicant alone. Moreover, the civil claim in question had not yet been determined as the relevant proceedings were pending before the Łódź Regional Court because he had appealed against the order for payment of 14 January 1993. He, therefore, asked the court to quash the attachment and to stay the enforcement proceedings. 29. Shortly afterwards, the applicant’s case was registered in the Warsaw District Court under file no. II Co 248/93. 30. On 2 April 1994 the court decided that information be obtained as to whether the applicant had appealed against the order for payment of 14 January 1993 and whether in the relevant proceedings any decision staying the enforcement of that order had been made. 31. On 24 June 1994 the court ordered that the applicant’s case be joined with the case registered under file no. II Co 47/94 (the latter case concerned the creditor’s (the BIG Bank SA’s) request for the applicant’s attached shares to be sold on the Warsaw Stock Exchange) and assigned to the judge-rapporteur dealing with that case. On 18 July 1994 the court quashed its previous order and decided that the joinder of the cases be reversed, that is, that the case no. II Co 47/94 be joined with the applicant’s case and assigned to the judge-rapporteur dealing with the applicant’s case. On 17 October 1994 the cases were assigned to another judge because the previously appointed rapporteur had resigned. 32. On 8 February 1996 the Warsaw District Court, sitting in camera, rejected the applicant’s complaint of 20 September 1993. The court considered that the applicant was again challenging the actions taken by the bailiff on 11 February 1993, in particular the attachment order made by the bailiff on that day. The Court went on to find that the complaint against the attachment order had already been examined, and finally dismissed, by the same court on 10 September 1993. Moreover, in the court’s opinion, the applicant had clearly lodged his second complaint out of the seven-day time-limit prescribed by Article 767 of the Code of Civil Procedure. In any event, the Court added, the matter had finally been adjudicated on 10 September 1993 and, according to the principle of res iudicata, the second complaint had to be rejected on formal grounds. A copy of that decision was served on the applicant on 21 March 1996. 33. On 28 March 1996 the applicant appealed to the Warsaw Regional Court, submitting that the court of first instance had manifestly confused his two complaints: the complaint of 26 February 1993 against the attachment of his shares ordered by way of security and that of 20 September 1993 against the actions taken by the bailiff (i.e. those taken with a view to selling the attached shares) on the basis of the final writ of execution in the subsequent enforcement proceedings. Later, a copy of the applicant’s appeal was served on the creditor, which lodged a reply to the appeal on 6 May 1996. 34. On 18 July 1996 the Warsaw Regional Court, sitting in camera, quashed the contested decision and remitted the case to the District Court. The appellate court acknowledged that the lower court had failed to note that the applicant had filed two complaints, complaints which concerned two evidently separate actions taken by the bailiff. 35. On 27 December 1996 the Warsaw District Court, relying on the principle of res iudicata, refused to examine the complaint in so far as it amounted to the objection to the attachment order of 14 February 1993. It dismissed the remainder of the complaint, finding that the arguments raised by the applicant, in particular those concerning the enforcement of the order for payment while the civil dispute over the same claim was pending, had to be rejected. It found that the bailiff’s actions had been correct and lawful as he had acted under the valid writ of execution and the means of enforcement applied by him had a legal basis. 36. On 21 April 1997, on the applicant’s appeal, the Warsaw Regional Court upheld the first-instance decision. 37. Pursuant to Article 492 of the Code of Civil Procedure, an order for payment, if issued on the basis of a bill of exchange, is enforceable notwithstanding that a defendant has appealed against it, and that proceedings relating to the final determination of the claim arising from the endorsement of the bill are still pending. A district court is competent to issue an order for payment; however, on an appeal by a defendant, the case may subsequently be referred to a regional court if, in view of the value of the claim, that court is competent to deal with the case in ordinary civil proceedings. 38. Under Article 767 et seq. of the Code of Civil Procedure a debtor may lodge a complaint against any action taken by a bailiff in enforcement proceedings. He may, in particular, seek a ruling as to whether the bailiff’s actions were correct, i.e. taken in accordance with a writ of execution, and lawful, i.e. whether the means of enforcement applied in a given case were provided by law. Such a complaint is examined by a district court under the provisions of Volume II of the Code of Civil Procedure relating to enforcement proceedings. 39. Under Article 173 et seq. of the Code of Civil Procedure the court may stay civil proceedings either ex officio or at a party’s request. Article 177 § 1 (1) provides: “1. The court shall ex officio stay the proceedings: (1) if the determination of the case depends on the outcome of other pending civil proceedings;” Article 180 § 1 of the Code provides, in so far as relevant: “1. The court shall ex officio resume the proceedings if the reason for staying them no longer exists, in particular if: ... (4) a final decision has been given in the proceedings on whose outcome the determination of the case depends, however, if circumstances so require, the court may resume the proceedings before [such a final decision is given].” | 1 |
train | 001-106804 | ENG | UKR | COMMITTEE | 2,011 | CASE OF MAKHONKO v. UKRAINE | 4 | Violation of Art. 6 | Isabelle Berro-Lefèvre;Mark Villiger | 4. The applicant was born in 1933 and lives in Mariupol. 5. On 2 June 1998 he lodged a claim with the Zhovtnevyy District Court of Mariupol (“Zhovtnevyy Court”) against his former employer, the A. company (subsequently succeeded by the M. company), seeking reimbursement of medication expenses and compensation for non-pecuniary damage caused to him as a result of the work-related injury. 6. Following three remittals of the case for fresh examination, on 26 September 2005 the court partly allowed the claim and awarded the applicant certain amounts. The judgment was enforced on 22 June 2006. 7. On 8 December 2005 and 22 October 2007, respectively, the Donetsk Regional Court of Appeal and the Kyiv City Court of Appeal (the latter court acting as a court of cassation) upheld that judgment. 8. According to the Government, in the course of the proceedings the applicant specified his claim and lodged several procedural petitions. Eight hearings were adjourned following his requests or due to his or both parties’ failure to appear, which protracted the proceedings by ten months approximately. Twenty-six hearings were adjourned mainly due to the respondent’s failure to appear or following its requests, due to the absence of a judge, because the court needed to obtain additional documents or for unspecified reasons. Four forensic examinations were carried out. 9. On 9 June 1998, in the course of the first set of proceedings, the applicant lodged an additional clam with the Zhovtnevyy Court against the A. company, seeking the recovery of salary-related arrears. On 13 December 2001 the court disjoined this claim from the first set. 10. Following two remittals of the case for fresh examination, on 29 December 2004 the court partially allowed that claim and awarded the applicant certain amounts. The judgment was enforced on 8 July 2005. 11. On 29 November 2005 and 26 February 2008, respectively, the Donetsk Regional Court of Appeal and the Kyiv City Court of Appeal (the latter court acting as a court of cassation) upheld that judgment. 12. According to the Government, in the course of the proceedings the applicant specified his claim, lodged several procedural petitions and twice lodged appeals in breach of the procedural formalities. Fifteen hearings were adjourned following his requests or due to his failure to appear, which protracted the proceedings by nine and a half months approximately. Nineteen hearings were adjourned mainly due to the respondent’s failure to appear or following its requests, because the court needed to obtain additional documents or for unspecified reasons. Six forensic examinations were carried out. 13. In September 1998 the applicant lodged a claim with the Zhovtnevyy Court against the A. company, seeking the recovery of certain health-related payments. 14. As it appears from the case file, on 13 December 2001 the court partially allowed the applicant’s claim and awarded him certain amounts. On 11 March 2003 and 8 September 2004, respectively, the Donetsk Regional Court of Appeal and the Supreme Court partially amended that judgment and upheld its remainder. 15. On 10 May 2002 the applicant lodged a claim with the Zhovtnevyy Court against the Social Insurance Fund, seeking the recovery of certain health-related payments. 16. Following one remittal of the case for fresh examination, on 20 October 2006 the court allowed the claim in part and awarded the applicant certain amounts. On 13 December 2006 and 2 April 2007, respectively, the Donetsk Regional Court of Appeal and the Supreme Court amended that judgment having increased the amounts due to the applicant. 17. According to the Government, in the course of the proceedings the applicant specified his claim and challenged the judge. Three hearings were adjourned due to his absence or following his requests. The applicant disagreed that he had requested adjournments. These delays on the applicant’s part protracted the proceedings by three months approximately. Nineteen hearings were adjourned mainly upon the respondent’s requests or its failure to attend the hearings, absence of a judge, electricity blackouts in the court premises, because the court needed to obtain additional documents or for unspecified reasons. 18. In September 2004 the applicant lodged a claim with the domestic courts against the Social Insurance Fund, seeking the recovery of the cost of sanatorium vouchers. 19. By the final ruling of 27 December 2007, the Supreme Court rejected that claim as unsubstantiated. | 1 |
train | 001-94186 | ENG | ROU | ADMISSIBILITY | 2,009 | RADULESCU AND OTHERS v. ROMANIA | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra | 1. The applicants, Mrs Aurelia Rădulescu, Mrs Viorica Holban and Mrs Zoe-Gloria Dimoiu, are Romanian nationals who were born in 1926, 1934 and 1938 respectively. 2. The second applicant died on 23 June 2005. The other two applicants are her sisters and only heirs. The first applicant also died on 11 April 2006. However, her daughter and only heir, Mrs Teodora Virginia Ureche, expressed her wish to pursue the application. For practical reasons, Mrs Aurelia Rădulescu and Mrs Viorica Holban will continue to be referred to as “applicants” in this judgment, although their heirs are now to be regarded as such (see Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999VI). 3. The third applicant lives in Constanţa. After the death of the first two applicants, their heir was represented by the third applicant. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicants inherited from their parents a house with annexes and 1,083 sq. m of appurtenant land situated at 11-13 Smeurei Street, Piteşti. On that land, at no. 13, the first applicant and her husband built a new house in which they continued to live. In 1986 the applicants sold the old house with annexes and 702 sq. m of appurtenant land inherited from their parents to N.O. The sale contract stipulated that, according to the applicable law, the land passed into State ownership. The applicants did not receive any compensation. N.O. was authorised to use 100 sq. m of it while the buildings existed. 6. On 8 August 1990 the Piteşti Court of First Instance gave an enforceable decision allowing an action by the applicants for recovery of possession of 980 sq. m of land against Piteşti Town Council. The court acknowledged their right of property over the land situated at 11, Smeurei Street, Piteşti, and ordered the town council to respect the applicants’ right of property. 7. On 13 December 1990 the bailiff certified in an official record that the applicants could take possession of the 980 sq. m of land. According to the documents in the file, that land included the 702 sq. m mentioned in the 1986 sale contract and seized by the State. 8. Although there had been judicial recognition of the applicants’ right of property over the 980 sq. m plot of land, the local commission in Piteşti for the application of Law no. 18/1991 (“the local commission”) authorised them to recover possession of only 402 sq. m of land. On 21 August 1991 the county commission in Argeş for the application of Law no. 18/1991 (“the county commission”) rejected a complaint brought by the applicants concerning the decision of the local commission. It further authorised N.O. to recover possession of 300 sq. m of land. 9. On 13 December 1991 the Piteşti Court of First Instance gave an enforceable decision upholding the applicants’ complaint concerning the decision of the county commission and authorised them to recover possession of the 980 sq. m of land in Piteşti. The court considered that, as certified by the judgment of 8 August 1990, the applicants had a right of property over that land in their capacity as their parents’ heirs. 10. On 8 January 1992 the Piteşti Court of First Instance gave a final decision allowing a complaint by N.O. in respect of the decision of the county commission and acknowledged her right to acquire title to 702 sq. m of land. 11. On 10 December 1992 the Argeş Prefecture informed N.O. that the local commission was unable to enforce the judgment in her favour as there was another judgment of 13 December 1991 that had certified the right of property of the former owners of N.O.’s house over part of the 702 sq. m of land. Notice of this situation had also been given to the Piteşti Court of First Instance. 12. On 26 February 1993 the Argeş County Court dismissed as groundless a request by the applicants for revision of contradictory final decisions by which they sought the annulment of the judgment of 8 January 1992. The court noted that the legal requirements for this action had not been met, as those decisions had not been given in respect of the same parties or with regard to the same object or the same procedural capacity. 13. On 7 January 1993 N.O. brought an administrative action against the local commission seeking to take possession of the 702 sq. m plot of land. She also referred to the judgment of 13 December 1991 and eventually agreed to take possession of only 550 sq. m of land, as this was the portion of land the applicants had allegedly allowed her to use when she bought the house. 14. On 21 May 1993 the Argeş County Court allowed the action and ordered the local commission to enable N.O. to take possession of 550 sq. m of land, as provided by the judgment of 8 January 1992. The court also noted that neither the judgment of 13 December 1991 nor the judgment of 8 January 1992 had been modified. A request by the applicants to intervene in the proceedings was dismissed. That judgment became final. In 1994 N.O. was authorised to take possession of 550 sq. m of land and obtained a property title. 15. On 27 January 1994 the applicants brought an administrative action against the local and county commissions, seeking to take possession of the 980 sq. m plot of land. 16. On 14 November 1994 the Argeş County Court allowed the action in part and ordered the local commission to enable the applicants to take possession of 430 sq. m of land situated at 13 Ion Antonescu Street (formerly 11 Smeurei Street), representing the difference between the land already given to N.O. and the 980 sq. m plot of land in respect of which the applicants had title. That judgment became final. 17. On 23 February 1995 the applicants brought civil proceedings against N.O. seeking to recover possession of 550 sq. m of land. 18. On 16 November 1995 the Piteşti Court of First Instance, after comparing the property titles, dismissed the applicants’ action on the ground that their title derived from civil proceedings and could be asserted only against the parties, whereas N.O. had title under Law no. 18/1991. The court found, inter alia, that N.O. had owned the 702 sq. m plot since 1986 and that the price stipulated in the sale contract would presumably have included the 702 sq. m plot, not merely 100 sq. m, because a seller had regard to what came out of his patrimony rather than to what entered into the buyer’s. It also considered that N.O. had not been a party to the proceedings ending with the judgment of 8 August 1990 and that therefore that judgment was not enforceable against her. That judgment became final. 19. On 16 December 1997 the applicants requested the town council to annul the property title issued to N.O. and to award them title to the 980 sq. m of land. The town council considered that there were no legal conditions to justify proceedings for the annulment of N.O.’s title and subsequently dismissed the applicants’ request to authorise them to recover possession of the 980 sq. m plot of land, on the ground that that land was not under the town council’s administration. 20. On 7 August 2001 the applicants made a request under Law no. 10/2001 governing immovable property wrongfully seized by the State, seeking restitution in kind of the 980 sq. m plot of land. On 3 July 2008 the town council rejected their request on the grounds that, on the one hand, the 550.76 sq. m plot of land had been conveyed to the buyer of the house under Law no. 18/1991 and, on the other hand, the 500.11 sq. m plot of land had not been seized by the State and was in the applicants’ ownership. The applicants contested that decision before the courts and the proceedings are pending. 21. On 19 September 2005 the third applicant, together with the heir of the first two applicants, made a request under Law no. 247/2005 seeking to recover the 980 sq. m of land. On 27 June 2006 the county commission dismissed their request on the ground that it had the same object as the request brought under Law no. 10/2001. 22. On 5 February 2007 the Piteşti Court of First Instance dismissed an action brought by the third applicant, together with the heir of the first two applicants, complaining about the decision of 27 June 2006 and seeking to recover the land and to have N.O.’s property title declared null and void. The court allowed pleas of inadmissibility raised by the defendant, considering that the principle of res judicata prevailed as the judgment of 16 November 1995 had recognised N.O.’s right of property over the 702 sq. m plot of land referred to in the 1986 sale contract. It held that the disputed land therefore belonged to N.O. The court also mentioned, inter alia, that following that sale the difference of 381 sq. m had remained in the applicants’ ownership. That judgment became final. 23. So far the applicants have not received any title deed. On 9 June 2008 the applicants informed the Court that the town council was allowing them to use 500 sq. m of their land and that they were hoping to be provided with a property title accordingly. On 7 July 1992 and 21 December 1998 the authorities certified that the applicants were paying taxes on the 980 sq. m plot of land. | 0 |
train | 001-57505 | ENG | AUT | CHAMBER | 1,987 | CASE OF INZE v. AUSTRIA | 2 | Preliminary objection rejected (victim);Violation of Art. 14+P1-1;Pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | J.A. Carrillo Salcedo | 8. The applicant, who was born out of wedlock in 1942, is an Austrian citizen and resides at Stallhofen, Carinthia. 9. Until 1965, the applicant lived on a farm at St. Bartlmä, Carinthia, which had belonged first to his maternal grandmother and then to his mother, Theresia Inze. When his mother married Mr. Rudolf Fischer, the applicant remained in the house not only with his grandmother and his mother, but also with her husband and subsequently with their son, Manfred Fischer, who was born in wedlock in 1954. At the age of 23, he left the farm and later he married and settled down a few kilometers away. The applicant’s mother died intestate on 18 April 1975 and left as her heirs, apart from the applicant, her husband and her second son. According to the provisions of the Civil Code, the widower was entitled to a one-fourth part of the inheritance (Article 757) and each of the sons (irrespective of their illegitimate or legitimate birth) to three-eighths thereof (Articles 732 and 754). In proceedings commenced ex officio before the Klagenfurt District Court (Bezirksgericht), the applicant, his step-father and his half-brother stated that they were willing to accept these shares. The District Court decided on 31 March 1976 that the declarations of acceptance were valid. 10. However, the farm in question was subject to the special regulations in the Carinthian Hereditary Farms Act of 1903 (Erbhöfegesetz, Provincial Law Gazette, no. 33/1903, "the Provincial Act") providing that farms of a certain size may not be divided in the case of hereditary succession and that one of the heirs must take over the entire property and pay off the other heirs (see paragraph 25 below). The applicant had claimed on 8 August 1975 that he should be called to take over his mother’s farm as he was the eldest son. He later submitted that the regulation giving precedence to legitimate children had in the meantime been abrogated, and that both his step-father and his half-brother were in any event excluded as being unfit to work the farm, under section 7(4) of the Provincial Act (see paragraph 25 below). 11. On 28 April 1976, the District Court held a hearing in the presence of the parties. On 26 August, it appointed an expert to submit an opinion concerning the following matters: first, the classification of the farm as a "hereditary farm" within the meaning of the Provincial Act; second, its value for the purpose of determining the sums to be paid to the ceding heirs; and third, the conditions of its exploitation since the death of the applicant’s mother. 12. The opinion, dated 1 October 1976, was filed with the court on 27 October. According to the expert, the farm was subject to the provisions of the Provincial Act, and its value was 331,040 Austrian schillings (ATS). However, the property was in a very bad condition and could not by itself provide a sufficient livelihood for a family. After the previous owner’s death, it had been worked mainly by her widower, who had kept only a few cattle and used all the land for pasture. The grassland had partly run wild and the fields had no longer been tilled. 13. After a further hearing on 18 January 1977, the court decided on 25 January that the property had the character of a "hereditary farm" and fixed its value, in accordance with the expert opinion, at 331,040 ATS. This decision became final, as none of the parties appealed. 14. The question of the determination of the heir entitled to take over the farm, including the applicant’s claim that his step-father and half-brother should be excluded for this purpose, was referred to the Klagenfurt Regional Court (Landesgericht) in accordance with section 7(4) of the Provincial Act (see paragraph 25 below). The District Court communicated its file to the Regional Court on 20 July 1977. After a hearing scheduled to take place on 16 January 1978 had been cancelled, the Regional Court returned the file to the District Court on 17 January 1978, with the request to take further evidence relating to the ability of the applicant’s half-brother to work the farm. The expert opinion was therefore to be supplemented in this respect, and the District Court was asked to add its own legal opinion when re-submitting the file (section 7(4) of the Provincial Act; see paragraph 25 below). 15. The District Court then ordered a supplementary expert opinion which was lodged on 6 April 1978. It stated that the conditions of the exploitation of the farm had further deteriorated, some lands having been left to a motor-cross club and some to a neighbour who had deposited various construction materials there. It was therefore hardly possible to speak of an orderly exploitation of the farm. As regards the ability of the applicant’s half-brother to run the farm at the same time as continuing with his job as an unskilled worker, the expert answered in the affirmative. Not very much was required to be done on the farm and his workplace was not so far away as to prevent his daily presence on the property. 16. At a hearing held on 31 January 1979, after several postponements, the parties failed to arrive at any agreement as to who should take over the farm even just for the duration of the proceedings, the applicant’s step-father and half-brother being opposed to the appointment of a curator. 17. The District Court re-submitted the file to the Regional Court in February 1979. The Regional Court decided on 25 June 1979 to declare the applicant’s claim inadmissible in so far as he sought a ruling that his step-father was excluded from taking over the farm, since the latter had not in fact maintained that he was entitled to do so. As regards the claim for exclusion of the applicant’s half-brother, the Regional Court found that he was neither prevented by his profession from working the farm, nor incapable of doing so at the same time as continuing with his job. Furthermore, he could not be held responsible for the negligent exploitation since his mother’s death because it was his father who had run the farm in the meantime. 18. The applicant appealed against this decision to the Graz Court of Appeal (Oberlandesgericht), claiming that certain evidence had been disregarded by the Regional Court when refusing the exclusion of his half-brother. He also submitted that the provision in section 7(2) of the Provincial Act giving precedence to legitimate children (see paragraph 25 below) had been abrogated by the new version of Article 754 § 1 of the Civil Code, enacted in 1970, and by Article 14 (art. 14) of the European Convention on Human Rights. He requested the court to submit the question of the constitutionality of the provision to the Constitutional Court (Verfassungsgerichtshof). 19. The Court of Appeal dismissed the appeal on 26 September 1979. After confirming the Regional Court’s finding that the applicant’s half-brother was not excluded, it stated that it had no doubts as to the constitutionality of the provision giving precedence to legitimate children. In its opinion, the provision had an objective justification because it was a peculiarity of the rural family and economic structure that legitimate children lived with the family on the farm, whereas illegitimate children were not infrequently brought up elsewhere and therefore did not have the same close link with the farm as legitimate children. This was also the situation in the present case. The Court of Appeal therefore saw no reason to submit the issue of constitutionality to the Constitutional Court. 20. The applicant appealed against this decision to the Supreme Court (Oberster Gerichtshof), adducing essentially the same arguments as before the Court of Appeal. The Supreme Court rejected the appeal by a decision of 9 April 1980, on the ground that it was directed against a decision of the Court of Appeal confirming a previous decision of the Regional Court; in such a case, an appeal is admissible only when a decision is clearly contrary to law or inconsistent with the file, or when there has been a procedural defect entailing nullity of the proceedings. As to the first condition, the Supreme Court denied that section 7(2) of the Provincial Act had been abrogated by Article 754 § 1 of the Civil Code, as amended. The Supreme Court also held that there was no reason to submit the matter to the Constitutional Court, on the following grounds. As regards the conformity of section 7(2) with the constitutional provision in Article 14 (art. 14) of the Convention, Article 14 (art. 14) was applicable only in relation to the enjoyment of the rights and freedoms set forth in the Convention. In its opinion, the Convention did not deal with the question of hereditary succession, and Article 1 of Protocol No. 1 (P1-1), which secured the right to the peaceful enjoyment of possessions, did not exclude regulations providing for different rules of succession according to birth in wedlock or out of wedlock. Furthermore, there was no doubt as to the compatibility of section 7(2) with the constitutional principle of equality. This principle required that legislation make no legal distinction based on the personal status of an individual unless this was justified by objective reasons. The impugned regulations in the Provincial Act did not, however, appear to be unjustified. Similar provisions also existed in the provincial legislation of Tyrol (Höfegesetz) and in the federal legislation for the other provinces (Anerbengesetz) and these limited illegitimate children’s rights even further, in that they could take over a hereditary farm only if they had been brought up on it. The preparatory materials on this legislation showed that the precedence accorded to legitimate children was based on convictions of rural society. Neither was the regulation in question contradicted by attempts to assimilate the legal position of illegitimate children to that of legitimate children, because it reflected the special convictions and attitudes of the rural population which, among other things, also affected the legal position of the widower. Furthermore, the Supreme Court observed, the family was an important element of the legal organisation of human relationships. Having regard to all these circumstances, it could not be said that the regulations contained in the Provincial Act were not based on objective considerations. 21. After the European Convention on the Legal Status of Children born out of Wedlock, of 15 October 1975, had entered into force in respect of Austria with effect from 29 August 1980, the applicant again appealed to the Supreme Court, asking it to reconsider its decision of 9 April 1980. Article 9 of this Convention provides that "a child born out of wedlock shall have the same right of succession in the estate of its father and its mother and of a member of its father’s or mother’s family, as if it had been born in wedlock". However, Austria ratified that Convention with the following reservation: "In pursuance of Article 14 § 1 of the Convention, the Republic of Austria reserves the right not to accord to a child born out of wedlock, as provided for in Article 9 of the Convention, the same right of succession in the estate of its father and of a member of its father’s family, as if it had been born in wedlock." On 6 October 1980, the Supreme Court rejected the appeal as inadmissible, having regard to the binding effect of its previous final decision and to the absence of a legal possibility to re-open the procedure. 22. The first-instance proceedings were resumed in October 1981. On 12 October, a judicial settlement was reached between the applicant and his half-brother whereby the applicant renounced any claim to take over his mother’s hereditary farm, which would pass to his half-brother. In return, he was to receive a certain piece of land which had been promised to him by his mother during her lifetime, but no other compensation. The judicial proceedings in the hereditary case were then terminated on 31 December 1981 by the transfer (Einantwortung) of the title to the whole farm to the applicant’s half-brother. 23. The implementation of the above settlement was left to subsequent agreement between the parties, which they concluded on 26 May 1982. However, the separating-off of the piece of land, which consisted of forest, assigned to the applicant under the agreement still required the approval of certain administrative authorities, including in particular the competent forestry authority, having regard to the provisions of the Carinthian Provincial Forestry Act (Provincial Law Gazette, no. 77/1979). Certain difficulties arose in this respect. The piece of land was not sufficiently large for its separating-off to be permissible under the above Act except in the case of a predominant public interest, the existence of which the authority denied. The difficulties were apparently overcome after the Constitutional Court had in a different case found the relevant provisions of the Carinthian Provincial Forestry Act to be unconstitutional. The land was then registered in the applicant’s name in the official land register. This has been confirmed in an extract from the land register, dated 13 January 1984. 24. The relevant provisions of the Civil Code read as follows (translation from German): "Capacity to inherit can be determined only when the estate actually passes. This is generally when the de cuius dies (Article 703)." "Once he has accepted the inheritance, the heir represents the de cuius in respect of the estate. Both shall be regarded as being one and the same person as regards third parties. Until the heir has accepted the inheritance, the estate shall be treated as if it were still in the deceased’s possession." "Where there is more than one heir, they shall be regarded, in respect of their joint right to inherit, as being one person. Until the estate is transferred by court order, the heirs shall be jointly and severally liable. The extent to which they shall be liable thereafter is laid down in the chapter on taking possession of the estate." 25. The Carinthian Hereditary Farms Act, while leaving unaffected the general rules in the Civil Code on the determination of hereditary shares, regulates the attribution of these shares in cash or in kind. The following provisions of this Act are relevant (translation from German): "If the estate of the owner of a farm devolves on several persons, only one person, the principal heir (Anerbe), may inherit the farm and its equipment ..." "The principal heir shall be determined according to law and the order which it prescribes for the devolution of estates. When there are several heirs and no agreement can be reached among them, they shall be called to take over the farm in the following order: (1) In general, male heirs shall take precedence over female, and older over younger heirs of the same sex; lots shall be drawn between heirs of the same age. Those more closely related shall, however, take precedence over those more distantly related. (2) Children related by blood shall always take precedence over adopted children and legitimate children over illegitimate children. ... (4) The following shall, in general, be excluded from taking over the farm: ... (b) persons who, by reason of a mental or physical disability, seem incapable of running the farm themselves, ... (d) persons who are prevented by their profession from managing the farm on the spot and working it in person. ... The decision regarding ... the existence of grounds of exclusion under paragraphs (b) to (e) shall be reserved to the court of first instance (Landesgericht and Kreisgericht), to which the District Court (Bezirksgericht) shall submit the file on the administration of the estate, together with its own opinion." "When the estate is being divided, the farm (section 6) shall devolve on the principal heir, who shall become the estate’s debtor for the value of the farm free of charges." "(1) The value of the farm shall be determined by agreement among the persons concerned. (2) If no such agreement can be reached, the court shall call on experts to make an assessment, shall hear the municipal council and the parties and shall determine on an equitable basis the value of the farm in such a way that the principal heir is not burdened with undue financial difficulties (wohl bestehen kann)." "(1) The law on reserved portions (Articles 765 and 766 of the Civil Code) is not affected by the regulations on division of estates. (2) The value of reserved portions shall be assessed with reference to the value of the farm, determined in accordance with section 9(2) ..." 26. To meet social changes that have occurred in recent years, the Federal Minister of Justice has prepared two Bills, one for all provinces except Tyrol and Carinthia and another concerning only Carinthia. The latter Bill was, in accordance with the usual practice, the subject of a consultation procedure in 1985. It is being amended in the light of the views expressed and will be laid before Parliament in the near future. Section 8 of the Bill reads as follows (translation from German): "If the deceased was the sole owner of the farm, the person taking it over shall be determined according to law and the order which it prescribes for the devolution of estates. If there are several heirs and no agreement has been reached among them, they shall be called to take over the farm in the following order: 1. Heirs who have been trained as farmers shall take precedence over those who have not. If several heirs have been trained as farmers, those who were brought up on the farm in question shall take precedence over those who were not. 2. Children, including adopted children, of the deceased shall take precedence over a surviving spouse; a surviving spouse shall, however, take precedence over descendants who were not brought up on the farm and over other relatives." ..." The explanatory report states that this provision is designed to eliminate, inter alia, the disadvantages suffered by illegitimate and adopted children as compared with legitimate children. | 1 |
train | 001-82599 | ENG | MDA | CHAMBER | 2,007 | CASE OF GRIVNEAC v. MOLDOVA | 4 | Violation of Art. 6-1;Violation of P1-1 | Nicolas Bratza | 5. The applicant was born in 1946 and lives in Chisinau. 6. 7. The applicant initiated court proceedings against a private individual. On 6 October 2000 the Centru District Court awarded him 2,000 United States Dollars (USD). No appeal was lodged and the judgment became final and enforceable fifteen days later. He obtained an enforcement warrant, which the bailiff did not enforce. 8. In response to a request of the Centru District Court dated 22 December 2000, the Chişinău Land Register stated that the debtor did not have any real estate registered in Chişinău. 9. On 14 February 2001 a bailiff established that the debtor did not live at the address indicated by the applicant and that, accordingly, it was impossible to enforce the judgment. 10. On 6 March 2001 the debtor's wife paid the applicant USD 1,000. 11. On 16 March 2001 the Centru District Court ordered the local police to determine the debtor's whereabouts. On an unknown date a copy of the decision was sent to the local police station. On 3 February 2004 the police decided to take steps to locate the debtor. According to the police, the debtor cannot be found. 12. The judgment of 6 October 2000 has not been enforced to date. 13. The relevant domestic law has been set out in Prodan v. Moldova (no. 49806/99, ECHR 2004III (extracts)). | 1 |
train | 001-77995 | ENG | GBR | CHAMBER | 2,006 | CASE OF TSFAYO v. THE UNITED KINGDOM | 3 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | Josep Casadevall;Nicolas Bratza | 10. In 1993, the applicant arrived in the United Kingdom from Ethiopia and sought political asylum. She was initially provided with accommodation by the social services department of Hammersmith and Fulham Council (“the Council”). On 21 April 1997, the applicant moved into accommodation owned by a housing association. A member of the housing association's staff assisted the applicant to complete her application for housing and council tax benefit which was submitted to the Council in April 1997. This application was successful. 11. The applicant was required by law to renew her application for housing and council tax benefit on an annual basis. Because of her lack of familiarity with the benefits system and her poor English, the applicant failed to submit a benefit renewal form to the Council by the required time. In September 1998, the applicant received correspondence from the housing association about her rent arrears. As the applicant did not understand the correspondence, she sought assistance from the Council's advice office. After obtaining this advice the applicant realised that her housing and council tax benefit had ceased. She therefore submitted a prospective claim as well as a backdated claim for both types of benefit to 15 June 1998. 12. The prospective claim was successful and the applicant began to receive housing benefit again from 4 October 1998, but on 4 November 1998 the Council rejected the application for backdated benefit because the applicant had failed to show “good cause” why she had not claimed the benefits earlier. 13. During the period from 15 June to 4 October 1998 the applicant lost housing benefit of GBP 860.00, and since her rent in any event exceeded the benefit to which she had been entitled, her rent arrears amounted to GBP 1,068.86. The housing association commenced possession proceedings, seeking the applicant's eviction for non-payment of rent, and the Council also brought proceedings based on the applicant's failure to pay council tax of GBP 163.36 for the year 1998/99. On 19 October 1998 a court order was made allowing the Council to deduct GBP 2.60 per week from the applicant's income support of GBP 35.87. 14. On 9 November 1998, the applicant's legal advisers wrote to the Council requesting that they reconsider their refusal. However, by letter dated 4 February 1999, the Council informed the applicant that they were upholding their initial decision to refuse council tax and housing benefits. 15. The applicant appealed. The case was heard on 10 September 1999 by Hammersmith and Fulham Council Housing Benefit and Council Tax Benefit Review Board (“the HBRB”). The HBRB consisted of three Councillors from the Council. It was advised by a barrister from the Council's legal department. The applicant was represented by Fulham Legal Advice Centre and the Council was represented by a Council benefits officer. The HBRB rejected the applicant's appeal, finding that the applicant must have received some correspondence from the local authority during the period from 15 June to 4 October 1998 concerning the council tax she owed, although no such correspondence was produced to it. 16. On 13 September 1999 the housing association's possession proceedings against the applicant concluded with a court order requiring her to pay off the rent arrears at GBP 2.60 a week (in addition to the GBP 2.60 per week for council tax arrears). 17. On 6 December 1999, the applicant sought judicial review of the HBRB's decision. She complained that the HBRB had acted unlawfully because it had failed to make adequate findings of fact or provide sufficient reasons for its decision. The applicant also alleged that the HBRB was not an “independent and impartial” tribunal under Article 6 § 1 of the Convention. 18. On 31 January 2000, the High Court dismissed the applicant's application for leave to apply for judicial review on the grounds that the Convention had not yet been incorporated into English law, and further dismissed the application on the merits, on the grounds that the HBRB's decision was neither unreasonable nor irrational. The applicant was unable to appeal because legal aid was refused. The applicant subsequently obtained Counsel's opinion that the appeal had no prospects of success. 19. Housing benefit (“HB”) is a means-tested benefit payable towards housing costs in rented accommodation. It is not dependent on or linked to the payment of contributions by the claimant. 20. The HB scheme is administered by the local authority. Payments of HB are subsidised by central Government, normally to the extent of 95%, although where HB is paid as a result of a decision that the claimant had good cause for a late claim the subsidy is only 50%. 21. HB is awarded for “benefit periods” and entitlement for each period is dependent on a claim being made in time in accordance with the statutory rules. If a claimant makes a late claim, any entitlement to arrears of HB depends on the claimant establishing “good cause” for having missed the deadline. The case-law establishes that the concept of “good cause” involves an objective judgment as to whether this individual claimant, with his or her characteristics such as language and mental health, did what could reasonably have been expected of him or her. 22. At the relevant time, a claim to housing benefit was first considered by officials employed by the local authority and working in the housing department. If the benefit was refused the claimant was entitled to a review of the decision, first by the local authority itself, then by a HBRB, which comprised up to five elected councillors from the local authority. Since 2 July 2001, HBRBs have been replaced by tribunals set up under the Child Support, Pensions and Social Security Act 2000. 23. The procedure before the HBRB was governed by the Housing Benefit (General) Regulations 1987. Regulation 82 provided, as relevant: “(2) Subject to the provisions of these Regulations (a) the procedure in connection with a further review shall be such as the Chairman of the Review Board shall determine; (b) any person affected may make representations in writing in connection with the further review and such representations shall be considered by the Review Board; (c) at the hearing any affected person has the right to (i) be heard, and may be accompanied and may be represented by another person whether that person is professionally qualified or not, and for the purposes of the proceedings at the hearing any representative shall have the rights and powers to which any person affected is entitled under these regulations; (ii) call persons to give evidence; (iii) put questions to any person who gives evidence; (d) the Review Board may call for, receive or hear representations and evidence from any person present as it considers appropriate.” 24. The Review Board's Good Practice Guide provided, inter alia, that “the general principle underlying the proceedings” was the observance of natural justice. The HBRB should “be fair and be seen to be fair to all parties at all times”. The HBRB was “in law, a separate body from the authority” and “independent”. Before the hearing of a case checks were carried out to ensure that Board Members “have had no previous dealings with the case, and that they have no relationship with the claimant or any other person affected”. 25. In the House of Lords' judgment in R. v. Secretary of State for the Environment, ex parte Holding and Barnes, Alconbury Developments Ltd and Legal and General Assurance Society Ltd, [2001] UKHL 23, (“Alconbury”), Lord Slynn of Hadley described the scope of judicial review as follows (§ 50): “It has long been established that if the Secretary of State misinterprets the legislation under which he purports to act, or if he takes into account matters irrelevant to his decision or refuses or fails to take account of matters relevant to his decision, or reaches a perverse decision, the court may set his decision aside. Even if he fails to follow necessary procedural steps - failing to give notice of a hearing or to allow an opportunity for evidence to be called or cross-examined, or for representations to be made or to take any step which fairness or natural justice requires, the court may interfere. The legality of the decision and the procedural steps must be subject to sufficient judicial control.” ... Lord Slynn continued that he was further of the view that a court had power to quash an administrative decision for a misunderstanding or ignorance of an established and relevant fact (§§ 51-53 of the judgment, and see also Lord Nolan at § 61, Lord Hoffman at § 130 and Lord Clyde at § 169) and, where human rights were in issue, on grounds of lack of proportionality. 26. In Runa Begum (FC) v. London Borough of Tower Hamlets [2003] UKHL 5 (see paragraph 30 below), Lord Bingham of Cornhill made it clear that a court on judicial review (§§ 7-8): “... may not only quash the authority's decision ... if it is held to be vitiated by legal misdirection or procedural impropriety or unfairness or bias or irrationality or bad faith but also if there is no evidence to support factual findings made or they are plainly untenable or if the decision maker is shown to have misunderstood or been ignorant of an established and relevant fact ... It is plain that the ... judge may not make fresh findings of fact and must accept apparently tenable conclusions on credibility made on behalf of the authority... .” 27. Since the coming into force of the Human Rights Act 2000, the English courts have considered on a number of occasions the extent to which judicial review can remedy defects of independence in a first instance administrative tribunal. 28. In Alconbury (cited above), the House of Lords considered the procedure whereby the Secretary of State had the power himself to determine certain matters of planning and compulsory purchase, subject to judicial review. Following the Court's judgment in Bryan v. the United Kingdom, no. 19178/91, §§ 44-47, Series A no. 335-A, the House of Lords held unanimously that since the decisions in question involved substantial considerations of policy and public interest it was acceptable, and indeed desirable, that they be made by a public official, accountable to Parliament. Although the Secretary of State was not an independent and impartial tribunal, he (or rather, his Department's decision-making process) offered a number of procedural safeguards, such as an inspector's inquiry with the opportunity for interested parties to be heard, and these safeguards, together with the availability of judicial review (see paragraphs 25-26 above) was sufficient to comply with the requirement for “an independent and impartial tribunal” in Article 6 § 1. 29. Lord Hoffmann explained the democratic principles underlying this approach as follows (§§ 69 and 73): “In a democratic country, decisions as to what the general interest requires are made by democratically elected bodies or persons accountable to them. Sometimes the subject-matter is such that Parliament can itself lay down general rules for enforcement by the courts. Taxation is a good example; Parliament decides on grounds of general interest what taxation is required and the rules according to which it should be levied. The application of those rules, to determine the liability of a particular person, is then a matter for independent and impartial tribunals such as the General or Special Commissioners or the courts. On the other hand, sometimes one cannot formulate general rules and the question of what the general interest requires has to be determined on a case by case basis. Town and country planning or road construction, in which every decision is in some respects different, are archetypal examples. In such cases Parliament may delegate the decision-making power to local democratically elected bodies or to ministers of the Crown responsible to Parliament. In that way the democratic principle is preserved. ... There is however another relevant principle which must exist in a democratic society. That is the rule of law. When ministers or officials make decisions affecting the rights of individuals, they must do so in accordance with the law. The legality of what they do must be subject to review by independent and impartial tribunals. This is reflected in the requirement in Article 1 of Protocol No. 1 that a taking of property must be 'subject to the conditions provided for by law'. The principles of judicial review give effect to the rule of law. They ensure that administrative decisions will be taken rationally, in accordance with a fair procedure and within the powers conferred by Parliament. ...” 30. The House of Lords returned to these issues in Runa Begum (cited above). The appellant had been offered a flat by the local authority, but considered it unsuitable for herself and her children because, she alleged, it was on a housing estate known for drugs and crime and in close proximity to a friend of her ex-husband. She requested a review of the local authority's decision. The reviewing officer was a re-housing manager employed by the same local authority but who had not been involved in the original decision and who was senior to the original decision-maker. She found that there were no serious problems on the estate and that the relationship between Runa Begum and her husband was not such as to make it intolerable for them to risk meeting each other. 31. It was accepted that the case involved the determination of civil rights and that the reviewing officer was not, in herself, an “independent and impartial tribunal”. The House of Lords held unanimously that the existence of judicial review was sufficient in this context for the purposes of Article 6 § 1. In reaching this conclusion, Lord Bingham of Cornhill considered three matters as “particularly pertinent”: first, that the legislation in question was part of a far-reaching statutory scheme regulating the important social field of housing, where scarce resources had to be divided among many individuals in need; secondly, that although the council had to decide a number of factual issues, these decisions were “only staging posts on the way to the much broader judgments” concerning local conditions and the availability of alternative accommodation, which the housing officer had the specialist knowledge and experience to make; thirdly, the review procedure incorporated a number of safeguards to ensure that the reviewer came to the case with an open mind and took into account the applicant's representations. Lord Bingham commented, generally, on the inter-relation between the Article 6 § 1 concept of “civil rights” and the requirement for an “independent and impartial tribunal”, that (§ 5): “the narrower the interpretation given to 'civil rights', the greater the need to insist on review by a judicial tribunal exercising full powers. Conversely, the more elastic the interpretation given to 'civil rights', the more flexible must be the approach to the requirement of independent and impartial review if the emasculation (by over-judicialisation) of administrative welfare schemes is to be avoided. ...” 32. It was argued before the House of Lords that when, as in Bryan and Alconbury, the decision turned upon questions of policy or “expediency”, it was not necessary for the appellate court to be able to substitute its own opinion for that of the decision-maker; that would be contrary to the principle of democratic accountability. However, where, as in Runa Begum, the decision turned upon a question of contested fact, it was necessary either that the appellate court should have full jurisdiction to review the facts or that the primary decision-making process should be attended with sufficient safeguards as to make it virtually judicial. In response, Lord Hoffmann (§§ 37-44) underlined that the fact-finding in Bryan had been closely analogous to a criminal trial, since the inspector's decision that Mr Bryan had acted in breach of planning control would be binding on him in any subsequent criminal proceedings for failing to comply with the enforcement notice. Lord Hoffmann continued: “A finding of fact in this context seems to me very different from the findings of fact which have to be made by central or local government officials in the course of carrying out regulatory functions (such as licensing or granting planning permission) or administering schemes of social welfare such as [housing the homeless]. The rule of law rightly requires that certain decisions, of which the paradigm examples are findings of breaches of the criminal law and adjudications as to private rights, should be entrusted to the judicial branch of government. This basic principle does not yield to utilitarian arguments that it would be cheaper or more efficient to have these matters decided by administrators. Nor is the possibility of an appeal sufficient to compensate for lack of independence and impartiality on the part of the primary decision-maker (see De Cubber v. Belgium [judgment of 26 October 1984, Series A no. 124-B]). But utilitarian considerations have their place when it comes to setting up, for example, schemes of regulation or social welfare. I said earlier that in determining the appropriate scope of judicial review of administrative action, regard must be had to democratic accountability, efficient administration and the sovereignty of Parliament. This case raises no question of democratic accountability. ... On the other hand, efficient administration and the sovereignty of Parliament are very relevant. Parliament is entitled to take the view that it is not in the public interest that an excessive proportion of the funds available for a welfare scheme should be consumed in administration and legal disputes ... .” 33. Following the House of Lords' judgment in Alconbury, but before that in Runa Begum, the High Court examined whether the HRRB procedure at issue in the present application was compliant with Article 6, in a case where the determination of the central issues of fact depended on an assessment whether the claimant was telling the truth: Bewry (R. on the application of) v. Norwich City Council [2001] EWHC Admin 657. The Secretary of State conceded that the HBRB lacked the appearance of an independent and impartial tribunal. On the question whether judicial review proceedings were sufficient to remedy the problem, Moses J observed: “There is however, in my judgment, one insuperable difficulty. Unlike an inspector [in a planning case], whose position was described by Lord Hoffman [in R. v. Secretary of State for the Environment, ex parte Holding and Barnes, Alconbury Developments Ltd and Legal and General Assurance Society Ltd, [2001] UKHL 23; [2001] 2 All ER 929: see Holding and Barnes plc v. the United Kingdom (dec.), no. 2352/02, ECHR 2002] as independent, the same cannot be said of a councillor who is directly connected to one of the parties to the dispute, namely the Council. The dispute was between the claimant and the Council. The case against payment of benefit was presented by employee of the Council and relied upon the statement of an official of the Council (the Fraud Verification Officer in the Council's Revenue office). ... The reasoning carefully set out by the Board enables the court to ensure that there has been no material error of fact. Even in relation to a finding of fact, this court can exercise some control if it can be demonstrated that the facts found are not supported by the evidence. But, in that respect, the court can only exercise limited control. It cannot substitute its own views as to the weight of the evidence ... In my judgment, the connection of the councillors to the party resisting entitlement to housing benefit does constitute a real distinction between the position of a [planning] inspector and a Review Board. The lack of independence may infect the independence of judgment in relation to the finding of primary fact in a manner which cannot be adequately scrutinised or rectified by this court. One of the essential problems which flows from the connection between a tribunal determining facts and a party to the dispute is that the extent to which a judgment of fact may be infected cannot easily be, if at all, discerned. The influence of the connection may not be apparent from the terms of the decision which sets out the primary facts and the inferences drawn from those facts. ... Thus it is no answer to a charge of bias to look at the terms of a decision and to say that no actual bias is demonstrated or that the reasoning is clear, cogent and supported by the evidence. This court cannot cure the often imperceptible effects of the influence of the connection between the fact finding body and a party to the dispute since it has no jurisdiction to reach its own conclusion on the primary facts; still less any power to weigh the evidence. Accordingly, I conclude that there has been no determination of the claimant's entitlement to housing benefit by an independent and impartial tribunal. The level of review which this court can exercise does not replenish the want of independence in the Review Board, caused by its connection to a party in the dispute.” The Secretary of State was granted leave to appeal against this judgment but, in the event, decided not to appeal. The Bewry judgment was approved and followed, after the House of Lords' judgment in Runa Begum, by the High Court in R. (Bono and another) v. Harlow District Council [2002] EWHC 423. 34. In each of its annual report between 1988/89 and 1997/98, the Council on Tribunals (a statutory advisory committee which reports to the Lord Chancellor) recommended the abolition of the HBRB system, because of concerns about lack of independence and the potential for injustice. | 1 |
train | 001-113460 | ENG | ITA | CHAMBER | 2,012 | CASE OF GODELLI v. ITALY | 3 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award | András Sajó;Françoise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque | 5. The applicant, who was born on 28 March 1943 in Trieste, was abandoned by her mother at birth. 6. Her birth certificate records the following information: “Today, 28 March 1943, at 7.30 a.m., a woman, who did not consent to being named, gave birth to a baby girl.” 7. The applicant was placed first in an orphanage and subsequently with the Godelli family. When she was six years old she was adopted by Mr and Mrs Godelli under the simple adoption (affiliazione) procedure, by a decision of the Trieste Guardianship Judge of 10 October 1949. 8. At the age of ten, after learning that she had been adopted, the applicant asked her adoptive parents to tell her who her birth parents were, but did not receive an answer. On an unspecified date she discovered that a young girl living in her village, who had been born on the same day as her, had been abandoned and subsequently adopted by another family under the simple adoption procedure. The applicant suspected that she was her twin sister. The adoptive parents of the two girls prohibited any contact between them. 9. The applicant stated that she had had a very difficult childhood because she had been unable to find out her origins. 10. In 2006 the applicant requested information about her origins from the Trieste Register Office, in accordance with section 28 of Law no. 184 of 4 May 1983 (Adoption Act: “Law no. 184/1993”), the regulations governing simple adoption having been repealed by that Law. The Register Office gave the applicant her birth certificate, on which her birth mother’s name did not appear because she had not agreed to have her identity disclosed. 11. On 19 March 2007 the applicant lodged an application with the Trieste City Court, under Article 96 of Presidential Decree no. 396/2000, seeking rectification of her birth certificate. On 4 May 2007 the court declined jurisdiction and dismissed the application on the ground that section 28(5) of Law no. 184/1983 provided that where persons aged over twenty-five were seeking access to information about their birth parents the court with the appropriate jurisdiction was the Family Court. 12. On 5 June 2007 the applicant lodged an application with the Trieste Family Court. On 11 June 2008 the court dismissed her application on the ground that, under section 28(7) of Law no. 184/983, she was prohibited from gaining access to information about her origins because her mother, at the time of the applicant’s birth, had not agreed to have her identity disclosed. 13. The applicant appealed to the Court of Appeal, which dismissed her appeal by a decision of 23 December 2008. 14. The court observed, in particular, that the Family Court had stressed the fact that the applicant’s birth mother had requested to keep her identity secret and that it had therefore correctly applied section 28(7) of Law no. 184 of 1983, even though the applicant had been adopted under a simple adoption order, as simple adoption did nevertheless create a family status. The Court of Appeal found that section 28(7) was designed to guarantee respect for the mother’s wishes. The prohibition on allowing the applicant access to information about her origins also served a public interest. 15. The applicant did not lodge an appeal on points of law. 16. Under Article 250 of the Civil Code, one of the parents may decide not to recognise his or her child. In order to exercise that right, the mother must, at the time of the birth, request the hospital to keep her identity secret. In such a case a medical file containing medical information about the mother and child is drawn up. Only the child’s general practitioner may have access to the file, with the permission of the child’s guardian. 17. Simple adoption (affiliazione) was created in 1942 in order to provide assistance to abandoned or parentless children aged under eighteen. Unlike full adoption, this did not create an effective family relationship and the person being adopted did not have to be childless; however, he or she did have to be aged under eighteen. A simple adoption order could be requested by: the person with whom the child had been placed, the Health and Social Security Department, or the person who had been raising the child on their own initiative. 18. The Articles of the Civil Code providing for simple adoption were repealed as a result of the entry into force of Law no. 184 of 4 May 1983 (subsequently revised by Law no. 149 of 2001 and by Legislative Decree no. 196 of 30 June 2003). 19. Section 27 of Law no. 184/1983 guarantees the right to keep a child’s origins secret in the absence of express authorisation by the judicial authority. 20. Under section 28(7) of Law no. 184/1983, a mother who decides not to keep her child can give birth in a hospital and at the same time remain anonymous on the declaration of birth. That anonymity lasts one hundred years, after which access to the birth certificate becomes possible. 21. An adoption order, once issued by the court, is sent to the register office so that a note can be made in the margin of the birth certificate. Any copies of the adopted child’s civil-status certificates must be issued with only the new family name shown and must bear no mention of the biological father or mother or any annotation regarding the adoption. However, where the registrar is expressly so authorised by the court, he or she may disclose this information. 22. Adopted children may have access to information about their origins and the identity of their birth parents on reaching the age of twenty-five. Where there are compelling and proven reasons relating to their physical and mental health, they may obtain that information on their majority. An application is lodged with the family court of their place of residence, which gives its decision after assessing the particular situation and hearing any persons whom it deems it necessary to hear. 23. Access to the information is refused where the birth mother has not recognised the child at birth and where one of the birth parents has declared their wish not to be named on the birth certificate or has given their consent to the adoption subject to remaining anonymous. 24. In a judgment of 16 November 2005, the Constitutional Court held that withholding information about a child’s origins without first verifying whether the mother still did not wish to be identified was compatible with Articles 2, 3 and 32 of the Constitution. 25. The Constitutional Court observed, in particular, that section 28(7) of Law no. 184/1983 aimed to protect mothers who – in difficult circumstances – decided not to keep their child, by allowing them the possibility of giving birth in a hospital and at the same time remaining anonymous on the declaration of birth. In the court’s view, the mother could thus give birth in good conditions and was prevented from taking an irreversible decision. That possibility would be jeopardised if, under that provision, the mother were also to know that she might one day be called upon by the judicial authority to confirm or waive her decision. 26. Article 111 § 7 of the Italian Constitution provides: “Appeals to the Court of Cassation in cases of violations of the law are always admissible against judgments or measures affecting personal freedom pronounced by the ordinary or special courts”. 27. A government bill on access to personal origins has been before the Italian Parliament since 2008. The bill has two main objectives: i) to permit and make provision for a procedure whereby confidentiality can be waived without calling into question the legal consequences of the decision initially taken by the mother; ii) to make a waiver of confidentiality subject to the express agreement of the mother and child. Under the provisions of the bill, anyone aged twenty-five or over who has been adopted and not recognised at birth may apply to the family court for access to information about their origins, subject to the mother’s agreement. Where the child seeks to discover his or her origins, the family court will take steps to find the mother and obtain her consent to waive confidentiality while respecting her private life. Where the mother has died and where the father has died or cannot be identified, the court will obtain information about their identity and any medical data that may disclose the existence of any transmissible hereditary diseases. 28. Whilst the system of anonymous or secret births would appear to exist in a minority of countries in Europe, it is not exceptional. In addition to France, where for many years the positive law has provided for a system of anonymous births, other national legislations, which are relatively recent as they have been drafted during the past decade, also provide for births in such conditions (Austria, Luxembourg, Russia, Slovakia). In France the system of anonymous births tends to resemble that of secret births, like the practice in the Czech Republic where the secrecy of the birth mother’s identity is temporary, rather than definitive, as access to the relevant information is delayed. 29. The situation of children born anonymously or secretly is comparable to that of children who find it difficult, or even impossible, to gain access to their biological origins. The omission of the name of one or other or of both parents may sometimes be provided for by law, but this is very rare (Italy, Luxembourg, France). Usually factual circumstances will prevent the registrar from fully completing the child’s birth certificate; court proceedings are brought to determine paternity/maternity and may be available to persons other than the child alone. Notwithstanding the fact that such actions may not necessarily be effective in the particular circumstances, their very existence, allowing research to be done into personal ties maintained by a child with his birth family, provides a safeguard for the interested persons. 30. It should further be pointed out that the practice of abandoning children continues in modern forms: there is an undeniable increase in the number of “windows” or “baby hatches” reminiscent of foundling wheels in the Middle Ages. It is practically and materially impossible for the child to gain access to information about his or her birth family; the register of births will give a “fictitious” name to the child that bears no connection to that of its birth parents. The circumstances of the birth may be only partially secret (Spain, Hungary), but this will then necessarily mean that some data is available. Legal proceedings are generally available for children searching for their birth mother (Bulgaria, Croatia, the former Yugoslav Republic of Macedonia) or mothers who may be searching for their child (Ukraine). 31. In the case of full adoption, the child will often lose all contact with its birth family; the new parent-child relationship will totally erase any ties that may have existed during the child’s previous life with other adults (Austria, France, Monaco, Bulgaria, Russia and the former Yugoslav Republic of Macedonia). Access to the birth certificate is sometimes possible from a minimum age (Germany, Croatia, Hungary, Latvia, Portugal). The child may be authorised to gain access to a wider range of information (Bulgaria, Estonia, Lithuania, Switzerland, Spain), which often presupposes bringing legal proceedings whereby the competing interests may be examined. 32. The United Kingdom and Ireland have set up a mechanism making it easier for adopted persons to gain access to records about their adoption that goes a long way towards reconciling the right to information of the adopted child and respect for the private and family life of the mother or, more broadly, the birth family. | 1 |
train | 001-95133 | ENG | TUR | ADMISSIBILITY | 2,009 | GENCER INSAAT TAAHHUT TURIZM TICARET SANAYII LTD. STI. v. TURKEY | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall | 1. The applicant, Gençer İnşaat Taahhüt Turizm Ticaret Sanayii Ltd. Şti., is a Turkish commercial company based in Ankara. It was represented by Mr M. Bir, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent. 2. On 18 June 1996 the applicant company brought civil proceedings against a private individual (Ö.L.Ö.) before the Kaş Civil Court of First Instance, claiming unjust enrichment. 3. The first hearing scheduled for 24 September 1996 was postponed for administrative reasons. At the next hearing, which was held on 22 October 1996, both parties requested an adjournment to present their evidence. 4. At the following hearing on 20 December 1996 the applicant company explained that it wished to adduce as evidence the entire case-file of a pending claim for reimbursement it had lodged against Ö.L.Ö. The court therefore decided to await the outcome of the proceedings concerning the reimbursement claim and adjourned the case to 2 April 1997. The case-file indicates that the judgment in respect of the applicant company’s reimbursement claim was delivered on 22 October 1996, in accordance with an agreement that had been reached between the applicant company and Ö.L.Ö. This judgment was served on the applicant company on 7 May 1997 and became final in the absence of any appeal. 5. As neither party attended the following two hearings on 2 April 1997 and 28 May 1997 the court decided to discontinue the proceedings unless asked to reinstate them. Following a request to that effect by the applicant company the case was reinstated on 18 August 1997 and a hearing was scheduled for 5 November 1997. 6. Of the fifteen subsequent hearings that were held between 5 November 1997 and 23 February 2000, the applicant company failed to attend eight and requested adjournments in a further two. 7. On 3 June 1998 an expert report was requested by the court. The report was submitted on 3 December 1999. 8. The Kaş Civil Court of First Instance held twenty-three hearings in forty-six months before it delivered its judgment on 14 April 2000. The court awarded the applicant company 8,754,110,491 Turkish liras. Both parties appealed. On 21 March 2001 the Court of Cassation quashed that judgment on the ground, inter alia, that the applicant company had not presented material evidence as proof of its alleged loss. The applicant company’s rectification request was dismissed on 17 September 2001. 9. The case was remitted to the Kaş Civil Court of First Instance, which abided by the decision of the Court of Cassation and dismissed the case on 21 November 2001. The applicant company appealed. On 10 June 2002 the Court of Cassation upheld the judgment. 10. The applicant company then sought rectification. On 26 December 2002 the Court of Cassation refused the applicant company’s request. 11. The decision was lodged with the first-instance court’s registry on 7 January 2003 and served on the applicant company on 4 February 2003. | 0 |
train | 001-72642 | ENG | RUS | CHAMBER | 2,006 | CASE OF DOLGOVA v. RUSSIA | 4 | Violation of Art. 5-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic and Convention proceedings) - claim dismissed | Christos Rozakis | 6. The applicant was born in 1986 and lives in Moscow. 7. The applicant was a member of the National Bolsheviks Party. 8. At 12.30 p.m. on 14 December 2004 forty Party members effected an unauthorised entry into the reception area of the Administration of the President of the Russian Federation (the “President’s Office”). Some of them pushed away the guards at the entrance and occupied room no. 14 on the ground floor. They locked themselves in, blocked the door with a heavy safe and let the others enter through the window. 9. Until the police arrived, the Party members, including the applicant, waved placards through the office window, threw out leaflets and chanted slogans calling for the President’s resignation. They stayed in the office for approximately one hour. 10. On 14 December 2004 the applicant came with her friends for a walk in the city centre. Suddenly she found herself in the midst of a dense crowd and she thought it best to go in the same direction as everyone else. The crowd brought her into a certain building which turned out to be the waiting area of the President’s Office. She felt weak and sat down on the floor. The people around shouted and chanted but she could not understand what was going on. Then the police arrived and took everyone in custody. 11. The media reported that on 14 December 2004 a group of about forty members of the National Bolsheviks Party locked themselves in an office on the ground floor of the President’s Office. 12. They asked for a meeting with the President, the deputy head of the President’s Office Mr Surkov, and the President’s economic advisor Mr Illarionov. They waved placards with “Putin, resign!” («Путин, уйди!») written on them through the window and distributed leaflets with a printed address to the President that listed ten aspects in which he failed to respect the Russian Constitution, and a call for his resignation. 13. The intruders stayed in the office for one hour and a half until the police broke through the door. They did not offer any resistance to the authorities. 14. On 15 December 2004 the Khamovnicheskiy District Court of Moscow ordered the applicant’s placement in custody on the ground that she was suspected of a particularly serious criminal offence. The applicant did not appeal against the arrest warrant. 15. On 21 December 2004 an investigator for particularly important criminal cases of the prosecutor’s office of the Central Administrative District of Moscow charged the applicant with violent overthrow of State power (Article 278 of the Criminal Code) and intentional destruction and degradation of others’ property in public places (Articles 167 § 2 and 214). 16. Between 24 December 2004 and 4 February 2005 the applicant did not participate in any investigative actions. 17. On 4 February 2005 the Zamoskvoretskiy District Court of Moscow extended her detention on remand until 14 April 2005. The court’s entire reasoning read as follows: “The court sees no reason to apply a more lenient preventive measure to [the applicant]. She is charged with a criminal offence under Article 278 of the Criminal Code which is classified as a particularly serious one and requires a thorough, comprehensive and objective investigation. Notwithstanding the fact that [the applicant] has a permanent registered place of residence in Moscow, has no criminal record, is a student, has positive references and suffers from frail health, the court, taking into account the nature and factual basis of the imputed offences, gravity of the charges, her character and other circumstances described in the investigator’s decision, considers that there are sufficient indications to believe that, once released, [the applicant] would abscond or otherwise interfere with the proceedings.” 18. On 3 March 2005 the Moscow City Court upheld, on an appeal by the applicant, the remand decision of 4 February 2005, finding that it had been lawful, “sufficiently reasoned and justified”. 19. On 21 February 2005 the applicant’s charge was amended to that of participation in mass disorders, an offence under Article 212 § 2 of the Criminal Code. 20. On 11 April 2005 the Zamoskvoretskiy District Court granted the prosecution’s request for a further extension of the applicant’s detention until 14 August 2005, relying on the following reasons: “At present there are no reasons to vary the preventive measure applied to [the applicant]... Although [the applicant] has a permanent registered place of residence in Moscow, having regard to the gravity of the charge against her, the fact that the charge is well-founded, the circumstances of the crime, there is no guarantee that the [applicant] would not default on the investigator’s and court’s summons if released from custody.” 21. On 7 June 2005 the investigation was completed and thirty-nine persons, including the applicant, were committed for trial before the Tverskoy District Court of Moscow. 22. On 20 June 2005 the trial court scheduled the preparatory hearing for 30 June 2005. It extended the detention on remand of all the defendants, noting that “the grounds on which the preventive measure [had been] previously imposed, still persist[ed]” and that “the case-file gave sufficient reasons to believe that, once released, the defendants would flee or interfere with the trial”. 23. On 30 June 2005 the court fixed the opening of the trial for 8 July 2005. It rejected the defendants’ requests for release, citing the gravity of charges against them and the risk of their absconding or obstructing justice. 24. On 10 August 2005 the Tverskoy District Court rejected the applications for release filed by many defendants, including the applicant, although she had produced a personal surety from Mr M. Rotmistrov, a member of the lower chamber of the Russian Parliament. The court held: “The court takes into account the defence’s argument that individual approach to each defendant’s situation is essential when deciding on the preventive measure. Examining the grounds on which... the court ordered and extended detention on remand in respect of all defendants without exception... the court notes that these grounds still persist today. Therefore, having regard to the state of health, family situation, age, profession and character of all defendants, and to the personal sureties offered by private individuals and appended to the case file, the court concludes that, if released, each of the applicants can abscond or obstruct justice in some other way... In the court’s view, in these circumstances, having regard to the gravity of the charges, there are no grounds for varying or revoking the preventive measure in respect of any defendant...” 25. On 8 December 2005 the Tverskoy District Court found the applicant and her co-defendants guilty as charged and gave her a suspended sentence of three years’ imprisonment. It appears that the applicant did not lodge an appeal against the conviction. 26. Since 1 July 2002 criminal-law matters have been governed by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the Code”). 27. “Preventive measures” or “measures of restraint” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention on remand (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (обязательство о явке) (Article 112). 28. When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, re-offend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99). 29. Detention on remand may be ordered by a court if the charge carries a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1). 30. After arrest the suspect is placed in custody “pending the investigation”. The maximum permitted period of detention “pending the investigation” is two months but it can be extended for up to eighteen months in “exceptional circumstances” (Article 109 §§ 1-3). The period of detention “pending the investigation” is calculated to the day when the prosecutor sent the case to the trial court (Article 109 § 9). 31. From the date the prosecutor forwards the case to the trial court, the defendant’s detention is “before the court” (or “during the trial”). The term of detention “during the trial” is calculated to the date the judgment is given. It may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3). | 1 |
train | 001-58038 | ENG | GRC | CHAMBER | 1,997 | CASE OF GITONAS AND OTHERS v. GREECE | 2 | No violation of P1-3 | C. Russo;N. Valticos;R. Pekkanen | 6. On 18 November 1986 Mr Gitonas, then an employee of the Investment Bank (Trapeza Ependisseon), was seconded to the post of Deputy Head (Anaplirotis Genikos Diefthindis) of the Prime Minister’s private office. He occupied that post for a period of approximately thirty months until 24 May 1989, when his secondment ended. 7. In the general election of 8 April 1990 the applicant stood as a candidate for the Socialist Party (PA.SO.K) in the second Athens constituency. As he obtained more than the required minimum number of votes for election, the Athens Court of First Instance (Polymeles protodikio) declared in a decision of 17 April 1990 that he had been elected. 8. On 26 and 27 April and 2 May 1990 three members of the constituency’s electorate lodged an application with the Special Supreme Court (Anotato Idiko Dikastirio) for an order annulling Mr Gitonas’s election. They relied on Article 56 para. 3 of the Constitution (see paragraph 29 below) and maintained, inter alia, that the applicant’s election was a nullity as, before the election, he had held the post of Deputy Head of the Prime Minister’s private office, a ground for disqualification from standing for election under that Article. 9. In the proceedings the applicant argued that as an employee of the Investment Bank, a private-law entity, he could not be considered a civil servant and he pointed out that he had become deputy head of the Prime Minister’s private office by secondment. 10. The Special Supreme Court considered the three applications together and gave its judgment (no. 16/1991) by nine votes to two on 23 January 1991. It annulled Mr Gitonas’s election on the following grounds: "Under [Article 56 para. 3], as is apparent both from its wording (the disqualification applies in `any’ constituency) and from its purpose (to deter civil servants ... from using their posts to prepare for a political career, and at the same time to ensure that civil servants are politically neutral in the performance of their duties as required by the Constitution and by statute), the disqualification covers the whole geographical area in which those duties were performed ..., so that a civil servant who has general responsibility throughout Greece may not become an elected member of parliament in any constituency. The bar applies in all cases where the post has been occupied for more than three months during the three years preceding the election even if, in the interval between the post being taken up and the election, another general election took place in which the person concerned stood as a candidate ... The aforementioned constitutional provision means that the bar applies irrespective of the lawfulness of the administrative act whereby the post was filled ... The provision applies to salaried civil servants appointed to established posts expressly created by law and governed exclusively by public-law rules; included within that category are dismissable civil servants in temporary posts within the meaning of Article 103 para. 5 of the Constitution ... Law no. 1299/1982 on `the organisation of the Prime Minister’s private office’ established an independent public service to assist and directly serve the Prime Minister in the performance of his duties. To this political private office of the Prime Minister ... were subsequently added - by decision of the Prime Minister taken under section 12 (b) of Law no. 1299/1982 - the special office of the deputy head responsible for supervising and implementing the decisions of the public government bodies and of the Prime Minister, and a category A post of Deputy Director-General. Generally speaking, the ordinary rules do not apply to recruitment to posts in the Prime Minister’s political private office, which are filled, without any competition being held, either by appointment or secondment from the civil service or a public-law or public-sector entity, or by assignment of duties which the person concerned performs concurrently ... with those of his usual occupation, as determined by the Prime Minister, in a decision published in the Official Gazette (section 6). Under section 6 (1), persons seconded to the political private office of the Prime Minister must elect whether to receive their entire remuneration of all kinds from their permanent post or from the post to which they have been seconded ... It is apparent from the aforementioned provisions that the post of Deputy Head of the Prime Minister’s political private office ... is a remunerated post occupied by a dismissable civil servant within the meaning of Article 103 para. 5 of the Constitution, with general and decision-making responsibility for the entire country, and as such is covered by Article 56 para. 3. ... The documents in the case file show that [the applicant] was seconded from the Investment Bank to the post of Deputy Head of the Prime Minister’s political private office by decision no. Y311/1986, of the then Prime Minister, published in the Official Gazette of 18 November 1986, and served in that post continuously until 24 May 1989, when his secondment was ended by a similar decision of the Prime Minister ... By a written declaration of 18 November 1986 [the applicant] elected to receive the remuneration attaching to his permanent post. Consequently, as he occupied a remunerated post in category A, with nationwide responsibility, for more than three months during the three years preceding the general election of 8 April 1990, he was barred from standing as a candidate or being elected as a member of parliament in that election even if, in the interval between his taking up that post and the latest election, another election had been held in which [the applicant] had stood." In a dissenting opinion two members of the Special Supreme Court took the view that section 12 (b) of Law no. 1299/1982 did not authorise the creation of a post of Deputy Director-General and that the applicant had never acquired the status of salaried civil servant; even supposing that the Investment Bank belonged to the public sector and that the post had been created under the provisions of Law no. 1299/1982, the applicant’s secondment had been temporary, which meant that he had retained his former status as an employee of the bank, which continued to pay his salary. 11. On 10 November 1987 Mr Paleothodoros was appointed Director-General of Greece’s second television channel (Elliniki Tileorassi 2, "ET2") by a resolution of the board of governors of the Greek Broadcasting Company (ERT-AE), a public company. He occupied that post for approximately a year, until 23 November 1988. 12. In the election of 8 April 1990 the applicant stood as a candidate for the electoral coalition "Zante Initiative for Progress, Development and Simple Proportional Representation" (Zakinthini Protovoulia gia proodo - anaptixi - apli analogiki) in the Zante constituency. As he obtained more than the required minimum number of votes for election, the Zante Court of First Instance declared, in a decision of 11 April 1990, that he had been elected. 13. On 25 April 1990 a member of the constituency’s electorate, relying on Article 56 para. 3 of the Constitution (see paragraph 29 below), lodged an application with the Special Supreme Court for an order annulling Mr Paleothodoros’s election on the ground that during the period preceding the election Mr Paleothodoros had occupied the post of Director-General of ET2. 14. The Special Supreme Court, by six votes to five, annulled the election in a judgment (no. 41/1991) of 29 May 1991 in these terms: "... The disqualification [from standing for election] also applies where, in the interval between the disqualifying post being taken up and the relevant election, another election took place in which the person concerned stood as a candidate. The possibility that a civil servant will use his post to prepare for his political career does in fact exist in this case too, as the effects of such preparations are not limited to the election immediately following the taking up of the post but may extend to subsequent elections; consequently, it has to be accepted that the civil servant continues to be disqualified under the Constitution, if the election takes place within three years as specified in the Constitution. A public undertaking is an undertaking which under the law ... exists to promote the general interest, in the form of a legal entity over which the State exerts a decisive influence and which operates according to economic criteria, not by speculating ... but by making profits that will enable it to achieve its fundamental objectives ... Section 1 of Law no. 1730/1987 established a private-law entity in the form of a company called ‘Greek Radio-Television’... Section 1 (3) provides that ERT-AE is a public undertaking belonging to the public sector (Law no. 1256/1982); it is controlled and supervised by the State. By section 2 (1) of the aforementioned Law, the objects of ERT-AE are to organise, operate and develop radio and television broadcasting, and contribute to informing, educating and entertaining the Greek people. That provision also lays down that ERT-AE is not a profit-seeking entity ... The [ERT-AE’s] main departments set out and apply, for the areas within their responsibility, the basic principles laid down by the board of governors and are financially independent ... The board of governors appoints a director-general to head each department (section 3). It follows that a director-general - appointed by the board of governors and given the task of applying in the area for which he is responsible the basic principles laid down by the board, to whose supervision he is moreover subject - is the employee of a public undertaking within the meaning of Article 56 para. 3 of the Constitution; because of that position ..., he is liable to the disqualification referred to in that Article. ... It is apparent from the aforementioned provisions, and in particular those providing that ET1 and ET2 enjoy independence in programme scheduling, that ... the directorgeneral participates in the choice or may influence the content of television programmes, and the programmes ... are broadcast throughout Greece and can be received in all areas of the country. In the course of his duties a director-general may, through his role in determining television programme scheduling, have an advantage over other Greek citizens in preparing for a political career. ... Mr Paleothodoros was appointed as Director-General of ET2 by the ERT-AE’s board of governors and remained in that position from 10 November 1987 to 23 November 1988 ... In the light of the foregoing, [the applicant] was a member of staff of a public entity for a period of more than three months during the three years preceding the election; as his authority was by its nature general, he is disqualified from standing for election under Article 56 para. 3 of the Constitution ..." In a dissenting opinion five members of the Special Supreme Court expressed the view that the responsibilities of the directors-general of ET1 and ET2 were not such as to create a link between the head of a department and a particular constituency. The mere fact that the television channel’s credits were broadcast in a particular constituency did not amount to performing official duties in that constituency. 15. On 25 February 1987 Mr Sifounakis was appointed DirectorGeneral of the Greek Broadcasting Company (ERT) and on 10 November 1987 Director-General of its first television channel (ET1). The applicant occupied that post until 8 July 1988. 16. In the general election of 8 April 1990 the applicant stood as a candidate for the Socialist Party (PA.SO.K) in the Lesbos constituency. As he obtained more than the required minimum number of votes for election, the Lesbos Court of First Instance declared in a decision of 12 April 1990 that he had been elected. 17. On 25 April 1990 a candidate from the same party in the same constituency lodged an application with the Special Supreme Court for an order annulling Mr Sifounakis’s election and a declaration that he himself, as first substitute member for Lesbos, was the member of parliament. In support of his application he relied on Article 56 para. 3 of the Constitution (see paragraph 29 below), maintaining in particular that the applicant’s election was a nullity as, before the election, the applicant had held the post of Director-General of ERT and ET1 and was consequently barred from standing as a candidate. 18. In a judgment (no. 40/1991) of 29 May 1991 the Special Supreme Court annulled Mr Sifounakis’s election for the same reasons as it gave in Mr Paleothodoros’s case. It found that ERT, a company wholly owned by the State but administratively and financially independent and operating in the public interest according to the rules governing the private economy (Law no. 230/1975), had merged with the ERT-AE by virtue of Law no. 1730/1987. 19. From 23 May 1990 to 13 September 1993 Mr Kavaratzis occupied the post of First Deputy Director of the Social Security Fund (Idryma Koinonikon Asfalisseon - "IKA"). 20. In the general election of 10 October 1993 he stood as a candidate for the "Nea Dimokratia" Party in the Evros constituency. As he obtained more than the required minimum number of votes for election, the Alexandroupolis Court of First Instance declared in a decision no. 126/1993 that he had been elected. 21. On 2 November 1993 another candidate for that constituency from the same party lodged an application with the Special Supreme Court for an order annulling Mr Kavaratzis’s election and for a declaration that he, as first substitute candidate for the Evros constituency, had been elected a member of parliament. He relied on Article 56 para. 3 of the Constitution (see paragraph 29 below) and maintained in particular that Mr Kavaratzis’s election was a nullity as, before the election, he had held the post of First Deputy Director of the IKA. 22. On 22 March 1995 the Special Supreme Court annulled (by six votes to five) his election on the following grounds (judgment no. 10/1995): "... Under this Court’s case-law: (1) the governor of a public-law company or public undertaking - who, by virtue of Article 56 para. 1 of the Constitution, cannot be elected as a member of parliament if he has not resigned before becoming a candidate, but who is not disqualified under paragraph 3 of that Article - is the sole organ ... running that entity or undertaking, in other words having the exclusive right to decide ... questions relating to its management (see judgment no. 46/1990 of the Special Supreme Court). (2) What matters for the purposes of determining whether in law an organ is a `governor’ is not merely that the term `governor’ is used in the law or the articles of association, but also the powers which the organ is given by those provisions (see judgments nos. 46/1990, and 4 and 5/1991 of the Special Supreme Court). (3) Persons classified by the law as governors of public-law entities but who, by virtue of the provisions governing their occupational status, are nevertheless subordinate to the entity are subject to the disqualification provided for in paragraph 3 of Article 56 of the Constitution (see judgments nos. 4 and 5/1991 of the Special Supreme Court). The Social Security Fund is managed by its governor and a board of directors. The governor is the highest-ranking administrative organ of the IKA; he [is empowered] to decide any question not expressly reserved by law to the board of directors, to act as the head of all the Fund’s departments and to supervise them and review their actions, to take all appropriate measures, to recruit staff and take disciplinary action, to represent the Fund in court and other proceedings, to chair the board of directors; more generally, he is the highest-ranking administrative organ of the Fund; that organ is not subordinate to any other organ of the entity and manages the IKA jointly with the board of directors (see judgments nos. 4 and 5/1991 of the Special Supreme Court). The post of First Deputy Director of the IKA was created by Royal Decree no. 11 of 15 May 1957, and that of Second Deputy Director by section 15 of Law no. 1573/1985. Neither organ, which the aforementioned provisions ... classify as deputy director, is a governor of the IKA so as to be subject to disqualification from election under Article 56 of the Constitution ... The fact that the deputy director acts as the governor’s replacement is not sufficient for him to be ascribed governor status, especially as by law, and in particular section 15 (2) of Law no. 1573/1985, it is the governor who appoints one of the deputy directors to act as his replacement and as that delegation [of powers] ... does not alter the nature of that organ even during periods when the replacement is effective ... In the instant case, during the period in issue, the governor of the IKA, by decisions ..., delegated to the [applicant] - the first deputy director - certain powers concerning questions within the remit of the IKA’s departments, but excluding matters relating to `the development of the Fund’s general strategy’. By a decision of 23 September 1991 the governor of the IKA appointed the [applicant] to act as his replacement for the period from 1 October to 31 March of each year. The first deputy director is appointed for three years and takes part in deliberations of the board of directors in a consultative capacity. It is apparent from the foregoing that, although the first deputy director of the IKA is not subject to the Civil Service Code ..., his relationship with the IKA is that of employee and more particularly of a dismissable salaried member of staff (Article 103 paras. 5 and 6 of the Constitution) of that public-law entity; consequently, he is subject to the disqualification from election provided for in Article 56 para. 3 ... ... The first deputy director of the IKA is a member of staff with nationwide responsibilities and for that reason he cannot be elected as a member of parliament in any constituency. ..." 23. In a dissenting opinion five members of the Special Supreme Court took the view that, like the governor, the deputy directors were the highest-ranking organs of the IKA, and not members of its staff, for five reasons: (a) a distinction was drawn in the IKA’s articles of association (Article 2) between the "management", which included the board of directors, the governors and the deputy directors, and the "departments", to which the IKA’s "members of staff" were attached; (b) the deputy directors were excluded from the provisions of the royal decree ... "on the application of the Civil Servants Code to the IKA’s members of staff" by Article 2 of that Code; (c) deputy directors were not subject to disciplinary measures, whereas being so subject was a decisive factor for classification as a civil servant or as a member of staff of a public-law entity; (d) deputy directors were not subordinate to the governor in the exercise of the powers he had delegated them, which they would necessarily have been if they were civil servants; and (e) they had a right to vote when chairing meetings of the IKA’s board of directors as the governor’s replacement. 24. From 11 September 1991 to 13 September 1993 Mr Giakoumatos occupied the post of Second Deputy Director of the Social Security Fund. 25. In the general election of 10 October 1993 the applicant stood as a candidate for the "Nea Dimokratia" Party in the second Athens constituency. As he obtained more than the required minimum number of votes for election, the Athens Court of First Instance declared in a decision no. 3131/1993 that he had been elected. 26. On 2 November 1993 another candidate for that constituency from the same party lodged an application with the Special Supreme Court for an order annulling Mr Giakoumatos’s election and for a declaration that he, as first substitute candidate for the second Athens constituency, had been elected a member of parliament. He relied on Article 56 para. 3 of the Constitution (see paragraph 29 below) and maintained in particular that the applicant’s election was a nullity as, before the election, he had held the post of Second Deputy Director of the IKA. 27. On 22 March 1995 the Special Supreme Court annulled (by six votes to five) Mr Giakoumatos’s election on the following grounds (judgment no. 9/1995): "... Under this Court’s case-law: (1) the governor of a public-law company or public undertaking - who, by virtue of Article 56 para. 1 of the Constitution, cannot be elected as a member of parliament if he has not resigned before becoming a candidate, but who is not disqualified under paragraph 3 of that Article - is the sole organ ... running that entity or undertaking, in other words having the exclusive right to decide ... questions relating to its management (see judgment no. 46/1990 of the Special Supreme Court). (2) What matters for the purposes of determining whether in law an organ is a `governor’ is not merely that the term `governor’ is used in the law or the articles of association, but also the powers which the organ is given by those provisions (see judgments nos. 46/1990, and 4 and 5/1991 of the Special Supreme Court). (3) Persons classified by the law as governors of public-law entities but who, by virtue of the provisions governing their occupational status, are nevertheless subordinate to the entity are subject to the disqualification provided for in paragraph 3 of Article 56 of the Constitution (see judgments nos. 4 and 5/1991 of the Special Supreme Court). The Social Security Fund is managed by its governor and a board of directors. The governor is the highest-ranking administrative organ of the IKA; he [is empowered] to decide any question not expressly reserved by law to the board of directors, to act as the head of all the Fund’s departments and to supervise them and review their actions, to take all appropriate measures, to recruit staff and take disciplinary action, to represent the Fund in court and other proceedings, to chair the board of directors; more generally, he is the highest-ranking administrative organ of the Fund; that organ is not subordinate to any other organ of the entity and manages the IKA jointly with the board of directors (see judgments nos. 4 and 5/1991 of the Special Supreme Court). The post of First Deputy Director of the IKA was created by Royal Decree no. 11 of 15 May 1957, and that of Second Deputy Director by section 15 of Law no. 1573/1985. Neither organ, which the aforementioned provisions ... classify as deputy director, is a governor of the IKA so as to be subject to disqualification from election under Article 56 of the Constitution ... The fact that the deputy director acts as the governor’s replacement is not sufficient for him to be ascribed governor status, especially as by law, and in particular section 15 (2) of Law no. 1573/1985, it is the governor who appoints one of the deputy directors to act as his replacement and as that delegation [of powers] ... does not alter the nature of that organ even during periods when the replacement is effective ... In the instant case, during the period in issue, the governor of the IKA, by decision ..., delegated to the [applicant] - the second deputy director - certain powers concerning questions within the remit of the IKA’s departments, but excluding matters relating to `the development of the Fund’s general strategy’. By the same decision the governor of the IKA appointed the [applicant] to act as his replacement for the period from 1 April to 30 September of each year. The second deputy director is appointed for three years and takes part in deliberations of the board of directors in a consultative capacity. It is apparent from the foregoing that, although the second deputy director of the IKA is not subject to the Civil Service Code ..., his relationship with the IKA is that of employee and he is a salaried member of staff - for the duration of his term in office - of a public-law entity; consequently, he is subject to the disqualification from election provided for in Article 56 para. 3 ... ..." 28. In a dissenting opinion five members of the Special Supreme Court took the view that, like the governor, the deputy directors were the highestranking organs of the IKA, and not members of its staff, for five reasons: (a) a distinction was drawn in the IKA’s articles of association (Article 2) between the "management", which included the board of directors, the governors and the deputy directors, and the "departments", to which the IKA’s "members of staff" were attached; (b) the deputy directors were excluded from the provisions of the royal decree ... "on the application of the Civil Servants Code to the IKA’s members of staff" by Article 2 of that Code; (c) deputy directors were not subject to disciplinary measures, whereas being so subject was a decisive factor for classification as a civil servant or as a member of staff of a public-law entity; (d) deputy directors were not subordinate to the governor in the exercise of the powers he had delegated them, which they would necessarily have been if they were civil servants; and (e) they had a right to vote when chairing meetings of the IKA’s board of directors as the governor’s replacement. 29. The relevant Articles of the Constitution provide: "Radio and television shall be subject to direct State control. Their aim shall be the objective, even-handed broadcasting of information and news and of literary and artistic works; quality of programmes must be maintained in all cases, in view of their social role and the country’s cultural development." "1. Salaried civil and public servants, officers of the armed forces and the security forces, employees of local authorities or other public-law entities, the mayors of municipalities, the governors or chairmen of boards of directors of public-law entities or public or municipal undertakings, notaries and land registrars may not stand as candidates or be elected as members of parliament if they have not resigned before becoming candidates. Resignation shall take effect as soon as it is submitted in writing. A member of the armed forces who resigns may not be reinstated. Civil and public servants may not be reinstated until a year has elapsed after their resignation. ... 3. Salaried civil servants, active members of the armed forces and officers of the security forces, members of staff of public-law entities in general, and the governors and members of staff of public or municipal undertakings or charitable bodies may not stand as candidates or be elected as members of parliament in any constituency where they have performed their duties for more than three months during the three years preceding the elections. The permanent secretaries of ministries during the last six months of the four-year parliamentary term shall be subject to the same restrictions. Candidates for election to the State Parliament and subordinate civil servants from the central departments of State shall not be subject to these restrictions. ..." "Where the validity of legislative elections is contested because of irregularities in the electoral process or a candidate’s failure to meet the requirements laid down by law, the elections shall be reviewed and any disputes arising from them heard by the Special Supreme Court referred to in Article 100." "1. Civil servants shall carry out the State’s will and serve the people; they shall abide by the Constitution and be devoted to their country. The qualifications and procedural requirements for their appointment shall be laid down by law. ... 5. The benefit of irremovability may be withdrawn by statute from senior civil servants on secondment, persons directly appointed as ambassadors, members of the private offices of the President of the Republic, the Prime Minister, ministers and ministers of State. ..." 30. In a judgment (no. 46/1990) of 12 December 1990 the Special Supreme Court held that the chairman of the board of directors of a public undertaking (the Greek Organisation for Small and Medium-Sized Businesses in the Craft Industry - "EOMMEX") could not be equated with the governor of such an undertaking and was not therefore subject to the disqualification from standing for election provided for in Article 56 para. 3 of the Constitution. In particular, the Special Supreme Court said: "... In using the word `governor’, the Constitution is referring to the single person, the organ of the undertaking that, under the provisions governing the undertaking and the general law, runs it, that is to say the organ that alone decides, under its powers as laid down by law or in the articles of association, questions concerning the management of the undertaking (such as achieving its objectives, managing staff and making agreements). What matters for the purposes of [Article 56 para. 3] is to know what the powers concerned are, not the description of the elected member as `governor’, as it cannot be ruled out that a person who is not so described in the articles of association of the undertaking ... may perform such duties even though his title is that of chairman of the board of directors. ... It is apparent from the foregoing that the person who acts as chairman of the board of directors of EOMMEX cannot be described as `governor’ in the aforementioned sense. The chairman (a) draws up the agenda; (b) receives reports on the functioning of the entity from its manager; (c) supervises the manager’s implementation of the board of directors’ resolutions; and (d) represents EOMMEX in court proceedings whilst being empowered to assign that task to other people ... He cannot, by virtue of these functions, which are the only ones the law allocates to him, be described as a `governor’ of the organisation, since none of them, not even the last one, corresponds to the concept of managerial act ... The position would be different had the manager’s functions been assigned to the chairman, since in that eventuality the chairman of the board of directors would actually be `managing’ the organisation. ..." 31. The Special Supreme Court has also held that the Secretary-General of the Greek Tourist Board ("EOT") and the Governor of the Social Security Fund ("IKA") were not caught by the disqualification in Article 56. With regard to the Secretary-General, it held (in judgment no. 15/1978) that he was not subordinate to EOT’s board of directors, to which he was in no way answerable, not even for disciplinary purposes; with regard to the Governor it held (in judgments nos. 4 and 5/1991): "It is apparent from paragraph 3 of Article 56 - in which the grounds for disqualification from standing for election, which must be strictly construed, are exhaustively set forth - read together with paragraph 1 of that Article that the governors of public-law entities, who are covered by the disabilities referred to in paragraph 1 ... are not covered by those in paragraph 3 as they are not included among the exhaustive list of persons subject to disqualification." | 0 |
train | 001-69426 | ENG | CZE | CHAMBER | 2,005 | CASE OF MILATOVÁ AND OTHERS v. THE CZECH REPUBLIC | 1 | Violation of Art. 6-1;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 | 7. The applicants were born in 1929, 1952, 1950 and 1949 respectively and live in the Nový Jičín region. 8. On 18 December 1991 the first applicant and her husband claimed restitution of their real property – a house with land – under the Land Ownership Act, alleging that in May 1985 they had been forced to sell it to the State, represented by the former Federal Ministry of National Defence (federální ministerstvo národní obrany), on terms that had been imposed on them. At the date of the entry into force of the Land Ownership Act, the property was managed by the Military Repair Enterprise (“the defendant”), the authority that was obliged to return the property to them, pursuant to section 5(1) and (2) of the Act. 9. The restitution claim was dealt with by the Nový Jičín Land Office (pozemkový úřad). 10. On 18 September 1992 the Nový Jičín Geodesy Centre (středisko geodézie) issued a survey plan in respect of the land. The plan was, however, found to be incomplete by the Land Office. 11. On 26 September 1993 the first applicant's husband died, and their three children joined the proceedings as his legal successors. In a medical report of 29 March 1994 it was stated that the premature death of the first applicant's husband was directly linked to an illness which had started after he had been forced to leave the house and to abandon his property. 12. On 22 February 1994 the Nový Jičín Land Registry (katastrální úřad) issued a new comparative plan of the land. Four other documents issued on 15 May, 3 June and 8 June 1994 were also included in the file. Two survey plans, issued at the request of the defendant and the Land Office, were produced on 11 November 1994 and 26 January 1995 respectively. 13. On 12 September 1995 the Land Office, having assessed the material in the file and having heard evidence from five witnesses who had been involved in the negotiations for the sale of the applicants' property, including Mr R., who was the defendant's lawyer, declared that the applicants were the owners of a major part of the property. It found that the contract of sale had been concluded under duress on strikingly unfavourable terms, within the meaning of section 6(1)(k) of the Land Ownership Act. 14. The Land Office established, among other things, that, contrary to the law then in force, the first applicant and her husband had not been considered parties to administrative proceedings which had resulted in the adoption of a decision on 20 March 1984 on the location of a construction site. It also established that the purchase price had been determined by an expert, in accordance with Decree no. 128/1984. 15. On 26 October 1995 the defendant, represented by Mr R., appealed against the administrative decision to the Ostrava Regional Court (krajský soud), which on 9 July 1996 carried out an inspection of the site. 16. In their observations on the defendant's appeal, the applicants challenged, inter alia, the statement by Mr R., who had legally represented the defendant in the past and was acting again as its lawyer in the restitution proceedings. 17. On 9 July 1996 a meeting took place at the site. 18. On 20 August 1996 the Regional Court quashed the decision and remitted the case to the Land Office for further consideration. It stated that the existence of grounds for restitution of the property under section 6(1)(k) of the Land Ownership Act had not been sufficiently established. 19. On 13 May 1997 the Land Office again decided, having taken into account further documentary evidence submitted by the first applicant and having re-examined two witnesses, that the applicants were the owners of the property. It examined in detail the circumstances of the sale of the property. It noted, inter alia, that the first applicant's husband had headed the defendant's personnel department and that the defendant had needed his property for the construction of a heating plant and, subsequently, a production unit. It further noted that the first applicant's husband had not been threatened with dismissal or the loss of his job in the event of his refusal to conclude the contract of sale. 20. Nevertheless, the Land Office held that the lengthy negotiations for the sale of the applicants' property or its expropriation, which had started in 1977, had seriously interfered with the lives of the first applicant and her husband, and that the circumstances in which these negotiations had been carried out had undoubtedly affected the health and mental state of the first applicant's husband. 21. The Land Office noted lastly that, according to the record of the negotiations dated 2 February 1977, the first applicant and her husband had agreed to the sale on condition that, inter alia, they would be provided with two three-room flats with garages, and that a one-room apartment in a day- care home would be placed at the disposal of the first applicant's mother. However, in addition to the price to be paid for the applicants' property – which could have been, but had not been, increased by 20% as allowed by Decree no. 128/1984 – the first applicant and her husband had been granted a two-room flat in 1983. Furthermore, a three-room apartment had been made available to their son. In addition, it was noted that the first applicant and her late husband had lived in the house for thirty-four years and that the benefit they had derived from the adjacent land, which they had used for agricultural purposes, had considerably improved the family's economic and social situation. 22. On 16 June 1997 the defendant appealed against that decision. On 1 August and 1 September 1997 respectively the applicants and their legal representative submitted their observations on the defendant's appeal. 23. On 10 April 1998 a bench of the Regional Court, after holding a hearing on 6 April 1998 and receiving the applicants' further comments concerning the case on 8 April 1998, quashed the administrative decision, finding that the Land Office had not proved to its satisfaction that the sale had been carried out under duress. The court considered that it was not necessary to examine whether the contract of sale had been concluded on terms unfavourable to the applicants. It held that, although the Land Office had reached its decision on the basis of the fully established and accurate facts of the case, it did not share its legal opinion. 24. The court noted that from the witnesses' statements and from the documentary evidence which it had supplemented by means of the report of 12 December 1985 on the professional activities of the first applicant's husband, the first proposal for the purchase of the applicants' property had been made in 1977 at a time when the defendant had needed part of the land for the construction of a heating plant. The court observed that on 2 February 1977 the owners had provisionally agreed to the sale and had imposed certain conditions which had to be satisfied before the construction work could be started. Moreover, they had stipulated that the sale had to be completed before the end of 1978. At that time, both the former owners were employed; the first applicant's husband was employed by the defendant in a senior post and was politically active. Their economic and social situation was such that it did not create a basis for a state of duress. Moreover, the negotiations carried out with a view to concluding the contract of sale had lasted eight years as a result of the owners' continuous disagreement as to the fulfilment of the conditions they had imposed and the purchase price, which had finally been increased by 86,000 Czech korunas (CZK) (2,867 euros (EUR)). 25. The court also noted that the purchaser had proved that it had made efforts to meet the owners' requirements when, for instance, it had urged that a telephone line be speedily installed in one of the new flats, had paid the telephone connection fees and had assigned the flats to them even before the contract of sale had been signed. The purchaser had only come up with the suggestion of expropriating the applicants' property after several years of unsuccessful negotiations. 26. Finally, the court did not find any causal link between the contract concluded in 1985 and the health problems of the first applicant's husband, which had begun in 1986 (a year after the contract had been signed), and his subsequent death in 1993. 27. The case was remitted to the Land Office, which issued a fresh decision on 15 June 1998. In accordance with the opinion of the Regional Court, by which it was bound by virtue of Article 250 (r) of the Code of Civil Procedure, the Land Office ruled that the applicants were not the owners of the property because the contract of sale had not been concluded under duress, within the meaning of section 6(1)(k) of the Land Ownership Act. The Land Office considered that it was therefore unnecessary to examine whether the contract of sale had been concluded on strikingly unfavourable terms within the meaning of the same provision. 28. On 10 December 1998 that decision was upheld by the Regional Court. 29. On 15 February 1999 the applicants lodged a constitutional appeal (ústavní stížnost) against the Regional Court's judgments of 10 April and 10 December 1998 and the Land Office's decision of 15 June 1998. The applicants alleged a violation of Articles 11 (protection of property rights) and 36 § 1 (right to judicial protection) of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod). They challenged the assessment of the evidence and the Regional Court's incorrect interpretation of the notion of “duress”. They also criticised the failure of the Regional Court to assess properly the notion of “strikingly unfavourable terms” in section 6(1)(k) of the Land Ownership Act. 30. On 3 March 1999 a judge rapporteur (soudce zpravodaj) invited the Regional Court and the parties joined to the proceedings – the Land Office, the Military Repair Enterprise and the Land Fund (Pozemkový fond) – to submit written observations on the applicants' constitutional appeal. 31. In letters of 11 and 25 March 1999 respectively, the Land Fund and the Land Office waived their status as joined parties. 32. On 7 April 1999 the Military Repair Enterprise submitted its written observations, expressing the view that the applicants' constitutional appeal should be dismissed. 33. In its written observations of 9 April 1999, the Regional Court recapitulated the case-law to the effect that the Constitutional Court was not superior to the general courts and that it was not entitled to interfere with their decisions unless and in so far as they might have infringed rights and freedoms protected by the Constitution. It further referred to the reasoning in its judgment of 10 December 1998, and noted that the constitutional appeal had been lodged outside the sixty-day time-limit in so far as it was directed against the Regional Court's judgment of 10 April 1998. 34. On 16 April 1999 the judge rapporteur asked the Regional Court and the Land Office to forward their case files, which they did. 35. On 10 May 2000 the Constitutional Court (Ústavní soud), without holding a public hearing, declared that the constitutional appeal had been lodged outside the sixty-day time-limit in so far as it was directed against the Regional Court's judgment of 10 April 1998 and was unsubstantiated in so far as it concerned the same court's judgment of 10 December 1998. The Constitutional Court included the written observations of the defendant and the Regional Court on the applicants' constitutional appeal in its summary of the facts. It stated, inter alianection that it could not examine issues falling within the jurisdiction of the ordinary courts. The court, recapitulating briefly the reasoning of the national authorities involved in the case, did not find unconstitutional the Regional Court's conclusion that the hypothesis that the applicants had been under duress during the contractual negotiations was excluded by the fact that they had imposed certain conditions on which they were willing to conclude the contract with the State, and that someone acting under duress would have concluded the contract on any terms. 36. According to the Government, it appears from the Constitutional Court's case file that on 27 June 2000 the first applicant inspected the documents included in the file and was provided with copies of the written observations submitted by the Regional Court and the Military Repair Enterprise. 37. Section 4 of the Land Ownership Act provides for the restitution of real property to individuals from whom it was transferred to State ownership between 25 February 1948 and 1 January 1990 by means specified in section 6. Where such persons are no longer alive, their successors are entitled to restitution under the conditions specified in subsection (2) of section 4. 38. Section 6(1)(k) provides for the restitution of immovable property which was transferred to the State or another legal person on the basis of a contract concluded under duress, on strikingly unfavourable terms. 39. Under section 28(1) and (2) of the Constitutional Court Act, the parties to proceedings are the appellant and those specified by the Act. Persons to whom the Act grants the status of joined parties may waive that status. They have the same rights and duties as other parties to the proceedings. 40. Section 32 provides that parties and joined parties are entitled to give their views on the constitutional appeal, make submissions to the Constitutional Court, examine the case file (with the exception of voting records), take excerpts from and copies of it, take part in any oral hearing in the matter, put forward evidence, and be present during any taking of evidence. 41. Under section 40(2), if the request concerns a matter within the jurisdiction of a division, it is assigned to a judge rapporteur who is a permanent member of that division. 42. Under section 42(4), the judge rapporteur must, without delay, send the constitutional appeal to the other parties and, where appropriate, to the joined parties as well, with a request to submit their written observations on the appeal within time-limits fixed by him or her, or as provided by the Act. 43. Section 43(2)(a) provides that, without holding an oral hearing and without the parties being present, the division may dismiss the appeal if it is manifestly ill-founded. 44. Section 49(1) provides that any means which may serve to establish the facts of the case may be used in evidence, in particular the testimony of witnesses, expert opinions, reports and statements of State authorities and legal persons, documents, results of inquiries and the testimony of parties. | 1 |
train | 001-57860 | ENG | GRC | CHAMBER | 1,993 | CASE OF STAMOULAKATOS v. GREECE (No. 1) | 3 | Preliminary objection allowed (ratione temporis);Preliminary objection allowed (non-exhaustion of domestic remedies) | C. Russo;N. Valticos;B. Walsh | 6. Mr Nicolas Stamoulakatos, a Greek national, is a retired journalist. He currently lives in London. Before the material time, he had been convicted by the Salonika Criminal Court of forgery, uttering and fraud, in 1974, and by the Agrinion Criminal Court for insulting the authorities, in 1979. Furthermore, in 1978 and 1979 eight separate sets of proceedings were brought against him in the Athens Criminal Court for insulting a public officer, fraud, defamation, misappropriation, forgery, uttering and causing bodily harm. All these proceedings took place in the applicant’s absence; three sets of them are in issue before the Court. 7. On 5 April 1979 in a telegram sent to several public figures, including the Greek President and various ministers, and to the press, the applicant described certain members of the public prosecutor’s office and the Indictment Division of the Court of Cassation as "collaborators of the colonels’ regime", "chief torturers", "admirers of Adolf Hitler", "perjurers", "agents of death", "fabricators of incriminating evidence against democrats", "justicemongers" and "trainers of fascists". The telegram, which was signed by Mr Stamoulakatos, also gave his professional address at 59 Panepistimiou Street, Athens. 8. An investigating judge at the Athens Criminal Court summoned Mr Stamoulakatos for questioning in connection with an investigation he had started in respect of him. The court bailiff took the summons to 59 Panepistimiou Street and as he did not find the applicant there, gave it to Mr Masson, a lawyer who had his office at the same address. The applicant confirmed by telegram that he had been informed of the summons, but he failed to appear. 9. On 15 May 1979 a police officer served on him a summons to appear before the Criminal Court to answer a charge of insulting a public officer. Since he was unable to serve it on the applicant in person, he gave the document to Mr Vassilakis, one of Mr Stamoulakatos’s colleagues (pursuant to Article 155 of the Code of Criminal Procedure); the applicant did not appear at the hearing on 25 May 1979. 10. After ruling that the defendant had been properly summoned, the Criminal Court decided to hear the case and to give judgment "as if [the defendant] were present" (under Article 340 para. 3 of the Code of Criminal Procedure). After two prosecution witnesses and the prosecutor had been heard, Mr Stamoulakatos was convicted and sentenced to two years’ imprisonment. The judgment (no. 16438/1979) was filed at Athens Town Hall on 12 November 1979, as the authorities regarded the applicant as having no known address (Article 156 para. 2 of the Code of Criminal Procedure). 11. On 28 August 1979 an investigating judge at the Athens Criminal Court decided to interview the applicant about a complaint lodged by a Mrs Kritikou. The summons was taken to 59 Panepistimiou Street and again given to Mr Masson; Mr Stamoulakatos failed to appear. 12. On 12 September 1979 Mrs Papargyriou, an employee of the applicant’s, informed the investigating judge that Mr Stamoulakatos had been in New York since 10 May 1979 and gave him his address. On 15 February 1980 the public prosecutor’s office served a summons to appear before the Criminal Court at the applicant’s professional address in Athens; it was handed over to Mrs Papargyriou (pursuant to Article 155 previously cited). 13. On 3 March 1980 the Criminal Court decided (under Article 340 para. 3 previously cited) to proceed with the trial notwithstanding the absence of the defendant, who had, it ruled, been properly summoned. It imposed a sentence of eight months’ imprisonment, which it converted into a fine. The judgment (no. 8439/1980) was lodged on 19 September 1980 at Athens Town Hall on the ground that neither the prosecuting authority nor the authority responsible for effecting service knew Mr Stamoulakatos’s address. 14. Mrs Kritikou having made a second complaint, the applicant was charged with forgery and uttering in that he had altered the wording of a cheque he had received from her and had attempted to cash it. On 13 October 1980 a police officer delivered the summons to appear before the Criminal Court to 59 Panepistimiou Street. When he found that the applicant was "unknown" at that address, had not communicated any other to the public prosecutor’s office and had no relatives on whom service could be effected, he lodged the summons at Athens Town Hall (pursuant to Article 156 para. 2 previously cited). 15. The Criminal Court proceeded despite Mr Stamoulakatos’s absence, and on 11 December 1980 he was convicted and given an immediate custodial sentence of two years. The judgment (no. 42211/1980) was delivered to Athens Town Hall (pursuant to Article 156 para. 2 previously cited). 16. Mr Stamoulakatos states that he left Greece in May 1979 but he does not give the exact date of his departure. He went to New York and then London, where he worked until 1985 as a journalist. Following two convictions by Acton Crown Court, he went to Cyprus and then to Belgium, where he was arrested on 19 September 1985 and extradited to Greece on 23 December. He was imprisoned at Ioannina and later at Piraeus and was conditionally released on 7 April 1987. While he was serving his sentence, he appealed against the three judgments of the Athens Criminal Court (see paragraphs 10, 13 and 15 above). He complained that he had not been duly summoned and that he had therefore been unable to defend himself against the charges against him; he also complained that service of the judgments had been irregular. 17. On 21 July 1986 Mr Stamoulakatos appealed to the Athens Court of Appeal against judgment no. 16438/1979 (see paragraph 10 above). 18. In a judgment of 29 October 1986 the Court of Appeal declared the appeal inadmissible for the following reasons: "... The judgment was served on him on 12 November 1979, as appears from the record of service made by the bailiff T. Vassilas. He appealed on 21 July 1986, after the statutory time-limit, without indicating in his pleadings any valid reason for appealing out of time; The evidence discloses no circumstance that would justify a late appeal, and the court is not convinced that the defendant was prevented by force majeure from lodging an appeal in time. The appeal must consequently be declared inadmissible since, irrespective of the fact that the defendant has not stated what his known address was at the time of service or why he did not appeal in time, it has not been proved at all that the impugned service was void. It has been established, on the contrary, that it was lawful, as the prosecuting authorities did not know where the defendant lived. The allegation of forgery in respect of the record of service is wholly unfounded and ... an investigation of the point would clearly be devoid of purpose since, at all events, the defendant was aware of his conviction from the end of 1985, when he was extradited to Greece. ..." 19. The applicant lodged an appeal on points of law, which the Court of Cassation dismissed on 13 February 1987, holding that the Court of Appeal had provided sufficient reasons for its decision. 20. On 2 January 1990 Mr Stamoulakatos made an application for a retrial (aitissi epanalipseos tis diadikassias) under Article 525 of the Code of Criminal Procedure to the Indictment Division of the Athens Court of Appeal. He relied on Article 4 para. 2 of Protocol No. 7 (P7-4-2) to the Convention and asked for judgment no. 16438/1979 (see paragraph 10 above) to be set aside. The Indictment Division dismissed the application on 14 February 1991. It noted that the impugned summons had been taken to Mr Stamoulakatos’s professional address, which was known to the authorities at the time, and handed to one of his colleagues. The trial in absentia which followed was therefore in no way contrary to Article 6 (art. 6) of the European Convention or to the European Court’s judgment of 12 February 1985 in the Colozza v. Italy case (Series A no. 89). The applicant appealed on points of law against that decision on 14 May 1991, but the Court of Cassation dismissed the appeal on 23 December 1991 for failure to comply with the 30-day time-limit laid down in Article 473 para. 1 of the Code of Criminal Procedure. 21. On 16 July 1986 the Athens Court of Appeal declared an appeal by the applicant against judgment no. 8439/1980 (see paragraph 13 above) inadmissible. It said, inter alia: "... No evidence has been adduced that justifies appealing out of time and the Court is not persuaded that the defendant was prevented by force majeure from appealing before the statutory time-limit. More particularly, he alleged that on 19 September 1980 his address was not unknown and that service of the judgment appealed against, effected according to the rules applicable to persons whose address is unknown, was not valid; in the alternative, he submitted that it was not valid because it was lodged at Athens Town Hall and not at the town hall of Paleo Faliro. As to this contention, the court notes the following: from the record of service of 19 September 1980 it appears that the officer responsible for service went to the defendant’s last known address, namely 59 Panepistimiou Street, Athens, and that finding neither the defendant nor his wife nor any of his relatives, he lodged the document to be served with the mayor of Athens, who displayed it on the very same day in the appropriate place ... . It should be emphasised that the fact that the defendant formerly lived at 59 Panepistimiou Street ... had been certified at the investigation stage and that this was why - as was disclosed in the record of service of the summons of 28 August 1979 to appear before the investigating judge - service was effected at that address and on the person who shared that address with the defendant. It should furthermore be noted that the offices of the newspaper International Free Observer were at that address, its headquarters - according to its issue of 16 September 1980 - being in New York, where the defendant was its correspondent ... . On 17 June 1980 [the defendant], in a complaint to the Athens public prosecutor’s office, confirmed that he lived in New York (without giving any address) and that he was temporarily living in London, at 29 Summer Place, London SW7, England. Two days before the impugned service ..., i.e. on 17 September 1980, the European Commission of Human Rights had drawn up a document giving the defendant’s address (evidently supplied by him) as 41 Old Brompton Road, GB - London SW7. No other evidence was adduced concerning the defendant’s permanent or temporary address ... during the period from 3 March 1980 ... to 19 September 1980. Evidence was, on the other hand, brought from the period after [this latter date] (such as the documents from the Consulate-General of Greece in London ..., which give the defendant’s address as 10 Townsend Way, Northwood, Middlesex HA 1TF, London, and an envelope from the European Commission of Human Rights date-stamped 7 March 1986 and addressed to the applicant at 1-2, Poseidonos Avenue, Paleo Faliro); however, since this evidence refers to a period well after 19 September 1980, it does not suffice to establish that the defendant had a known address, in particular one known to the authorities responsible for service and for the prosecution. All the aforementioned evidence shows ... that on 19 September 1980 the defendant’s address really was unknown: he had left 59 Panepistimiou Street in Athens, his known address until then, and was travelling between his (unknown) address in New York and his temporary addresses in London, the nearest of which in time to 19 September 1980 - 41 Old Brompton Road, GB - London SW7 - was known neither to the Greek prosecuting authority nor to the authority responsible for service. The defendant’s submission must therefore be rejected as being ill-founded. Since nothing proves that the appeal was brought out of time owing to force majeure (which the notice of appeal does not even claim) ..., the appeal must be declared inadmissible. ..." 22. Mr Stamoulakatos brought an appeal on points of law, which the Court of Cassation dismissed on 4 November 1986. Having been summoned to appear while he was serving his sentence, he did not attend. 23. On 2 January 1990 he made an application for a retrial to the Indictment Division of the Athens Court of Appeal. He relied on Article 4 para. 2 of Protocol No. 7 (P7-4-2) to the Convention and asked for judgment no. 8439/1980 (see paragraph 13 above) to be set aside. On 14 February 1991 the Indictment Division dismissed the application on the ground that the file disclosed no procedural defect and that the trial in absentia had not in any way been contrary to Article 6 (art. 6) of the Convention or to the Colozza judgment. It noted that the summons to appear before the Criminal Court, which had been delivered to the address at which the applicant submitted that it should have been served on him at the time, had been given to Mrs Papargyriou pursuant to Article 155 para. 1 of the Code of Criminal Procedure. Furthermore, Greek national law did not oblige the court to assign counsel officially to defend a person accused of a criminal offence. Lastly, Mr Stamoulakatos had not pleaded any impediment such as would have justified adjourning the hearing (Article 349 of the Code of Criminal Procedure). On 14 May 1991 the applicant appealed on points of law against that judgment, but on 23 December 1991 the Court of Cassation dismissed the appeal for failure to comply with the 30-day time-limit laid down in Article 473 para. 1 of the Code of Criminal Procedure. 24. On 24 December 1985 the applicant lodged an appeal against judgment no. 42211/1980 (see paragraph 15 above) and made an application (under Article 430 of the Code of Criminal Procedure) to have the judgment set aside. He withdrew the appeal on 27 January 1986. On 19 March 1986 the Athens Criminal Court ruled that the application was admissible but dismissed it as the applicant had not adduced any evidence to prove that he had a known address at the material time. 25. On 3 June 1987 the Court of Cassation held that an appeal on points of law brought by the applicant was barred by Article 431 para. 3 of the Code of Criminal Procedure. 26. On 18 December 1989 Mr Stamoulakatos applied to the Indictment Division of the Athens Court of Appeal for a retrial in respect of judgment no. 42211/1980. On 14 February 1991, after considering the file forwarded by the Criminal Court, the Indictment Division noted that the applicant had properly been summoned as a person whose address was unknown; that it had proved impossible to reach him at the address at which, by his own account, he was to be found; that he had not notified the authorities of any change of address and the file did not disclose the existence of any relatives who could accept service; and that after leaving his known address, he travelled from place to place, which made it impossible to pinpoint his whereabouts. Accordingly, the proceedings ending in his conviction were not in any way defective and the trial in absentia was contrary neither to Article 6 (art. 6) of the Convention nor to the Colozza judgment. As to the new facts relied on by Mr Stamoulakatos in support of his application for a retrial, the Indictment Division concluded that, far from undermining the lower court’s judgment, they confirmed its soundness. On 14 May 1991 Mr Stamoulakatos appealed on points of law against that judgment, but the appeal was dismissed by the Court of Cassation on 23 December 1991 for failure to comply with the 30-day time-limit laid down in Article 473 para. 1 of the Code of Criminal Procedure. | 0 |
train | 001-108994 | ENG | BIH | CHAMBER | 2,012 | CASE OF AL HAMDANI v. BOSNIA AND HERZEGOVINA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) | Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva | 6. It would appear from the case file that the salient fact in the domestic proceedings was the applicant’s association with the mujahedin in Bosnia and Herzegovina (“BH”). The term mujahedin has been widely used to refer to foreigners – mainly from the Arab world – who came to BH during the war in support of Bosnian Muslims. However, the same term has been used to describe local Muslims who joined the foreign mujahedin, endorsed their ideology and adjusted to their way of dressing. The phenomenon has been explained by the International Criminal Tribunal for the former Yugoslavia (“ICTY”) in Hadžihasanović and Kubura, IT-01-47-T, §§ 41118, 15 March 2006, and Delić, IT-04-83-T, §§ 166-199, 15 September 2008, as follows. 7. The first foreign mujahedin arrived in BH in the summer of 1992 via Croatia and with the assistance of the Croatian authorities. It would appear that their arrival was welcomed by the BH authorities. While the presence of at least some foreign mujahedin seems to have been motivated by a desire to provide humanitarian assistance to the Bosnian Muslim population, most of them actively supported the military struggle against the Bosnian Muslims’ adversaries, ready to conduct a jihad or “holy war”. As stated by Ali Hamad, an ICTY witness of Bahraini origin who came to BH in 1992, some of the mujahedin were members of al-Qaeda who had the aim of “creating a base that would allow them to increase their area of operations”. Some of them also came to perform missionary work. 8. Upon arrival, foreign mujahedin settled in various locations and did not form a homogeneous entity. Towards the end of 1992, Bosnian Muslims started to join the foreign mujahedin. The locals were provided with military training and participated in combat action. They were also given religious instruction. A number of groups comprising foreign and/or local mujahedin were active. Notwithstanding instances of participation in combat alongside each other, it appears that these groups were anxious to maintain their distinct identities. There were religious and ideological differences between them, which resulted in occasional violent clashes. 9. On 13 August 1993 the foreign mujahedin were organised into a unit within the local ARBH (Army of the Republic of Bosnia and Herzegovina) forces. The unit, named “El Mujahedin”, was based in Zenica. Following its establishment, the unit significantly grew in size. By 1995, it consisted of around 1,000 fighters. Although the original idea had been to replenish the unit with foreign mujahedin only, locals soon outnumbered its foreign members. The factors that motivated locals to join it included: its stricter regimental discipline; a better degree of organisation; superior equipment and combat morale; its religious dedication; and material benefits. The unit received funds and assistance from many organisations and individuals from the Islamic world, including the Al-Haramain Islamic Foundation and the Benevolence International Foundation. The Islamic Cultural Institute in Milan provided logistical support. 10. El Mujahedin had a number of features setting it apart from regular ARBH units. It was led by foreign mujahedin who were not appointed by the ARBH. At the top of the hierarchy was an emir, who has been described as the highest-ranking person within the unit. Abu Haris, a Libyan, was its first emir. In December 1993, he was succeeded by an Algerian, Abu Maali, who remained in that position until the end of the war. A different person from the emir, the military commander, headed the military council and was responsible for the conduct of combat operations. In 1993, this post was held by an Egyptian named Vahidin or Wahiuddin. After his death in October 1993, another Egyptian, Muatez, succeeded him. Muatez was killed in September 1995. The unit had a religious council, the shura, which was its supreme decision-making body. It consisted of approximately twenty prominent members of the unit, mostly of Arab origin. The emir was elected by and answerable to the shura. At the end of 1994, Sheikh Shaban joined the leadership of the unit. He was the head of the Islamic Cultural Institute in Milan and known to be an extremist who was well-connected with Islamic fundamentalists all over the world (the ICTY relied in that regard on a judgment of the Milan Criminal Court of 1 January 2006). He facilitated the recruitment of volunteers from Arab countries for the struggle in BH. Although Sheikh Shaban did not hold an official function within the unit, its members considered him to be the political authority and even the real emir within the unit. He could issue binding rulings (fatwa) and his authority was never challenged by the shura. Sheikh Shaban was killed, together with Abu Haris, at an HVO (Croatian Defence Council) military checkpoint on 14 December 1995. 11. The General Framework Agreement for Peace, which ended the war in BH, was initialled at a military base near Dayton, the United States, on 21 November 1995 and signed in Paris, France, on 14 December 1995. Article III of Annex 1A to that Agreement called for the withdrawal of all foreign forces, including individual advisors, freedom fighters, trainers, volunteers, and personnel from neighbouring and other States, irrespective of whether they were legally and militarily subordinated to any of the local forces. In view of that, on 14 December 1995 the ARBH disbanded El Mujahedin and ordered its foreign members to leave the country by 10 January 1996. Despite initial resistance, the shura accepted that the unit be disbanded. It would appear that awards, such as the “Golden Lily”, were given to its members as an incentive for foreigners to leave. Members of the unit were also provided with ARBH certificates of service, which assisted its foreign members to acquire BH citizenship. Whereas most of the unit’s foreign members left BH, some of them (such as the present applicant) applied for BH citizenship and continue to live in BH to date. 12. After the attacks of 11 September 2001, the official attitude towards foreign mujahedin changed dramatically. Many lost their BH citizenship or were deported from BH after being declared a threat to national security. 13. The applicant was born in Iraq in 1960. 14. He went to Bosnia and Herzegovina to pursue his studies in 1979. He first studied in Sarajevo and in 1983 moved to Zenica. In 1987 the applicant married a citizen of Bosnia and Herzegovina. They have five children together. 15. During the 1992-95 war in Bosnia and Herzegovina, the applicant joined El Mujahedin unit mentioned above. 16. The applicant acquired citizenship of Bosnia and Herzegovina (“BH citizenship”) on three occasions: on 23 March 1992, on 12 January 1995 (under the name of Awad Fadhil) and again on 20 February 1995. He has visited Iraq twice since the 1992-95 war, in 2003 and 2004. The applicant possesses an Iraqi passport, issued by the Iraqi Embassy in Vienna on 23 January 2007, which was valid until 22 January 2011. 17. On 30 August 2006 the competent administrative authorities established that the applicant’s BH citizenship had been acquired by means of fraudulent conduct, false information and concealment of some relevant facts (notably, the fact that he already possessed BH citizenship when he lodged the second application for naturalisation and that he had used documents issued in two different names) and quashed the decisions of 23 March 1992 and 20 February 1995. On 12 January 2007 the Court of Bosnia and Herzegovina (“the State Court”) quashed the part of the decision of 30 August 2006 concerning the decision of 20 February 1995 and remitted the case for retrial. 18. Meanwhile, on 6 June 2007 the applicant filed a request for a temporary residence permit. On 28 September 2007 the Aliens Service suspended those proceedings pending the final resolution of the applicant’s citizenship status. 19. On 27 November 2008 the competent administrative authorities quashed the decision of 20 February 1995 again. On 3 December 2009 the State Court upheld that decision. On 1 February 2010 the applicant appealed to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”). It appears that those proceedings are still pending. This does not, however, prevent the applicant’s potential deportation, as he became an unlawful resident from the moment of the notification of the decision of 27 November 2008. The applicant, on the other hand, claimed that he still possesses BH citizenship based on a decision of 12 January 1995 (see paragraph 16 above). That decision was, however, issued in the name of another person (Awad Fadhil) and cannot, therefore, confer any rights on the applicant, as was confirmed in the Government’s observations on the admissibility and merits of the case. 20. On 23 June 2009 the Aliens Service established that the applicant was a threat to national security and placed him in Istočno Sarajevo Immigration Centre. It relied on secret intelligence reports. On 30 June 2009 the State Court, having assessed the secret evidence, upheld that decision. On 17 September 2009 the Constitutional Court dismissed the applicant’s appeal as manifestly ill-founded. The initial detention period had been extended on a monthly basis until April 2011 when the applicant was released (see paragraph 26 below). 21. After the decision revoking the applicant’s citizenship of 27 November 2008 had become final, the proceedings before the Aliens Service concerning a request for a temporary residence permit were resumed at the applicant’s request (see paragraph 18 above). On 8 January 2010 the Aliens Service refused his request and granted him a period for voluntary departure of fifteen days. On 2 March 2010 the Ministry of Security upheld that decision. On 1 June 2010 the State Court upheld the decision of 2 March 2010. On 21 April 2011 the applicant appealed to the Constitutional Court. It would appear that those proceedings are still pending. 22. On 17 February 2010 the applicant claimed asylum. He maintained that Iraqi citizens who had joined the foreign mujahedin during the war in Bosnia and Herzegovina were treated in Iraq as suspected terrorists and were subjected to ill-treatment. He added that his friend had informed him that his name was on a “black list” and that his family was subjected to threats and ill-treatment due to their affiliation with the Ba’ath Party. The applicant also claimed that he would be persecuted by Shia Muslims and Kurds upon his return to Iraq (Kirkuk) because he is a Sunni Muslim. 23. On 23 February 2010 the Asylum Service interviewed the applicant in the presence of his lawyer and a UNHCR representative. It also had regard to reports of the US Department of State, the UNHCR, the International Organization for Migration and the UK Border Agency on Iraq. At the interview the applicant stated that he has visited Iraq twice since the change of regime, in 2003 and 2004. During both visits he stayed with his family in Kirkuk. In 2003 he went to visit his sick father and stayed for one and a half months. He took care of his father and accompanied him to the hospital on several occasions. In 2004 the applicant went to Kirkuk to hold a commemoration for his father and remained there for the whole month of Ramadan and the Bayram holiday. However, he claimed that during these visits he had been forced to hide in fear of the Kurdish authorities as his friend had told him that he was under surveillance and that his name was on a “black list”. The applicant further claimed that in his subsequent contact with his family, after he had returned to Bosnia and Herzegovina, they had told him that the Kurds had searched their home looking for him. On 4 March 2010 the Asylum Service refused the asylum claim and granted him a period for voluntary departure of fifteen days. The Asylum Service held that the applicant’s statements were contradictory and that he had not provided any evidence in support of his claims. 24. On 26 May 2010 the State Court quashed that decision and remitted the case for a retrial stating that the Asylum Service should make a more thorough assessment of the applicant’s claim. On 21 June 2010 the Asylum Service refused the applicant’s request for asylum and granted him a period for voluntary departure of fifteen days. On 22 September 2010 the Court of Bosnia and Herzegovina upheld that decision. On 19 November 2010 the applicant appealed to the Constitutional Court against that decision. On 9 February 2011 the Constitutional Court dismissed the applicant’s appeal as manifestly ill-founded. It held that, although the general situation in Iraq was insecure and problematic, the applicant had not proved that there was a real risk of treatment contrary to Article 3 of the Convention on account of his personal circumstances. 25. On 8 November 2010 the Aliens Service issued a deportation order accompanied with an entry ban for a period of five years. It stated, however, that removal directions would not be issued for as long as the Court’s interim measure was in force. On 3 December 2010 the Ministry of Security upheld that decision. On 16 March 2011 the State Court also upheld the deportation order. An appeal is pending before the Constitutional Court. 26. On 5 April 2011 the State Court ordered the applicant’s immediate release from the immigration centre, quashing the last extension order (of 21 March 2011) as unlawful. It held that the relevant authorities had not provided any new evidence as a basis for the applicant’s continued detention. Furthermore, it prescribed the lesser measure of surveillance limiting the applicant’s freedom of movement to his home address in Zenica with the obligation to report daily to the Aliens Service field office in Zenica. It also ordered the confiscation of the applicant’s Iraqi passport and other personal documents he might use in an attempt to leave the country. The applicant was released from detention on 7 April 2011. 27. The Secret Data Act 2005 (Zakon o zaštiti tajnih podataka, Official Gazette of Bosnia and Herzegovina nos. 54/05 and 12/09) entered into force on 17 August 2005. Section 5 of that Act provides that the judges of the State Court and the Constitutional Court have access to all levels of secret data without any formalities (such as security clearance or special authorisation), if such access is required for exercising their duties. 28. The Aliens Act 2008 (Zakon o kretanju i boravku stranaca i azilu, Official Gazette of Bosnia and Herzegovina no. 36/08) entered into force on 14 May 2008. Section 105 thereof provides that a refugee is an alien who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside his or her country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside the country of former habitual residence, is unable or, owing to such fear, is unwilling to return to it. The same provision defines a person eligible for subsidiary protection as an alien who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that he or she would face a real risk of the death penalty or execution, torture or inhuman or degrading treatment or punishment in the country of origin or in the country of habitual residence, or there is a serious, individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict, and who is unable, or, owing to fear, is unwilling to avail himself or herself of the protection of that country. The principle of non-refoulement is incorporated in section 91 of the Act, which reads as follows: “An alien shall not be returned or expelled in any manner whatsoever to the frontiers of territories where his or her life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion, regardless of whether or not the person concerned has been granted international protection. The prohibition of return or expulsion (non-refoulement) shall also apply to persons in respect of whom there is a reasonable suspicion for believing that they would be in danger of being subjected to torture or other inhuman or degrading treatment or punishment. An alien may not be returned or expelled to a country where he or she is not protected from being sent to such a territory either.” Pursuant to section 118 of the Act, an alien whose claim for international protection has been refused will nevertheless be granted leave to remain on humanitarian grounds, if his or her removal would breach the principle of non-refoulement. However, the alien concerned must be placed in detention if it has been established that he or she constitutes a threat to public order or national security. 29. Under section 88(1)(h) of the Aliens Act 2008 the deportation of an alien can be ordered if it has been established that he or she constitutes a threat to public order or national security. An appeal against a deportation order suspends deportation (section 87 of that Act). A claim for international protection and an application for judicial review against a refusal of such a claim equally suspend deportation (sections 92, 109(9) and 117 of that Act). Pursuant to section 93 of that Act, once an alien has become expellable, removal directions are issued within seven days. An appeal against removal directions does not suspend deportation. 30. In accordance with section 99(2)(b) of the 2008 Act, an alien must be detained if it has been established that he or she constitutes a threat to public order or national security, irrespective of whether a deportation order has been issued. Once a deportation order has been issued, the alien concerned may also be detained under section 99(1)(a) of that Act. An initial detention order is valid for 30 days (section 100(3) of that Act). It may be extended any number of times for up to 30 days at a time. However, the total period of detention may only exceed 180 days in exceptional circumstances, such as if an alien prevents his or her removal or if it is impossible to remove an alien within 180 days for other reasons (see section 102 of that Act). 31. The General Framework Agreement for Peace, which put an end to the 1992-95 war in Bosnia and Herzegovina, was initialled at a military base near Dayton, the United States, on 21 November 1995 and signed in Paris, France, on 14 December 1995. It entered into force on the latter date. 32. Pursuant to Article III of Annex 1A to that Agreement, all foreign forces, including individual advisors, freedom fighters, trainers, volunteers, and personnel from neighbouring and other States, irrespective of whether they were legally and militarily subordinated to any of the local forces, had to be withdrawn from Bosnia and Herzegovina by 13 January 1996. 33. The relevant part of the 2010 Human Rights Report on Iraq, published by the Human Rights Office of the United Nations Assistance Mission in Iraq (UNAMI), reads as follows: “The human rights situation in Iraq remains fragile as the country continues to emerge from years of dictatorship, warfare and violence. While the government continues to take some measures aimed at improving the protection and provision of human rights and its citizens, given the challenges that the country faces, progress is slow. Iraq continues to transition from a conflict to post-conflict country which faces enormous development challenges that the Government and people of Iraq must now address. Widespread poverty, economic stagnation, lack of opportunities, environmental degradation and an absence of basic services constitute “silent” human rights violations that affect large sectors of the population. Other factors that affected the human rights environment in 2010 included the inconclusive results of the general elections leading to a long process of government formation that was not concluded until December 2010. It is believed that this fuelled instability, but also led to a degree of inactivity in relation to implementing reforms and other measures aimed at ensuring the respect, protection and provision of human rights to the Iraqi population. Also affecting security was the withdrawal of all USF-I combat troops during the year which was completed in August 2010. ... Armed violence continued to impact negatively on civilians and civilian infrastructure. Civilians were subjected to arbitrary loss of life and injury, but also limiting access to, and enjoyment of, other basic rights, including, but not limited to, the right to access basic humanitarian services, and the right of assembly, freedom of expression, freedom of religion, etc. It also negatively impacted on economic development. Arbitrary or deliberate targeting of civilians also constitutes serious violations of applicable rules of human rights law and international humanitarian law. The number of civilians who died from armed violence in 2010 range from 2,953 killed and 14,398 wounded according to UNAMI to 3,254 dead and 13,788 wounded according to figures provided by the Ministry of Human Rights (MoHR) of the Government of Iraq. ... Minorities suffered from various attacks throughout Iraq during 2010. In particular Christians, Yezidi and Shabaks, among other minorities, continued to be directly targeted during the year – resulting in some displacement of members of minority groups within the country and internationally, particularly of Christians.” 34. The United Nations and the International Organisation for Migration (IOM) have stated that, although they “do not necessarily encourage return at this time because of security concerns, both are committed to providing assistance to those who do decide to return” (IOM, Assessment of Iraqi Return, August 2008). Moreover, the Iraqi Government have initiated a financial incentive and subsidy programme for returnee families and they are working to develop their capacity to register and assist the increasing number of returnees (IOM, cited above). The IOM has further noted that the rate of displacement in Iraq has slowed and that the rate of return has accelerated, mostly to Baghdad (IOM, Review of Displacement and Return in Iraq, February 2011). According to the IOM, general insecurity is the primary reason preventing Iraqis from returning home. 35. According to a report of 18 December 2006 by the United Nations High Commissioner for Refugees (UNHCR Return Advisory and Position on International Protection Needs of Iraqis Outside Iraq), no forcible return of Iraqis from Southern or Central Iraq should take place until there was a substantial improvement in the security and human rights situation in the country. 36. In a follow-up report of August 2007 (UNHCR’s Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-Seekers), the UNHCR encouraged the adoption of a prima facie approach for Iraqi asylum-seekers from Central and Southern Iraq and stated that they should be considered as refugees based on the 1951 Convention relating to the Status of Refugees in signatory countries. In its more recent Eligibility Guidelines of April 2009, the UNHCR observed that in view of the serious human rights violations and ongoing security incidents which were continuing in the country, most predominantly in the five Central Governorates of Bagdad, Diyla, Kirkuk, Ninewa and Salah-Al-Din, the UNHCR continued to consider all Iraqi asylum seekers from these five Central Governorates to be in need of international protection and stated that, in signatory countries, they should be considered as refugees based on the 1951 Convention criteria (see paragraph 12 of the Guidelines). The Guidelines observed inter alia: “27. In the context of the Central Governorates of Baghdad, Diyala, Kirkuk, Ninewa and Salah Al-Din where, even though the security situation has improved in parts, there is still a prevalence of instability, violence and human rights violations by various actors, and the overall situation is such that there is a likelihood of serious harm. Armed groups remain lethal, and suicide attacks and car bombs directed against the MNF-I/ISF [Multinational Forces in Iraq/Iraqi Security Forces], Awakening Movements and civilians, in addition to targeted assassinations and kidnappings, continue to occur on a regular basis, claiming the lives of civilians and causing new displacement. These methods of violence are usually targeted at chosen areas where civilians of specific religious or ethnic groups gather, including places of worship, market places, bus stations, and neighbourhoods. Violence appears often to be politically motivated and linked to ongoing struggles over territory and power among various actors. As clarified above, even where an individual may not have personally experienced threats or risks of harm, events surrounding his or her areas of residence or relating to others, may nonetheless give rise to a well-founded fear. There is also more specific targeting of individuals by extremist elements of one religious or political group against specific individuals of another, through kidnappings and execution-style killings.” As regards Kirkuk, the Guidelines included the following observations (footnotes omitted): “202. Most violence in the Governorate is linked to the yet unresolved administrative status of Kirkuk and related power struggles between the various Arab, Kurdish and Turkmen actors. Security conditions in Kirkuk Governorate, and in particular in Kirkuk City, tend to worsen during political events related to the status of Kirkuk as armed groups aim at influencing political decisions. For example, during intense negotiations over a provincial elections law in summer 2008, a suicide attack on demonstrating Kurds resulted in an outbreak of inter-communal violence, in which more than 25 people were killed and over 200 injured. Conversely, tensions and sporadic violence can complicate future status negotiations. With the postponing of provincial elections in Kirkuk, the security situation has somewhat stabilized. However, simmering inter-communal tensions are prone to erupt into new violence ahead of decisions to be taken in relation to Kirkuk’s unresolved status. Some observers note that tensions among ethnic groups over the unresolved status of Kirkuk could turn into another civil war. Insurgent groups such as AQI [Al-Qaeda in Iraq] also aim at stirring inter-communal violence by attacking proponents of ethnic/religious groups. Furthermore, it has been reported that community groups in Kirkuk are arming themselves in preparation for future clashes. 203. Kirkuk’s Arab and Turkmen communities complain of harassment, intimidation, arbitrary arrests and demographic manipulation at the hands of the Kurds, who dominate the Governorate’s political and security institutions. Kurdish law enforcement personnel and political leaders are in turn popular targets for assassination. PUK and KDP offices are also a regular target of attacks. Recently, two members of the Kurdistan Communist Party have been killed in their homes in Kirkuk. The brother of a high-ranking member of the same party was also killed. Religious and ethnic minorities often find themselves caught up in the middle of struggles for power and territory. 204. In Kirkuk Governorate, there are regular roadside bombings, shootings, and occasional car bombs and suicide attacks. On 11 December 2008, a suicide bomber killed 46 people and wounded nearly 100 when he detonated his explosive vest in a restaurant packed with government officials, women and children during lunch near Kirkuk City. There are also targeted kidnappings and assassinations, including of security officials, tribal leaders/SoI [Sons of Iraq], government officials and employees, (mostly Kurdish) party officials, members of minority groups [referring notably to two incidents of attacks against Christians], journalists and other professionals. Dead bodies continue to be found occasionally in Kirkuk Governorate.” 37. In July 2010 the UNHCR issued a Note on the Continued Applicability of the April 2009 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-Seekers. It contained the following information on security developments (footnotes omitted): “Under the Status-of-Forces Agreement (SOFA) of 30 June 2009, the Iraqi authorities have taken over full responsibility for the security of the country. The former Multinational Forces-Iraq/United States Forces-Iraq (former MNF-I/USF-I) have withdrawn from Iraqi cities, towns and villages and operate from their military bases at the request of the Iraqi Government. Currently, the US is drawing down all combat forces and is expected to complete this process by 31 August 2010. The Iraqi Security Forces (ISF) have almost reached their intended end strength of about 680,000 members. Since spring 2009 the Iraqi Government has been fully responsible for managing and integrating the largely Sunni Awakening Councils or Sons of Iraq (SoI) groups into the ISF and Iraqi government employment. This process is still ongoing and by April 2010, of the 94,000 SoI, some 9,000 had transitioned into the ISF and over 30,000 into other government employment. The Iraq Body Count (IBC), a project which maintains data on civilian deaths, reported that in 2009 the annual civilian death toll was 4,644. Reports for 2010 indicate that some 2,000 Iraqis were killed and some 5,000 others were injured during the first five months of 2010. An upsurge in violence was noted since the 7 March 2010 elections and casualty statistics for the months of April and May 2010 reflect an increase in the numbers of Iraqis killed and wounded in violence. Reports show that in 2009 and early 2010, insurgents carried out several mass-casualty attacks, including on high-profile, highly guarded targets such as Iraqi government institutions, prominent hotels and foreign embassies. The assaults resulted in hundreds of civilians killed or injured in the attacks. Al-Qa’eda in Iraq claimed responsibility for the attacks against embassies in Baghdad and residential targets in mainly Shi’a districts of the capital in early April 2010. The reported incidents mostly took place in the central governorates of Baghdad, Diyala, Kirkuk, Ninewa and Salah Al-Din as well as in AlAnbar, which has seen an increase in violence since the summer of 2009. The relatively stable security situation in the Southern governorates is reportedly occasionally disrupted by mass-casualty attacks and low level violence mainly in areas close to Baghdad. The Kurdistan Region remains relatively stable, though there have been reported assaults on journalists and political opponents. Among other security related developments worth noting is the start of the implementation of an interim joint security plan for Kirkuk and other internally disputed areas by the USF-I. The plan is based on joint action and coordination by the Iraqi Army and Police as well as the Kurdistan Regional Government (KRG) Peshmerga. Thus far, the joint security plan has resulted in the establishment of a network of checkpoints and joint patrols around major cities, and the training of security personnel. Addressing the overall issue of the status of the “disputed areas” is among the challenges that await the new Government. Crucial matters to be resolved in this area include administrative boundaries, the control of oil resources, minority rights and other matters. Since early 2010, the ISF, with the help of the USF-I, have arrested or killed a large number of senior insurgent leaders, in particular members of Al-Qa’eda in Iraq. Ongoing attacks illustrate that the groups are still intent on, and capable of, attacks. Reports indicate that the targeting of Government of Iraq officials, members of the Iraqi security forces, Awakening Council members and prominent citizens continue unabated. Among the frequently targeted are Shiite civilians and pilgrims as well as religious sites in different areas, religious and ethnic minority groups mainly in Ninewa and Kirkuk Governorates (Yazidis, Turkmen, Shabak and Kaka’i), and the Christian minority, mainly in Ninewa, which includes 5,000 Christians displaced from Mosul in early 2010. Compared to 2008, there has been a significant increase in the use of magnetic and adhesive bombs attached to vehicles as a weapon to assassinate particular individuals. Profiles targeted include, in particular, government officials and employees, party officials, members of the Awakening Councils or Sons of Iraq (SoI), members of the ISF (including off-duty members), religious and ethnic minorities [referring to several incidents of attacks against Christians and a suicide truck bomber in, a Shi’ite Turkmen town 20 km south of Kirkuk destroying homes and damaging another 100 homes, affecting 600 people], Sunni and Shi’ite clerics, journalists, academics, doctors, judges and lawyers, human rights activists and Iraqis working for NGOs or the USF-I and foreign companies, alcohol vendors (which are commonly Christians or Yazidis), women and LGBT individuals. ... III. Conclusion The situation in Iraq is still evolving. UNHCR will continue to monitor developments in the country and will update the April 2009 UNHCR Guidelines once it judges that the situation is sufficiently changed. In the interim, UNHCR advises those involved in the adjudication of international protection claims lodged by asylum-seekers from Iraq and those responsible for establishing government policy in relation to this population continue to rely on the April 2009 UNHCR Guidelines. Accordingly, the current UNHCR position on returns to Iraq also remains unchanged.” 38. The Country of Origin Information Centre (Landinfo), an independent human rights research body set up to provide the Norwegian immigration authorities with relevant information, has in a report of 28 October 2008 stated the following about the security situation in Kirkuk city (footnotes and references omitted): “It is generally recognized that the level of violence in Kirkuk is by far lower than that in Baghdad and Mosul. The majority of the security incidents in the city appear to be attacks against police and military. Most frequent are attacks against road patrols, and against checkpoints and personnel. These attacks both take place on the roads between Kirkuk and surrounding areas and inside the city. Occasional civilian casualties result from such attacks ... . There are also occasional indiscriminate attacks aimed directly at civilians, such as suicide attacks at crowded places inside the city. Additional types of targets have been recorded by Landinfo since October 2005. These targets are very diverse. There have been attacks on local Kurdish political leaders and their families, on engineers and building contractors, oil business executives, private security guards, gas station workers, churches, Shiite mosques, polling stations, and at a Turkmen political party office. In October 2008 an Iraqi journalist was killed. The intensity of attacks against all target groups seems to have remained quite stable over the years. Between September 2005 and March 2006, 44 reported incidents were recorded ... . During November and December 2006, a total of 30 individuals were reported killed in violent incidents (DMHA 2006). In March 2008, it was reported that violence had gone up since 2006, and that security remained highly unstable ... . According to the US military commander in Kirkuk, by the summer of 2008 violence had dropped by two thirds as compared to the summer of 2007 ... . Figures indicate that since August 2008, violence remains stable through October ... . We do not have figures for the summer of 2007, nor do we know for how long period of time ‘summer’ refers to. What the sources indicate, however, is that violence went up by March 2008, then down again by summer the same year, and that it seems to have stabilized somewhat afterwards. With the reservation that we don’t have exact figures to substantiate this trend, we do see, however, that the occurrence of violence is unstable through a fairly short period of time. The factors accounting for the security problems continue to be present for the foreseeable future. Accordingly, an unstable level of violence may be expected to continue”. 39. A Thematic Note by Landinfo on the Security Situation in Kirkuk City and the Surrounding Areas (Temanotat IRAK: Sikkerhetssituasjonen i Kirkuk by og områdene rundt), dated 16 March 2010, summarised the situation as follows: “During the last two years, the security situation in Kirkuk has shown a decreasing level of activity on the part of armed groups, in spite of a persistent high level of political tension connected to the disputed political status of the city. Still, both Kirkuk city and Kirkuk province continue to be plagued by persistent political violence. There are no clear signs of open conflict between the Kurds, Arabs and Turkmen population groups, but widespread mutual mistrust seems to prevail along with a possibly increasing physical segregation between them. In this environment, militants continue to carry out attacks. The armed groups operating in Kirkuk, Hawija and Tuz Khormatu are all Sunni Moslem. They appear as periodically connected to each other logistically, and to be coalescing over time.” In Section 2 of the Note it was observed inter alia that the conflict related violence in Kirkuk had continuously decreased since 2007 and had in 2009 reached its lowest level since 2004. Nonetheless, politically motivated violence still occurred on a daily basis. There were otherwise no new patterns of acts of violence. It was still the situation that such acts were primarily targeting authorities, the army and the political milieu. However, the casualties among the civilian population were considerably higher than those of the target groups. The level of political violence appeared relatively low in view of the continuous political tensions related to the unclear political status of the city. At the same time, the political violence was directly linked to unresolved political questions. Both Kurdish regional authorities and the national central authorities claimed a right to governance in the city. There was little information available which systematically presented the situation in the province for each of the three ethnic groups – Kurds, Arabs and Turkmens. According to the newspaper Today’s Zaman of 10 February 2010, the local police was composed of 36% Kurds, 39% Arabs and 26% Turkmens. In the Kurdish areas of the city there were both Kurdish and Turkmen officers. In the Hawija district west of Kirkuk, the officers were Arabs. Even though the different groupings were reasonably well represented within public administration and education, distrust between them had frequently been reported since 2003. 40. The UK Border Agency (Home Office) Country of Origin Information Report of 30 August 2011 provided the following information (footnotes omitted): “8.80 The UNSC [United Nations Security Council] Report July 2010, dated 29 July 2010, covering events since 14 May 2010 noted that: ‘Kirkuk has been generally stable since the previous reporting period. On 8 June [2010], shots were fired at a USF-I/United Nations convoy travelling in Kirkuk, resulting in one USF-I soldier being wounded. No UNAMI staff members were injured and the convoy immediately returned to Forward Operating Base Warrior.’ However the subsequent UNSC Report November 2010, published 26 November 2010, observed that: ‘[t]he withdrawal of the United States Forces in Iraq is likely to have a short- to medium-term effect on the security situation’. 8.81 The Danish FFM Report on Security and Human Rights in South/Central Iraq conducted February – April 2010, published 10 September 2010 citing a reliable source in Iraq stated: ‘... that Kirkuk, with its unique status, is a completely different matter. The situation is fragile and Iraqi Security Forces (ISF) and US forces have a strong presence in the area. AQIs [Al Qaeda in Iraq] and insurgent groups’ presence contribute to making the situation particularly volatile, and there are reports that AQI is using children as suicide bombers or combatants in Kirkuk.’ See also the section heading on Northern Iraq which highlighted that in February 2011 Kurdish Peshmerga troops entered Kirkuk governorate in violation of agreed security procedures in place between Kurdish and Iraqi forces.” 41. The third report of the UN Secretary-General to the UNSC, pursuant to paragraph 6 of resolution 1936 (2010), included inter alia the following observations: “II. Summary of key political developments pertaining to Iraq A. Political developments ... 8. In Kirkuk, Kurdish parties holding the two most senior political posts, Governor and Chairman of the Provincial Council, agreed to give up the latter, as a gesture of goodwill in order to move the political process forward and to accommodate a long-standing demand by Turkmen and Arab components. Hassan Turan (Turkmen) was elected to the post of Chairman, Najmaldin O. Karim (Kurdish) was appointed as the new Governor and Rakan Sa’id al-Jubouri (Arab) remained Deputy Governor. 9. On 31 March, Kurdish Peshmerga troops that had been deployed around the city of Kirkuk since 25 February 2011 withdrew and returned to the Kurdistan region. The incident served as a reminder of the challenges that remain as the United States Forces in Iraq draw down and the combined security mechanism comes to an end. The combined security mechanism was established to encourage Iraqi security forces and Kurdish Peshmerga troops to coordinate their operations, set up joint patrols and checkpoints and exchange information under the auspices of the United States Forces. The Government of Iraq and the Kurdistan Regional Government have yet to agree on the future of the combined security mechanism or any successor arrangements that could be put into place after the departure of the United States Forces. 10. The United States Forces in Iraq have continued their planned withdrawal from the country with the intention of completing their departure by 31 December 2011, as envisaged under the status-of-forces agreement signed between the Governments of Iraq and the United States of America. Discussions have been ongoing regarding the possibility of some United States forces remaining beyond 2011 to provide training and support. The Prime Minister has stated that the issue would be decided on a consensus basis through dialogue among the political blocs, as formal agreement would require approval by the Council of Representatives. ... III. Activities of the United Nations Assistance Mission for Iraq A. Political activities 21. The standing consultative mechanism met several times during the reporting period. This initiative, which was launched in March 2011 under the auspices of UNAMI, brings together representatives of key political blocs to discuss outstanding issues related to disputed internal territories, including Kirkuk. The participants include representatives of the three main political blocs: Deputy Prime Minister Rowsch Shaways (Kurdistan Alliance), Member of Parliament Hassan al-Sunaid (National Alliance) and Finance Minister Rafi al-Issawi (Iraqiya). The participants agreed to focus on the following issues: (a) Kirkuk, including powersharing issues and conducting provincial council elections; (b) Ninewa, the current political stalemate, power-sharing and security issues; (c) the future of the combined security mechanism; and (d) the census. On 25 April, participants agreed that subsequent meetings would be expanded to include local stakeholders from the Kirkuk and Ninewa governorates. On 16 June, a meeting was held that brought together for the first time all members of the Council of Representatives from Kirkuk in order to discuss issues related to power-sharing and the prospects of holding provincial council elections in Kirkuk. ... E. Human rights activities 41. The reporting period witnessed a significant rise in assassinations of political leaders, government officials and security personnel. ... Assassination attempts were carried out against a Turkmen Member of Parliament from Kirkuk ... on 12 ... May .... 42. Honour crimes committed against women are a continuing source of concern. UNAMI recorded the deaths in suspicious circumstances of nine women between April and May in Kirkuk. Police informed UNAMI that three of the deaths were listed as suicides and four as murders carried out by unknown persons, while the causes of death of the other two women were unconfirmed but regarded as suspicious. ... 43. There continue to be sporadic reports of children experiencing acts of indiscriminate violence and abductions. ... On 2 April, in Kirkuk, criminal gangs abducted a 6-year-old girl who was later released after a ransom was paid. On 21 April, a 12-year-old boy was abducted in Kirkuk; his fate remains unknown. 44. During the reporting period, a number of public demonstrations were held, most of them peaceful. ... F. Security, operational and logistical issues 50. During the reporting period, the United Nations continued to operate in a challenging security environment. On 5 May, a car bomb targeted the Iraqi police headquarters in Hilla, killing 30 policemen. In another incident on 19 May, a complex attack on the Kirkuk Provincial Joint Coordination Centre left 20 people dead and 80 injured, including Iraqi police and civil defence members. This particular attack is believed to have been in response to the recent successful efforts by Iraqi security forces to locate weapons caches and key personnel wanted for terrorist attacks. ... 52. During the reporting period, UNAMI has been working on the transition of security support from the United States Forces to the Iraqi security forces. On 24 April, the Iraqi National Security Council requested that the Office of the High Commander of the Armed Forces, in coordination with the Ministry of Defence and the Ministry of the Interior, support UNAMI protection requirements. 53. During the reporting period, UNAMI also took steps to put in place the necessary logistical arrangements to substitute the support of the United States Forces. UNAMI is also continuing preparations to ensure that it is able to sustain its presence in Kirkuk and Basra. 54. With support from the United Nations standing police capacity, a start-up team of four UNAMI police liaison personnel have been deployed to Baghdad, Erbil and Kirkuk to engage and coordinate UNAMI operations with the Ministry of the Interior and Iraqi police. ... IV. Observations ... 60. Although the status of Kirkuk and other disputed internal territories remain divisive issues, I am encouraged by recent efforts by key Iraqi stakeholders to find common ground. Through the standing consultative mechanism under UNAMI auspices, political leaders, members of parliament and local representatives of Kirkuk have engaged in a dialogue on critical issues that will affect the future of Kirkuk and other disputed areas, including future security arrangements. I encourage the Government of Iraq and the Kurdistan Regional Government to continue to use this important forum to find mutually acceptable solutions that ultimately serve the interests of national reconciliation and long-term stability. The United Nations stands ready to assist in this process upon the request of the Government.” | 1 |
train | 001-23391 | ENG | AUT | ADMISSIBILITY | 2,003 | MAIER v. AUSTRIA | 4 | Inadmissible | Christos Rozakis | The applicant, Mrs Brigitte Maier, is an Austrian national, who was born in 1956 and lives in Vienna. She is represented before the Court by Mrs E. Bauer-Bannsdorf, a lawyer practising in Vienna. The facts of the case, as submitted by the parties, may be summarised as follows. On 28 March 1997 the investigating judge (Untersuchungsrichter) at the Wiener Neustadt Regional Court (Landesgericht) opened preliminary investigations against the applicant on suspicion of fraudulent bankruptcy (betrügerische Krida) and breach of trust (Untreue). The suspicion related to the applicant’s business activities as the general manager of the PLF company and to her activities as chairperson of two associations. Further, she was suspected of unauthorised use of a vehicle (unbefugter Gebrauch eines Fahrzeugs) and suppression of documents (Urkundenunterdrückung). The investigating judge issued an arrest warrant and ordered a search of the company’s premises and of the applicant’s home. On 2 April 1997 the applicant was arrested, the search of the above premises was carried out and several documents were seized and stored at the Regional Court. Later that day, the applicant was questioned by the police. On 3 April 1997 the applicant was again heard by the police. On 4 April 1997 the applicant, after having been questioned by the investigating judge, was taken into pre-trial detention. On 17 April 1997 the Wiener Neustadt Regional Court ordered that the seized documents be examined. Between April and October 1997 a number of persons laid criminal complaints relating to the applicant’s alleged fraudulent transactions and joined the proceedings as civil parties. During the same period the disclosure of the applicant’s bank-accounts was ordered. On 5 May 1997 the applicant was examined by the police on questions relating to the seized documents and on 23 May her tax accountant was heard as a witness. On 25 June 1997 the applicant was released on bail. On 28 July 1997 the court appointed an expert on accountancy. On 3 December 1997 the latter submitted his opinion which comprised more than a thousand pages. On 2 February 1998 the investigating judge summoned the applicant to be questioned as a suspect on 24 February. However, the applicant did not appear and the questioning was postponed to 5 March. Between 2 February and 20 April 1998 nineteen witnesses were heard. On 30 April 1998 the investigating judge requested the court appointed expert to supplement his opinion. On 8 October the applicant and her tax accountant were due to appear in order to answer questions of the expert. However, neither of the two appeared and the meeting had to be postponed to 3 November 1998. On 10 November 1998 the expert submitted 480 pages supplementing his opinion. On 10 December 1998 the investigating judge closed the preliminary investigations. On 27 January 1999 the Public Prosecutor’s Office preferred the indictment charging the applicant with breach of trust, fraudulent bankruptcy, unauthorised use of a vehicle and suppression of documents. The indictment was served on the applicant on 16 February 1999. A first attempt to summon her for trial failed as the summons could not be served at her address. Inquiries by the police showed however, that the applicant was living at this address. The beginning of the trial was then scheduled for 23 September 1999. On 23 September 1999 the trial started before the Wiener Neustadt Regional Court. The applicant was requested to formulate her questions to the expert in writing and to submit certain documents. On 3 November counsel for the applicant requested to be granted more time for preparing the questions to the expert. A trial hearing was then scheduled for 27 January, but had to be postponed to 9 March 2000 as the summons had erroneously not been sent out. Further hearings were held on 9 March and 25 May 2000. At the close of the trial on 25 May 2000, the Regional Court convicted the applicant of breach of trust, fraudulent bankruptcy, unauthorised use of a vehicle and suppression of documents. It sentenced her to two years’ imprisonment. The Regional Court found that the applicant had caused financial damage to the company and the associations at issue by abusing her position as financial manager and chairperson, respectively, in that she took money from the company’s and the associations’ accounts to cover her private expenses. Further, the court found that, by diminishing the company’s and the associations’ assets, she had intentionally curtailed the satisfaction of its creditors. On 8 September 2000 the written version of the judgment was served on the applicant. On 4 October 2000 the applicant filed a plea of nullity and an appeal against sentence (Nichtigkeitsbeschwerde und Berufung). On 11 December 2000 the Procurator General’s Office (Generalprokuratur) filed its observations on the applicant’s plea of nullity. On 15 February 2001 the Supreme Court (Oberster Gerichtshof) dismissed the applicant’s plea of nullity as being unfounded, but granted her appeal against sentence and suspended sixteen months of the two years’ sentence on probation. The Supreme Court’s decision was served on the applicant’s lawyer on 16 March 2001. | 0 |
train | 001-88766 | ENG | POL | ADMISSIBILITY | 2,008 | KANIECKI v. POLAND | 4 | Inadmissible | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | The applicant, Mr Henryk Kaniecki, is a Polish national who was born in 1950 and lives in Gnojno. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 23 September 1991 the Kielce Governor (Wojewoda Kielecki) granted the applicant’s neighbour permission to build a fish pond. The applicant submitted that the pond was built in breach of the permit and that it dammed the water on his plot of land. In consequence, he could not use his land for agricultural purposes. The applicant appealed against this decision but the appeal was finally dismissed on 11 February 1993 by the Supreme Administrative Court (Naczelny Sąd Administracyjny). On 14 April 1993 the Kielce Governor initiated, upon the applicant’s request, proceedings for annulment of the permit. On 29 April 1993 the Kielce Governor ordered the applicant’s neighbour to carry out work on the pond. The applicant appealed. On 7 September 1993 the Minister of the Environment (Minister Ochrony Środowiska) quashed the impugned decision and remitted the case. On 3 December 1993 and 29 August 1994 the Kielce Governor held hearings in the case. On 6 September 1994 the Kielce Governor dismissed the applicant’s request for the permit to be annulled. The applicant appealed, but on 15 January 1995 the Minister of the Environment upheld the decision. The applicant lodged a complaint with the Supreme Administrative Court. On 17 December 1996 the Supreme Administrative Court quashed the decision and remitted the case. On 12 March 1997 the Kielce Governor held a hearing and on 26 March 1997 he gave a decision in which he again refused to annul the permit. The applicant’s appeal was dismissed on 9 September 1997 by the Minister of the Environment. On 9 October 1997 the applicant lodged a complaint with the Supreme Administrative Court. On 17 December 1999 the Supreme Administrative Court quashed the impugned decision and remitted the case. On 10 May 2000 the Kielce Governor transferred the case to the Mayor of Busko-Zdrój (Starosta). On 8 September 2000 an expert inspected the pond. On 22 May 2000 the applicant wrote a letter to the Kielce Governor about the manner in which the authorities had been handling his case and submitted that a further delay in the proceedings could result in him lodging a case with the European Court. On 6 June 2000 the Governor replied to his letter, apologising for the fact that the proceedings had been lengthy. However, he considered that the delays had occurred at the judicial stage before the Supreme Administrative Court. On 27 July 2000 the Mayor of Busko held a hearing. On 11 September 2000 the applicant complained to the Mayor of Busko about the length of the proceedings. On 17 and 23 January 2001 the Mayor held hearings. On 21 May 2001 an expert inspected the pond. On 28 February 2002 the Mayor of Busko gave a decision granting permission to keep the pond and to dam the water. The applicant appealed and on 9 May 2002 the Kielce Governor quashed the impugned decision and remitted the case. On 23 August 2002 the Mayor of Busko gave a decision granting permission as before. On 11 October 2002 the Świętokrzyski Governor again quashed the decision and remitted the case. On 28 October 2002 the Mayor held a hearing. On 11 March 2003 the Mayor of Busko carried out an inspection of the property. It is impossible to establish the course of the proceedings thereafter. Under Article 35 of the Code of Administrative Procedure of 1960 (“the Code”) an administrative authority should give a decision on the merits of a case within two months. If that time-limit has not been complied with, the authority must, under Article 36 of the Code, inform the parties of that fact, explain the reasons for the delay and fix a new timelimit. Pursuant to Article 37 § 1, if the case has not been handled within the time-limits referred to in Articles 35 and 36, a party to administrative proceedings can lodge an appeal with the higher authority, alleging inactivity. In cases where the allegations of inactivity are well-founded, the higher authority fixes a new term for handling the case and orders an inquiry in order to determine the reasons for the inactivity and to identify the persons responsible for the delay. If need be, the authority may order that measures be applied to prevent future such delays. Until 1 October 1995, under Article 216 of the Code of Administrative Procedure, a party to administrative proceedings could, at any time, lodge a complaint with the Supreme Administrative Court about the fact that an administrative authority had failed to issue a decision. On 1 October 1995, the Law of 11 May 1995 on the Supreme Administrative Court (“the 1995 Act”) entered into force. Under section 17 of the 1995 Act the Supreme Administrative Court was competent to examine complaints of inactivity on the part of an authority. Section 26 of the Act provided: “When a complaint alleging inactivity on the part of an administrative authority is well-founded, the Supreme Administrative Court shall oblige that authority to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.” Section 34 of the 1995 Act set out the requirement of the exhaustion of available remedies before lodging a complaint with the Supreme Administrative Court. Accordingly, a complaint concerning alleged inactivity should be preceded by the lodging of a complaint with an administrative organ of a higher level, pursuant to the abovementioned Article 37 of the Code of Administrative Procedure. Pursuant to section 30 of the 1995 Act, the decision of the Supreme Administrative Court ordering an authority to put an end to its inactivity was legally binding on the authority concerned. If the authority did not comply with the decision, the court could, under section 31, impose a fine on it and might itself give a ruling on the right or obligation in question. The 1995 Act was repealed and replaced by the Law of 30 August 2002 on Proceedings before Administrative Courts (“the 2002 Act”) which entered into force on 1 January 2004. Section 3 § 2 of the 2002 Act contains provisions analogous to section 17 of the 1995 Act. It provides that administrative courts examine complaints about inactivity on the part of authorities obliged to issue an administrative decision or to carry out enforcement proceedings. Under section 149, if a complaint is wellfounded, an administrative court shall oblige the authority concerned to issue a decision, to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law. | 0 |
train | 001-60564 | ENG | SWE | CHAMBER | 2,002 | CASE OF S.N. v. SWEDEN | 1 | No violation of Art. 6-1 and 6-3-d | Gaukur Jörundsson;Wilhelmina Thomassen | 9. In February 1995 the Social Council (socialnämnden) of Borgholm was contacted by a schoolteacher on account of a suspicion that one of her pupils, M., a boy born in June 1984 and thus at the time aged 10, had been sexually abused by the applicant. On 29 March 1995, having carried out an investigation, the Council reported the matter to the police authority in Kalmar. 10. On 7 April 1995, between 10.09 a.m. and 10.51 a.m., M. was interviewed by the police. The interview was recorded on videotape. M.'s parents and representatives of the Social Council were present in the adjoining room. At that time, the applicant had not been informed of the suspicions against him and no defence counsel had been appointed for him. The interview was conducted by a detective inspector with twenty-six years of service in the police force. Since 1989 he had been working exclusively on investigations concerning ill-treatment and sexual abuse of children. 11. On 10 May 1995 the applicant was questioned by the police and the public prosecutor. Before the questioning the applicant was notified, in accordance with Chapter 23, section 18, of the Code of Judicial Procedure (Rättegångsbalken), of the suspicions against him. 12. In June 1995 the applicant received a copy of the report of the preliminary investigation and on 3 July defence counsel was appointed for him. The applicant was given an opportunity to submit observations and request additional interviews and other investigative measures. Finding that further information was necessary with regard to, inter alia, the dates and the number of occasions when the alleged acts had been committed and the sites at which they were supposed to have occurred, the applicant's counsel requested that M. be interviewed again. 13. In accordance with counsel's request, a second interview with M. was conducted on 20 September 1995, between 12.50 p.m. and 1.14 p.m. at the boy's home, by the same detective inspector. During the interview, which was recorded on audiotape only, M.'s parents were present but not the applicant's counsel. It appears that M.'s counsel, who had not been served notice of the interview, was opposed to counsel for only one of the parties being present at an interview. Finding that it would be unreasonable to cancel the interview, as the police officer was present and M. had taken time off from school, the applicant's counsel agreed that it could be conducted without his being present. The police officer and the applicant's counsel discussed what aspects of the case needed to be addressed during the interview. In general, counsel for the applicant wished to have a more detailed account of what was alleged to have happened. However, no written list of questions was drawn up. Counsel for the applicant later listened to the audiotape of the interview and was given a transcript of the tape. Finding that the issues raised in his request had been covered, he did not call for a further interview to be held. 14. On 29 September 1995 the applicant was indicted for sexual acts with a child (sexuellt umgänge med barn). 15. The Kalmar District Court (tingsrätten) heard the case on 31 October 1995. The applicant denied the charges. The videotaped police interview with M. was shown during the hearing. The record of the second interview was read out. The court also heard evidence from M.'s mother and his schoolteacher as witnesses. No request for M. to be heard in person was made. 16. In a judgment of 14 November 1995 the District Court convicted the applicant and sentenced him to eight months' imprisonment. The court, noting that the outcome of the case was entirely dependent on the credibility of M.'s statements, found no reason to call into question their veracity. Thus, basing itself on those statements, the court found that the applicant, on a large number of occasions in 1994, had touched M.'s penis or masturbated him and induced M. to touch the applicant's penis or masturbate him. 17. The applicant appealed to the Göta Court of Appeal (Göta hovrätt). Subsequently, at the applicant's request, his defence counsel was replaced. The appellate court held a hearing on 22 April 1996, during which it heard the applicant and his new counsel. M.'s mother and his schoolteacher gave evidence. The videotape of the first police interview with M. and the audiotape of the second interview were played back. Again, the applicant did not request that M. give evidence during the hearing. 18. In a judgment of 6 May 1996 the Court of Appeal upheld the applicant's conviction but reduced the sentence to three months' imprisonment. It considered that, as there was no technical evidence in the case and nobody had witnessed the alleged acts, the credibility of M.'s statements was of decisive importance in determining the applicant's guilt. It went on to state the following: “For reasons of legal certainty, the questioning of children during pre-trial investigations must – as explained in detail by the Supreme Court [Högsta domstolen] in NJA 1993 p. 616 – meet high standards with regard to both methods and content. The information given by [M.] is, in some parts, vague and uncertain. He has not been able to give details of any specific incident covered by the prosecution and he has been able to describe only in more general terms what kind of sexual contact has occurred. It should further be noted that some of the questions put to him have been of a leading nature. Even if these circumstances are taken into account, the Court of Appeal finds that [M.'s] statements cannot be disregarded. A fact which strongly indicates that [M.] has been subjected to homosexual abuse is his expressed concern that he would become 'gay'. The Court of Appeal has had further regard to the following circumstances. The general impression of the video-recording is that [M.] has talked about something he has indeed experienced and that it has been embarrassing and painful for him to give this information. This may explain his unwillingness to go into detail about specific incidents. [M.] has not shown any tendency to exaggerate his statements and has corrected the interrogator on several occasions. Furthermore, in some respects his statements can be said to contain more personal observations, for example, 'Of course, I did not want to touch his but sometimes I did it without gloves' and 'First I asked if I would get any (refers to pastilles). He did not have any and then I did it voluntarily but I do not know why'. It should further be noted that no information has come to hand which could reasonably explain why [M.] would make untrue statements about events which he obviously considers to be shameful. Also of importance is the information given by [M.'s] mother and teacher which describes how [M.'s] personality has changed since the alleged injustice. The fact that it was a long time before [M.] spoke about what he experienced is easily explained by the feelings of guilt he has had and by the fact that thinking about the incidents is distasteful to him. [M.'s] accounts do not contain any improbable elements, neither is the information given by him contradicted by other statements. In view of what has now been said, the Court of Appeal finds that [M.] is credible and that his statements should form the basis for the Court of Appeal's assessment of whether [the applicant] has behaved towards him in the manner indicated by the public prosecutor in his statement on the charges.” The Court of Appeal found that the information given by M. showed that the applicant had induced M. to touch the applicant's penis or masturbate him. However, the statements that the applicant had touched M.'s penis or masturbated him were too uncertain and vague and thus did not constitute sufficient evidence. 19. The applicant appealed to the Supreme Court. Relying on Article 6 §§ 1 and 3 (d) of the Convention, he complained that his counsel had not been able to put questions to M. He noted that there was no technical or other evidence in the case to support M.'s statements. He further criticised the manner in which M. had been interviewed and stated that M.'s statements were vague and contradictory. In these circumstances, the applicant claimed that he had a right to cross-examine M. He maintained that the Supreme Court's case-law, which allegedly permitted the procedure followed in his case, had to be changed in order either to give counsel for the defence a right to examine the minor or to require clear supporting evidence. 20. On 26 June 1996 the Supreme Court refused the applicant leave to appeal. 21. Domestic provisions of relevance in the present case are found in the Code of Judicial Procedure ( “the Code”) and in the Ordinance on Preliminary Investigations (Förundersökningskungörelsen, 1947:948 – “the Ordinance”). There is also some national case-law of interest. 22. A preliminary investigation takes place whenever there is reason to believe that a crime has been committed. Chapter 23, section 10, of the Code includes provisions pertaining to the categories of persons allowed to attend an interview during a preliminary investigation. The suspect and his defence counsel are always entitled to attend an interview which takes place following a request made by the suspect himself. This right, however, does not manifest itself until a person has been informed of the suspicions against him in accordance with Chapter 23, section 18, of the Code. As far as other interviews are concerned, counsel for the defence may attend if his attendance will not harm the investigation. It is for the person who heads the preliminary investigation – a police officer or a public prosecutor – to decide who may attend a specific interview during the preliminary investigation. In cases where the suspect or his defence counsel are present during an interview, questions may only be asked in the order determined by the person in charge of the preliminary investigation (Chapter 23, section 11, of the Code). 23. When a preliminary investigation has reached the point at which a person can be reasonably suspected of having committed a crime, the person in question must be notified of the suspicions against him, pursuant to Chapter 23, section 18, of the Code. Under the second paragraph of that provision, an interview or other form of investigation may be undertaken at the request of the suspect or his defence counsel if the measure is deemed to be of importance to the preliminary investigation as such. If a request for such an investigative measure is not granted, the reasons for the decision must be given. If the suspect makes a complaint, the issue is settled by the court (Chapter 23, section 19, of the Code). 24. Interviews with children conducted in the course of a preliminary investigation are subject to special regulations. Thus, according to Chapter 23, section 10, of the Code, a child's custodian should be present whenever a child under the age of 15 is questioned if this can be done without any harmful effects on the investigation. 25. Further and more detailed provisions concerning the questioning of children are found in the Ordinance, section 17 of which provides that interviews with, inter alia, an injured party under the age of 18 must be conducted in such a manner that there is no danger that the interviewed person might be harmed. It is also stipulated in that section that particular care is to be exercised when the questioning concerns sexual matters. Furthermore, particular care has to be taken in order to ensure that the interview does not create a stir and that it does not become more intimate than the circumstances require. Questioning should, moreover, according to section 17 of the Ordinance, occur on only one occasion unless it is more appropriate to conduct several interviews out of consideration for the child who is being questioned. 26. Section 18 of the Ordinance provides that interviews with children must be conducted by persons who are particularly apt to perform the task. In addition, section 19 provides that a person with special expertise in the field of child psychology or interview psychology may assist at the questioning or comment on the value of the child's testimony. 27. Whenever the evidence of a witness below the age of 15 is used in a criminal case, the court must determine, taking account of all relevant circumstances, whether the child should testify (Chapter 36, section 4, of the Code). There is no corresponding provision applicable to children who are in the position of being the injured party. In practice, however, such evidence is normally presented to the court in the form of a video-recording of the police interview, which is played back during the court's main hearing. In allowing this to take place, the court applies Chapter 35, section 14, of the Code, by which a statement made to the police or to the prosecutor or otherwise out of court may be used in evidence in a trial only if this is specifically prescribed, if the person who has submitted the statement cannot be heard before the court or if there are particular reasons for the statement to be relied on, regard being had to the costs or inconveniences that a hearing before the court may entail on the one hand and the advantages of a hearing before the court, the importance of the statement and all other relevant circumstances on the other hand. 28. As already mentioned, children below the age of 15 do not normally give evidence in person before a court. There are, however, examples where children have been heard in court. Thus, in two recent cases before the Svea Court of Appeal (Svea hovrätt) concerning sexual offences against children (case no. B 1129-98, judgment of 28 September 1998, and case no. B 1635-99, judgment of 7 June 1999), the injured parties, two girls aged 10 and 11, gave evidence in person. Their statements were made before the members of the court, the public prosecutor, the defence counsel and their own counsel but in the absence of the accused, who were able to listen to the statements in an adjoining room. In both cases, the girls were heard at the request of the prosecutor following the acquittal of the accused at first instance. In another case before the same appellate court concerning a sexual offence (case no. B 4488-01, judgment of 25 October 2001), the defence, upon appeal against the conviction of the accused at first instance, requested that the injured party, a 13-year-old girl, give evidence in person. The prosecutor and the girl's counsel opposed the request which was subsequently rejected by the Court of Appeal on account of her age. Instead, the court allowed recordings of her statements during the preliminary investigation to be played back. However, the Court of Appeal reversed the judgment of the District Court and acquitted the accused, finding that the evidence presented did not sufficiently show that he had committed the alleged offence. 29. The application of Chapter 35, section 14, of the Code in relation to Article 6 of the Convention has been examined by the Supreme Court on one occasion. In the case in question, published in Nytt juridiskt arkiv ((NJA) 1992, pp. 532 et seq.), the court quashed a judgment by a court of appeal and referred the case back to the latter court for re-examination. The reason for this was that the appellate court, as well as the first-instance court, had allowed the prosecutor to use in evidence written records of a police interview with the injured party in a case concerning indictment for robbery. It had not been possible to serve a summons on the injured party to attend the main hearing. The court of appeal had been of the opinion that the information submitted by the injured party to the police had to be given credit and convicted the defendant of robbery. The Supreme Court, on the other hand, emphasised that Article 6 of the Convention and its application and interpretation was of major importance in respect of the application of Chapter 35, section 14, of the Code. In the light of the fact that the European Court of Human Rights had come to the conclusion that there was a breach of Article 6 when a court relied on statements in support of a conviction by a person who had not been heard by the court and whom the defendant had not had the opportunity to question in some other context, the Supreme Court in its turn came to the conclusion that that provision of the Code should be applied more restrictively than was called for by its wording and what appeared to be the original intentions behind the provision. According to the Supreme Court, the lower courts had applied the provision in such a way that the defendant had not been afforded a fair trial in accordance with the Convention. 30. Issues concerning the quality and evaluation of evidence have been examined by the Supreme Court in two published cases (NJA 1993, pp. 68 et seq., and 1993, pp. 616 et seq.), which are of relevance in this context. The first-mentioned case concerned the alleged sexual abuse of a minor, aged 14, who could not give evidence in court on account of mental problems. The evidence consisted mainly of information supplied by the injured party to the police. The police interview had been recorded on videotape. The Supreme Court came to the conclusion that it was inevitable that the value of such statements as evidence was not the same as the value of statements made during the main hearing. Even so, the evidence in that case, that is the injured party's testimony together with other evidence, was deemed to be strong enough for a conviction. 31. In the second case, the injured parties were born in 1981 and 1983, respectively. The essential evidence consisted of videotaped interviews with them. The interviews had taken place in the absence of the suspect and his defence counsel. They were given the opportunity to examine the information and to request that additional information be provided prior to indictment. However, defence counsel was of the opinion that further questioning would prove pointless since, in his view, the injured parties would only repeat from memory what they had submitted previously. The Supreme Court stated that, bearing in mind that the accused had chosen not to request a further examination, his right to a fair trial could not be seen as having been breached on account of the fact that the videotapes had been used as evidence against him. As far as the evaluation of the evidence was concerned, the Supreme Court stressed the fact that the injured parties had only been questioned out of court and that it could not therefore assess their credibility and the trustworthiness of their information by means of impressions conveyed through a direct examination in court. It followed, according to the Supreme Court, that the information submitted by the injured parties should be assessed with particular care. The fact that the accused had been prevented from putting questions to the injured parties through his defence counsel and that the court itself had also been prevented from doing so pointed in the same direction. According to the Supreme Court this did not mean, however, that the videotaped interviews could not be sufficient to prove the guilt of the accused beyond reasonable doubt. The injured parties' submissions, combined with other evidence, led the Supreme Court to the conclusion that the judgment should be based on, inter alia, the submissions in question. | 0 |
train | 001-107196 | ENG | RUS | CHAMBER | 2,011 | CASE OF ALEKSANDRA DMITRIYEVA v. RUSSIA | 4 | Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5;Violation of Art. 8;Violation of Art. 13+5;Violation of Art. 13+8 | Anatoly Kovler;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen | 5. The applicant was born in 1946 and lives in St Petersburg. 6. The applicant, her husband and their son reside in an apartment, which they share with two other families. She suffers from a number of diseases, affecting her skin, kidneys and thyroid gland. The applicant is classed as Category 2 disabled under Russian law. 7. In April 2001 the applicant’s son allegedly beat up Bo., who was a member of one of the families residing in the same apartment. Bo. complained to the police of having been beaten. On 1 October 2002 the applicant’s son was convicted of affray in this connection and given a six-month conditional sentence. 8. At around 5 p.m. on 8 December 2001 K., a neighbourhood police inspector, and police officer S., the Deputy Head of the 28th Section of the St Petersburg Central District Department of the Interior (“the District Department of the Interior”) arrived at the applicant’s apartment to invite the applicant’s son to attend an interview. At the time, he had not been either classed as a suspect or formally charged. Bo. let the officers into the apartment and they saw the applicant’s son entering his room and locking the door behind him. 9. The applicant blocked the way to her son’s door. S. explained the reasons for their visit to the applicant, but the applicant asked them to leave. According to S., the applicant verbally insulted him and punched him several times in the chest. The applicant disagreed and submitted that she had simply blocked access to the door, but did not insult or punch anyone. 10. The applicant’s neighbours, who were present during the incident, later confirmed that the applicant had used abusive language and had tried to hit S. 11. K. then left the building in order to prevent the applicant’s son from escaping through a window and S. stayed in the apartment and called the police, asking them to send reinforcements. Some time later, officers Sh., D.B. and M. arrived at the applicant’s apartment. S. told them to take the applicant to the police station for having insulted the policemen on duty. 12. According to the applicant, and as also noted in the statement of her neighbours given during the subsequent investigation, thereafter the policemen forced the door to the room of the applicant’s son open, entered the room and some time later led him outside of the apartment and put him in a car. 13. According to S., he offered to let the applicant put her winter clothes on, but the applicant refused. Sh. and M. then took the applicant by the hands, led her out of the apartment and put her in the car. The applicant resisted their efforts. 14. The applicant submitted that while she had been in the apartment, one of the policemen had knocked her to the floor, had grabbed her by the wrists and had dragged her out of the apartment. He had dragged her down two staircases of the building and out to the car. She denied having been given the chance to put her winter clothes on. 15. According to the applicant, it had been minus 10o C outside. The applicant’s son had been put in the same car. The police brought them to the District Department of the Interior’s premises and locked them in cells for administrative detainees. 16. Some time later the applicant’s husband brought her warm clothes. A record made after the incident concerning the administrative offence of minor affray under Article 158 of the RSFSR Administrative Offences Code states that the applicant “used abusive language in public”. The record describes the applicant’s identity and time of the incident, but does not mention whether any decision was taken in connection with her alleged misconduct, whether the applicant was taken into custody and whether or when she was released. The applicant confirmed having seen a copy of the record in the police station. 17. The Government were unable to provide the Court with the materials pertaining to the applicant’s administrative case, explaining that they were destroyed following the expiry of the time-limit for storage of such documents in February 2003, April 2005 and April 2007. They did not submit any specific information as to the existence of a record of the applicant’s detention. 18. According to the applicant, she had spent approximately twenty hours in a cell for administrative detainees in the District Department of the Interior’s premises. She was not given any food, was not provided with medical assistance and did not have the opportunity to sleep, as there was neither a bed nor bedding. Given that she had suffered an injury to her tail bone, the only position that she had been able to cope with was staying upright all the time. It is not clear whether any records of the applicant’s detention were made. 19. The Government submitted that there had been no standard rules concerning the conditions for such detention, that the applicant’s cell had been equipped with a wooden bench, that the applicant had not complained about the state of her health and that the authorities had not impeded third parties, such as a relative, from bringing their own food to feed the applicant. 20. The applicant was released on 9 December 2001 at around 1 p.m., without having been brought before a judge or otherwise interrogated. On the same date, the applicant was examined by a doctor who recorded a bruise on the applicant’s tail bone. The doctor stated specifically that the bruise had been formed as a result of an impact occurring no less than once by a blunt object in a mechanical way, similar to a blow, and that it “could have been inflicted during a fall onto a flat surface or [by] continuous dragging along the floor or down a staircase”. 21. The administrative proceedings against the applicant and her son concerning the charge of minor affray were later discontinued or abandoned. 22. The Government did not dispute the timing of the applicant’s detention and release. 23. On 12 December 2001 the applicant asked a prosecutor to initiate criminal proceedings against police officers S., K. and the policeman who had dragged her from the apartment to the car. In her application, she referred specifically to the policemen’s unlawful entry to the apartment and the applicant’s family’s accommodation, to being beaten and to her subsequent unlawful arrest and detention. The letter described in detail the conditions of her detention. On 28 January 2002 Ts., an assistant prosecutor at the St Petersburg Central District Prosecutor’s Office, refused to institute criminal proceedings. The applicant did not provide the Court with a copy of the decision. 24. On 8 February 2002 M., a supervising prosecutor at the St Petersburg Prosecutor’s Office, instituted criminal proceedings against S. on the basis of the applicant’s complaint of S.’s unlawful actions. She argued that: “... [the decision of 28 January 2002] had been unlawful and had to be quashed insofar as it had concerned the actions of the police officers. Thus, [the relevant legislation] indeed empowers the policemen to enter without hindrance the residential premises of private citizens. However, this power is provided only in case the [policemen are pursuing] the persons suspected of criminal activity. In the case at hand, [the applicant’s son] was not a suspect within the meaning of [the domestic law on criminal procedure], the criminal case against him was instituted only later, which policemen K. and S. certainly knew. In addition, in breach of the mentioned legal norm obliging the police to inform about all such cases the relevant prosecutor within 24 hours, this has not been done. The unlawful actions of the policemen [in question] mostly provoked the subsequent actions of [the applicant], which was unjustifiably viewed by the policemen as a minor affray. [The applicant’s] intent in the present situation was directed at the protection of her son, and not the breach of public order. As was earlier noted in [previous decision of the prosecutor’s office], the [applicant’s] actions did not qualify as [an offence of insulting a public officer] ... because the relevant actions did not have a lawful character ...” The prosecutor considered that the applicant had been taken to the police station and had been detained there unlawfully. The prosecutor decided to institute criminal proceedings but for some reason failed explicitly to quash the decision of 28 January 2002. 25. On 14 March 2002 an expert examination of the applicant’s medical condition was conducted. The expert noted that the applicant had a bruise on her tail bone which could have occurred, among other reasons, as a result of her being dragged down the staircase on 8 December 2001. 26. Investigator Ch. of the St Petersburg Central District Prosecutor’s Office, in charge of the criminal case against S., collected the following evidence. He questioned S., who stated that during the incident in the applicant’s apartment she had verbally insulted and pushed him several times and that he had had to call for reinforcements and take the applicant to the police station. S. had not known about the applicant’s disability at the time of the incident. 27. The investigator also questioned K., who stated that he had been in charge of investigating Bo. having been beaten up by the applicant’s son. On 8 December 2001, having learned that the applicant’s son was at home, he had gone with officer S. to invite him to attend a police interview. They had met the applicant in the apartment and she had started to verbally insult them and push S. out of the apartment. The applicant’s neighbours had witnessed the incident. Then K. had left the building and had seen the reinforcing officers arriving. Sh. and M. had gone upstairs and had soon come back, leading the applicant by the hands to the car. 28. Sh. told the investigator that on 8 December 2001 he had arrived at the applicant’s apartment. He had seen the applicant swearing and pushing S. Then S. had given the order to take the applicant to the station. He and another policeman had taken her by the hands and had led her out of the apartment to the car. The applicant had resisted. 29. The investigator questioned the applicant’s neighbours Bo. and S., who stated that they had seen her insulting and trying to hit officer S. They stated that the two policemen had then taken the applicant to the car, despite her resistance. The neighbours also gave evidence to the effect that the police officers had forced open the door to the applicant’s son’s room and had entered it despite the applicant’s objections. 30. L., a passer-by, stated to the investigator that she had seen two policemen leading a woman from an apartment block to a car. The woman had been resisting and screaming. She had then been “carefully put into the car”. 31. The applicant told the investigator that in the apartment a police officer had hit her so hard that she had fallen to the floor. He had then taken her by the wrist and had dragged her along the floor out of the apartment. She had walked by herself from the entrance of the apartment block to the car. 32. In the light of the above evidence, the investigator concluded that S., by ordering the applicant’s transfer to the police station, had acted lawfully. Accordingly, on 8 June 2002 he took a decision to discontinue the criminal proceedings against S. 33. On 1 July 2002 deputy prosecutor B. S. of the St Petersburg Central District Prosecutor’s Office quashed the decision of 8 June 2002 and ordered additional investigation of the applicant’s complaint concerning alleged unlawful actions by S. 34. On 21 October 2002 an investigator at the St Petersburg Central District Prosecutor’s Office discontinued the criminal proceedings against S. He argued that S. had acted lawfully and had not abused his authority. The investigator also found that the applicant had insulted S. and had punched him several times in the chest, and therefore that she was liable to prosecution for having committed violent actions towards an officer on duty. He separated the case relating to the applicant’s actions in respect of the officer into a different set of criminal proceedings. On 28 April 2003 the criminal proceedings against the applicant in this respect were discontinued for the lack of evidence of a crime. 35. On 17 February 2003 deputy prosecutor B.S. of the St Petersburg Prosecutor’s Office quashed the decision of 21 October 2002 and ordered additional investigation into the applicant’s complaints. 36. On 3 April 2003 investigator A. Sh. of the St Petersburg Central District Prosecutor’s Office discontinued the criminal proceedings. The investigator stated that the applicant’s bruise had occurred as a result of her active resistance to the lawful actions of policemen. On the way to the car, the applicant had tried to hold on to a door frame, the rails of the staircase and a metal fence on the street, and had bent her feet so that the policemen had had to carry her. The investigator argued that taking the applicant to the police station had been justified by the need to hold her responsible for her breach of public order. The investigator concluded that there was no evidence that S. had abused his powers. The investigator also stated that the police had made a record of the applicant’s administrative offence and that they had arrested the applicant in order to bring her before a judge who was competent to decide on her guilt as regards the administrative offence in accordance with applicable law. 37. On 30 December 2003 deputy prosecutor Zh. of the St Petersburg Prosecutor’s Office quashed the decision of 3 April 2003 and ordered additional investigation by another prosecutor’s office. The prosecutor noted that it had not been possible to establish with certainty the circumstances of the incident between the applicant and the police officers due to inconsistencies in the witnesses’ statements. In the decision, the prosecutor referred to the record of the applicant’s administrative and police detention but noted discrepancies as regards the beginning of the applicant’s detention and also stated that the time of the applicant’s release was not recorded at all. He considered that it was necessary to carry out a comprehensive medical expert examination of the applicant and noted the inadequacy of the investigation conducted so far. 38. On 18 February 2004 an investigator from the St Petersburg Admiralteyskiy District Prosecutor’s Office discontinued the criminal proceedings against S. He noted that the decision of 8 February 2002 had not quashed the decision of 28 January 2002 and that the original decision was still in force. Thus, the institution of criminal proceedings at a time when there was a valid decision to discontinue them was unlawful. The investigator noted in his decision that, in entering the apartment against the will of its owner and ordering the policemen to take the applicant to the police station, S. had acted unlawfully. He also noted that officer Sh. had led the applicant out of the apartment. According to the investigator, the applicant had been detained at the police station on the basis of reports by a number of policemen, namely B., Sh. and M. 39. On 31 March 2004 deputy prosecutor A. Zh. of the St Petersburg Prosecutor’s Office quashed the decision of 18 February 2004 due to the inadequacy of the investigation and ordered additional investigation. 40. On 31 May 2004 investigator Zh. of the St Petersburg Admiralteyskiy District Prosecutor’s Office discontinued the criminal proceedings against S. The investigator stated that it had not been possible to establish with certainty the circumstances of the incident between the applicant and police officers due to inconsistencies in the witnesses’ statements. He argued that S. had unlawfully entered the apartment against the applicant’s will and had given an illegal order to take her to the police station. The investigator also added that S. had violated the applicant’s rights, as he had not checked whether her detention at the police station for more than three hours was lawful. The investigator further argued that the institution of criminal proceedings at a time when the decision of 28 January 2002 to discontinue them was still in force was unlawful and all evidence collected in the course of the newly opened investigation was inadmissible. The applicant’s son challenged the decision in court on the applicant’s behalf. 41. On 17 February 2005 the Smolninskiy District Court in St Petersburg examined the applicant’s complaint against the investigator’s decision of 31 May 2004 and rejected it. The court upheld the investigator’s conclusion that the institution of criminal proceedings at a time when the decision of 28 January 2002 to discontinue them was still in force was unlawful and all evidence gathered in the course of the newly opened proceedings was inadmissible. The applicant appealed. On 7 April 2005 the St Petersburg City Court rejected the applicant’s appeal. 42. On 2 June 2004 deputy prosecutor A. Zh. of the St Petersburg Prosecutor’s Office quashed the decision of 8 February 2002 to institute criminal proceedings. On 2 June 2004 the deputy prosecutor quashed the decision of 28 January 2002 to discontinue the criminal proceedings and ordered additional investigation. 43. On 11 June 2004 deputy prosecutor K. of the St Petersburg Central District Prosecutor’s Office discontinued the criminal proceedings against S. The deputy prosecutor noted that police officers Sh. and M. had taken the applicant by the hands and had led her out of the apartment. He concluded that the police officers had acted lawfully during the incident, which had been provoked by the applicant and her son. The deputy prosecutor also mentioned the fact that no records of the time of the applicant’s release had been made at the police station and added that the materials of inquiry concerning the administrative proceedings against the applicant and her son, namely the records of administrative offences, had been destroyed. In taking the decision, the prosecutor did not mention any specific piece of evidence, either new or old. The applicant’s son challenged this decision in court on her behalf. 44. On 1 November 2004 the Smolninskiy District Court in St Petersburg rejected the complaint against the decision of 11 June 2004. The court noted that: “... the statements of all persons questioned in connection with the case have been analysed, the events have been described in the decision [of 11 June 2004] in chronological order and do not contradict the evidence contained in the materials of inquiry ... submitted to the court. The statements of policemen Sh., B., K. and S. that they did not commit any illegal actions towards Dmitriyeva and that the conflict was provoked by [the applicant], who had refused to follow the lawful orders of the policemen, are also confirmed by the statements of witness L. ...” The applicant appealed against the judgment. 45. On 27 January 2005 the St Petersburg City Court rejected the applicant’s appeal. 46. Section 11(18) of the Police Act 1991 gives the police the right to enter premises when pursuing a person suspected of having committed a crime or when the police have sufficient information to believe that a crime has been or is being committed on the premises or that an accident has happened there and also for the purposes of ensuring the safety of citizens and of the public in cases of natural disasters, catastrophes, accidents, epidemics, epizootics and public disorders. The police have to notify a prosecutor of all cases of entry into the homes of persons against their will within twenty-four hours. 47. Article 158 of the RSFSR Administrative Offences Code 1984, as in force at the relevant time, punished minor affray, namely the use of abusive language in public places, harassment of citizens and other similar actions disturbing the public order and peace. Article 238 of the Code provided that an accused person could be brought to a police station for the purpose of making a record of an administrative offence if it had not been possible to make it on the spot. Article 240 required that administrative detention be recorded. According to Article 242, a person who committed an administrative offence could be detained for no more than three hours. However, individuals who committed minor affray could be detained until the examination of the case by a court or by the head of a law-enforcement body. 48. The relevant extract from the 2nd General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) (CPT/Inf (92) 3) reads as follows: “42. Custody by the police is in principle of relatively short duration ... However, certain elementary material requirements should be met. All police cells should be of a reasonable size for the number of persons they are used to accommodate, and have adequate lighting (i.e. sufficient to read by, sleeping periods excluded) and ventilation; preferably, cells should enjoy natural light. Further, cells should be equipped with a means of rest (e.g. a fixed chair or bench), and persons obliged to stay overnight in custody should be provided with a clean mattress and blankets. Persons in custody should be allowed to comply with the needs of nature when necessary in clean and decent conditions, and be offered adequate washing facilities. They should be given food at appropriate times, including at least one full meal (i.e. something more substantial than a sandwich) every day. 43. The issue of what is a reasonable size for a police cell (or any other type of detainee/prisoner accommodation) is a difficult question. Many factors have to be taken into account when making such an assessment. However, CPT delegations felt the need for a rough guideline in this area. The following criterion (seen as a desirable level rather than a minimum standard) is currently being used when assessing police cells intended for single occupancy for stays in excess of a few hours: in the order of 7 square metres, 2 metres or more between walls, 2.5 metres between floor and ceiling.” The CPT reiterated the above conclusions in its 12th General Report (CPT/Inf (2002) 15, § 47). 49. The part of the Report to the Russian Government on the visit to the Russian Federation carried out by the CPT from 2 to 17 December 2001 (CPT/Inf (2003) 30) reads, in so far as it concerns conditions of detention in administrative-detention cells located within police stations, as follows: “25. Similar to the situation observed during previous visits, none of the district commands (RUVD) and local divisions of Internal Affairs visited were equipped with facilities suitable for overnight stays; despite that, the delegation found evidence that persons were occasionally held overnight at such establishments... The cells seen by the delegation were totally unacceptable for extended periods of custody: dark, poorly ventilated, dirty and usually devoid of any equipment except a bench. Persons held overnight were not provided with mattresses or blankets. Further, there was no provision for supplying detainees with food and drinking water, and access to a toilet was problematic. The CPT reiterates the recommendation made in its report on the 1999 visit (cf. paragraph 27 of document CPT (2000) 7) that material conditions in, and the use of, cells for administrative detention at district commands and local divisions of Internal Affairs be brought into conformity with Ministry of Internal Affairs Order 170/1993 on the general conditions and regulations of detention in administrative detention cells. Cells which do not correspond to the requirements of that Order should be withdrawn from service. Further, the Committee reiterates the recommendation made in previous visit reports that administrative detention cells not be used for accommodating detainees for longer than 3 hours.” | 1 |
train | 001-89790 | ENG | MDA | ADMISSIBILITY | 2,008 | LOZINSCHI v. MOLDOVA | 4 | Inadmissible | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | The applicants, Mr Victor Lozinschi and Ms Maria Rujavniţa, are Moldovan nationals who were born in 1957 and 1954, respectively. They are represented before the Court by Mr Ivan Moscal, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr Vladimir Grosu. The facts of the case, as submitted by the parties, may be summarised as follows. On 8 February 2000 the applicants entrusted their merchandise to a third party for transportation from Turkey to Moldova. On the same date, the third party was arrested at the Moldovan customs on charges of smuggling and the applicants’ merchandise was seized by police as evidence. By a final judgment of 26 September 2000 the Supreme Court of Justice acquitted the third party and ordered the restitution of the applicants’ merchandise. Since a part of the seized merchandise had been stolen from the police station the applicants brought an action against the Ministry of Interior (“the Ministry”) seeking compensation for the stolen goods. By a final judgment of 9 October 2002 the Centru District Court ruled in favour of the applicants and ordered the Ministry to pay Mr Lozinschi 1,715 United States dollars (USD) (23,287.52 Moldovan lei (MDL) at the time) in compensation for the stolen merchandise and MDL 6,500 (488 euros (EUR) at the time) in respect of legal costs. It also ordered the Ministry to pay Ms Rujavniţa the equivalent in the national currency of USD 1,445 (MDL 19,617.03) in compensation for the stolen merchandise and MDL 5,000 (EUR 376) in respect of legal costs. On 12 November 2002 the bailiff received the enforcement warrant. On 10 April 2003 a bailiff instituted administrative proceedings against the competent administration of the Ministry which had failed to comply with the final judgment in favour of the applicants. Following the communication of the applications, on 5 December 2007 the Government informed the Court that on 5 December 2005 and on 2 March 2006 Mr Lozinschi had been paid MDL 2,000 (EUR 133) and MDL 26,079.70 (EUR 1,684), respectively, representing the amounts awarded by the judgment of 9 October 2002. They also informed that on 11 November 2005 and on 2 March 2006 Ms Rujavniţa had been paid MDL 2,000 (EUR 134) and MDL 21,187.20 (EUR 1,368), respectively, representing the amounts awarded by the judgment of 9 October 2002. The Government also attached copies of receipts signed by the applicants. The Government further informed the Court that after having received those amounts the applicants brought separate actions against the Ministry, seeking compensation for pecuniary damage suffered as a result of their impossibility to use their money between October 2002 and March 2006. By a final judgment of 6 April 2007 the Centru District Court ruled in favour of Mr Lozinschi and ordered the Ministry to pay him MDL 10,889.88 (EUR 652) in compensation for pecuniary damage suffered as a result of his impossibility to use his money. On 12 December 2006 the Chişinău Court of Appeal ruled in favour of Ms Rujavniţa and awarded her compensation in the sum of MDL 8,976 (EUR 519). In May and March 2007 a bailiff received the enforcement warrants in respect of the judgments of 6 April 2007 and 12 December 2006, respectively, and on 21 August 2007 the applicants have been paid the amounts due. The Government also submitted copies of the relevant documents. | 0 |
train | 001-89064 | ENG | RUS | CHAMBER | 2,008 | CASE OF GODLEVSKIY v. RUSSIA | 3 | Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Anatoly Kovler;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 6. The applicant was born in 1958 and lives in Oryol. At the material time the applicant was a journalist and editor-in-chief of the Orlovskiy Meridian newspaper, published by the Mir Novostey limited company. 7. On 21 March 2001 the applicant’s newspaper published his article “Tied in the system, or, Why are the generals waiting for the appointed hour?” (“В путах системы, или Почему генералы ждут часа «Ч»?”). The article was signed by his pen name Sergey Smirnov. The article told the readers about a criminal investigation opened by the regional prosecutor’s office into the activities of six (out of fourteen) officers from the regional anti-narcotics unit (ОБНОН УВД Орловской области). It was alleged that on several occasions the officers of the unit had unlawfully discontinued the criminal prosecution of drug-dealers who had agreed to “co-operate” with them and to share the profits from drug sales. 8. The article featured an interview with a former drug dealer, Ms V., who sold drugs under the unidentified officers’ “cover” for several years, until they “betrayed” her and she was arrested: “They apprehended me at a market when I was purchasing opium, [they] wrote down my contact details... Like many others, I had been paying them, and, ‘as a gesture of thanks’, they at first overlooked my buying and consuming drugs, [and] later my selling them... They said: here is a new drug, try it and describe the effect to us. It was heroin... I assure you that the police know every single [sale-purchase] point and every single dealer – in this sense they work very well [because] it brings them profit... I had to remember all of their birthdays – theirs, their wives’ and children’s. All of them expected presents. Also, they needed money all the time: once [they asked for money] to buy petrol for the police car... They set me up... Now I am in prison. There are only my kind here, because we cannot pay them off – our income from drug-dealing is barely sufficient for a ‘pay-off’ and our own dose. As to the dealers... I bear witness that all of them left the pre-trial detention facility...” 9. The article described the alleged wrongdoings of the anti-narcotics unit in general terms, without identifying any officers by name or rank: “The persons who are charged today do not admit their guilt. They claim that they have been slandered by drug addicts and are being avenged by the regional prosecutor’s office for the drug-related arrest of the prosecutor’s son in the past... Nevertheless, it is for the court to determine the matter – this is why I do not name any of the police officers. But one fact is indisputable: the extent to which drugs have spread in the Oryol Region is such that there is probably no way out. Taking into account that the duties of various state authorities are clearly demarcated, no matter what subterfuges you use, it is the police in particular who are responsible for the prosperity of drug-dealers in Oryol and, more specifically, the anti-narcotics unit. The anti-narcotics unit is also to be blamed for the deaths of 39 persons who died last year by overdose and for the easy access to drugs of each school student in Oryol. And also for the fact that drug-dealers are still at liberty.” 10. The article further stated that the officers charged had used drugs to pay for “information and services”: “The investigation found that, as a matter of course, some officers in the unit used drugs to pay for services and information. Question: where does a police officer get drugs from? Answer: part [of the drugs] seized from drug addicts and drug dealers was retained, in contravention of all laws and regulations, for the needs of the police. And when such a dreadful weapon ends up in the hands of people who are not entirely morally upright, one can expect anything: drugs become a means of payment, a means of blackmail, and a threat to life... A police officer becomes a criminal.” 11. The concluding paragraphs of the article explained its headline. A high-ranking general in the Russian security service once allegedly stated that the police knew all criminals and only waited for the appointed hour when the order would come to exterminate them. The article doubted the general’s illusion of omnipotence and expressed concern for the future of the Oryol Region. 12. On an unspecified date all fourteen officers of the Oryol Region anti-narcotics unit, including the six charged with drug-related offences, filed a civil defamation action. Without mentioning specific parts of the article, the officers asserted that the publication had damaged their honour, dignity and professional reputation and claimed compensation for non-pecuniary damage. The statements designated the editor’s office of the Orlovskiy Meridian newspaper and “the author of the article Sergey Smirnov” as co-defendants. One of the plaintiffs subsequently died. 13. On 18 June 2001 the Sovietskiy District Court of Oryol invited the plaintiffs to specify which extracts of the publication they believed to be damaging to their honour and reputation. Between mid-2001 and early 2002 the plaintiffs filed identically worded addenda to their original statements of claim, according to which the following expressions had damaged their reputation: “...I had been paying them...They said: here is a new drug, try it and describe the effect to us. It was heroin... I had to remember all of their birthdays – theirs, their wives’ and children’s. All of them expected presents... ...it is the police in particular who are responsible for the prosperity of drug-dealers in Oryol and, more specifically, the anti-narcotics unit. The anti-narcotics unit is also to be blamed for the deaths of 39 persons who died last year by overdose and for the easy access to drugs of each school student in Oryol. And also for the fact that drug-dealers are still at liberty... ...part [of the drugs] seized from drug addicts and drug dealers was retained, in contravention of all laws and regulations, for the needs of the police. And when such a dreadful weapon ends up in the hands of people who are not entirely morally upright, one can expect anything: drugs become a means of payment, a means of blackmail, and a threat to life... A police officer becomes a criminal...” 14. On an unspecified date the staff lawyer of the applicant’s newspaper commissioned a linguistic examination of the publication, which was carried out by a professor from Oryol State University who had a degree in language studies. His report pointed out that the publication had not referred to any police officer by name or otherwise and the blame had been placed on the state authorities as a whole and the Oryol Region anti-narcotics unit in particular. The expert concluded that none of the quoted extracts could be considered as damaging the honour or dignity of any specific person as an individual. 15. On 4 October 2002 the Sovietskiy District Court of Oryol delivered the judgment in the defamation action against the editor’s office of the Orlovskiy Meridian newspaper and the Mir Novostey company. The assessment of the damaging nature of the extracts was solely based on the statements by the plaintiffs and their relatives who claimed that the publication had been a cause of psychological anxiety. The court did not address the issue of whether the publication had targeted the plaintiffs. Nor did it distinguish between the author’s speech and the statements quoted as having been made by Ms V. in an interview. In the court’s opinion, the defendant failed to prove that the published information had been true on the date of its dissemination. Its findings were worded as follows: “The information designated by the plaintiffs was published in the Orlovskiy Meridian newspaper and contains statements to the effect that the Oryol Regional anti-narcotics unit is to be blamed for the prosperity of drug-dealers in Oryol, for the deaths of 39 individuals by overdose and for the fact that most dealers are still at liberty; that the officers of the anti-narcotics unit made use of drugs seized from drug addicts and drug-dealers and unlawfully retained them to meet the needs of the police in paying for information; that the officers of the anti-narcotics unit were paid off, that drug addicts knew their birthdays and those of their family members because they had to give them presents on these days, that they suggested to her that she test a new drug... The court considers that this information is damaging to the honour, dignity and professional reputation of [the 13 plaintiffs] as officers of the anti-narcotics unit, whose main duty is the fight against crime and, more specifically, against the unlawful trade in drugs... The plaintiffs have not been found guilty of any crime or offence in accordance with the legal procedure, and thus the information which is damaging to their honour, dignity and professional reputation is untrue and is subject to a rectification in the same media...” 16. The District Court ordered the newspaper to publish a rectification, the editor’s office to apologise to the plaintiffs and the Mir Novostey company to pay 5,000 Russian roubles (approximately EUR 200) to each of the plaintiffs. 17. In the statement of appeal, counsel for the Mir Novostey company submitted that the District Court had not given proper assessment to the fact that the publication had concerned a structural police unit rather than named individuals, that a criminal case was pending against several police officers, that other officers had been disciplined after the publication and that the director of the regional police had negatively appraised the performance of the anti-narcotics unit. 18. On 27 November 2002 the Oryol Regional Court examined the appeal and heard oral submissions by the applicant as the editor-in-chief, and counsel for the Mir Novostey company. It found as follows: “The [article in question] was published in March 2001, that is, before the criminal case, including the indictment bill, was submitted for trial. As of today, there has still been no conviction in the criminal case against [six plaintiffs]. The first-instance court has therefore correctly concluded that there was no proof of the truthfulness of the information contained in the publication and contested by the plaintiffs... The court considers that the negative appraisal of the performance of the anti-narcotics unit by the Oryol Regional police department, which followed publication of the article, cannot be a proof of the truthfulness of the information contested by the plaintiffs because in the present case the only such proof would be a court judgment. With regard to the foregoing, the court considers that... the appellant’s argument that the contested publication did not contain information on specific individuals, but only referred to a structural unit of the police, is not a valid ground to quash the judgment. Under Article 306 § 2 of the Russian Code of Civil Procedure, a judgment that is correct in substance need not be quashed merely because of formal defects.” 19. The Regional Court upheld the judgment of 4 October 2002 in substance. It also ordered that the newspaper should print the operative part of the judgment as the rectification, but it struck out the requirement to apologise to the plaintiffs on the ground that such a requirement had no basis in domestic law. 20. Article 29 guarantees freedom of thought and expression, together with freedom of the mass media. 21. Article 152 provides that an individual may apply to a court with a request for the rectification of statements (svedeniya) that are damaging to his or her honour, dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such statements. 22. The Resolution (in force at the material time) provided that, in order to be considered damaging, statements had to be untrue and contain allegations of a breach of laws or moral principles (commission of a dishonest act, improper behaviour at the workplace or in everyday life, etc.). Dissemination of statements was understood as the publication of statements or their broadcasting (section 2). The burden of proof was on the defendant to show that the disseminated statements had been true and accurate (section 7). 23. If the defamation claim concerned information printed in a newspaper, the defendants were the author and the editor’s office of the newspaper. If the author’s name was not mentioned (for example, in an editorial), the editor’s office was the defendant. If the editor’s office had no legal personality, the newspaper’s founder was to be brought into the proceedings as the defendant (section 6). 24. On 20 December 2002 a deputy President of the Supreme Court of the Russian Federation lodged an application for supervisory review in a defamation action which had been originally granted by the Penza courts. The deputy President noted, in particular: “However, the courts did not take into account that one of the requirements of Article 152 of the Civil Code is that statements must refer to a particular person or a clearly identifiable group of persons...” On 7 February 2003 the Presidium of the Penza Regional Court granted the application and quashed the judgments in the defamation claim. The case eventually ended in a friendly settlement. 25. Section 2 defines the “editor’s office” as an organisation, institution, individual or group of individuals that produces and publishes a newspaper. The “editor-in-chief” means the person who is in charge of the editor’s office and who takes final decisions regarding production and publication of the newspaper. 26. The editor’s office is professionally independent. It may be registered as a legal entity, but this is not an obligation. The editor-in-chief acts for the editor’s office before the newspaper founder, publisher, distributor, individuals, groups of individuals, companies, institutions, organisations, State authorities and the courts. The editor-in-chief bears responsibility for compliance with the requirements of the Mass-Media Act and other laws of the Russian Federation (section 19). 27. A journalist has a duty to verify the truthfulness of the information he or she communicates (section 49 § 1 (2)), as well as a duty to inform the editor-in-chief of all potential actions or claims arising out of his or her publications (section 49 § 1 (7)). 28. Founders, editor’s officers, publishers, distributors, journalists and authors bear responsibility for violations of the Mass-Media Act (section 56). 29. Recommendation Rec(2003)13 of the Committee of Ministers to Member States on the provision of information through the media in relation to criminal proceedings reads, in the relevant parts, as follows: “...Recalling that the media have the right to inform the public due to the right of the public to receive information, including information on matters of public concern, under Article 10 of the Convention, and that they have a professional duty to do so; ... Stressing the importance of media reporting in informing the public on criminal proceedings, making the deterrent function of criminal law visible as well as in ensuring public scrutiny of the functioning of the criminal justice system; Considering the possibly conflicting interests protected by Articles 6, 8 and 10 of the Convention and the necessity to balance these rights in view of the facts of every individual case, with due regard to the supervisory role of the European Court of Human Rights in ensuring the observance of the commitments under the Convention... Recommends, while acknowledging the diversity of national legal systems concerning criminal procedure, that the governments of member states: 1. take or reinforce, as the case may be, all measures which they consider necessary with a view to the implementation of the principles appended to this recommendation, within the limits of their respective constitutional provisions, 2. disseminate widely this recommendation and its appended principles, where appropriate accompanied by a translation... Principle 1 - Information of the public via the media The public must be able to receive information about the activities of judicial authorities and police services through the media. Therefore, journalists must be able to freely report and comment on the functioning of the criminal justice system, subject only to the limitations provided for under the following principles. Principle 2 - Presumption of innocence Respect for the principle of the presumption of innocence is an integral part of the right to a fair trial. Accordingly, opinions and information relating to on-going criminal proceedings should only be communicated or disseminated through the media where this does not prejudice the presumption of innocence of the suspect or accused. ... Principle 8 - Protection of privacy in the context of on-going criminal proceedings The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.” | 1 |
train | 001-99387 | ENG | HUN | CHAMBER | 2,010 | CASE OF VARALJAI v. HUNGARY | 4 | Violation of Art. 6-1 | András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria | 4. The applicant was born in 1943 and lives in Albertirsa. 5. An inheritance action was filed against the applicant on 30 November 1999. On 16 April 2002 the Cegléd District Court found for the plaintiffs. This decision was quashed by the Pest County Regional Court 10 December 2002. The District Court gave a new judgment on 1 March 2005. On 19 December 2006 the Regional Court decided on the parties' appeals. This decision was served on 13 March 2007. | 1 |
train | 001-58083 | ENG | FRA | CHAMBER | 1,996 | CASE OF VACHER v. FRANCE | 3 | Lack of jurisdiction (new complaint);Violation of Art. 6-1;Violation of Art. 6-3-b;Violation of Art. 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings | C. Russo | 7. Mr Gérard Vacher, a French national, is a company director and lives at Neuilly-sur-Seine. 8. On 21 September 1988 the Public Works Department of the département of Hauts-de-Seine lodged a criminal complaint against the applicant alleging offences under the Town Planning Code and, more particularly, that he had built a wall without first obtaining planning permission. 9. On 9 February 1990 the Nanterre Criminal Court sentenced the applicant to a fine of 8,000 French francs (FRF), payment of which was suspended, and ordered him to alter the wall so that it complied with regulations. 10. On 23 May 1991, following an appeal brought by Mr Vacher on 16 February 1990 and a subsequent cross-appeal by the prosecution, the Versailles Court of Appeal upheld the judgment of the court below in its entirety and further ordered that the wall should be altered to comply with regulations within a period of four months from the date of its judgment, on penalty of FRF 200 per day’s delay starting at the end of that period. It also ordered the applicant to pay the civil party claiming damages FRF 3,000 in respect of the costs incurred by that party. 11. On 28 May 1991 Mr Vacher lodged a notice of appeal on points of law against the judgment of the Versailles Court of Appeal with that court’s registry (Article 576 of the Code of Criminal Procedure - see paragraph 13 below). On 19 June 1991 the case file for the appeal was registered by the Court of Cassation registry. On 14 August 1991 the applicant filed a pleading in support of his appeal. 12. On 3 September 1991 the chief registrar of the Court of Cassation sent Mr Vacher the following letter: "Further to your letter, I have to inform you that the Criminal Division of the Court of Cassation delivered a judgment on 6 August 1991 dismissing your appeal. Consequently, the pleading received from you at the criminal registry on 14 August 1991 will be disregarded as being out of time." The judgment in question, which was served on the applicant on 30 October 1995, was based on the following ground: "No ground of appeal has been filed in support of the appeal; the judgment appealed against is in the proper form and the findings of fact, which cannot be appealed against, justify both the classification of the offence and the sentence." 13. The main provisions of the Code of Criminal Procedure referred to in the present case are the following: "The prosecuting authority and all the parties shall have five clear days in which to appeal to the Court of Cassation after delivery of the judgment appealed against. ..." "Notice of appeal shall be given to the registrar of the court which delivered the judgment appealed against. It must be signed by the registrar and by the appellant himself or by a lawyer [avoué] at the court which gave judgment, or by a specially authorised person ... The appeal shall be recorded in a special public register and any person shall be entitled to obtain a copy of it." "An appellant on points of law may lodge a pleading bearing his signature and containing the grounds of his appeal with the registry of the court against 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 that time-limit, a convicted appellant may send his pleading directly to the Court of Cassation; the other parties may not avail themselves of this provision without retaining a member of the Court of Cassation Bar. ..." Law no. 93-1013 of 24 August 1993, which came into force on 2 September 1993, inserted Article 585-1, which provides: "Save where the President of the Criminal Division decides otherwise, a convicted appellant shall lodge his pleading with the registry of the Court of Cassation no later than one month from the date of the notice of appeal." In his report of 23 June 1993 presented to the National Assembly on behalf of the Committee on Constitutional Law, Legislation and the General Administration of the Republic, Mr Jean Tibéri justified the insertion of the new Article 585-1 as follows: "The new Article 585-1 is intended to resolve a difficulty which has appeared in recent years. The Court of Cassation frequently dismisses appeals on points of law because no pleadings have been filed in support of them. As the Law does not lay down a time-limit for filing a pleading, a convicted appellant’s pleading may reach the court a few days after his appeal has been dismissed. Indeed, applications are pending before the European Commission of Human Rights on this question. So as to avoid such situations recurring, the new Article 585-1 provides that convicted appellants shall have a period of one month, which may be extended by the President of the Criminal Division, in which to file their pleadings." "On pain of a 50-franc civil fine imposed by the Court of Cassation, the registrar shall, within a maximum period of twenty days from the date of the notice of appeal, number and initial the documents in the case file and place in the case file an office copy of the judgment appealed against, an office copy of the notice of appeal and, where relevant, the appellant’s pleading. He shall draw up a schedule of the whole case file." "When the case file has been made ready in the manner described above, the registrar shall deliver it to the representative of the public prosecutor’s office, who shall immediately send it to the procureur général at the Court of Cassation, who shall, turn, forward it to the registry of the Criminal Division. The President of that Division shall designate a judge to report on the case." "Where one or more counsel have been instructed, the reporting judge shall set a time-limit for pleadings to be filed with the registrar of the Criminal Division." "The pleadings shall contain the grounds of appeal and cite the legal provisions alleged to have been infringed. ... They must be lodged within the prescribed time-limit. No further pleadings may be added to them once the reporting judge has filed his report. Any pleading setting out additional grounds that is lodged out of time 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 as soon as ten days have elapsed after receipt of the case file by the Court of Cassation. ..." | 1 |
train | 001-113287 | ENG | RUS | CHAMBER | 2,012 | CASE OF ABDULKHAKOV v. RUSSIA | 3 | Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Uzbekistan);Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Tajikistan);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Extradition);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Extradition);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award | Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen | 6. The applicant was born in 1979. He is currently in hiding in Tajikistan. 7. The applicant lived in the village of Sultanabod in Andijan Region, which is located in the Fergana Valley of Uzbekistan. He worked as a carpenter. 8. The events preceding the applicant’s departure from Uzbekistan, as described by him, may be summarized as follows. 9. On 25 May 2009 a police station in Khanabad, a neighbouring town, was burnt down. A number of witnesses stated that they had seen a car belonging to a resident of Sultanabod. The owner of the car was arrested. The police found out that he was a practising Muslim and that he regularly went to the mosque. 10. The imam of the local mosque was arrested, tortured and forced to disclose the names of all those visiting the mosque. In particular, he named Mr K., who taught the Koran. Mr K. was also arrested and tortured. He gave the police the names of his pupils, including the applicant’s name. 11. The applicant was summoned to the local police station, where he was beaten with the aim of extracting a confession to his involvement in extremist activities. He was, however, released after his relatives had bribed the police. He was then fined for participating in unlawful religious gatherings and for praying outside the mosque. 12. According to the applicant, all those arrested after the events of 25 May 2009 were convicted of anti-government activities and sentenced to imprisonment. 13. On 24 August 2009 the applicant left for Kazakhstan. His family, including his parents, one of his brothers, wife and three minor children, remained in Uzbekistan. 14. On 8 September 2009 the applicant’s house in Sultanabod was searched and a religious book was found. He then received a telephone call from a local police officer, who insisted that he should return to Uzbekistan. 15. On 4 November 2009 the applicant left Kazakhstan for Russia. He firstly went to the city of Kazan where another of his brothers lived and then, on 8 December 2009, took a train to Moscow. He intended to travel onward to Ukraine, where he wanted to apply for refugee status. 16. On 20 September 2009 the Andijan Region Interior Department charged the applicant with participating in an extremist organisation of a religious, separatist or fundamentalist nature (Article 244-2 § 1 of the Uzbek Criminal Code). 17. On 9 October 2009 the Andijan Town Court ordered the applicant’s arrest. On 13 October 2009 his name was put on the list of wanted persons. 18. On 24 October 2009 the Andijan Region Interior Department amended the charges against the applicant. He was charged with participating in an extremist organisation of a religious, separatist or fundamentalist nature; smuggling of extremist materials; storing and distributing materials containing religious extremist, separatist and fundamentalist ideas; using religion with the aim of disturbing the public peace and order; disseminating slanderous and damaging insinuations and committing other acts against the established rules of conduct and national security; and calling for the overthrow of the constitutional order of Uzbekistan, the usurpation of power and breach of the territorial integrity of Uzbekistan (the offences contained in Articles 244-2 § 1, 246 § 1, 244-1 § 3, 159 § 3 of the Uzbek Criminal Code). In particular, he was accused of membership of a banned organisation, “jamaat”, which was allegedly disseminating “the separatist, fundamentalist and extremist ideas of Wahhabism”. The members of that organisation were claimed to hold regular religious gatherings and to collect money. The applicant was also accused of smuggling religious books authored by Muhammad Rafiq Kamoliddin and Abduvali Mirzaev, which allegedly “encouraged unconstitutional and anti-government sentiments” and contained “slanderous insinuations alien to traditional Islam”. The Interior Department concluded from the above that, by being a member of a banned religious organisation and by smuggling extremist religious books, the applicant had disseminated the ideas of Wahhabism, called for the establishment of an Islamic Caliphate based on Sharia, and “slandered the democratic system established in the Republic of Uzbekistan”. 19. On 8 December 2009 the Moscow Interior Department informed the Andijan Region Anti-Terrorism Department that, according to their information, the applicant would arrive in Moscow the next day. In reply, the Andijan Region Anti-Terrorism Department confirmed that the applicant was wanted by the Uzbek authorities on the charge of membership of an extremist organisation of a religious, separatist or fundamentalist nature and that an arrest warrant had been issued in respect of him. It asked the Moscow Interior Department to keep the applicant in custody pending an extradition request, which would be sent without delay. 20. On 9 December 2009, immediately after his arrival in Moscow, the applicant was arrested. 21. On 30 December 2009 the Prosecutor General’s Office of the Russian Federation received a request for the applicant’s extradition from the Prosecutor General of Uzbekistan. The Uzbek prosecutor’s office gave an assurance that the applicant 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, without Russia’s consent. It also stated that after serving his sentence he would be free to leave Uzbekistan. 22. On 31 December 2009, 19 January and 3 February 2010 the Ministry of Foreign Affairs, the Federal Migration Service and the Federal Security Service informed the Prosecutor General that the applicant did not hold Russian citizenship and there were no other obstacles to his extradition to Uzbekistan. 23. On 5 May 2010 further assurances were given by a Deputy Prosecutor General of Uzbekistan. He gave an undertaking that the applicant would not be subjected to torture, violence or other forms of inhuman or degrading treatment and that the rights of the defence would be respected. He also gave an assurance that the Uzbek authorities had no intention of persecuting the applicant for political motives or on account of his race or religious beliefs. 24. On 10 December 2009 the Moskovsko-Ryazanskiy Transport Prosecutor ordered the applicant’s detention. He referred to the arrest warrant issued by the Andijan Town Court, to Article 61 of the 1993 Minsk Convention and to Article 108 of the Code of Criminal Procedure (“CCrP”). 25. On 18 January 2010 the Moskovsko-Ryazanskiy Transport Prosecutor again ordered the applicant’s detention. He referred to the extradition request received from the Uzbek authorities and relied on Article 466 § 2 of the CCrP. 26. On 8 February 2010 the Meshchanskiy District Court of Moscow extended the applicant’s detention until 9 June 2010, referring to Article 109 of the CCrP. On 7 April 2010 the Moscow City Court upheld the decision on appeal. 27. On 9 June 2010 the Meshchanskiy District Court extended the applicant’s detention until 9 September 2010, referring to Article 109 of the CCrP. On 28 July 2010 the Moscow City Court upheld that decision on appeal. It found, in particular, that the applicant’s detention was in conformity with Article 61 of the 1993 Minsk Convention and Article 466 § 2 of the CCrP. 28. On 7 September 2010 the Meshchanskiy District Court ordered a further extension of the applicant’s detention until 9 December 2010. 29. The applicant appealed on 9 September 2010. On 1 December 2010 the Moscow City Court rejected his appeal and upheld the decision of 7 September 2010. 30. On 8 December 2010 the Moscow City Court extended the applicant’s detention until 9 June 2011 on the grounds that the extradition proceedings against him were still pending. 31. On 16 December 2010 the applicant lodged appeal submissions. On 20 January 2011 the Supreme Court of the Russian Federation upheld the extension order on appeal. 32. On 9 June 2011 the Moskovsko-Ryazanskiy Transport Prosecutor ordered the applicant’s release subject to his lawyer providing a personal guarantee. Relying on Article 109 of the Code of Criminal Procedure (see paragraph 84 below), he found that the maximum detention period permitted under Russian law had expired and that it was not possible to extradite the applicant for the time being due to the indication of an interim measure by the Court. 33. On 22 December 2009 the applicant applied to the Russian Federal Migration Service (“the FMS”) for refugee status. In particular, he submitted that he was being persecuted in Uzbekistan for his religious beliefs. He feared being tortured with the aim of obtaining a confession to offences he had not committed. 34. On 13 April 2010 the Moscow Town Department of the FMS rejected his application. 35. On 6 September 2010 that decision was confirmed by a deputy head of the FMS. He found that, given that a majority of the population of Uzbekistan was Muslim, the applicant’s persecution for his adherence to Islam was unlikely. Although, according to the information provided by the Ministry of Foreign Affairs, the Uzbek authorities exercised close control over the religious life of the population, that was justified by their legitimate intention to limit the influence of radical Islamic organisations, such as Jamaat-e-Islami. The FMS had no competence to verify whether the charges brought against the applicant in Uzbekistan were well-founded. It therefore appeared that the application for refugee status had been motivated by the applicant’s wish to avoid criminal liability. As regards the applicant’s allegations of a risk of ill-treatment in Uzbekistan, they could not serve as a basis for granting refugee status. The existence of such a risk, if substantiated, might, however, serve as a basis for granting temporary asylum. 36. The applicant challenged that refusal before the Basmanniy District Court of Moscow. He complained that the FMS had presumed him guilty of the offences imputed to him and had disregarded his argument that he was being persecuted for his religious beliefs. He submitted that he had been tortured and fined for praying outside the mosque and that criminal proceedings had been opened against him after a religious book, which had never been declared extremist or banned by the authorities, had been found in his house. He also referred to the case-law of the Court, in particular the cases of Yuldashev v. Russia (no. 1248/09, 8 July 2010), Abdulazhon Isakov v. Russia (no. 14049/08, 8 July 2010), and Karimov v. Russia (no. 54219/08, 29 July 2010) in which the Court had found, in similar circumstances, that the applicants’ forced return to Uzbekistan would give rise to a violation of Article 3 of the Convention. 37. On 19 November 2010 the Basmanniy District Court confirmed the decision of 6 September 2010. It found that the reasons for the refusal of refugee status advanced by the FMS had been convincing and that the applicant had failed to substantiate his allegation that he had been persecuted for his religious beliefs. 38. The applicant appealed. He repeated his arguments advanced before the FMS and the Basmanniy District Court. He also referred to Amnesty International reports describing persecution and ill-treatment of members of minority religious Islamic groups. 39. On 24 December 2010 the Moscow City Court upheld the judgment of 19 November 2010 on appeal, finding that it had been lawful, well-reasoned and justified. 40. On 16 June 2011 the applicant applied to the FMS for temporary asylum, referring to the risks of his ill-treatment and persecution for his religious beliefs. 41. On 13 July 2011 the Moscow Town Department of the FMS rejected his application. It found that the applicant could not be persecuted for his religious beliefs because he belonged to the Sunni branch of Islam, which was the religion followed by 80% of the population of Uzbekistan. The charges brought against him appeared to be well-founded. It was also relevant that the applicant had never applied for a residence or work permit in Russia. There were therefore no grounds for granting temporary asylum to him. 42. On an unspecified date in October 2011 a deputy head of the FMS quashed the decision of 13 July 2011 and remitted the application for temporary asylum for fresh examination before the Moscow Town Department of the FMS. 43. It appears that the temporary asylum proceedings are still pending. 44. By letter of 18 November 2011, the office of the United Nations High Commissioner for Refugees (“UNHCR”) informed counsel for the applicant that the applicant had been granted mandate refugee status. The UNHCR found that he had a well-founded fear of being persecuted and ill-treated in Uzbekistan for reasons of his religion and imputed political opinion. 45. On 14 May 2010 a deputy Prosecutor General decided to extradite the applicant to Uzbekistan. The prosecutor enumerated the charges against the applicant and found that his actions were punishable under Russian criminal law. An extradition order was granted in respect of attempted overthrow of the constitutional order of Uzbekistan and dissemination of materials presenting a danger to national security and public order. The prosecutor found that the above offences corresponded to the offences of attempted violent overthrow of the government and constitutional order and public incitement to extremist activities, which were proscribed by Russian criminal law. However, the prosecutor refused to extradite the applicant for smuggling of extremist materials because this was not an offence under Russian criminal law and for membership of “Jamaat” because that organisation had never been declared extremist or terrorist in Russia. 46. The applicant challenged the extradition order before the Moscow City Court. He submitted that the accusations against him were unfounded and he was in fact being persecuted by the Uzbek authorities on account of his religious beliefs. He faced torture and other forms of ill-treatment if extradited to Uzbekistan. It transpired from the reports by the UN agencies and by respected international NGOs that torture was widespread in Uzbekistan and confessions were often extracted from defendants under duress. He also referred to the Court’s case-law, in particular the cases of Ismoilov and Others v. Russia (no. 2947/06, 24 April 2008) and Muminov v. Russia (no. 42502/06, 11 December 2008) concerning extradition to Uzbekistan. 47. During the hearing, Ms R., an expert in refugees from Central Asia, testified that charges under Article 159 of the Uzbek Criminal Code (attempted overthrow of the constitutional order of Uzbekistan, usurpation of power and breach of the territorial integrity of Uzbekistan) were in most cases politically motivated. Charges under Article 159 were often brought against individuals criticising the authorities or following religious practices not approved by the State. Such individuals were at a substantially higher risk of ill-treatment. In her opinion, the applicant was being persecuted for his religious beliefs and practices. She had drawn that conclusion, in particular, from the fact that he was being prosecuted for possessing a religious book by Abduvali Mirzaev, a respected imam whose followers were often targeted by the Uzbek authorities. It was significant that the books authored by him were not banned in Uzbekistan or any other country. She also referred to the Court’s case-law establishing that diplomatic assurances were not sufficient to ensure adequate protection against the risk of ill-treatment. 48. A witness for the applicant, Mr N., a former investigator in Uzbekistan, testified that ill-treatment was wide-spread in Uzbekistan. Suspects were tortured to obtain confessions and those confessions were subsequently used against them at trial. He also confirmed Ms R.’s statement that charges under Article 159 of the Uzbek Criminal Code were often brought against believers who attended a mosque, prayed or wore a beard. All persons charged under Article 159 were tortured. 49. The applicant asked the court to examine the reports about the situation in Uzbekistan by the UN agencies and human rights NGOs and the judgments of the Court. His request was rejected. 50. During the hearing the applicant also disputed the prosecutor’s finding that the actions imputable to him were punishable under Russian criminal law. He argued that under Russian law only the attempted violent overthrow of the government and the constitutional order was prosecutable, while he had never been accused of resorting to violence. Nor could possession of religious books be characterised as public incitement to extremist activities. 51. On 29 December 2010 the Moscow City Court upheld the extradition order. It held that the Uzbek and Russian authorities had followed the extradition procedure set out in applicable international and domestic law. The applicant was charged with offences punishable under Uzbek and Russian criminal law and there was no evidence that he was being persecuted for his political opinions or religious beliefs. The City Court found that the international reports, expert opinions and the Court’s case-law relied upon by the applicant were irrelevant because they described the general situation in Uzbekistan rather than the applicant’s personal circumstances. Mr N.’s testimony was also irrelevant because it referred to the situation from 1999 to 2002. The Uzbek authorities had given assurances that the applicant would not be tortured. There was no reason to question the validity of those assurances, which had been given by a competent State authority, the Prosecutor General’s office of Uzbekistan. The City Court therefore considered that the assurances were sufficient to exclude any risk of ill-treatment. It further held that the issue of the applicant’s guilt or innocence was not within the scope of the review undertaken by the extraditing authorities. 52. The applicant appealed. He reiterated his arguments advanced before the Moscow City Court and relied on Article 3 of the Convention. He further submitted that the diplomatic assurances against ill-treatment were unreliable due to the absence of any mechanism of compliance monitoring or any accountability for a breach of such assurances. 53. On 14 March 2011 the Supreme Court of the Russian Federation rejected his appeal and upheld the decision of 29 December 2010, finding that it had been lawful and justified. It endorsed the City Court’s finding that the international reports on the situation in Uzbekistan were irrelevant because they were not based on “real evidence”. It also found that the diplomatic assurances given by the Uzbek authorities were sufficient to ensure adequate protection against eventual ill-treatment of the applicant because if the assurances in respect of the applicant were breached, Russia would refuse to extradite other people. Moreover, the applicant had not submitted any evidence that such assurances had been breached in previous cases. 54. According to the applicant, in the afternoon of 23 August 2011 he met two acquaintances, K. and A., in the centre of Moscow. They were stopped by a policeman who checked their identity documents. 55. Immediately after that five or six people in plain clothes grabbed them by the arms and forced them into a van. The abductors put black plastic bags on their heads and laid them on the floor of the van. 56. By about 4 p.m. they arrived at a forest outside Moscow. They were then beaten and threatened with a gun. Their hands were burnt using a lighter. 57. At sunset they were handcuffed, forced into the van and brought to an airport by 1 a.m. on 24 August 2011. They drove directly into the airfield and parked near an airplane. They were then placed onboard the airplane, accompanied by two guards. The passengers boarded afterwards. The airplane took off at 1.40 a.m. and landed in the city of Khujand in Tajikistan three-and-a-half hours later. 58. At Khujand Airport the applicant, K. and A. were handed over to Tajik policemen. Black plastic bags were again put on their heads and they were then separated and placed in different cars. 59. The applicant was taken to a police station in Khujand, where he remained for three days. He was ill-treated and required to give evidence against K. The police officers threatened to tie him up and throw him into a river, stating that nobody knew that he was in Tajikistan because he had not been checked in for the flight. 60. On 26 August 2011 the applicant was taken to Dushanbe. He was taken to a police station, where he was questioned. On the next day he was placed in a temporary detention centre, where he remained until 2 September 2011. 61. On 30 August 2011 the Shokhmansurskiy District Court ordered the applicant’s detention pending extradition to Uzbekistan. 62. On 2 September 2011 the applicant was transferred to remand centre no. 1 in Dushanbe. 63. On 22 November 2011 the applicant was told that a court had ordered his release. He was released the next day. 64. A certificate issued by the Ministry of Justice of Tajikistan states that the applicant had “served his prison sentence” from 27 August to 22 November 2011. 65. The applicant has been in hiding ever since. Intending to return to Russia, he asked the UNHCR to assist him with recovering his national passport, which had been retained by the FMS in Moscow. 66. On an unspecified date an investigator of the Investigations Committee of the Zamoskvoretskiy District of Moscow opened an inquiry into the circumstances of the applicant’s abduction. 67. On 20 January 2012 the investigator refused to open criminal proceedings into the incident. 68. On 26 March 2012 the acting head of the Zamoskvoretskiy District Investigations Committee quashed the decision of 20 January 2012 and ordered an additional inquiry. He found that it was necessary to question counsel for the applicant and to obtain information about the applicant’s crossing of the Russian border. 69. The inquiry was resumed. On unspecified dates between 26 March and 5 April 2012 the investigator ordered that the local police should search for witnesses to the applicant’s abduction. In the same period he also sent inquiries for information about the applicant to the Federal Security Service, the local office of the Transport Department of the Interior Ministry, the FMS, the State Border Control Office in Domodedovo Airport, and other state agencies. 70. It appears that the inquiry is pending. 71. Chapter 54 of the Code of Criminal Procedure (“CCrP”) of 2002 governs the procedure to be followed in the event of extradition. 72. An extradition decision made by the Prosecutor General may be challenged before a court (Article 463 § 1). In that case the extradition order should not be enforced until a final judgment is delivered (Article 462 § 6). 73. A court is to review the lawfulness and validity of a decision to extradite within a month of receipt of a request for review. The decision should be taken in open court by a panel of three judges in the presence of a prosecutor, the person whose extradition is sought and the latter’s legal counsel (Article 463 § 4). 74. 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 applicable international and domestic law (Article 463 § 6). 75. Article 464 § 1 lists the conditions under which extradition cannot be authorised. Thus, the extradition of the following should be denied: a Russian citizen (Article 464 § 1 (1)) or a person who has been granted asylum in Russia (Article 464 § 1 (2)); a person in respect of whom a conviction has become effective or criminal proceedings have been terminated in Russia in connection with the same act for which he or she has been prosecuted in the requesting State (Article 464 § 1 (3)); a person in respect of whom criminal proceedings cannot be launched or a conviction cannot become effective in view of the expiry of the statute of limitations or under another valid ground in Russian law (Article 464 § 1 (4)); or a person in respect of whom extradition has been blocked by a Russian court in accordance with the legislation and international treaties of the Russian Federation (Article 464 § 1 (5)). Finally, extradition should be denied if the act that serves as the basis for the extradition request does not constitute a criminal offence under the Russian Criminal Code (Article 464 § 1 (6)). 76. In the event that a foreign national whose extradition is being sought is being prosecuted or is serving a sentence for another criminal offence in Russia, his extradition may be postponed until the prosecution is terminated, the penalty is lifted on any valid ground or the sentence is served (Article 465 § 1). 77. In its ruling no. 11 of 14 June 2012, the Plenary Session of the Russian Supreme Court indicated, with reference to Article 3 of the Convention, that extradition should be refused if there were serious reasons to believe that the person might be subjected to torture, inhuman or degrading treatment in the requesting country. Extradition could also be refused if exceptional circumstances disclosed that it might entail a danger to the person’s life and health on account of, among other things, his or her age or physical condition. Russian authorities dealing with an extradition case should examine whether there were reasons to believe that the person concerned might be sentenced to the death penalty, subjected to ill-treatment or persecuted because of his or her race, religious beliefs, nationality, ethnic or social origin or political opinions. The courts should assess both the general situation in the requesting country and the personal circumstances of the person whose extradition was sought. They should take into account the testimony of the person concerned and that of any witnesses, any assurances given by the requesting country, and information about the country provided by the Ministry of Foreign Affairs, by competent United Nations institutions and by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. 78. 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.” 79. The CIS Convention on legal assistance and legal relations in civil, family and criminal cases (“the Minsk Convention”), to which both Russia and Uzbekistan are parties, provides that in executing a request for legal assistance, the requested party applies its domestic law (Article 8 § 1). 80. A request for extradition must be accompanied by a detention order (Article 58 § 2). Upon receipt of a request for extradition, measures should be taken immediately to find and arrest the person whose extradition is sought, except in cases where that person cannot be extradited (Article 60). 81. 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 (Article 61 § 1). A person may also be arrested in the absence of such a request if there are reasons to suspect that he has committed, in the territory of the other Contracting Party, an offence for which extradition may be requested. The other Contracting Party must be immediately informed of the arrest (Article 61 § 2). 82. 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). 83. The term “court” is defined by the CCrP as “any court of general jurisdiction which examines a criminal case on the merits and delivers decisions provided for by this Code” (Article 5 § 48). The term “judge” is defined by the CCrP as “an official empowered to administer justice” (Article 5 § 54). 84. Chapter 13 of the CCrP (“Measures of restraint”) governs the use of measures of restraint, or preventive measures (меры пресечения), while criminal proceedings are pending. Such measures include 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). A period of detention pending investigation may not exceed two months (Article 109 § 1). A judge may extend that period up to six months (Article 109 § 2). Further extensions 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). If the grounds serving as the basis for a preventive measure have changed, the preventive measure must be cancelled or amended. A decision to cancel or amend a preventive measure may be taken by an investigator, a prosecutor or a court (Article 110). 85. 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 territorial jurisdiction over the location at which the preliminary investigation is conducted (ibid.). 86. 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 established procedure (Article 466 § 1). If a request for extradition is accompanied by an arrest warrant issued by a foreign court, a prosecutor may impose house arrest on the individual concerned or place him or her in detention “without seeking confirmation of the validity of that order from a Russian court” (Article 466 § 2). 87. On 4 April 2006 the Constitutional Court examined an application by Mr N., 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. In its decision no. 101-O of the same date, the Constitutional Court declared the application inadmissible. In its 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 Minsk Convention provided that, in executing a request for legal assistance, the requested party would apply its domestic law, which in the case of Russia was the procedure laid down in the CCrP. 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. Accordingly, Article 466 § 1 of the CCrP did not allow the authorities to apply a custodial measure without complying with the procedure established in the CCrP or the time-limits fixed in the Code. The Court also refused to analyse Article 466 § 2, finding that it had not been applied in Mr N.’s case. 88. On 1 March 2007 the Constitutional Court in its decision no. 333-O-P held that Articles 61 and 62 of the Minsk Convention, governing a person’s detention pending the receipt of an extradition request, did not determine the body or official competent to order such detention, the procedure to be followed or any time-limits. In accordance with Article 8 of the Minsk Convention, the applicable procedures and time-limits were to be established by domestic legal provisions. 89. The Constitutional Court further reiterated its settled case-law to the effect that the scope of the constitutional right to liberty and personal inviolability was the same for foreign nationals and stateless persons as for Russian nationals. A foreign national or stateless person may not be detained in Russia for more than forty-eight hours without a judicial decision. That constitutional requirement served as a guarantee against excessively long detention beyond forty-eight hours, and also against arbitrary detention, in that it required a court to examine whether the arrest was lawful and justified. The Constitutional Court held that Article 466 § 1 of the CCrP, read in conjunction with the Minsk Convention, could not be construed as permitting the detention of an individual for more than forty-eight hours on the basis of a request for his or her extradition without a decision by a Russian court. A custodial measure could be applied only in accordance with the procedure and within the time-limits established in Chapter 13 of the CCrP. 90. On 19 March 2009 the Constitutional Court by its decision no. 383-O-O dismissed as inadmissible a request for a review of the constitutionality of Article 466 § 2 of the CCrP, stating that this provision “does not establish time-limits for custodial detention and does not establish the grounds and procedure for choosing a preventive measure, it merely confirms a prosecutor’s power to execute a decision already delivered by a competent judicial body of a foreign state to detain an accused. Therefore the disputed norm cannot be considered to violate the constitutional rights of [the claimant] ...” 94. 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.” 95. 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)). 96. 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) and (2)). 97. 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). 98. 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). 99. In his report of 3 February 2003 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 CCrP] (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 ... ... 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.” 100. Subsequently, the UN Special Rapporteur on Torture 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 ... 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.” 101. Further referring to the situation regarding torture in Uzbekistan, the UN Special Rapporteur on Torture stated to the 3rd Session of the UN Human Rights Council on 18 September 2008: “741. The Special Rapporteur ... stressed that he continued to receive serious allegations of torture by Uzbek law enforcement officials ... ... 744. In light of the foregoing, there is little evidence available, including from the Government that would dispel or otherwise persuade the Special Rapporteur that the practice of torture has significantly improved since the visit which took place in 2002 ...” 102. In its 2010 report (CCPR/C/UZB/CO/3) the UN Human Rights Committee, stated, in so far as relevant, as follows: “11. The Committee notes with concern the continued reported occurrence of torture and ill-treatment, the limited number of convictions of those responsible, and the low sanctions generally imposed, including simple disciplinary measures, as well as indications that individuals responsible for such acts were amnestied and, in general, the inadequate or insufficient nature of investigations on torture/ill-treatment allegations. It is also concerned about reports on the use, by courts, of evidence obtained under coercion, despite the 2004 ruling of the Supreme Court on the inadmissibility of evidence obtained unlawfully ... ... 19. The Committee is concerned regarding the limitations and restrictions on freedom of religion and belief, including for members of non-registered religious groups. It is concerned about persistent reports on charges and imprisonment of such individuals. It is also concerned about the criminalization, under article 216-2 of the Criminal Code, of “conversion of believers from one religion to another (proselytism) and other missionary activities” (CCPR/C/UZB/3, para. 707). (art. 18) ...” 103. In its report of 29 March 2004, “Creating Enemies of the State: Religious Persecution in Uzbekistan”, Human Rights Watch remarked: “For the past decade, with increasing intensity, the government of Uzbekistan has persecuted independent Muslims. This campaign of religious persecution has resulted in the arrest, torture, public degradation, and incarceration in grossly inhumane conditions of an estimated 7,000 people. The campaign targets nonviolent believers who preach or study Islam outside the official institutions and guidelines. They include independent imams and their followers, so-called Wahhabis - a term used incorrectly by the government to defame people as “fundamentalists.” The most numerous targets were adherents of the nonviolent group Hizb ut-Tahrir (Party of Liberation), whose teachings in favor of an Islamic state the government finds seditious ... International human rights law guarantees individuals the right to have and to express religion or beliefs. The Uzbek government’s policy and practices directly contravene these standards, as they punish certain religious believers for the content of their belief, for expressing their beliefs, exchanging information with others, or engaging in nonviolent association. In their treatment of independent Muslims, the Uzbek authorities’ systematic torture, ill-treatment, public degradation, and denial of due process also violate the country’s obligations under international law. This report documents these violations. It explains how the state criminalized legitimate religious practice and belief and how it casts individuals’ exercise of their rights to freedom of conscience, expression, and association as attempts to overthrow the government. It details the ordeal independent Muslims have endured from their arrest through to their incarceration, in some cases serving up to twenty years. Most of the people whose stories are documented in this report remain incarcerated. They were tortured and suffered other forms of mistreatment by police trying to obtain confessions. They endured incommunicado detention, denial of defense counsel, denial of a fair trial, and convictions based on fabricated evidence. They continue to suffer torture and ill-treatment as they serve their sentences in Uzbek prisons. We also document the arrest, harassment, and intimidation of their families, including Soviet-style public denunciations that local officials stage against perceived Islamic “fundamentalists.” ... Finally, the report describes the obstacles independent Muslims face in seeking redress through state agencies, including the courts, the ombudsperson’s office, and the procuracy. It also recounts the harassment they sometimes face in retribution for appealing to international organizations ... ... Since 2000, arrests and convictions of independent Muslims - members of Hizb ut-Tahrir mostly, but also people accused of “Wahhabism” - have continued apace and have outstripped the number of people returned to liberty following implementation of presidential amnesty decrees in 2001 and 2002. As of September 25, 2003, Human Rights Watch had analyzed and entered the cases of 1,229 independent Muslims into its database of religious prisoners in Uzbekistan. The cases of about 150 additional individuals convicted on charges related to religious activity, belief, or affiliation remained to be examined and entered into the database. Researchers from the Russian rights group Memorial have documented the cases of 1,967 independent Muslims. While the campaign was carried out by law enforcement agents nationwide, it appeared that the arrests of independent Muslims occurred on a most massive scale in the capital city Tashkent and certain cities in the Fergana Valley. The overwhelming majority of cases documented by Human Rights Watch and Memorial involved the arrest of people from these regions. As detailed in this report, the government’s actions were intended to eliminate a perceived threat of Islamic “fundamentalism” and “extremism” by silencing and punishing Muslims who rejected government control of religion. The policy was designed and carried out to remove charismatic Islam from the political equation, to prevent any potential contest between the Karimov government and independent-minded Muslim leaders for authority and the loyalty of the people. Fear of religion as a competitor for the hearts and minds of the people is part of the Soviet legacy, but the Karimov government made this project its own, incorporating inherited methods of control and instituting new tactics to prevent religious faith from ever challenging the government’s power. Among the first targets of the government’s campaign were Muslim spiritual leaders who declined to limit their sermons and teachings to that which was dictated by state authorities. Other acts of “insubordination” varied from their opposition to the government’s ban on loudspeakers to call people to prayer, failure to praise President Karimov during religious services, and open discussion of the benefits of an Islamic state or the application of Islamic law, to their refusal to inform on congregation members and fellow religious leaders for security services. Government authorities inappropriately labeled these spiritual leaders “Wahabbis” and harassed or arrested people with close or only casual connection to them: members of their congregations, including those who had occasionally attended their services before their leaders fell out of favor, the imams’ students, mosque employees, and even their relatives ... For the purpose of this report, the term “independent Muslims” refers to Muslims who do not defer to government policy in their religious practices, expression, or beliefs. Those in danger of being cast as “fundamentalists” do not share an identical set of beliefs and practices. The Uzbek government judges all Muslims who express their religious beliefs in any way that is outside the parameters it has set as suspect. Independence in this context does not necessarily mean breaking with traditional religious practice nor does it presume that independent Muslims make an active decision to challenge the will of the state. Uzbekistan’s campaign against independent Islam has targeted Muslims who exhibited no objective independence from the state, but who were simply deemed “too pious” by state agents. Members of Hizb ut-Tahrir, like Muslims labeled “Wahhabi” by the state, are overwhelmingly self-defined Hanafi Sunnis, as are most Muslims in Uzbekistan, and not adherents of Wahabbism as it is understood in the Saudi Arabian context. Some so-called Wahhabis were thus labeled because they prayed five times a day - deemed by some local authorities in Uzbekistan’s provinces as evidence of excessive or suspicious piety - or overtly manifested their religious belief by growing a beard or wearing a headscarf that covered the face.” 104. In Amnesty International’s 2009 Report on Uzbekistan, published in May 2009, that organisation stated that it continued to receive persistent allegations of widespread torture and ill-treatment, stemming from persons suspected of being members of banned Islamic groups or having committed terrorist offences. The report stressed that the Uzbek authorities continued to actively seek the extradition of those persons from neighbouring countries, including Russia, and that most of those returned to Uzbekistan were held incommunicado, which increased their risk of being tortured or ill-treated. 105. On 1 May 2010 Amnesty International issued a document entitled “Uzbekistan: A Briefing on Current Human Rights Concerns”, stating the following: “Amnesty International believes that there has been a serious deterioration in the human rights situation in Uzbekistan since the so-called Andizhan events in May 2005. ... Particularly worrying in the light of Uzbekistan’s stated efforts to address impunity and curtail the use of cruel, inhuman and degrading treatment have been the continuing persistent allegations of torture or other ill-treatment by law enforcement officials and prison guards, including reports of the rape of women in detention. ... Despite assertions by Uzbekistan that the practice of torture has significantly decreased, Amnesty International continues to receive reports of widespread torture or other ill-treatment of detainees and prisoners. According to these reports, in most cases the authorities failed to conduct prompt, thorough and impartial investigations into the allegations of torture or other ill-treatment. Amnesty International is concerned that impunity prevails as prosecution of individuals suspected of being responsible for torture or other ill-treatment remains the exception rather than the rule. ... Allegations have also been made that individuals returned to Uzbekistan from other countries pursuant to extradition requests have been held in incommunicado detention, thereby increasing their risk of being tortured or otherwise ill-treated and have been subjected to unfair trial. In one case in 2008, for example, a man who was returned to Uzbekistan from Russia was sentenced to 11 years’ imprisonment after an unfair trial. His relatives reported that, upon his return to Uzbekistan, he was held incommunicado for three months during which time he was subjected to torture and other ill-treatment in pre-trial detention. He did not have access to a lawyer of his own choice and the trial judge ruled evidence reportedly adduced as a result of torture admissible.” 106. In January 2011 Human Rights Watch released its annual World Report 2010. The chapter entitled “Uzbekistan”, in so far as relevant, states: “Uzbekistan’s human rights record remains abysmal, with no substantive improvement in 2010. Authorities continue to crackdown on civil society activists, opposition members, and independent journalists, and to persecute religious believers who worship outside strict state controls ... Torture remains rampant in Uzbekistan. Detainees’ rights are violated at each stage of investigations and trials, despite habeas corpus amendments that went into effect in 2008. The Uzbek government has failed to meaningfully implement recommendations to combat torture that the United Nations special rapporteur made in 2003. Suspects are not permitted access to lawyers, a critical safeguard against torture in pre-trial detention. Police use torture and other illegal means to coerce statements and confessions from detainees. Authorities routinely refuse to investigate defendants’ allegations of abuse ... Although Uzbekistan’s constitution ensures freedom of religion, Uzbek authorities continued their unrelenting, multi-year campaign of arbitrary detention, arrest, and torture of Muslims who practice their faith outside state controls or belong to unregistered religious organizations. Over 100 were arrested or convicted in 2010 on charges related to religious extremism. ... The Uzbek government’s cooperation with international institutions remains poor. It continues to deny access to all eight UN special procedures that have requested invitations, including those on torture and human rights defenders ...” 107. The chapter on Uzbekistan in the Amnesty International 2011 annual report, released in May of the same year, states, in so far as relevant, as follows: “Reports of torture or other ill-treatment continued unabated. Dozens of members of minority religious and Islamic groups were given long prison terms after unfair trials ... Torture and other ill-treatment Despite assertions by the authorities that the practice of torture had significantly decreased, reports of torture or other ill-treatment of detainees and prisoners continued unabated. In most cases, the authorities failed to conduct prompt, thorough and impartial investigations into these allegations. Several thousand people convicted of involvement with Islamist parties or Islamic movements banned in Uzbekistan, as well as government critics and political opponents, continued to serve long prison terms under conditions that amounted to cruel, inhuman and degrading treatment. Uzbekistan again refused to allow the UN Special Rapporteur on torture to visit the country despite renewed requests. ... Counter-terror and security Among the scores detained as suspected members or sympathizers of the IMU, the IJU and Hizb-ut-Tahrir in 2009 were people who attended unregistered mosques, studied under independent imams, had travelled abroad, or were suspected of affiliation to banned Islamic groups. Many were believed to have been detained without charge or trial for lengthy periods. There were reports of torture and unfair trials. ... Freedom of religion The government continued its strict control over religious communities, compromising the enjoyment of their right to freedom of religion. Those most affected were members of unregistered groups such as Christian Evangelical congregations and Muslims worshipping in mosques outside state control.” 108. Amnesty International’s report of 1 May 2010, entitled “Uzbekistan: A Briefing on Current Human Rights Concerns”, states as follows: “... Amnesty International is concerned about reports of human rights violations carried out in the context of the stated aim of protecting national security and the fight against terrorism, following a number of reported attacks and killings throughout the country in 2009 ... Amnesty International is concerned that the authorities’ response to attacks which occurred in May and August 2009 has been inconsistent with the obligations to respect the prohibitions against arbitrary detention and torture or other ill-treatment and the right to fair trial as enshrined in the ICCPR. There were reported attacks in the Ferghana Valley and the capital Tashkent in May and August 2009 respectively; and a pro-government imam and a high-ranking police officer were killed in Tashkent in July 2009. The Islamic Jihad Union (IJU) claimed responsibility for the attacks in the Ferghana valley: attacks on a police station, a border checkpoint and a government office in Khanabad on 26 May 2009, as well as a suicide bombing at a police station in Andizhan the same day ... These crimes were followed by reports of new waves of arbitrary detentions. Among the scores detained as suspected members or sympathizers of the three above-named organizations were men and women who attended unregistered mosques, studied under independent imams, had travelled or studied abroad, or had relatives who lived abroad or were suspected of affiliation to banned Islamist groups. Many are believed to have been detained without charge or trial for lengthy periods, allegedly subjected to torture and/ or sentenced after unfair trials. In September 2009, at the start of the first trial of individuals charged in connection with the May attacks in the Ferghana Valley, human rights activists reported that the proceedings were closed to the public, despite earlier assurances by the President and the Prosecutor General that the trial would be both open and fair. However, independent observers were not given access to the court room. Relatives of some of the defendants told human rights activists that defence lawyers retained by them were not given access to the case materials and were denied access to the court room ...” 109. In its 2011 annual report released in May of the same year, Amnesty International states as follows: “Counter-terror and security Closed trials started in January of nearly 70 defendants charged in relation to attacks in the Ferghana Valley and the capital, Tashkent, in May and August 2009 and the killings of a pro-government imam and a high-ranking police officer in Tashkent in July 2009. The authorities blamed the Islamic Movement of Uzbekistan (IMU), the Islamic Jihad Union (IJU) and the Islamist Hizb-ut-Tahrir party, all banned in Uzbekistan, for the attacks and killings. Among the scores detained as suspected members or sympathizers of the IMU, the IJU and Hizb-ut-Tahrir in 2009 were people who attended unregistered mosques, studied under independent imams, had travelled abroad, or were suspected of affiliation to banned Islamic groups. Many were believed to have been detained without charge or trial for lengthy periods. There were reports of torture and unfair trials ...” 110. International Religious Freedom Report 2010, released in November 2010 by the United States Department of State, in its chapter on Uzbekistan reads, in so far as relevant, as follows: “In summer 2009 two high-profile murders, one murder attempt, and one shoot-out took place in Tashkent that were alleged by the government to have religious links (for example, one target was the chief imam for the city of Tashkent). In the months that followed, as many as 200 persons were arrested allegedly in connection with these incidents; many were charged with membership in extremist religious organizations and attempting to overturn the constitutional order. Between January and April 2010 various courts in closed trials convicted at least 50 persons and imposed sentences ranging from suspended sentences up to 18 years in prison. There were unconfirmed reports that an additional 150 individuals were convicted in related trials. During the same time period, authorities opened hundreds more cases against alleged extremists (particularly those labeled "Wahhabists" and "jihadists") on charges unrelated to the killings. Human rights activists report that the families of several defendants accused authorities of using torture and coercion to obtain confessions, and many questioned whether due process guarantees were followed. ...” 111. The decision of the Committee of Ministers (CM/Del/Dec(2012)1136/19) adopted on 8 March 2012 at the 1136th meeting of the Ministers’ Deputies states as follows: “The Deputies, ... 4. as regards the Iskandarov case, recalled that the violations of the Convention in this case were due to the applicant’s kidnapping by unknown persons, whom the Court found to be Russian State agents, and his forcible transfer to Tajikistan after his extradition had been refused by the Russian authorities; 5. noted with profound concern the indication by the Court that repeated incidents of this kind have recently taken place in respect of four other applicants whose cases are pending before the Court where it applied interim measures to prevent their extradition on account of the imminent risk of grave violations of the Convention faced by them; 6. took note of the Russian authorities’ position that this situation constitutes a source of great concern for them; 7. noted further that the Russian authorities are currently addressing these incidents and are committed to present the results of the follow-up given to them in Russia to the Court in the framework of its examination of the cases concerned and to the Committee with regard to the Iskandarov case; 8. urged the Russian authorities to continue to take all necessary steps to shade light on the circumstances of Mr. Iskandarov’s kidnapping and to ensure that similar incidents are not likely to occur in the future and to inform the Committee of Ministers thereof ...” 112. In its decision (CM/Del/Dec(2012)1144/18) adopted on 6 June 2012 at the 1144th meeting of the Ministers’ Deputies, the Committee of Ministers reiterated its concerns about repeated incidents of disappearance of applicants in respect of whom interim measures had been indicated by the Court and continued as follows: “The Deputies ... 3. deplored the fact that, notwithstanding the serious concerns expressed in respect of such incidents by the President of the Court, the Committee of Ministers and by the Russian authorities themselves, they were informed that yet another applicant disappeared on 29 March 2012 in Moscow and shortly after found himself in custody in Tajikistan; 4. took note of the Russian authorities’ position according to which the investigation in the Iskandarov case is still ongoing and had not at present established the involvement of Russian State into the applicant’s kidnapping; 5. regretted however that up to now, neither in the Iskandarov case nor in any other case of that type have the authorities been able to make tangible progress with the domestic investigations concerning the applicants’ kidnappings and their transfer, nor to establish the responsibility of any state agent ...” | 1 |
train | 001-80966 | ENG | NLD | ADMISSIBILITY | 2,007 | BAGHERI AND MALIKI v. THE NETHERLANDS | 3 | Inadmissible | David Thór Björgvinsson | The applicants, Mr Mohammad Hossein Bagheri and Ms Malihe Maliki, are a married couple. They are Iranian nationals who were born in 1964 and 1969 respectively and live in Zwolle. They were represented before the Court by Ms S. Land, a lawyer practising in Zwolle. On 2 September 1995, the applicants applied for asylum in the Netherlands. They claimed that the first applicant had attracted the negative attention of the Iranian authorities for having publicly criticised the latter. The second applicant’s asylum claim was mainly based on the first applicant’s alleged problems. On 26 January 1996, the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicants’ asylum request. Their objection (bezwaar) against this decision was declared inadmissible by the Deputy Minister on 14 August 1996 for having been filed out of time. The applicants’ subsequent appeal was rejected on 11 June 1998 by the Regional Court (arrondissementsrechtbank) of The Hague sitting in ‘s-Hertogenbosch. On 14 October 1998, the applicants filed a new asylum request based on newly emerged facts and circumstances within the meaning of Article 4:6 of the General Administrative Law Act (Algemene Wet Bestuursrecht). This new request was rejected on 6 December 1999 by the Deputy Minister, who noted, inter alia, that the first applicant had submitted and relied on a summons issued by the Shiraz Islamic Revolutionary Tribunal, addressed to his father and relating to the applicant, whereas – according to an individual official report (individueel ambtsbericht) drawn up on 26 January 1998 by the Minister of Foreign Affairs on an inquiry carried out – this document was not authentic. As the applicants had failed to react to the conclusion set out in this individual report, the Deputy Minister concluded that no credence could be attached to the applicants’ asylum account. The applicants unsuccessfully challenged this decision in administrative appeal proceedings. The final, negative decision on this second asylum request was taken on 10 March 2003 by the Regional Court of The Hague sitting in Almelo. On 8 August 2005, the applicants filed a third asylum request based on, inter alia, an allegedly authenticated copy of a judgment given on 20 July 2002 by the Teheran Islamic Revolutionary Tribunal in which the first applicant had been convicted and sentenced for political opposition activities. The final, negative decision on this third asylum request was given on 31 January 2006 by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State) in which it rejected the applicants’ appeal against the refusal of the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie; the successor of the Deputy Minister of Justice) to grant them asylum. As regards the copy of the judgment relied on by the applicants, the Administrative Jurisdiction Division held that the copy submitted did not constitute a “new fact” warranting a reconsideration of the applicants’ asylum claim as – for want of reference materials – its authenticity could not be determined by the Netherlands Royal Constabulary (Koninklijke Marechaussee) whilst the applicants had not demonstrated by means of evidence and arguments that it was an authentic Iranian document and had given contradictory accounts about the manner in which it had been obtained. On 20 September 2006, the respondent Government were requested under Rule 49 § 3 (a) of the Rules of Court to draw up an individual official report on, inter alia, the authenticity of the Iranian judgment of 20 July 2002 relied on by the applicants in their third asylum request. Following certain steps taken by the respondent Government, apparently aimed at the applicants’ actual expulsion to Iran, the Chamber decided on 12 October 2006 to indicate to the Government, under Rule 39 of the Rules of Court and until further notice, not to expel the applicants. The Chamber further endorsed the request to the Government under Rule 49 § 3 (a). By letters of 8 and 15 March 2007, the respondent Government informed the Court that, according to the findings of an inquiry carried out in Iran, the judgment of 20 July 2002 was not an authentic document. The applicants’ brief comments in reply contained in their letter of 2 April 2007 did not address the findings of the inquiry conducted in Iran. The applicants merely informed the Court that they seemed to be eligible for a Netherlands residence permit under a general amnesty arrangement set out in the new Government’s coalition agreement (coalitieakkoord) of 7 February 2007. | 0 |
train | 001-111532 | ENG | DEU | ADMISSIBILITY | 2,012 | HIZB UT-TAHRIR AND OTHERS v. GERMANY | 3 | Inadmissible | André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger | 1. The first applicant, Hizb Ut-Tahrir, is an unincorporated association which did not inform the Court of any registered address. The second applicant, Mr Shaker Hussein Assem, an Austrian national who lives in Germany, is the appointed representative of the first applicant for the purposes of the proceedings before the Court. The third to seventeenth applicants (see list appended) are members or supporters of the first applicant residing in Germany and Romania (applicant no. 5). They were represented before the Court by Mr Tayab Ali of Irvine Thanvi Natas solicitors, a law-firm practising in London. The German Government (“the Government”) were represented by their agent, Ms Almut Wittling-Vogel, of the Federal Minstry of Justice and by Mr Thomas Giegerich, professor of international law at Kiel University. Having been informed on 15 June 2010 of their right to submit written observations, the Austrian Government indicated to the Court that they did not intend to take part in the proceedings. The Turkish Government did not express an intention to take part in the proceedings. 2. The first applicant, whose name means “Liberation Party”, describes itself as a “global Islamic political party and/or religious society”. It was established in Jerusalem in 1953 and advocates the overthrow of governments throughout the Muslim world and their replacement by an Islamic State in the form of a recreated Caliphate. The first applicant has achieved a small, but highly committed following in a number of Middle Eastern states and has also gained popularity among Muslims in Western Europe. In Germany, where the first applicant has been active since the 1960s, it has approximately two hundred followers. 3. On 10 January 2003 the German Federal Ministry of the Interior (Bundesministerium des Innern) issued a decision by which it proscribed the first applicant’s activities within German territory under sections 3 § 1, 14 § 2 no. 4 in conjunction with sections 15 § 1 and 18 § 2 of the Law on Associations (see relevant domestic law, below). It further ordered the first applicant’s assets to be confiscated. Assets of third parties were confiscated as far as they had been intentionally used or were intended to be used to promote the first applicant’s illegal activities. 4. The Ministry considered that the first applicant was a foreign private association operating on an international scale and that there existed no known sub-organisation in Germany. Its activities in Germany included the distribution of leaflets and brochures and the distribution of information via internet as well as, more recently, the organisation of public events. 5. The Ministry considered that the first applicant’s activities were directed against the principle of international understanding and that the applicant advocated the use of violence as a means to achieve its political goals. The organisation’s mouthpiece and ideological platform in Germany was the quarterly magazine “Explizit”. 6. Basing its decision on the book “The inevitability of the battle of cultures”, published in 1953 by the organisation’s founder, Taqiuddin AnNabhani, as well as on a number of publications attributed to the first applicant, in particular articles published in the magazine “Explizit”, leaflets and publications on the organisation’s website, the Ministry considered that the first applicant denied the right of the State of Israel to exist and called for its destruction and for the killing of Jews. This constituted an expression of the applicant’s basic philosophical position, which included the “active Jihad”. The applicant agitated in a targeted fashion against Islamic States and the governments, which overthrow it repeatedly called for. It pursued its objectives, which were directed against the concept of international understanding, in a pro-actively aggressive manner. It did not thereby restrict itself to merely criticising existing political or social conditions or rejecting peaceful coexistence between States and peoples but also called for the armed struggle against the State of Israel, Jews and the Governments of Islamic States. 7. The Ministry further considered that the first applicant was not a political party, as it did not intend to stand for elections in Germany. It further held that the first applicant was not to be regarded as a religious or philosophical community (Religions- oder Weltanschauungsgesellschaft), as it did not pursue religious, but political objectives. 8. On 10 February 2003 the applicants, represented by counsel, lodged an application against the prohibition order with the Federal Administrative Court (Bundesverwaltungsgericht). They alleged, in particular, that the prohibition violated their right to freedom of religion under Article 4 of the Basic Law. They denied that they advocated the use of violence. 9. On 24 November 2003 the Federal Administrative Court ordered the first applicant to submit evidence as to where the organisation was based. On 7 January 2004 the first applicant pointed out that its organisation was prohibited in all Arab states, they were thus forced to work clandestinely and were unable to reveal the organisation’s address. 10. On 21 January 2004 the Federal Administrative Court severed the first applicant’s application from the remainder of the proceedings and declared it admissible. That court considered that the first applicant had the legal standing to lodge an application against the prohibition order. Furthermore, it had been properly represented before the court. On the same day, the Federal Administrative Court orally informed the applicants, that, under its established case-law (compare paragraph 34, below) actions lodged by individual members of a prohibited association were to be declared inadmissible. A decision on the admissibility of the remaining applicants’ actions was postponed until 25 February 2004. 11. On 3 February 2004 the second to seventeenth applicants withdrew their applications with reference to the indication given by the Federal Administrative Court as to the inadmissibility of their applications. On 19 February 2004 the Federal Administrative Court decided to discontinue the proceedings insofar as they concerned the applications lodged by these applicants. 12. In its submissions dated 8 and 29 November 2004, the first applicant accepted that it was not to be regarded as a political party within the meaning of the relevant law. The first applicant claimed, however, that all its activities had a religious foundation and that it enjoyed the protection of freedom of religion under the Basic Law. It further submitted that the Government had misconstrued the nature of its ideology, stressing, in particular, that the first applicant promoted peaceful dialogue and had never advocated the use of violence. It contested that the magazine “Explizit” was the organisation’s mouthpiece. The first applicant further pointed out that it did not seek to establish a “caliphate” in any of the Western European democracies. Lastly, it complained of a violation of its rights under Articles 9, 10 and 11 of the Convention. 13. On 8 August 2005 the Federal Administrative Court, by court order without a prior oral hearing, rejected the first applicant’s application as unfounded. Relying on the so-called “organisational law” submitted by the applicants, the court considered that the first applicant did not fulfil the requirements of a religious community, as its activities did not include the exercise of a common religious practice. Furthermore, the first applicant could not be regarded as a philosophical community, as its existence and activities were based on Islam. 14. The Federal Administrative Court further confirmed that the first applicant’s activities were directed against the principle of international understanding and were thus subject to prohibition under Article 9 § 2 of the German Basic Law in conjunction with the Law on Associations. Examining the sources already relied upon by the Federal Ministry of the Interior, the court considered that numerous statements were attributable to the applicant, which called for the violent elimination of the State of Israel and for the physical destruction of human lives and thus worked contrary to a peaceful resolution of the Middle East conflict. 15. The Court considered that articles published in the magazine “Explizit” contained denials of Israel’s right to exist and called for the violent elimination of the State of Israel or for people to be killed. The Article “Wie lange noch?” (How long?; Explizit, issue no. 30 March to June 2002, p. 4 et seqq.) addressed the political and military situation in Palestine. The article sharply criticised the Saudi Arabian peace deal adopted at the summit meeting of Arab States in Beirut in March 2002. This was followed by criticism of the Palestinian authority, which was accused of not pursuing the goal of “freeing Palestine, but of handing over Palestine in the name of the Palestinian people to the Jews.” This assessment was followed by the statement: “As Muslims, we must be clear that the problem of “Israel” is not a border issue but an existential issue. The Zionist foreign body at the heart of the Islamic world can under no circumstances be allowed to continue to exist...We repeat again the unalterable Islamic duty: There can only be one response to the Zionist aggression in Palestine: Jihad. Allah, the Exalted, commands: “And slay them wherever ye catch them, and turn them out from where they have turned you out” (Al Baquarah 2, Aya 191).” This was followed by the opinion that Israel was to be overcome by military means and that the “Muslim armies (had) never really fought against the Zionist aggressor”. 16. The court considered that the call to Jihad in the article represented a summons to violently eliminate the State of Israel. It conceded that the term “Jihad” was multilayered in Islamic usage, referring to more than just the “Holy War”. The term described every endeavour, effort and strengthening of Islam. What was decisive in the present context, however, was how the term was to be understood by readers in the context of the article. It was embedded in the statement that Israel could on no account be allowed to continue to exist and the summons to eliminate the State by military means. In this context there could be no doubt that the call to Jihad was aimed at the violent destruction of Israel as a solution to the Israeli-Palestinian conflict. This interpretation corresponded to the quotation from the Qur’an relied upon in the article. It did not have to be decided how this quotation was to be understood in its original context. In the context of the article, it constituted a call to take violent action with the intention of causing physical destruction and banishment. 17. In the article “Fünfzig Jahre – Happy Birthday Israel?” (Fifty years – Happy birthday Israel?, Explizit, issue no. 5, April to June 1998, p. 2 et seqq.) it was stated that the creation of the State of Israel to the detriment of the Palestinian people was accompanied by crimes against humanity and that Israel thus lacked legitimacy. The article closed with the following statement: “Whoever accepts the State of Israel is against Allah’s commands and thus commits a serious sin.” This was followed by a quotation from the Qur’an of a “command by Allah”: “And fight for Allah against those who fight against you, but do not transgress! Truly, Allah loves those who do not transgress. And slay them wherever ye catch them, and turn them out from where they have turned you out.” 18. The court considered that it could be left open whether the denial of Israel’s right to exist already breached the concept of international understanding. An any rate, that concept had been interfered with as soon as the assertion was followed by a call violently to eliminate the State of Israel, as had been the case with regard to the quotation from the Qur’an. 19. The Federal Administrative Court analysed the content of one further article published in the magazine Explizit in 2001 and concluded that that article also contained a call for the destruction of the State of Israel. 20. According to the court, there were a number of indications, which taken as a whole, left no doubt that there was a close link between the magazine “Explizit” and the first applicant, and that therefore the articles discussed in the above were attributable to the first applicant. 21. The call to eliminate the State of Israel by force and to kill people was not restricted to the magazine “Explizit”. Among other sources, the court referred to a transcript dated 8 August 2002 of a programme broadcast on Berlin local television about a debate on the Middle East conflict at the Technical University of Berlin, according to which the second applicant said the following with regard to suicide attacks in Israel: “These actions would be banned in Germany or in other countries in the West – since Islam rejects violence against civilians, but there are no civilians in Israel; all of them, women and men, are part of the military and the founding of the State of Israel was an act of aggression. Everyone who goes to Israel and lives there is complicit in it. An attack on an institution with adults inside is an act of self-defence. If children are also killed, their parents are responsible for having decided to live in Israel.” The Federal Administrative Court considered that these statements, in which the second applicant justified the physical destruction of Israeli nationals, spoke for themselves. According to the court, the same objective was reflected in a statement made by the second applicant at an event held on 27 October 2002, during which he said: “For us, Israel is a State of aggression. A State of violence, a State of attack. That is why we are not prepared to accept this State, to make peace with this Zionist entity. This State was built upon the blood of Muslims, through aggression, through violence and we have a duty as Muslims to liberate the land again.” 22. According to the Federal Administrative Court, the denial of Israel’s right to exist, linked to the call to eliminate the State by force, was also the subject matter of several of the first applicant’s flyers. The court quoted, inter alia, a flyer dated 29 March 2001, which read: “The whole of Palestine, from the sea to the river, is Islamic territory. Muslims are duty bound to liberate it from the rule of the Jews, even if it costs the lives of millions of martyrs.” Another flyer dated 28 February 2002 contained the following: “The Palestinian question is not a question of withdrawing from the region called the Palestinian territories. Nor is it a question of the withdrawal from the West Bank, the Gaza Strip or from Jerusalem. It is the Jewish entity itself which unlawfully appropriated Palestine. The solution is to uproot the Jewish entity from the entire Palestinian territory. Thus speaks Allah: “And slay them wherever ye catch them, and turn them out from where they have turned you out”...(2:191). Every recognition, every negotiation with the Jews is treason against Allah, His Prophet and the believers. We are not allowed to accept this or to keep quiet about it.” 23. Lastly, the court considered that the prohibition was proportionate. In this connection, it observed that the first applicant did not enjoy special protection under the Constitution as a religious or philosophical community. It further considered that the Federal Government did not have a milder means at their disposition to achieve the pursued aim. 24. On 3 October 2005 the first applicant submitted its comments on the court order. It alleged, in particular, that the court’s interpretation of the notion “religious community” had been too restrictive and was not consistent with the case law of the Federal Constitutional Court. It further requested an oral hearing to be held. 25. By judgment of 25 January 2006, which was served on the applicants’ counsel on 6 March 2006, the Federal Administrative Court, following a hearing, rejected the application as unfounded. At the outset, the court confirmed its ruling that the applicant could not be regarded as a religious community, as its aims were primarily of a political nature, even if they were based on religious foundations. 26. The Federal Administrative Court further considered that, even assuming that the first applicant could be regarded as a religious community or a religious association (religiöser Verein), it remained subject to prohibition under Article 9 § 2 of the Basic Law. The court was satisfied that the conditions for a ban to be issued were fulfilled because a multitude of public statements attributable to the first applicant against the backdrop of the Israeli-Palestinian conflict called for the violent elimination of the State of Israel and for people to be killed. 27. The Federal Administrative Court considered that the first applicant’s objections against this ruling were not convincing. The evidence presented in the court order was sufficient to justify the assumption that the cited articles were attributable to the first applicant. Irrespective of this fact, the first applicant’s calls for the State of Israel to be eliminated by force and for people to be killed were not only restricted to the magazine “Explizit”. 28. The court lastly found that, having regard to the seriousness of the statements attributable to the first applicant, the measure taken had to be regarded as proportionate even if the first applicant did enjoy the right to religious freedom. It would, in particular, not have been sufficient exclusively to ban the second applicant’s activity, as the impugned statements were not only made by the second applicant. Neither would it have been sufficient to ban the first applicant from issuing statements on the Middle East conflict, as the first applicant regarded it as a primary duty to combat and violently to destroy the State of Israel. As was demonstrated by the multitude of statements examined by the court in its court order, and had been confirmed by the first applicant during the oral hearing, the first applicant considered it as a main duty of the Caliphate to be created to destroy the State of Israel. These statements had such a weight that even the protection, which religious and philosophical associations generally enjoyed under the Constitution, did not call for renouncing the prohibition for the mere reason that the statements had so far not been followed by actions. 29. On 3 April 2006 the first applicant lodged a constitutional complaint, alleging, in particular, that the prohibition was disproportionate and violated its right freely to assemble as a religious community (religiöse Vereinigungsfreiheit) under Article 4 § 1 of the Basic Law. The first applicant complained, in particular, that Article 9 § 2 of the Basic Law was not applicable in the instant case. Furthermore, the prohibition order failed sufficiently to take into account its interests as a religious community and was disproportionate. According to the first applicant, it would have been sufficient to order the second applicant or other members of the association to refrain from making political statements on the Middle East conflict. The first applicant further alleged that the impugned decisions violated its rights under Articles 9, 10, 11 and 14 of the Convention. 30. On 27 December 2007 the Federal Constitutional Court, sitting as a panel of three judges, refused to admit the first applicant’s complaint for adjudication. According to that court, the complaint was inadmissible because the first applicant was not qualified to file a complaint as it did not have a registered address in Germany. Pursuant to the relevant provisions of the Law on proceedings before the Federal Constitutional Court, only those persons who could claim a violation of their constitutional rights were entitled to lodge a constitutional complaint. Article 19 § 3 of the Basic Law provided that the basic rights also applied to domestic legal persons to the extent that the nature of such rights permitted. The applicant, however, was a foreign legal person. While it might be considered that a foreign legal person based in another member State of the European Union had a right to equal treatment under Community Law, this did not apply in the first applicant’s case, as it had not been established that the first applicant had a registered office in another EU member State. 31. This decision was served on the first applicant’s counsel on 18 January 2008. 32. The relevant provisions of the German Basic Law (Grundgesetz) read as follows: Article 2 [Personal freedoms] “(1) Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.” Article 4 [Freedom of faith and conscience] “(1) Freedom of faith and of conscience, and freedom to profess a religious or philosophical creed, shall be inviolable. (2) The undisturbed practice of religion shall be guaranteed. ...” Article 9 [Freedom of association] “(1) All Germans shall have the right to form corporations and other associations. (2) Associations whose aims or activities contravene the criminal laws, or that are directed against the constitutional order or the concept of international understanding, shall be prohibited. ...” Article 19 [Restriction of basic rights – Legal remedies] “(1) Insofar as, under this Basic Law, a basic right may be restricted by or pursuant to a law, such law must apply generally and not merely to a single case. In addition, the law must specify the basic right affected and the Article in which it appears. (2) In no case may the essence of a basic right be affected. (3) The basic rights shall also apply to domestic legal persons to the extent that the nature of such rights permits. (4) Should any person’s rights be violated by public authority, he may have recourse to the courts. If no other jurisdiction has been established, recourse shall be to the ordinary courts...” 33. The relevant sections of the Law on Associations (Vereinsgesetz) read as follows: Section 3 Banning “(1) An association can only be treated as being banned (Article 9 § 2 of the Basic Law) if the competent authority established by decree that its aims or its activity contravene the criminal law or that they are directed against the constitutional order or against the idea of international understanding ; the order shall decree the dissolution of the association (ban). As a general rule, such ban shall entail confiscations and seizure of 1. the association’s assets, 2...and 3. property of third parties provided that the owner, by handling the items over to the association, has deliberately promoted the association’s anti-constitutional activities or if the items were intended to further such activities. ...” Section 18 Geographical applicability of bans imposed on associations “...If a (foreign) association does not have a sub-organisation within the geographical applicability of this Act, the ban (section 3 paragraph 1) is directed against its activity within that territory.” Section 20 “Anyone who, within the geographical applicability of this act, by pursuing an activity (...) 4. contravenes an enforceable prohibition under section 18 sentence 2 (...) will be sentenced to up to one year’s imprisonment or to a fine.” 34. Under the established case-law of the Federal Administrative Court (compare judgment of 13 August 1984, no. 1 A 26/83 and decision of 3 April 2003, no. 6 A 5/02), individual members of an association are not entitled to lodge actions against the banning of the respective association, because the ban exclusively affects the legal position of the respective association, and not the individual rights of its members. | 0 |
train | 001-61682 | ENG | POL | CHAMBER | 2,004 | CASE OF HULEWICZ v. POLAND | 4 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 8. The applicant is a Polish national who was born in 1952 and lives in Lębork, Poland. 9. On 23 May 1990 the applicant acquired the right to a long-term lease of a flat (spółdzielcze lokatorskie prawo do lokalu) in a building owned by the Lębork Housing Co-operative (Spółdzielnia Mieszkaniowa). 10. On 22 July 1993 the co-operative sued the applicant in the Lębork District Court (Sąd Rejonowy), seeking payment. On 25 October 1993 the court gave judgment and granted the claim. The applicant appealed against this judgment. On 19 January 1994 the Słupsk Regional Court (Sąd Wojewódzki) amended the first-instance judgment. 11. Subsequently, the applicant twice requested the Minister of Justice to grant her leave to file an extraordinary appeal with the Supreme Court (Sąd Najwyższy). Her first request was rejected on 10 October 1994. 12. On 31 January 1997, upon the applicant’s second request, the Minister of Justice filed a cassation appeal on the applicant’s behalf, contesting the judgment of the Słupsk Regional Court of 19 January 1994. 13. On 29 April 1997 the Supreme Court quashed both judgments given in the applicant’s case and remitted the case to the court of first instance. It held that the lower courts had committed serious errors of fact and law. 14. On 28 October 1997 the Lębork District Court joined the applicant’s case with similar proceedings against seven other members of the cooperative. 15. On 19 March 1998 the court held a hearing. 16. On 8 May 1998 the court ordered that expert evidence be obtained. 17. On 9 June 1998 the court exempted the applicant from half of the court fees due. The applicant appealed. On 29 December 1998 the Słupsk Regional Court rejected her appeal. 18. On 29 February 2000 the trial court ordered that further expert evidence be obtained. On 19 May 2000 the expert submitted his report to the court. On 4 October 2000 the applicant challenged the expert’s opinion of 19 May 2000. 19. On 5 October 2000 the court held a hearing and listed the next hearing for 17 October 2000. 20. On 1 March 2002 the District Court gave judgment. On 8 April 2002 the applicant appealed against this judgment. 21. It appears that the proceedings are pending. | 1 |
train | 001-106610 | ENG | LVA | ADMISSIBILITY | 2,011 | NIKITINA v. LATVIA | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Mihai Poalelungi | 1. The applicant, Ms Gaļina Ņikitina, is a Latvian national who was born in 1965 and lives in Rīga. She was represented before the Court by Ms Z. Paulovska, a lawyer practising in Rīga. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The relevant historical background has been described in detail in paragraphs 2 to 9 of the Court’s decision in the case of Liepājnieks v. Latvia (no. 37586/06, 2 November 2010). 4. In addition, it should be noted in the present case that from 1985 the applicant lived in an apartment in the building located at 3 Pastendas Street, under a lease agreement concluded under Soviet law. On 29 October 1992, following the restoration of Latvia’s independence, the building was denationalised and returned to its former owners. 5. On 5 January 1994 the applicant concluded a new lease for one year. It appears that the lease was extended every year until 9 May 2000. In the meantime, according to the applicant, the owners failed to maintain the building, in breach of the lease agreement. 6. It appears that, after the expiry of the seven-year non-eviction period (see Liepājnieks, cited above, § 6), the owners initiated eviction proceedings before the civil courts (see, by contrast, Liepājnieks, cited above, §§ 11 and 88). 7. On 26 May 2003 the Rīga City Zemgale District Court (Rīgas pilsētas Zemgales priekšpilsētas tiesa) ordered the eviction of the applicant and her minor daughter from the apartment without allocating them another place of residence. The applicant appealed against the judgment. 8. On 17 January 2005 the Rīga Regional Court (Rīgas apgabaltiesa) upheld that judgment and confirmed that the applicant and her daughter were to be evicted from the apartment and that no other place of residence was to be allocated to them. The regional court’s judgment took effect on the same day. The applicant lodged an appeal on points of law, in vain. 9. On an unspecified date, the applicant and her daughter were evicted from the apartment. 10. In December 1998 the applicant approached the local municipality with a view to receiving its assistance on matters relating to apartments. It appears that her application was examined approximately a year later: on 8 December 1999 the Rīga City Council entered the applicant’s family (the applicant and her minor daughter) in the register for receiving municipal assistance in the allocation of a place of residence (for rent). The applicant’s family were entered in the third group of the register, based on the fact that the apartment in which they were living was not suitable for permanent residence. 11. On 1 January 2002 a new law on assistance concerning issues relating to apartments took effect (see paragraph 34 below). The applicant’s family were now entered in register no. 12, keeping their initial registration date. 12. On 3 November 2004 the applicant was granted the status of a low-income person. This was subsequently extended until at least 23 October 2006. 13. On 2 February 2005 the applicant’s family were entered in register no. 7 for priority treatment in receiving municipal assistance in the allocation of a place of residence (for rent), keeping their initial registration date. Register no. 7 was designed to include persons in need of the municipality’s assistance who had low-income status, were tenants in denationalised buildings and did not have any other place of residence. The applicant’s family appear to have been at the top of that list on account of their initial registration date. 14. On 23 February 2005, having received a phone call from the municipality, the applicant went to its offices to deal with the necessary formalities for receiving a lease offer, which, as it later transpired, had been issued for her. An official of the municipality required the applicant to submit the information regarding the proceedings for her eviction (see paragraphs 6 to 9 above). Having received the information, the official noted that all available lease offers had already been issued and that the applicant had to continue waiting for an offer. 15. On 29 March 2005, following an enquiry by the applicant, the municipality informed her that there was no basis on which to offer her a lease, because the eviction proceedings had resulted in a judgment against her and she no longer had a right to reside in the apartment in question. It was noted, however, that should the applicant’s appeal on points of law be upheld and the judgment of 17 January 2005 (see paragraph 8 above) be reversed, the municipality would consider that she retained the right to reside in the apartment and she would be offered a lease. 16. On 28 August 2006 the applicant was informed that she and her daughter would be struck off register no. 7 since she no longer satisfied the applicable criteria. She was invited to submit any objections within two weeks. The applicant was also informed that she could submit documents to be entered in register no. 1 for priority treatment in receiving municipal assistance in the allocation of a place of residence (for rent). Register no. 1 was designed to include persons who had been evicted from their place of residence. It appears that the applicant did not submit any response to the authorities on these issues. 17. On 4 October 2006 the competent commission decided to strike the applicant’s family off register no. 7 because the applicant’s lease in a denationalised building had been terminated on 17 January 2005. The decision contained a reference to the effect that the applicant could submit a complaint with the municipality against that decision within one month. 18. On 8 November 2006 the applicant lodged a complaint against the decision. On 15 December 2006 her complaint was rejected and she was informed that she could lodge an appeal with the administrative courts within one month. She did not exercise that right. 19. On 17 December 2006 the applicant complained to the municipality that her complaint of 8 November 2006 had not been examined, adding that she had been called on an unspecified date to participate in a meeting with the municipality but had not understood the purpose of that meeting. 20. On 4 January 2007 the applicant received a reply to her complaint of 17 December 2006. It was explained that her complaint against the decision of 4 October 2006 had been rejected on 15 December 2006 and that she could lodge an appeal with the administrative courts within one month. The system of registers and their scope was also explained and the applicant was informed that her family could be eligible for inclusion in register no. 1 for priority treatment. She was encouraged to contact the competent division in the municipality and was given the relevant contact details. The applicant did not proceed as suggested. 21. On 1 November 2005 the applicant lodged a complaint with the Rīga City Council about an action of a public authority (faktiskā rīcība). On 9 January 2006 the Rīga City Council rejected the applicant’s complaint. 22. On 6 February 2006 the applicant brought proceedings in the Administrative District Court (Administratīvā rajona tiesa), asking it to compel the Rīga City Council to issue a favourable administrative act (labvēlīgs administratīvs akts) and conclude a lease with her. 23. On 10 August 2006 the district court partly ruled in the applicant’s favour. On the one hand, the district court concluded that an action of a public authority – namely the municipality’s refusal to offer a lease to the applicant – had been unlawful. On the other hand, the district court did not compel the municipality to issue a favourable administrative act or to conclude a lease with the applicant. 24. As concerns the action of a public authority, the district court noted that the parties did not dispute that on 23 February 2005 the applicant’s family had been entered in register no. 7, that the applicant’s turn had come to receive the municipality’s assistance and that at least one apartment was available for lease. It was the municipality’s duty under domestic law to offer every available apartment to the applicant. The district court ruled that the applicant had a right to request that a certain action be taken, that is, that a lease offer be given to her. The responsible official did not have the right to refuse to make such an offer as on 23 February 2005 the applicant’s entry in register no. 7 had still been effective. 25. As regards the applicant’s request to compel the municipality to issue a favourable administrative act and to conclude a lease, the district court held that it could not compel the municipality to issue such an act before it had offered a lease and the applicant had accepted it. 26. The municipality appealed against the district court’s ruling in so far as it concerned the action of a public authority. The applicant did not lodge an appeal. Thus, the district court’s ruling regarding the request for a favourable administrative act and a lease offer remained uncontested. 27. On 15 May 2007 the Administrative Regional Court (Administratīvā apgabaltiesa) upheld the district court’s ruling. The regional court found that, in fact, on 23 February 2005 the municipality had already prepared a lease offer and that the official had not handed it over to the applicant on that date. Under domestic law, only a special commission had the necessary powers to strike the applicant’s family off register no. 7. Since this had not been done on 23 February 2005, the applicant had not lost the right to receive municipal assistance. 28. The regional court concluded that an action of a public authority – namely the refusal to issue a lease offer – had been unlawful. As the applicant had not contested the district court’s finding concerning the request for a favourable administrative act and a lease offer, the regional court and later also the Senate of the Supreme Court, did not rule on this issue. 29. On 3 January 2008, following an appeal on points of law by the municipality, the Administrative Department of the Senate of the Supreme Court (Augstākās tiesas Senāta Administratīvo lietu departaments) fully concurred with the regional court’s reasoning. The municipality argued before the Supreme Court that the applicant had lost the right to reside in the apartment on the grounds of the judgment of 17 January 2005 and, accordingly, the issuance of a lease offer would not be effective in the circumstances. The Supreme Court agreed that with the judgment of 17 January 2005 the applicant’s family had lost the right to reside in the apartment. However, only the competent commission could have examined the situation and decided whether or not to strike the applicant’s family off the register. Since on 23 February 2005 such a decision had not been taken, the applicant had not lost the right to receive the municipality’s assistance in resolving the issue of her apartment. The Supreme Court thereby upheld the lower court’s judgment. 30. Under Article 92 of the Constitution (Satversme), everyone has a right to receive commensurate compensation if his or her rights have been violated. 31. Under section 92 of the Law of Administrative Procedure (Administratīvā procesa likums), in force since 1 February 2004, everyone has the right to receive commensurate compensation for pecuniary and non-pecuniary damage caused by an administrative act or action of a public authority. 32. Under section 93 of the same Law, a claim for compensation can be submitted either together with an application to the administrative courts to declare an administrative act or action of a public authority unlawful, or to the public authority concerned following a judgment adopted in such proceedings. 33. The amount of compensation and the procedure for claiming damages from a public authority on account of an unlawful administrative act or an unlawful action of a public authority is prescribed by the Law on Compensation for Damage caused by Public Authorities (Valsts pārvaldes iestāžu nodarīto zaudējumu atlīdzināšanas likums), in force since 1 July 2005. Chapter III of the Law provides for the procedure to follow when an individual claims damages from a public authority. Under section 15, an individual is entitled to lodge an application with the public authority that was responsible for the damage. Pursuant to section 17, such an application must be lodged not later than within one year of the date when the individual became aware of the damage and, in any event, not later than five years after the date of the unlawful administrative act or unlawful action of a public authority. 34. On 1 January 2002 the Law on Assistance Concerning Apartment Matters (likums “Par palīdzību dzīvokļa jautājumu risināšanā”) took effect. Several types of assistance are available under section 3 of the Law, including the possibility of leasing a place of residence from a local municipality. Under section 14, the municipality is entitled to offer assistance in order of priority to tenants living in denationalised buildings. It is left to the municipality to determine the criteria and the procedure for such assistance. Section 18 of the Law provides that the municipality is to offer a lease in writing and that the individual concerned has a certain time-limit for accepting the offer. 35. The Rīga City Council, the biggest municipality in Latvia, has adopted several regulations on these issues. In the present case, regulations nos. 61, 76 and 6 are relevant. Under regulations no. 61, in force from 31 March 2004 to 26 November 2004, individuals with low-income status residing in a denationalised building were entitled to be entered in register no. 7 for priority treatment in receiving the municipality’s assistance in the allocation of a place of residence (for rent), if they did not have any other place of residence (Article 2.3.8). The decision as to whether or not an individual was entitled to receive the municipality’s assistance, or to be included in or struck off any of the registers, was to be taken by a special commission (Article 1.6). 36. Under regulations no. 76, in force from 26 November 2004 to 27 July 2005, the relevant provisions remained the same as in regulations no. 61. 37. From 27 July 2005 to 13 December 2007 regulations no. 6 were in force. These regulations laid down clearer provisions governing the different registers, eligibility criteria and the order of priority. Similarly to the previous regulations no. 61 and 76, they provided that the decision to strike a person off any of the registers should be taken by a special commission (Article 1.9). | 0 |
train | 001-83314 | ENG | GBR | ADMISSIBILITY | 2,007 | DAY v. THE UNITED KINGDOM | 4 | Inadmissible | Josep Casadevall;Nicolas Bratza | The applicant, Mr Jack Day, is a British national who was born in 1937 and lives in Lancashire. He was represented before the Court by Ms J. Starling, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 16 September 1999, leaving two children born in 1960 and 1963. His claim for widows’ benefits was made on 25 May 2000 and was rejected on 22 August 2000 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant appealed to the appeal Tribunal which heard and dismissed his claim on 27 November 2000. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law. The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007. | 0 |
train | 001-57512 | ENG | DEU | CHAMBER | 1,978 | CASE OF KÖNIG v. GERMANY | 2 | Violation of Art. 6-1;Just satisfaction reserved | null | 15. The applicant, a German national born in 1918, had taken up practice as an ear, nose and throat specialist in 1949. In 1960, he opened at Bad Homburg (Hessen) in the Federal Republic of Germany a clinic of which he was the owner; he was the only medical practitioner working at the clinic which he ran and managed himself and where he performed, in particular, plastic surgery. 16. On 16 October 1962, proceedings against Dr. König for unprofessional conduct were instituted by the Regional Medical Society (Landesärztekammer) before the Tribunal for the Medical Profession (Berufsgericht für Heilberufe) attached to the Frankfurt Administrative Court (Verwaltungsgericht) and he was declared unfit to practise on 9 July 1964. The Regional Tribunal for the Medical Profession (Landesberufsgericht für Heilberufe) attached to the Hessenadministrative Court of Appeal (Verwaltungsgerichtshof) rejected Dr. König's appeal on 14 October 1970. The accusations against the applicant upheld by the Regional Tribunal including the following: having offered a beauty specialist 20 % of his fees and one of his patients DM 100 for each client they introduced to him; having persuaded a patient to have treatment not covered by social security by assurances that he would in that case be able to use more effective methods; having refused to make out for one of his clients an account corresponding to the fee actually paid; having, as an ear, nose and throat specialist, performed an operation not falling within the field in which he specialised; having had a beauty specialist assist him during operations; having widely-publicised his practice in the daily and weekly press; having used on his name-plates, notepaper and prescription forms wording contrary to the rules of the medical profession. 17. In 1967, the applicant had his authorisation to run his clinic withdrawn and then, in 1971, his authorisation to practise. Criminal proceedings were taken against him in 1972 for, inter alia, the illegal practice of medicine. Actions brought by Dr. König to challenge both of these withdrawals have been in progress before the competent administrative courts since November 1967 and October 1971, respectively. 18. The applicant complains of the length of the proceedings taken by him against the withdrawals of the authorisations; he makes no complaint about either the disciplinary proceedings before the professional tribunals or the criminal proceedings. 19. In the Federal Republic of Germany, the medical profession is governed partly by Federal law and partly by the law of the Länder. The principal rules relevant for the present case are to be found, in particular, in the Federal Medical Practitioners' Act (Bundesärzteordnung - hereinafter referred to as "the Federal Act") in the version of 4 February 1970 as last amended on 2 March 1974 and 26 March 1975, the Regulations of 28 October 1970 on the grant of the authorisation to practise medicine (Approbationsordnung für Ärzte - hereinafter referred to as "the Regulations") and the Hessen Act on the Professional Bodies and Tribunals for Medical Practitioners, Dentists, Veterinary Surgeons and Pharmacists (Gesetz über die Berufsvertretungen und über die Berufsgerichtbarkeit der Ärzte, Zahnärzte, Tierärzte and Apotheker - hereinafter referred to as "the Hessen Act") in the version of 18 April 1966. 20. According to paragraph 1 of Article 1 of the Federal Act, the medical practitioner shall have the care of the health of each individual and of the community as a whole. Under paragraph 2, he exercises a liberal profession and not a trade or business. In order to be able to practise on a permanent basis, an authorisation issued by the appropriate services of the Länder is required. (Articles 2 para. 1 and 12 of the Federal Act and Article 35 of the Regulations). This authorisation is granted on request if the person concerned: "1. is German ... or is a stateless alien ..., 2. has not been guilty of behaviour showing that he is unfit or unreliable to exercise the profession ..., 3. is not incapable of, or unsuited for, the exercise of the ... profession on account of an infirmity, of some weakness in his mental or physical faculties, or of an addiction (Sucht), 4. after studying medicine for a minimum of six years, including a minimum of eight months' and maximum of twelve months' practical training in a hospital, has passed the medical examination in a place where this Act is applicable. ..." (Article 3 para. 1 of the Federal Act). If the application is granted, the person concerned receives a document (Approbationsurkunde) certifying that the statutory conditions are satisfied and adding: "With effect from today's date, he (she) is granted authorisation to exercise the medical profession .... Such grant authorises the doctor to practise medicine" (Article 36 of the Regulations and Appendix 21 thereto). If, on the other hand, the authorisation has to be refused for nonfulfilment of one of the conditions, the applicant or his representative must first be given a hearing (Article 3 para. 4 of the Federal Act.) An authorisation that has been issued must be withdrawn if one of those conditions either was not satisfied at the time of the grant or ceases to be met afterwards (Article 5 of the Federal Act). 21. Anyone wishing to run a clinic must have an authorisation pursuant to the Trade and Business Act (Gewerbeordnung) and is entitled thereto if he fulfils the conditions stipulated by Article 30 para. 1 of the Act (see paragraph 27 below). Since the management of a clinic is classified as a trade or business, the person running it does not have to be a doctor himself. However, he is required to take all necessary staffing and organisational measures to ensure the treatment of patients in his institution. He must, therefore, employ one or more doctors responsible for the care of his clients. The authorisation is withdrawn if it transpires either that the documents supporting the application were incorrect or that the requisite conditions were never, or have ceased to be, satisfied (Article 53 of the same Act; paragraph 27 below). 22. It is not disputed that, according to German law, the right to be authorised to practise medicine and the right to be authorised to run a private clinic are rights conferred on the individual by public law and protected by Article 12 of the Basic Law which guarantees freedom to exercise a profession. Again, exercise of the medical profession, unlike the running of a private clinic, is not considered in the Federal Republic to be a trade or business (see paragraph 20 above); although it also has the purpose of providing an income, its primary aim is disinterested, namely, rendering assistance to mankind. Medical treatment is a matter for a private-law contract between doctor and patient. Such a contract serves to guarantee the free choice of a medical adviser, maintain a relationship of trust between him and his patient and uphold professional secrecy. However, the contract does not establish a well-defined set of rights and obligations since it imposes on the doctor a duty to provide basically unlimited services to anyone seeking treatment. Moreover, the rules on the medical profession forbid its members to advertise and even regulate in detail the size and content of their name-plates. Again, medical practitioners cannot fix their fees at will but must comply with the Regulations even when not practising as national health doctors. Minimum and maximum fees for medical services are specified by Federal Government decrees, taking into account the legitimate interests of practitioners and of the persons or organisations having to pay them (Article 11 of the Federal Act). Those affiliated to the social security health insurance funds – about 80 % of the population - are entitled to medical treatment according to the terms of the legislation and agreements in force. The majority of medical practitioners are approved national health doctors and obliged to treat members of the insurance funds. The Federal Constitutional Court (Bundesverfassungsgericht) has held that such practitioners are not administering a public service but fulfilling a public-law duty and, by their enrolment, are integrated within a system of public law. (Collected Decisions of the Constitutional Court, Vol. 11, pp 30 et seq.). 23. Medical practitioners carry out their duties under the control, inter alia, of their societies and of the professional tribunals, these institutions being governed by Länder Law. 24. Articles 1 and 2 para. 1 of the Hessen Act provide that regional medical societies are public-law associations to which all doctors practising in the Land belong. Practitioners who fail to register with the competent society or to fulfil their other obligations under its statutes may be fined (Article 7 of the Hessen Act.) Article 4 para. 1 of the Hessen Act gives the following definition of each society's functions: "1. supervision of the discharge of (its) members' professional duties ..., 2. promotion of the further training of society members, 3. promotion of harmonious relations among society members and settlement of any disputes, arising in the exercise of the profession, between members or between them and third persons, without prejudice to the jurisdiction of other authorities, 4. assisting the official health service in the performance of its functions, ..." The authorities and the societies must assist each other in the fulfilment of their respective functions (Article 5 of the Hessen Act). The societies are under State supervision which extends to observance of the laws and statutes. The competent Minister may quash any decision contravening these texts (Article 16 of the Hessen Act) and may at any time request information from the societies concerning their affairs (Article 17 para. 1). 25. If the council of the society suspects a practitioner of unprofessional conduct, it refers the matter to the Tribunal for the Medical Profession (Articles 18 and 29 para. 3 of the Hessen Act). Under Article 20 para. 1, the decision at first instance is given by that Tribunal which is attached to the Administrative Court for the locality and has three members, namely the President, or his representative, and two assessors belonging to the defendant's professional group (Article 21 para. 1). An appeal against the Tribunal's decision may be made to the Regional Tribunal for the Medical Profession attached to the Hessen Administrative Court of Appeal (Articles 41 and 20 para. 2); the appellate tribunal is composed of five members, namely the President, or his representative, two other judges of the Administrative Court of Appeal and two assessors belonging to the defendant's professional group (Article 21 para. 2). The professional tribunals may impose the following penalties, the second, third and fourth of which may be combined: warning, reprimand, temporary suspension of the right to vote in society proceedings, fine up to DM 10,000 and finding that the individual is unfit to exercise the profession (Article 19 paras. 1 and 3). The authorisation to practise is not automatically revoked as the result of the last-mentioned finding. Although its ultimate purpose is the individual's exclusion from the profession, it binds neither the Regierungspräsident, who alone has power to withdraw the authorisation, nor any courts which may be called upon to examine the lawfulness of such a withdrawal. 26. Decisions by the Regierungspräsident withdrawing either an authorisation to practise or an authorisation to run a private clinic may be challenged before the administrative courts. However, before the person concerned can bring the matter before the courts, he must first have filed - unsuccessfully - an objection (Widerspruch) with the Regierungspräsident. 27. On 12 April 1967, at the request of the Regional Medical Society, the Regierungspräsident in Wiesbaden withdrew the applicant's authorisation to run his clinic, claiming that he could not be relied on to conduct the institution properly and lacked the diligence and knowledge required for its technical and administrative management. The Regierungspräsident adverted to an inspection of the clinic which had revealed, in November 1965, numerous irregularities: out of thirty-four medical records, eighteen were not maintained correctly; the training of the staff was insufficient for the work entrusted to them; the equipment in the treatment room left something to be desired; the instruments, some of which were beginning to rust, were in part badly kept; the X-ray machinery lacked safety devices. Inspectors were said to have found in January 1967 that, amongst other things, the operating theatre and its equipment had not been cleaned. The Regierungspräsident relied also on evidence given by several people to the effect that, between 1962 and October 1966, the clinic had in fact been managed by a young employee who was aged eighteen in 1962 and was unqualified. She supervised the staff and took care of the patients and had allegedly confirmed that dog-food was kept in the refrigerator at the clinic and that the applicant allowed men to be present in the rooms outside visiting hours. According to her, Dr. König also made advances to her and one of her colleagues on several occasions. The decision of the Regierungspräsident was based on the following provisions of the Trade and Business Act: "A person running a private clinic, maternity home or mental hospital requires an authorisation from the higher administrative authority. The authorisation may be refused only: (a) if the facts show that the said person cannot be relied on properly to conduct and manage the institution; ..." "The licences ... mentioned in [Article] 30 ... may be withdrawn ... only: 1. ... 2. if it subsequently appears that the person running the institution does not possess the qualifications required for the grant of the licence ... or that the premises or technical equipment of the institution no longer satisfy the requirements for the grant of the authorisation. ..." 28. On 13 July 1967, the applicant filed an objection which was rejected by the Regierungspräsident on 6 October. Dr. König then appealed, on 9 November, to the Frankfurt Administrative Court, the case being assigned on the following day of its 4th Chamber which is competent to hear disputes relating to the law on trade and business activities. These appeals had the effect of suspending enforcement of the decision complained of. 29. As early as 10 November, the court asked the Regierungspräsident for his observations; it received them on 8 February 1968, after extending the time granted and sending a reminder. The Regierungspräsident was requested on 27 March to supply further information and he submitted a written pleading on 30 May. He indicated therein that the applicant was to undergo a psychiatric examination whose results would be forwarded to the court later. The court asked the Regierungspräsident about this on 10 June, 25 July and 9 August; he supplemented his earlier observations but told the court on 10 January 1969 that the applicant had not agreed to be so examined. On 16 January, the court asked the Regierungspräsident to clarify a point in his pleading; this clarification was received by the court on 2 April. 30. In the meantime and until January 1969, the court had tried to obtain from, notably, the Regierungspräsident (10 June 1968) and the competent local authorities (10 October), the addresses of several persons who might be called as witnesses. The court also endeavoured, as from 8 January 1969, to procure files on the applicant, including those of the professional tribunals (see paragraph 16 above). On 26 August 1969, the court decided to hear sixteen witnesses at sittings fixed for 25 and 26 November. For this purpose, it tried, for example on 11 and 18 September, to obtain the addresses of witnesses and requested the production of other files concerning Dr. König. On 27 November, the court fixed 2 December as the date for the oral hearing (mündliche Verhandlung) and for the continuation of the taking of evidence from the witnesses, including a certain Mr. Xymenes who had made serious accusations against Dr. König before the Regional Medical Society. The court sat on 2, 8 and 12 December. It imposed fines (Ordnungsstrafen) of DM 100 and DM 500 on Mr. Xymenes for failing to appear. On 3 February 1970, the court decided not to hear the appeals (Beschwerden) made by Mr. Xymenes against these penalties on 30 December 1969 and 2 January 1970 and to transmit the file to the Hessen Administrative Court of Appeal. On 17 February, the latter court invited those concerned to present their observations and it set aside the two fines on 9 and 10 March. 31. On 17 April 1970, the file was returned to the Administrative Court which, on 14 May, informed the parties of the state of the proceedings. It asked them to indicate as soon as possible what evidence they proposed to put forward, pointing out that several persons had offered to make statements on the medical treatment given to them by the applicant. The court also stated that, as far as it was concerned, the hearings could be resumed at the end of June or the beginning of July since the lay judges would be available then. On 29 May, Dr. König indicated that he would abstain from nominating further witnesses if the Regierungspräsident did likewise. However, on 8 June, the latter named a certain number of additional witnesses and, on 6 July, he filed with the court a pleading dealing with the evidence taken so far. This pleading was sent by the court on 13 July to the applicant for his comments; on 24 September, he requested in writing that seventy-six witnesses be heard should the court decide to hear those mentioned by the Regierungspräsident. There followed a further exchange of pleadings. 32. On 25 February 1971, the Regierungspräsident informed the court that Mr. Xymenes was detained in prison at Constance and could accordingly be served with a summons to appear. After advising the applicant, the court wrote on 14 April to the competent authorities in Constance to enquire whether Mr. Xymenes was being held in the prison and, if so, for how long. The prison replied on 27 April that the witness had been released. 33. On 29 April 1971, the judge acting as rapporteur directed that the file be sent back to the President of the Chamber to enable him to fix the date of the hearing, but this instruction was not carried out, probably due to a mistake on the part of the registry. On 24 May, Mr. Schmidt-Leichner of Frankfurt announced that he was no longer acting as Dr. König's lawyer. 34. The applicant, who on 26 August 1971 had asked the court to fix the date for the hearing without delay, was told on 2 September that the file would be submitted to the President of the Chamber immediately he returned from holiday. An order of the court set 5 September as the date for such submission. On 20 October, Messrs. Bossi, Breme and Ufer of Munich told the court that they were now acting for Dr. König. Following receipt of a letter from the Frankfurt Regional Employment Tribunal (Landesarbeitsgericht), the file was returned to the judge acting as rapporteur on 21 October. 35. On 29 November 1971 and 12 January 1972, the court attempted yet again, but without success, to contact Mr. Xymenes to discover whether he would be able to give evidence in January/February or in February/March 1972. On 21 February, the court fixed 28 March as the date for a hearing to which it summoned Mr. Xymenes. He did not appear and on 29 March was fined DM 500 by the court which also ordered him to attend a further hearing due to be held on 31 May. Relying on a medical certificate, Mr. Xymenes on 8 April lodged an objection against this penalty but the court dismissed the objection and sent the file to the Hessen Administrative Court of Appeal. On 26 April, the latter court asked the witness's doctor to supply further details about the said certificate: it received them on 2 May and set the fine aside on 18 May. The file was returned on 29 May to the Administrative Court which on the same day cancelled the hearing fixed for 31 May, on the ground that the presence of Mr. Xymenes could not be secured. Pursuant to an order of 7 June 1972, there was a further hearing on 11 July. Once again, Mr. Xymenes did not appear. On 13 July, the Court fined him DM 500. On 10 August, it directed that the taking of evidence would continue on 19 September. On 22 August, it issued a subpoena against Mr. Xymenes who gave evidence on 19 September. 36. At the conclusion of this last sitting, the court granted the parties the faculty of submitting, by 15 October, their written observations on the result of the examination of witnesses. Dr. König took advantage of this on 13 October. On 14 November, other lawyers informed the court that they had been instructed by the applicant and requested it to await their written pleading. This document, which arrived on 12 February 1973, commented on the evidence already obtained, repeated the earlier applications for evidence to be taken and made new applications therefore. On the same day, Mr. Demme announced that he was Dr. König's new lawyer. The court transmitted the pleading to the Regierungspräsident on 22 February. In the meantime, on 30 January, the court had requested Dr. König to produce his records on two of his former patients. Having received only photocopies of the documents in question, the court renewed its request on 22 February and tried to trace a further witness. 37. On 30 March 1973, the court supplemented its order of 26 August 1969 (see paragraph 30 above) and fixed 17 April as the date for the continuation of the taking of evidence and for the oral hearing. At the close of its sitting on 17 April, it indicated that it would give a decision on 8 May. However, after trying to obtain witnesses' addresses and taking cognisance, on 18 April, of another written pleading from the applicant, the court on 2 May adjourned sine die the date for delivery of its decision; at the same time and also subsequently, it requested Dr. König to supply further information, which was received on 14 May and 9 July. Between these dates, the court also had researches made for the addresses of several witnesses. The parties supplemented their pleadings on 26 and 30 July 1973. 38. On 16 August 1973, the court decided that there should be a second additional enquiry and, in particular, the hearing of five new witnesses. On the next day, it sent the file to the Bad Kissingen District Court (Amtsgericht) for it to hear one of those witnesses; on 20 August, it directed that the three others should be heard on 21 September but, on 22 August, postponed this to 5 October at Dr. König's request. When the file came back from Bad Kissingen, the court on 19 September asked the Altena District Court to hear another witness. 39. Previously, on 22 August, the applicant had filed with the Hessen Minister of Justice a disciplinary complaint (Dienstaufsichtsbeschwerde) in which he also declared that he challenged "the Frankfurt Administrative Court". For this reason, on 3 October, the court cancelled the hearing due to take place two days later. On 4 October, the 3rd Chamber of the Administrative Court, which appeared to have jurisdiction in the matter, asked Dr. König to specify which of the judges he was challenging, pointing out that it was not possible to challenge all the members of a Chamber. The applicant replied on 19 October that his claim was limited to the judge of the 4th Chamber acting as rapporteur and that he objected to certain wording used by the latter in the letters rogatory sent on 19 September to the Altena District Court. On the same day, Mr. Schilling, acting on behalf of Dr. König, complained about the length of the proceedings to the Federal Constitutional Court. The Administrative Court was invited on 31 October to present its observations and it did so on 9 November, transmitting the file to the Constitutional Court on 15 November. The latter, by a decision of 28 November, refused to hear the complaint on the ground that it did not offer sufficient prospects of success. Following the return of the file on 10 December, the Administrative Court on 8 January 1974 upheld the challenge against the judge acting as rapporteur. 40. The file was then transmitted by the Administrative Court to the Hessen Minister of Justice to enable him to give a decision on the disciplinary complaint; he received the file on 14 January 1974 and returned it on 8 March. On 22 March, the court sent the file to the Hagen public prosecutor's department (Staatsanwaltschaft) as requested by it and by the President of the Regional Court (Landgericht) of the same town, who needed it in order to examine another disciplinary complaint by Dr. König. 41. On 26 April 1974, the applicant asked the Administrative Court not to hear a witness who it was contemplated should be summoned. This request was repeated on 28 May but rejected on 6 June by the court which decided to hold a hearing on 30 July. Only some of the witnesses appeared on that day. One was heard at home on 14 August and another gave evidence in writing. On 14 August, the file was sent to the Hessen Minister of Justice for the purposes of the proceedings instituted by Dr. König on 3 July 1973 before the Commission. On this occasion, the President of the 4th Chamber made known his observations on the outcome of the court's enquiry; he was of the opinion that the partly contradictory statements of the witnesses did not allow a firm conclusion to be drawn on the applicant's activities as manager of the clinic; accordingly, the question arose whether his conduct as a medical practitioner also had to be taken into account; however, it was not for the 4th Chamber to rule on the complaints against Dr. König in this last-mentioned capacity since they were the object of proceedings pending before the 2nd Chamber. 42. On 25 August, the applicant submitted observations on the statements made by one witness and applied for seven further witnesses to be heard. A copy of this pleading, which the court had requested from him on 28 August, was sent on 5 September to the Regierungspräsident who replied on 7 October. The Hessen Minister of Justice returned the file to the Administrative Court on 28 October. 43. The court had previously been advised that in July the applicant had entrusted his case to another lawyer, Mr. Unruh. The latter returned the brief on 26 November and his successor Mr. Heldmann, who had given notice on 18 October 1974 that he was acting for Dr. König, did likewise on 21 February 1975. 44. On 10 February 1975, the President of the 4th Chamber had a meeting with the applicant who stated that he had let the clinic premises for use as an old people's home and would re-open the clinic - in association with a surgeon - only after being authorised to practise again. Furthermore, he agreed that priority be given to the proceedings, pending before the 2nd Chamber, concerning the exercise by him of his profession. 45. The file was sent on 5 May to the Hessen Minister of Justice for the purpose of the Commission proceedings. It was returned to the court on 26 June and then communicated on 4 July to Dr. König's new lawyer, Mr. Cartus of Karlsruhe, who on 16 April had indicated that he had been instructed. The Court had allowed him two weeks to consult the file and, on 11 July, extended this period to 8 August. However, on 18 July, Dr. König informed the court that he had withdrawn Mr. Cartus' instructions and requested that he be asked to return the file which Dr. König wished to study himself. The court communicated on 21 July with the lawyer who returned the file on 29 July. On 1, 4 and 11 August, the applicant and his new lawyer, Mr. Mattern, who acted for him from 22 July to 14 August, requested the court to send them certain documents, including verbatim records of evidence, two of which were despatched to them on 18 August. From 11 to 23 September, the file was with Mr. Unruh who, since 11 September, had once again been entrusted with Dr. König's case. 46. On 6 November 1975, there was added to the file a second challenge lodged by the applicant with the Hessen Minister of Justice on 10 October (see also paragraph 67 below). On 2 December, the President of the Chamber wrote to Dr. König to enquire whether his intention was to challenge the members of the Chamber on the ground of bias and, if so, which members. As regards the duration of the proceedings, the President remarked: "I wish to point out that we have repeatedly talked about the expediency of continuing the proceedings concerning the authorisation to run a clinic and pending before the 4th Chamber. On those occasions you agreed with me that it was necessary first of all to await the conclusion of the proceedings relative to the authorisation to practise medicine because they had to be regarded as having priority. You also mentioned that you would not re-open your clinic before that date although in law you would be entitled to do so. Should you have changed your mind, please let me know." Dr. König's lawyer replied on 8 December that the claim related primarily to the President of the 2nd Chamber and the manner in which the last hearing before that Chamber had been conducted. He requested the court not to decide, for the time being, whether his client was challenging the 4th Chamber. On the subject of the duration of the proceedings, the lawyer declared: "The question of the conclusion of the proceedings concerning the authorisation to practise medicine has at present priority because in those proceedings immediate enforcement of the administrative decision has been ordered. It is known that there is no order for immediate enforcement of the decision to withdraw the authorisation to run the clinic; consequently, as regards the last two sentences in your letter of 2 December 1975, there is at present no need for the 4th Chamber of the Frankfurt-on-Main Administrative Court to give an early decision." The applicant withdrew Mr. Unruh's instructions on 25 April 1976. 47. The proceedings before the 4th Chamber accordingly remained suspended and were resumed only after the 2nd Chamber had delivered judgment on 9 June 1976. Hearings, which originally had been arranged for 17 May 1977 and were then postponed at the applicant's request, took place in June. On 22 June 1977, the 4th Chamber dismissed the applicant's appeal against the withdrawal of the authorisation to run his clinic. Its judgment was based on the evidence taken during the hearing of seventeen witnesses between November 1969 and August 1974. Dr. König appealed to the Hessen Administrative Court of Appeal where the case is still pending before the Chamber (Senat) which, on 2 May 1978, ruled on his appeal against the judgment of the 2nd Chamber of the Administrative Court (see paragraph 69 below). Another lawyer, Mr. Hofferbert of Frankfurt, is representing the applicant before the Administrative Court of Appeal. 48. According to statistics supplied by the Government, purely by way of indication, concerning the action before the 4th Chamber, 1,149 days of the proceedings are attributable to measures taken by the court, 1,725 to measures taken by the applicant and his lawyers and 555 to measures taken by third parties, including the defendant administrative authorities, the professional bodies and the witnesses. 49. On 12 May 1971, the Regierungspräsident in Darmstadt withdrew the applicant's authorisation to practise medicine and directed that this decision should have immediate effect (Article 80 para. 2, sub-paragraph no. 4, of the Code of Administrative Procedure - Verwaltungsgerichtsordnung). On the basis of the findings made by the professional tribunals in 1964 and 1970 (see paragraph 16 above), the Regierungspräsident considered that Dr. König had behaved in a manner which disclosed his professional unfitness and his failure to meet medical ethical standards. The Regierungspräsident was acting in pursuance of the following provisions of the Federal Act: "The authorisation to practise medicine shall be withdrawn if one of the requirements of Article 3 para. 1, first sentence, sub-paragraph no. 2, ceases to be satisfied." "The authorisation to practise medicine shall be granted on request provided the applicant: 1. ... 2. has not been guilty of behaviour showing that he is unfit or unreliable to exercise the profession ..." 50. On 1 June 1971, at the request of the applicant and in order to allow him to refer his patients to other practitioners, the Frankfurt Administrative Court restored the suspensive effect of the objection against the decision of the Regierungspräsident, but only until 30 June. The appeal lodged by Dr. König against this ruling was dismissed by the Hessen Administrative Court of Appeal on 6 July. 51. After the Regierungspräsident had rejected on 17 September 1971 the objection filed by the applicant on 18 May against the withdrawal decision, the latter appealed to the Darmstadt Administrative Court on 20 October 1971. For reasons of jurisdiction, this court on 25 October referred the case to the Frankfurt Administrative Court where it was assigned to the 2nd Chamber which is responsible, inter alia, for questions relating to the law on the medical profession. 52. On 2 November 1971, the Frankfurt Administrative Court notified the Regierungspräsident of the appeal, requesting his comments and production of the files kept by his services. The written pleading of the Regierungspräsident was filed on 24 January 1972 and communicated to the applicant's lawyer two days later. After being asked by the court on 24 April whether he intended to submit a reply, the lawyer made an application for the time-limit to be extended until the end of May. The reply in question was filed on 26 June and sent to the Regierungspräsident for comment. Following the receipt on 11 July of a voluminous supplementary pleading from the applicant's lawyer, the Regierungspräsident on 27 July sought an extension until mid-October of the time-limit expiring on 30 July; on 11 August, the court gave leave for the expiry date to be deferred, but only until 15 September. 53. On 5 September 1972, the court ordered that the Regional Medical Society be joined (Beiladung) to the proceedings. On 14 September 1972, after requesting the parties and the Regional Medical Society to furnish certain explanations and after calling for the production of certain criminal files, the court proposed a friendly settlement of the case. The suggestion was that Dr. König would cease to practise as a self-employed physician and to run his clinic, whilst the Regierungspräsident would restore his authorisation to exercise his profession subject to certain conditions. The applicant rejected this proposal on 12 October. The court advised the Regierungspräsident of this four days later, reminding him at the same time about the submission of his comments. 54. Those comments were received by the court on 16 January 1973; a written pleading from the Regional Medical Society was filed on 16 February. Dr. König had changed lawyers on 12 February (see paragraph 36 above). His new adviser, Mr. Demme, inspected the court's file, returning it on 14 March; on 2 May, he also returned the files of the administrative authorities which the court had at his request sent to him on 20 March. On 7 May, he submitted a written pleading which the court communicated for comment to the Regierungspräsident and the Regional Medical Society. 55. On 5 May and 6 August 1973, the court asked the Frankfurt District Court and public prosecutor's department for information as to the state of criminal proceedings instituted against the applicant on 27 July 1972 (see paragraph 71 below). On 9 August, the public prosecutor's department advised the court that, following a hearing held in the meantime, those proceedings had been stayed because further witnesses and experts were to be summoned. 56. On 14 September 1973, the President of the Administrative Court of Appeal sent a copy of the disciplinary complaint of 22 August to the 2nd Chamber which Dr. König had mentioned when challenging "the Frankfurt Administrative Court" (see paragraph 39 above). The file was passed to the 3rd Chamber for it to rule on the challenge. Together with the file were communicated declarations made by the members of the 2nd Chamber; in particular, the judge acting as rapporteur indicated that the 2nd Chamber wished to await the result of the criminal proceedings in view of their importance for the question at issue before it. On 8 October, the 3rd Chamber rejected the challenge on the ground that the applicant had failed to show prima facie the existence of justificatory reasons. As soon as this decision had become final, the file was returned, on 26 October, to the 2nd Chamber. 57. The court had decided on 25 September 1973 to suspend its proceedings to await the outcome of the criminal proceedings instituted against the applicant (see paragraph 71 below) as it considered that the latter proceedings were of importance for the action pending before it (Article 94 of the Code of Administrative Procedure). 58. On 19 October 1973, Dr. König had complained to the Constitutional Court of the length of the proceedings pending before the 2nd and 4th Chambers (see paragraph 39 above). Having been requested by the Constitutional Court on 31 October to submit his observations, the President of the 2nd Chamber replied on 6 November that the Chamber proposed to defer its judgment until the close of the criminal proceedings. The Constitutional Court decided on 28 November not to allow the appeal. It observed, inter alia, that, in refusing to fix a date for the hearing as long as it did not know the result of the criminal proceedings, the 2nd Chamber had - up to that time – properly exercised its discretion in the matter. The nine volumes of the case file had been forwarded to the Constitutional Court on 19 November; they were sent back to the Administrative Court on 10 December. 59. On 16 February 1974, the Frankfurt District Court informed the 2nd Chamber that, in the criminal proceedings, detailed expert opinions still had to be obtained and that the trial would not take place before the second half of the year. On 26 March, the 2nd Chamber asked the District Court to confirm that the applicant remained charged, inter alia, with having continued to practise notwithstanding the withdrawal of the necessary authorisation. 60. On a further application by Dr. König, the Constitutional Court on 11 April 1974 asked the 2nd Chamber for a supplementary report on the state of the proceedings and, in view of their duration, for an indication whether he could not be granted some concessions as regards the immediate enforcement of the withdrawal. The President of the 2nd Chamber replied on the same day. She emphasised that any modification of the decision not to stay such immediate enforcement would endanger the health of the applicant's patients if the accusations against him proved to be founded. The Chamber did not consider that it could take this risk. Furthermore, judicial experience in no way bore out the opinion that the accusation that Dr. König had continued to perform operations could be verified more swiftly by the Chamber than by the District Court, but with the same degree of reliability. On 30 May, the Constitutional Court decided not to hear the complaint on the ground that it did not offer sufficient prospects of success. The Administrative Court received a copy of this decision on 6 June. 61. Previously, on 25 April 1974, the latter court had informed the applicant that it maintained its decision to await the outcome of the criminal proceedings. On 8 May, the District Court had confirmed to the 2nd Chamber (see paragraph 59 above) that Dr. König remained charged with having continued to practise after the withdrawal of his authorisation; it had added that a decision within the next six months was hardly likely since the applicant had challenged one of the judges and extensive appellate proceedings were in progress. 62. On 11 July 1974, Dr. König, pleading the length of the proceedings, requested the Administrative Court to restore the suspensive effect of his appeal against the withdrawal decision. However, the file was sent to the Hessen Minister of Justice who had asked for it on 29 July for the purposes of the Commission proceedings; it was returned to the court on 24 October after the Government's observations on admissibility had been filed in Strasbourg. Between 11 July and 24 October, the applicant had changed his advisers twice (see paragraph 43 above); until 16 December the file was retained for consultation by Mr. Heldmann, the second of the lawyers so appointed. 63. On 3 January 1975, the 2nd Chamber rejected the request of 11 July 1974. Dr. König, who had withdrawn instructions from his lawyer (see paragraph 43 above), at once appealed in person to the Hessen Administrative Court of Appeal but it dismissed the application on 4 November. The court, relying on the statements made by witnesses during the proceedings before the 2nd Chamber, took the view that, if the applicant were authorised to practise, he might endanger any clients who consulted him. Dr. König had previously attacked the decision of the 2nd Chamber before the Federal Constitutional Court which, on account of non-exhaustion of remedies, had declined to hear his application. 64. After the return of the file to the Administrative Court on 26 June 1975, the President of the 2nd Chamber and the judge acting as rapporteur agreed on 30 June, in order to expedite matters, not to wait any longer for the result of the criminal proceedings or of the action before the Administrative Court of Appeal. They contemplated holding hearings on 3 September. The judge acting as rapporteur made, also on 30 June, enquiries of the District Court about the state of those criminal proceedings. On 10 July 1975, the Constitutional Court decided not to hear a further complaint filed on Dr. König's behalf by Mr. von Stackelberg and objecting, inter alia, to the dilatory nature of the proceedings. It considered, amongst other things, that the special features of the case, from both a factual and a legal point of view, and the applicant's unfitness to practise, which had been conclusively found by the Regional Tribunal for the Medical Profession, justified the 2nd Chamber's awaiting the decision in the criminal proceedings and maintaining the immediate effect of the withdrawal of the authorisation. The court added that, furthermore, nothing prevented Dr. König from seeking, principally on the ground of the length of the proceedings, restoration of the suspensive effect of the appeal against the said withdrawal. 65. On 14 July 1975, the 2nd Chamber decided that on 2 and 3 September there would be a sitting devoted to the hearing of evidence and of argument. The parties were informed of this decision two days later. On 28 and 31 July, the Chamber had researches made for the addresses of some witnesses. On 14 August, it was advised that Mr Mattern, the lawyer instructed by Dr. König on 22 July (see paragraph 45 above), was no longer acting for him. Six days later, the applicant filed a pleading, the Regierungspräsident having submitted one on 14 August. 66. The hearing did take place on 2 and 3 September 1975. After hearing six witnesses, the court directed that there should be a further sitting on 12 November, but it cancelled this on 14 October as the file was with the Hessen Administrative Court of Appeal which had to rule on the appeal of 3 January (see paragraph 63 above). 67. Dr. König, in a letter of 10 October received on 13 October by the Hessen Ministry of Justice, had sought the transfer to another court of the actions pending before the 2nd and 4th Chambers whose judges, he alleged, could "no longer be described as impartial". The letter was sent on 16 October by the Minister to the Frankfurt Administrative Court and was put before the 2nd and 4th Chambers on 6 November (see also paragraph 46 above). On 13 November, the President of the 2nd Chamber wrote to the applicant to enquire whether a formal challenge was being made; the lawyer, Mr. Unruh, who from 11 September 1975 to 25 April 1976 once again acted for Dr. König (see paragraphs 45 and 46 above), replied on 6 December that his client was challenging the President herself. He also asked to be allowed to consult the file; this was held at his disposal at the registry until 13 January 1976 but he did not go to collect it there. On the last-mentioned date, the file was sent to the Hessen Ministry of Justice for the purposes of the proceedings pending before the Commission. It came back on 17 February to the court which, on 5 March, rejected the challenge. 68. On 15 April 1976, the 2nd Chamber decided that it would hear further witnesses on 12 May. On 28 April, it refused an adjournment requested on 24 April by Dr. König's lawyer and emphasised that his client had insisted on the urgency of a decision. Having been told by the applicant on the following day that there would be hearings in the criminal case on 12 May, the Chamber agreed on 6 May to postpone its own sitting until 9 June. On 1 June, the applicant sought a further adjournment, maintaining that on 9 June he had to prepare for the hearings which were to resume in the criminal court on the next day. The 2nd Chamber, having found that he had had sufficient time for preparation, refused the request on 9 June. 69. On 9 June 1976, after hearing witnesses, the court dismissed Dr. König's appeal against the withdrawal of his authorisation to practise medicine. Its judgment was based on the statements of eight persons heard by it in 1975, most of whom had already given evidence about the same facts before the 4th Chamber, and was communicated on 3 August to the applicant, whose lawyer lodged an appeal on 11 August. On 13 August, the court sent the file to the Hessen Administrative Court of Appeal which, by judgment of 2 May 1978, dismissed the appeal; this judgment has not yet become final. 70. According to statistics supplied by the Government, purely by way of indication, concerning the action before the 2nd Chamber, 569 days of the proceedings are attributable to measures taken by the court, 841 to measures taken by the applicant and his lawyers and 311 to measures taken by third parties, including the defendant administrative authorities, the professional bodies and the witnesses. 71. The criminal proceedings against the applicant are not in issue but should be mentioned because of their effect on the action before the 2nd Chamber of the Frankfurt Administrative Court which had postponed its decision pending their outcome (see paragraphs 55-61 and 64 above). The criminal proceedings originated in a complaint against Dr. König relative to the illegal practice of medicine, causing bodily harm and committing fraud, which the Regierungspräsident in Darmstadt had lodged on 27 July 1972 with the Frankfurt public prosecutor's department. 72. The applicant, who on 10 August 1972 had refused to be questioned by the police, was charged on 11 September before the Frankfurt District Court, sitting as a lay magistrates' court (Schöffengericht). The indictment (Anklageschrift) alleged that, between September 1971 and the beginning of June 1972, he had continued to practise despite the withdrawal of the requisite authorisation (continuing breach of the Federal Medical Practitioners' Act), that he had thereby perpetrated frauds (Article 263 of the Penal Code) and that he had caused, in one case, serious bodily harm (Articles 223 and 223 (a) of the Penal Code). 73. At the close of its sitting on 17 April 1973, the court ordered numerous enquiries. A psychiatrist and a psychologist gave their opinion on one of the alleged victims; he was the only alleged victim called by the public prosecutor's department as a witness and had intervened (Nebenkläger) in the proceedings on 13 November 1972 in order to claim damages. 74. On 14 February 1974, the court decided that, if by 20 April Dr. König had not himself submitted an expert opinion on the state of his mental health, he should be examined by a psychiatrist. On 1 March, the applicant lodged an objection against this decision and that of 17 April 1973. On 14 March, he stated that he was challenging the President of the lay magistrates' court; after a judge had refused this plea on 6 May, both he and the President were challenged by Dr. König on 15 May. On 26 May, the District Court dismissed the objection and the challenge and directed that the private expert opinion be submitted not later than 1 August. 75. Two days later, Dr. König repeated his objection of 1 March and at the same time lodged a disciplinary complaint against the President of the lay magistrates' court. The Frankfurt Regional Court dismissed the objection on 10 June 1974; the documents do not disclose the result of the disciplinary complaint. 76. On 29 June, Dr. König challenged the expert nominated by the court and proposed two others. He supplemented this application on 3 July and appealed to the Federal Constitutional Court against the decisions of 14 February and 26 May. On the next day, he requested the District Court to suspend enforcement of the first decision until the Constitutional Court had given its ruling. On 16 July, the District Court declined to do so and, nine days later, it received a copy of the Constitutional Court's decision rejecting the appeal of 3 July. On 7 August, the court dismissed an application by Dr. König for a further psychiatric examination of the party claiming damages. 77. On 15 August 1974, the District Court, considering that the potential penalty exceeded that which it had competence to impose, relinquished jurisdiction in favour of the Frankfurt Regional Court. Under the then Article 24 para. 2 of the Constitution of the Courts Act (Gerichtsverfassungsgesetz), a District Court could "impose neither a penalty of imprisonment for more than three years nor detention for reasons of security (Sicherungsverwahrung)". 78. On 10 October, the 18th Criminal Chamber (Strafkammer) of the Regional Court, to which the case had been assigned, directed that the trial (Hauptverhandlung) should take place on 4, 6 and 11 December. On 25 October, it joined to the pending proceedings a further charge, preferred by the public prosecutor's department on 7 August, alleging that Dr. König had practised on 17 July 1972 in Bad Homburg despite the withdrawal of the requisite authorisation and had caused his patient bodily harm. As the applicant had not appeared, the court on 4 December issued a warrant for his arrest and adjourned the trial sine die. 79. On 1 January 1975, the case was assigned to the 1st Chamber which, however, was composed of the same judges as the 18th Chamber in 1974. On 2 January, the 1st Chamber ordered that several witnesses be examined on letters rogatory. Witnesses were heard in February and March by the Koblenz, Ahrensburg and Düsseldorf District Courts. On 24 March, the Chamber revoked the warrant issued on 4 December. On 15 May, the Vice-President of the Chamber directed that the trial should take place in mid-January 1976; at the same time he ordered that a witness be interrogated again by the Ahrensburg District Court. 80. On 20 June 1975, the Presidential Council of the Regional Court relieved the 1st Chamber of all matters it had to decide as a court of first instance, with effect from 23 June. The proceedings pending against Dr. König were transferred to the 13th Chamber. The President of the latter Chamber received the case file on 10 July. On 8 August, he postponed the trial until 3, 5, 10 and 12 February 1976; these dates he cancelled on 13 October 1975 for the reason that the Chamber was obliged to deal with another substantial case. 81. On 1 January 1976, all first-instance cases beginning with the letter "K", including the applicant's, were passed to the 25th Chamber of the Regional Court in accordance with the 1976 arrangements for the allocation of cases. The trial opened before the 25th Chamber on 5 May. On 24 September, after twenty-three days of sittings, the Chamber ordered the discontinuance of the proceedings (Einstellung des Verfahrens) under Article 153 (a) of the Code of Criminal Procedure. The Chamber's decision reveals that Dr. König's fault was regarded as very slight. As he had undertaken to pay DM 8,000 to the party claiming damages and DM 20,000 to the Treasury, the Chamber considered that there was no longer any public interest in the proceedings being pursued further. The Chamber noted that the applicant had paid over the amounts in question during the actual hearing and specified that its decision to discontinue the proceedings was final. | 1 |
train | 001-82038 | ENG | RUS | CHAMBER | 2,007 | CASE OF DYULDIN AND KISLOV v. RUSSIA | 4 | Violation of Art. 10 | Christos Rozakis | 7. The applicants were born in 1944 and 1948, and live in Penza. At the material time the first applicant was a trade-union leader, the second applicant a journalist. They also co-chaired the Penza Regional Voters' Association “Civic Unity” (Grazhdanskoye yedinstvo). 8. On 15 August 2000 the Co-ordination Council of the Penza Regional Voters' Association Civic Unity adopted at its meeting the draft text of an open letter, entitled “Media coverage of the reforms of President Putin in the Penza Region” (“Informatsionnoye obespecheniy reform Prezidenta V.V. Putina v Penzenskoy oblasti”). 9. On 16 August 2000 the text was discussed at a round table attended by the applicants, the editors-in-chief of local newspapers and journalists. The draft was amended and elaborated. The discussion concluded with the adoption of the open letter by the Co-ordination Council of Civic Unity and managers of the independent media in the Penza Region to the President of the Russian Federation, the Security Council of the Russian Federation, the Journalists' Union of Russia, the plenipotentiary representative of the President for the Volga Federal District, and the Minister for Press and Information of the Russian Federation. The open letter was signed by the applicants and four editors-in-chief. 10. On 24 August 2000 the Novaya birzhevaya gazeta newspaper published the open letter on its front page. The relevant extracts of the letter, translated from Russian, read as follows: “We (authors of the open letter) subscribe to various political views but are unanimous in our support of the President's drive to curb corruption in the country, bring order to the economy, and assert the rule of law and democratic standards in all sectors of society. We have gathered at the round table because of our common concern for the fate of the President's reforms in the Penza Region. The Penza Region is gradually transforming into a private holding controlled by Governor V. Bochkaryov and his close circle ... [emphasis added, see below] Today we (the independent media) embarrass the regional authorities because we openly disagree with the selfish and destructive policy of the governor and his team, we publish materials denouncing bribe-takers and officials who abuse their position ... Once again, as in early 1991 when the [Communist] Party's nomenclature feared their imminent dismissal, the regional authorities have started reprisals against the independent media. Journalists are subjected to threats and beatings, our publications are prohibited from being printed and distributed in the region ... On the other side – the independent media, whose attempts to stand for the rule of law, human rights, to talk about bringing order to the economy and to expose corruption are routinely suppressed by the governor and his acolytes ...” 11. The remainder of the open letter harshly criticised the Governor of the Penza Region personally and contained allegations of serious wrongdoings. 12. On 3 February 2001 twelve members of the Penza Regional Government lodged a civil action with the Leninskiy District Court of Penza for the protection of their honour, dignity and professional reputation and for compensation for non-pecuniary damage allegedly sustained as a result of the publication of the open letter. They named the applicants and other signatories to the letter, as well as the newspaper that published it, as co-defendants. 13. On 3 March 2001 the original plaintiffs were joined by fourteen other members of the Penza Regional Government with identical claims. 14. On 30 March 2001 one of the original plaintiffs, Mr D., withdrew his claim. Speaking to the Novaya birzhevaya gazeta newspaper, he described the proceedings as “an attempt to bring the media under control”. In April 2001 Mr D. was dismissed from his position in the Government. 15. The applicants brought a counterclaim against the plaintiffs, alleging that they had violated civil-service law in that they had used their official position to discredit and adversely affect the functioning of the Civic Unity association. The applicants claimed compensation for non-pecuniary damage allegedly caused by a violation of their rights and freedoms, in particular, the right to freedom of opinion guaranteed by the Constitution. 16. On 15 May 2001 the Leninskiy District Court of Penza gave judgment. It carried out at the outset a detailed analysis of federal and regional laws on the structure of the Penza Regional Government and reached the following conclusion on the plaintiffs' standing in the defamation suit: “... any State official in the Penza Region wields a certain power and authority that is essential to the performance of his functional duties; hence, he falls into the category of 'regional authority'. Considering that the 'regional authority' is made up of individuals, that is, State officials, the term 'regional authority' applies to each plaintiff who is, by virtue of his position, a State official in the Penza Region. The words 'the close circle of Governor Bochkaryov', 'the governor's acolytes', and 'the governor's team' used in the impugned publication are – in the court's opinion, and despite the defendants' and their representatives' assertions to the contrary – applicable to all State officials [working in] the executive body of the Penza Regional Government and, therefore, to the plaintiffs.” 17. The District Court then examined the truthfulness of the applicants' statements referring to the “destructive” policy of the governor's team. It found that the applicants had not used any “scientific methodology for a comprehensive assessment of the social and economic development of the region” for the preparation of the open letter and that their evaluation had been entirely based on their personal views. The court rejected the statement by Mr D. on the economic decline in the Penza Region in 2001 because he had been dismissed from the Government and therefore, in the court's opinion, he was on the defendants' side. The court concluded that the statements referring to the “selfish and destructive policy” were untrue. 18. Likewise, the District Court found no evidence to support the statements referring to the persecution of journalists in the Penza Region. It pointed out that one of the signatories, the editor-in-chief of a local newspaper, could not prove that an attack on one of his journalists had been politically motivated. In the court's opinion, the fact that certain members of the Government had put pressure on local officials to subscribe to the newspapers controlled by the governor to the detriment of all others was lawful and could not be interpreted as “prohibition on distribution”. 19. The District Court held that the extracts of the open letter bold-faced in the text above were not true and damaged the honour and dignity of the plaintiffs as the members of the Penza Regional Government. It ordered that all the plaintiffs be jointly compensated for non-pecuniary damage: the defendant newspaper was to pay 50,000 Russian roubles (RUR) and each of the applicants and four of their co-defendants was to pay RUR 2,500. The court also ordered the defendant newspaper to publish a rectification. 20. The District Court dismissed the applicants' counterclaim on the ground that the plaintiffs had exercised their right to a court and, therefore, had not violated any of the applicants' rights. 21. On 24 July 2001 the Penza Regional Court examined an appeal by the applicants and upheld the judgment of 15 May 2001. 22. Article 29 guarantees freedom of thought and expression, together with freedom of the mass media. 23. Article 152 provides that an individual may apply to a court with a request for the rectification of statements (svedeniya) that are damaging to his or her honour, dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such statements. 24. The Resolution (in force at the material time) provided that, in order to be considered damaging, statements had to be untrue and contain allegations of a breach of laws or moral principles (commission of a dishonest act, improper behaviour at the workplace or in everyday life, etc.). Dissemination of statements was understood as the publication of statements or their broadcasting (section 2). The burden of proof was on the defendant to show that the disseminated statements had been true and accurate (section 7). | 1 |
train | 001-108480 | ENG | ITA | CHAMBER | 2,012 | CASE OF DI SARNO AND OTHERS v. ITALY | 3 | Preliminary objections dismissed;Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home;Respect for private life) (Substantive aspect);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations) (Procedural aspect) | András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre | 6. Thirteen of the applicants live in the municipality of Somma Vesuviana, in Campania (Italy). The other five work there. 7. From 11 February 1994 to 31 December 2009 a state of emergency (stato di emergenza) was in place in the Campania region, by decision of the then Prime Minister, because of serious problems of solid urban waste disposal. 8. From 11 February 1994 to 23 May 2008 the management of the state of emergency was entrusted to “deputy commissioners” appointed by the Prime Minister and assisted by assistant commissioners. Nine high officials – including four presidents of the region of Campania and the head of the civil emergency planning department of the Prime Minister’s Office – were appointed deputy commissioners. 9. From 23 May 2008 to 31 December 2009 the management of the state of emergency was entrusted to an under-secretariat in the Prime Minister’s Office under the head of the civil emergency planning department. 10. Regional Law no. 10 of 10 February 1993 (“Law no. 10/93”) laid down guidelines for the adoption of a waste disposal plan in Campania which was to treat urban solid waste and recyclable materials and halve the number and capacity of landfill sites – with the help of compacting and sorting techniques – between 1993 and 1995. 11. On 9 June 1997 the President of the Region, having been appointed deputy commissioner, drew up a regional waste disposal plan. Among other things, it provided for the construction of five incinerators – four of which would be built on land in the municipalities of Marcianise, Battipaglia, Giugliano and Nola-Marigliano (the last two of these were to serve the municipalities where the applicants lived), and the fifth on a site to be determined at a later date – and also five main landfill sites and six secondary sites. 12. On 12 June 1998 the President of the Region, acting as deputy commissioner, issued a call for tenders for a ten-year concession to operate the waste collection and disposal service in the province of Naples. According to the specifications, the successful bidder would be required to ensure the proper reception of the collected waste, its sorting, conversion into refuse-derived fuel (combustibile derivato da rifiuti – “RDF”) and incineration. To that end, it was to construct and manage three waste sorting and RDF production facilities and set up an electric power plant fuelled by RDF, by 31 December 2000. 13. When the tendering process ended on 20 March 2000, the concession was awarded to a consortium of five companies: Fisia Impianti S.p.A. (main contractor), Impregilo S.p.A., Babcock Kommunal GmbH, Deutsche Babcock Anlagen GmbH and Evo Oberhausen AG (subcontractors). 14. Under the terms of a service concession agreement signed on 7 June 2000, the five successful companies undertook to build two RDF production centres in Caivano and Tufino in 300 days, starting on 10 and 14 April 2000 respectively, and another in Giugliano in 270 days, starting from 30 March 2000. The RDF-fuelled power plant to be built in Acerra was to be built in 24 months, starting from a date to be determined later. 15. In the meantime, on 22 April 1999 the deputy commissioner had issued a call for tenders for the waste disposal service concession in Campania. The concession was awarded to FIBE S.p.A. a consortium of companies formed specially for the purpose. On an unspecified date they formed a company called FIBE Campania S.p.A. 16. Under the concession agreement signed on 5 September 2001, FIBE S.p.A. was to build and manage seven RDF production centres and two electric power plants fuelled by RDF. It was also required to ensure the proper reception, sorting and treatment of the waste collected in the region and transform 32% of it into RDF and 33% into compost, and produce 14% of non-recyclable waste and 3% of ferrous waste. 17. In January 2001 the closure of the Tufino landfill site resulted in the temporary suspension of waste disposal services in the province of Naples. To help control the situation the mayors of the other municipalities in the province authorised the storage of the waste in their respective landfill sites on a temporary basis, under section 13 of Legislative Decree no. 22 of 5 February 1997 ... 18. From the end of 2001 to May 2003 seven RDF production centres were built, in Caivano, Pianodardine, Santa Maria Capua Vetere, Giugliano, Casalduni, Tufino and Battipaglia. 19. On 22 May 2001 the urban waste collection and transport service of the municipality of Somma Vesuviana was entrusted to a consortium of two companies: C.I.C.-Clin Industrie Città S.p.A. and Ecologia Bruscino S.r.l. On 26 October 2004 the management of the service was handed over to M.I.T.A. S.p.A., a publicly-owned company. 20. In 2003 the Naples Public Prosecutor’s Office opened a criminal investigation (RGNR no. 15940/03) into the management of the waste disposal service in Campania since the signature of the concession contracts on 7 June 2000 and 5 September 2001. 21. On 31 July 2007 the public prosecutor’s office requested the committal for trial of the administrators and certain employees of Fisia Italimpianti S.p.A., FIBE S.p.A., FIBE Campania S.p.A., Impregilo S.p.A. and Gestione Napoli S.p.A. (“the companies”), as well as the deputy commissioner in post from 2000 to 2004 and several officials from his office, on charges of fraud, failure to perform public contracts, deception, interruption of a public service or utility, abuse of office, misrepresentation of the facts in the performance of public duties and conducting unauthorised waste management operations, committed between 2001 and 2005. 22. The members of the companies concerned were accused, inter alia, of having, with the complicity of the deputy commissioner and of officials from his office, failed in their contractual duty to receive and process the region’s waste. The companies themselves were accused of having delayed and in some cases interrupted the regular reception of the waste collected in the RDF production centres, causing refuse to pile up in the streets and the temporary storage sites provided by the mayors or the deputy commissioner. 23. The public prosecutor’s office also accused the companies of having (1) produced RDF and compost by means not provided for in their contracts; (2) failed to carry out the requisite RDF energy recovery operations pending the construction of the RDF power station; (3) subcontracted the transportation of the processed waste produced by the RDF production centres, in breach of the terms of the concession contract; and (4) stocked pollutants from the production of RDF on illegal sites with no effort to protect the environment. 24. The public officials concerned by the committal request were accused of having falsely attested that the companies in question had complied with the laws and contractual provisions governing waste disposal, authorised the opening of non-regulation waste disposal sites, the temporary storage of the RDF pending the opening of the power stations, and the dumping of pollutants produced by RDF production plants, and authorised derogations from the contractual specifications governing RDF production. 25. On 29 February 2008 the preliminary investigation judge ordered the accused to be committed for trial and scheduled the hearing before the Naples Court to be held on 14 May 2008. 26. Legislative Decree no. 245 of 30 November 2005, which subsequently became Law no. 21 of 27 January 2006, provided for the termination of the contracts governing waste disposal in Campania signed by the deputy commissioner in 2000 and 2001, and for the urgent organisation of a new call for tenders. In order to guarantee continuity of service, the companies already under contract were required to continue their activities until the new call for tenders was over, but only until 31 December 2007. 27. An initial call for tenders, issued on 27 March 2006 by the deputy commissioner then in post, failed for lack of sufficient valid tenders. 28. On 2 August 2006 the deputy commissioner issued a new call for tenders for a twenty-year concession. 29. Legislative Decree no. 263 of 9 October 2006, which subsequently became Law no. 290 of 6 December 2006, appointed the head of the civil emergency planning department to the post of deputy commissioner in charge of the waste disposal crisis in Campania. When the second call for tenders was annulled the deputy commissioner was instructed to sign new contractors to handle waste disposal. 30. On 28 March 2007 the regional authorities passed Law no. 4, providing for the creation of a regional division of the waste disposal scheme, a regional waste disposal observatory, a fully comprehensive regional waste management plan, a regional plan for special waste management, including dangerous waste, and a regional plan to clean up polluted sites. 31. On 6 July 2007 the Prefect of Naples was appointed deputy commissioner in charge of the waste disposal crisis. 32. Legislative Decree no. 61 of 11 May 2007, which subsequently became Law no. 87 of 5 July 2007, authorised the creation, in the municipalities of Serre (Salerno), Savignano Irpino (Avellino), Terzigno (Naples) and Sant’Arcangelo Trimonte (Benevento), of landfill sites with a special derogation from the statutory environmental protection and health and safety standards, and prohibited the creation of new waste disposal sites, in particular in the municipalities of Giugliano in Campania, Villaricca, Qualiano and Quarto (Naples), at least until the region had been cleaned up. The law made the deputy commissioner responsible for rapidly identifying new companies to collect and dispose of waste. 33. On 21 November 2007 a third call for tenders was issued. It failed because not enough tenders were received. 34. On 28 December 2007 the deputy commissioner drew up a regional plan for urban waste in Campania, in keeping with section 9 of Legislative Decree no. 61/07. It comprised a crisis resolution strategy based inter alia on the development of selective waste collection, transparency in the life cycle of waste, the rationalisation and upgrading of the existing structures – in particular at least one of the RDF production centres –, the creation of structures for producing compost, and the use of new technologies and methods for the biological treatment of waste. 35. On 19 April 2008 the publicly-owned company Pomigliano Ambiente S.p.A. was put in charge of collecting and transporting organic waste in the municipality of Somma Vesuviana. 36. A new crisis situation developed at the end of 2007. Tons of waste were left to pile up for weeks in the streets of Naples and other towns in the province, including those where the applicants lived (see list appended). 37. On 11 January 2008, by order no. 3639/08, the Prime Minister appointed a senior police officer deputy commissioner. His task was to open the landfill sites provided for in Legislative Decree no. 61/07 and to locate new waste storage and disposal sites, with the assistance of the police and the army. The order also invited the municipalities in the region to prepare plans for the selective collection of waste. 38. Legislative Decree no. 90 of 23 May 2008, which subsequently became Law no. 123 of 14 July 2008 (on “Extraordinary measures in response to the waste disposal crisis in Campania and subsequent civil protection measures”) – appointed the head of the civil emergency planning department to the post of undersecretary of State to the Prime Minister’s Office and made him responsible for managing the crisis until 31 December 2009, in place of the deputy commissioner. The undersecretary was authorised to open ten new landfill sites in the region, including two in Terzigno and Chiaiano, with a special derogation from the statutory environmental protection and health and safety standards. 39. Legislative Decree no. 90/08 also authorised the treatment of certain categories of waste at the RDF-fuelled power plant in Acerra – against the opinion submitted on 9 February 2005 by the environmental impact assessment committee – and the construction of RDF-fuelled power plants in Santa Maria La Fossa (Caserta) and in Naples and Salerno. 40. The Legislative Decree handed over ownership of the waste sorting and treatment sites to the provinces of Campania but provisionally left it to the army to manage the sites. 41. Paragraphs 4 and 7 of section 2 of the decree classified the sites, the zones, the plants and the headquarters of the waste management services “strategic national interest zones” placed under the supervision of the police and the army. The armed forces were asked to help organise the implantation of the sites and the collection and transport of waste. 42. Section 2, paragraph 9, classified preventing, obstructing or hindering waste disposal as the punishable offence of interruption of a public service. 43. Lastly, the Legislative Decree instructed the undersecretary of State to ensure that the municipalities complied with the objectives for the selective collection of urban waste laid down in the 28 December 2007 regional plan for urban waste in Campania. 44. Legislative Decree no. 172 of 6 November 2008, which subsequently became Law no. 210 of 30 December 2008 (on “Extraordinary measures in response to the waste disposal crisis in Campania and urgent environmental protection provisions”) provided for the possibility, in the territories affected by the state of emergency regarding waste disposal, of mayors, provincial presidents, municipal or provincial councillors and municipal or provincial commission members being dismissed by decree of the Minister of the Interior in the event of serious neglect, inter alia, in their duty to plan and organise the collection, transport, processing, elimination and selective sorting of waste. It also provided, in the same territories, for special criminal sanctions to punish, inter alia, (1) the illegal dumping or burning of waste; (2) the unauthorised collection, transport, processing, elimination and sale of waste; (3) the creation and management of illegal landfill sites and the mixing of dangerous and non-dangerous waste. 45. According to the information submitted by the Government, which the applicants did not dispute, two landfill sites had already been opened in Savignano Irpino and Sant’Arcangelo Trimonte at the end of October 2009, others were on the point of opening in Chiaiano, Terzigno and San Tammaro, and preliminary work was under way with a view to opening a site at Andretta (Avellino). The finishing touches were being put to the RDF-fuelled power plant in Acerra, a call for tenders for the construction of an RDF-fuelled power plant in Salerno had been issued and a site for an RDF-fuelled power plant in the province of Naples had been chosen. From 14 January to 1 March 2008 269,000 tonnes of waste were removed from the streets of the region’s towns and 79,000 tonnes of RDF were stored. Five hundred and thirty municipalities introduced the selective collection of waste in compliance with order no. 3639/08. 46. On 3 June 2008, pursuant to order no. 3804/09 issued by the Prime Minister and following the approval of a selective waste collection programme, a call for tenders for the waste collection service in the municipality of Somma Vesuviana was won by L’Igiene Urbana S.r.l. 47. On 15 March 2009, by order no. 3746, the Prime Minister urged the provinces of the region to set up semi-public companies to run the waste storage sites, landfills and waste disposal, processing and recycling plants. 48. In 2006, on an unspecified date, the Naples Public Prosecutor’s Office opened a criminal investigation (RGNR no. 40246/06) into the waste disposal operations organised on a temporary basis by FIBE S.p.A. and FIBE Campania S.p.A. during the transition period following the termination of the concession contracts. 49. On 22 May 2008, at the request of the prosecutor’s office, the preliminary investigation judge at the Naples Court placed compulsory residence orders on the managing directors of FIBE S.p.A. and FIBE Campania S.p.A., several of the companies’ executives and employees, the people in charge of the waste sorting centres run by Fisia Italimpianti S.p.A., the manager of the Villaricca landfill, representatives of the FS Cargo S.p.A. transport company and several officials from the deputy commissioner’s office. 50. The accused were charged, inter alia, with conspiring in the illegal trafficking of waste, forgery of official documents, deception, misrepresentation of the facts in the performance of public duties, and organised trafficking of waste. 51. On an unspecified date in 2008 the Naples Public Prosecutor’s Office opened a criminal investigation (RGNR no. 32722/08, nicknamed “Rompiballe”) into the waste disposal operations carried out after December 2005. According to the information supplied by the Government, which the applicants did not dispute, the investigation, which was still pending on 26 October 2009, concerned a number of offences against the environment and the public authorities and targeted several employees of FIBE S.p.A. and other companies in the consortium, as well as officials from the deputy commissioner’s office. 52. On 22 March 2005 the Commission of the European Communities (“the Commission”) brought an action for non-compliance against Italy before the Court of Justice under Article 226 of the Treaty establishing the European Community (“TEC”) (case no. C-135/05). Criticising the existence of a large number of illegal and unsupervised landfill sites in Italy, the Commission alleged that the Italian authorities had failed to honour their obligations under Articles 4, 8 and 9 of Directive 75/442/EEC on waste, Article 2 § 1 of Directive 91/689/EEC on hazardous waste and Article 14, letters (a) to (c), of Directive 1999/31/EC on the landfill of waste. 53. In its judgment of 26 April 2007 the Court of Justice noted “the general non-compliance of the tips [with the] provisions”, observing, inter alia, that the Italian Government “does not dispute the existence ... in Italy of at least 700 illegal tips containing hazardous waste, which are therefore not subject to any control measures”. 54. It concluded that the Italian Republic had failed to fulfil its obligations under the provisions cited by the Commission, because it had failed to adopt all the necessary measures to ensure that waste was recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, and to prohibit the abandonment, dumping or uncontrolled disposal of waste. 55. On 3 July 2008 the Commission brought a new action for noncompliance against Italy under Article 226 TEC (case no. C-297/08). 56. In a judgment of 4 March 2010 the Court of Justice, while noting the measures taken by Italy in 2008 to tackle the “waste crisis”, referred to the existence of a “structural deficit in terms of the installations necessary for the disposal of the urban waste produced in Campania, as evidenced by the considerable quantities of waste which [had] accumulated along the public roads in the region”. It held that Italy had “failed to meet its obligation to establish an integrated and adequate network of disposal installations enabling it ... to [ensure the] disposal of its own waste and, in consequence, [had] failed to fulfil its obligations under Article 5 of Directive 2006/12”. According to the Court of Justice, that failure could not be justified by such circumstances as the opposition of the local population to waste disposal sites, the presence of criminal activity in the region or the non-performance of contractual obligations by the undertakings entrusted with the construction of certain waste disposal infrastructures. It explained that this last factor could not be considered force majeure, because “the notion of force majeure require[d] the non-performance of the act in question to be attributable to circumstances, beyond the control of the party claiming force majeure, which [were] abnormal and unforeseeable and the consequences of which could not have been avoided despite the exercise of all due diligence”, and that a diligent authority should have taken the necessary precautions either to guard against the contractual non-performance in question or to ensure that, despite those shortcomings, actual construction of the infrastructures necessary for waste disposal would be completed on time. The Court of Justice also noted that “the Italian Republic [did] not dispute that the waste littering the public roads totalled 55,000 tonnes, adding to the 110,000 tonnes to 120,000 tonnes of waste awaiting treatment at municipal storage sites”. Concerning the environmental hazard, the Court of Justice reiterated that the accumulation of waste, regard being had in particular to the limited capacity of each region or locality for waste reception, constituted a danger to the environment. It concluded that the accumulation of such large quantities of waste along public roads and in temporary storage areas had given rise to a “risk to water, air or soil, and to plants or animals” within the meaning of Article 4(1)(a) of Directive 2006/12, had caused “a nuisance through noise or odours” within the meaning of Article 4(1)(b), and was likely to affect “adversely ... the countryside or places of special interest” within the meaning of Article 4(1)(c) of that Directive. As to the danger to human health, the Court of Justice noted that “that the worrying situation of accumulation of waste along the public roads [had] exposed the health of the local inhabitants to certain danger, in breach of Article 4(1) of Directive 2006/12”. ... 68. Section 4 of Legislative Decree no. 90 of 24 May 2008 empowers the administrative courts to determine disputes concerning waste disposal activities in general, including when they are carried out by public authorities or the like. The powers of the administrative courts extend to disputes over rights protected by the Constitution. 69. In a claim for damages brought by a group of residents on 5 May 2008 – prior to the entry into force of section 4 of Legislative Decree no. 90/08 – against the city of Naples and the company responsible for waste disposal there, the Naples Civil Court noted that only the administrative court could examine the case and adopt any urgent interim measure within the meaning of section 21 of Law no. 1034 of 6 December 1971 (instituting the regional administrative courts). 70. By two judgments delivered on 21 May and 23 November 2009, the Court of Cassation, sitting as a full court, held that the administrative court had jurisdiction to examine claims for compensation brought by the residents of a municipality against the authorities responsible for the collection, treatment and elimination of waste. 71. Article 4 of Directive 75/442/EEC of the Council of the European Union, of 15 July 1975, on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, reads as follows: “Member States shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, and in particular: — without risk to water, air, soil and plants and animals, — without causing a nuisance through noise or odours, — without adversely affecting the countryside or places of special interest. Member States shall also take the necessary measures to prohibit the abandonment, dumping or uncontrolled disposal of waste.” 72. The relevant provision of Article 2 of Council Directive 91/689/EEC on hazardous waste, of 12 December 1991, reads as follows: “1. Member States shall take the necessary measures to require that on every site where tipping (discharge) of hazardous waste takes place the waste is recorded and identified. ...” 73. Council Directive 1999/31/EC on the landfill of waste, of 26 April 1999, contains the following provisions: Member States shall take measures in order that landfills which have been granted a permit, or which are already in operation at the time of transposition of this Directive, may not continue to operate unless ... : (a) with a period of one year after the date laid down in Article 18(1) [that is, at the latest, by 16 July 2002], the operator of a landfill shall prepare and present to the competent authorities, for their approval, a conditioning plan for the site including the particulars listed in Article 8 and any corrective measures which the operator considers will be needed in order to comply with the requirements of this Directive ...; (b) following the presentation of the conditioning plan, the competent authorities shall take a definite decision on whether operations may continue on the basis of the said conditioning plan and this Directive. Member States shall take the necessary measures to close down as soon as possible ... sites which have not been granted ... a permit to continue to operate; (c) on the basis of the approved site-conditioning plan, the competent authority shall authorise the necessary work and shall lay down a transitional period for the completion of the plan. ...” “1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than two years after its entry into force [that is, by 16 July 2001]. They shall forthwith inform the Commission thereof. ...” 74. The relevant provisions of Directive 2006/12/CE of the European Parliament and of the Council of 5 April 2006 on waste read as follows: “1. Member States shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, and in particular: (a) without risk to water, air or soil, or to plants or animals; (b) without causing a nuisance through noise or odours; (c) without adversely affecting the countryside or places of special interest. 2. Member States shall take the necessary measures to prohibit the abandonment, dumping or uncontrolled disposal of waste. 1. Member States shall take appropriate measures, in cooperation with other Member States where this is necessary or advisable, to establish an integrated and adequate network of disposal installations, taking account of the best available technology not involving excessive costs. The network must enable the Community as a whole to become self-sufficient in waste disposal and the Member States to move towards that aim individually, taking into account geographical circumstances or the need for specialised installations for certain types of waste. 2. The network referred to in paragraph 1 must enable waste to be disposed of in one of the nearest appropriate installations, by means of the most appropriate methods and technologies in order to ensure a high level of protection for the environment and public health.” 75. By virtue of the precautionary principle enshrined in Article 174 of the Treaty establishing the European Community, the lack of certainty regarding the available scientific and technical data cannot justify States delaying the adoption of effective and proportionate measures to prevent a risk of serious and irreversible damage to the environment. The Community’s case-law has applied this principle mainly in cases concerning health, whereas the Treaty refers to the principle only in connection with the Community’s environmental policy. According to the case-law of the Court of Justice of the European Communities (“ECJ”), “where there is uncertainty as to the existence or extent of risks to human health, the institutions may take protective measures without having to wait until the reality and seriousness of those risks become fully apparent” (ECJ, 5 May 1998, United Kingdom/Commission, case C-180/96, ECR I-2265, and ECJ, 5 May 1998, National Farmers’ Union, C-157/96, ECR I-2211). ... | 1 |
train | 001-81478 | ENG | RUS | ADMISSIBILITY | 2,007 | LOPATINA v. RUSSIA | 4 | Inadmissible | Peer Lorenzen | The applicant, Ms Lyudmila Georgiyevna Lopatina, is a Russian national who was born in 1948 and lives in Perm. She was represented before the Court by Mr A. Mukhachev, a lawyer practising in Perm. On 29 December 1998 the applicant’s son was drafted into the army. On 16 December 1999 the applicant’s son was sent to perform his military service in Chechnya. On 14 January 2000 he was killed in action. The applicant sued the military unit for damages in respect of non-pecuniary loss, alleging that it had sent her son to Chechnya and had been thereby responsible for his death. On 11 February 2002 the Naro-Fominsk Town Court of the Moscow Region dismissed her claims. It found that the applicant’s son had been killed in a military operation. However, there was no appearance that his death had occurred through any fault of the military unit. In the absence of fault, the military unit could not be held liable for any non-pecuniary damage sustained by the applicant. The court continued as follows: “The court sympathises with the mother’s grief at the untimely death of her son. However, it has not established any grounds for imposing on the respondent an obligation to pay monetary compensation for non-pecuniary damage.” On 14 March 2002 the Moscow Regional Court upheld the judgment on appeal. It endorsed the reasoning of the District Court and added that in accordance with domestic law, family members of a person who died while performing military service were entitled to compensation and social benefits. However, domestic law did not impose on the military unit an obligation to pay damages for the non-pecuniary loss sustained by the family members. The Code of Criminal Procedure (in force until 1 July 2002) established that a criminal investigation could be initiated by an investigator or a prosecutor upon a complaint by an individual. Upon receipt of a complaint, the investigator or prosecutor was to conduct an inquiry. Depending on the findings of the inquiry, the investigator or prosecutor could either initiate or refuse to initiate criminal proceedings. The complainant had to be notified of the decision and informed about the appeal procedure (Articles 108, 109, and 113). If certain actions impairing an individual’s personal non-property rights or encroaching on other incorporeal assets have caused him or her non-pecuniary damage (physical or mental suffering) the court may impose on the perpetrator an obligation to pay pecuniary compensation for such damage. The amount of compensation depends on the degree of the perpetrator’s fault and other pertinent circumstances (Article 151 of the Civil Code). | 0 |
train | 001-83967 | ENG | SVN | CHAMBER | 2,007 | CASE OF ŠAKANOVIČ v. SLOVENIA | 3 | Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings | Corneliu Bîrsan;David Thór Björgvinsson | 6. The applicant was born in 1956 and lives in Jesenice, Slovenia. 7. On 18 February 1995 the applicant's alleged common law partner (izvenzakonski partner), S.A.K., died. 8. On 21 March 1995 the Jesenice Local Court (Okrajno sodišče na Jesenicah) received the coroner's certificate (smrtovnica). S.A.K. was survived by three daughters – one of them, K.Š., was also a daughter of the applicant. 9. On 12 June 1995 the applicant was given notice of the court's intention to hold a hearing and an invitation to attend it. The hearing took place on 28 June 1995. It appears from the records of the hearing that the applicant participated in the proceedings on her own behalf – as the potential heir – and also represented her juvenile daughter. 10. The second hearing fixed for 21 January 1998 was cancelled at the applicant's request. 11. At the third hearing, held on 28 February 1998, the court stayed the inheritance proceedings and instructed the applicant to institute separate civil proceedings with a view to determining the legal nature of her relationship with S.A.K. 12. Consequently, on 9 March 1998 the applicant lodged a claim with the Jesenice Local Court, which, due to lack of jurisdiction, referred the case to the competent Kranj District Court (Okrožno sodišče v Kranju). The first hearing, scheduled for 13 September 1999, was called off at the request of the applicant. The Kranj District Court afterwards held three hearings between 10 February 2000 and 5 December 2000. Between 13 September 1999 and 3 November 2000 the applicant lodged five preliminary written submissions. At the hearing on 5 December 2000 the court issued a judgement rejecting the applicant's claim. The court found that she could not be considered S.A.K.'s common law partner at the time of his death and thus had no inheritance rights in respect of his estate. The applicant appealed to the Ljubljana Higher Court (Višje sodišče v Ljubljani) in January 2001. On 6 March 2002 the court dismissed her appeal. The Ljubljana Higher Court's judgment was served on the applicant on an unspecifed day in March 2002. 13. Subsequently, the inheritance proceedings continued before the Jesenice Local Court. The latter issued a decree of distribution (sklep o dedovanju) on 12 February 2003. Relying on the judgments of 5 December 2000 and 6 March 2002 (paragraph 12 above), the court did not include the applicant as one of S.A.K.'s heirs. The decision was served on the parties to the proceedings on 28 February 2003. 14. Section 164 of the Inheritance Act (Official Gazette SRS, no. 15-645/1976, with amendments, – Zakon o dedovanju) provides that inheritance proceedings should begin ex officio as soon as the court learns that somebody has died or has been pronounced dead. In inheritance proceedings the court should establish the heirs, the property which is to be included in the deceased's estate and the rights of heirs, beneficiaries and others (section 162). 15. According to section 199, after receiving the coroner's certificate (a document concerning personal data about the deceased and his estate and information relevant for the inheritance, normally prepared by a registrar – matičar), the court examines whether it is competent to hold a hearing and, if not, sends the case to the competent court. According to sections 203 and 205, the court must hold a hearing if the deceased owned immovable property. It is the court's obligation to invite those who might be affected to the hearing (section 205). 16. The Act on the Protection of the Right to a Trial without undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006) has been implemented since 1 January 2007. Under its sections 1 and 2, the right to a trial within a reasonable time is guaranteed for a party to court proceedings, a participant under the Act governing non-contentious proceedings and an injured party in criminal proceedings. “(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 after 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 a period of 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 after the date on which the party filed its proposal, the party may bring an action before the competent court under this Act. The party may bring an action within six months after receiving the State Attorney's Office reply that the party's proposal referred to in the previous paragraph was not acceded to, or after the expiry of the period fixed in the previous paragraph for the State Attorney's Office to decide to proceed with 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 | 001-111569 | ENG | HRV | ADMISSIBILITY | 2,012 | MRDENOVIC v. CROATIA | 4 | Inadmissible | Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos | 1. The applicant, Ms Marija Mrđenović, is a Croatian citizen of Serbian ethnic origin, who was born in 1940 and lives in Slavonski Brod. She is represented before the Court by Ms M. Trninić, a lawyer practising in Slavonski Brod. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 7 October 1991 a bomb was thrown at a house owned by the applicant’s parents-in-law. A close relative of the applicant’s husband was killed and another injured. 5. In February and March 1992 fires were started at a house and adjacent premises owned by the applicant’s husband, B. 6. On 15 January 1993 while the applicant and her husband were returning from a funeral in Staro Petrovo Selo, B. was shot in the back. He was taken to a hospital in Nova Gradiška, where he died on 19 January 1993. 7. On the day of the shooting of the applicant’s husband the police arrived at the scene and carried out a crime scene inspection, which was continued the following day. The crime scene was photographed. The police examined the scene and recovered samples of earth, clothes and biological traces. The footprints found at the scene were not susceptible to forensic examination. A sniffer dog was also used and it was concluded that the perpetrator had walked for about seven hundred metres and had then driven away in a motor vehicle. A special team was formed in the Nova Gradiška Police Station which carried out further investigation. In January 1993 they interviewed more than twenty potential witnesses, including the applicant. However, all these steps were fruitless. 8. On 20 January 1993 an autopsy of B.’s body was carried out. 9. On 16 February 1993 the Nova Gradiška Police Station lodged a criminal complaint against an unknown perpetrator with the Požega County State Attorney’s Office. On 24 October 2001 the case was transferred to the Slavonski Brod County State Attorney’s Office. However, on 30 December 2008 the criminal complaint was dismissed on the grounds that the prosecution had become time-barred. 10. On an unspecified date the applicant and her two children brought a civil action against the State in the Nova Gradiška Municipal Court, seeking compensation in connection with the death of B. 11. On 6 December 2005 the Municipal Court awarded each claimant 132,000 Croatian kuna (HRK). 12. This judgment was altered by the Slavonski Brod County Court on 21 December 2007. The court lowered the compensation awarded to each child to HRK 90,000 but upheld the sum awarded to the applicant. 13. The applicant and her children lodged an appeal on points of law with the Supreme Court. In respect of the applicant’s children, the appeal was declared inadmissible ratione valoris. As regards the applicant, the Supreme Court reversed the lower courts’ judgment and found that the claim had become time-barred in 1996. | 0 |
train | 001-72689 | ENG | MKD | ADMISSIBILITY | 2,006 | BACEV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 4 | Inadmissible | null | The applicant, Mr Janko Bačev, is a Macedonian national who was born in 1966 and lives in Skopje, the former Yugoslav Republic of Macedonia. In 1996, after two unsuccessful requests for rectification of the defects in his apartment and compensation for deficiency in its size (26 June and 22 September 1995), the applicant instituted civil proceedings against the construction company (“the company”) to restore or to pay for the damage caused. On 1 June 1999 the court rejected his claim, finding that it had been withdrawn due to his failure to attend two hearings. On 18 September 1999 this decision became final. On 7 April 2000 the applicant instituted civil proceedings for damages against the company claiming that his apartment was of inadequate quality and smaller than was specified in the contract. On 29 November 2000 the Basic Court Skopje I Skopje (Основен суд) dismissed the applicant’s claim. It found that on 23 September 1991 the applicant had entered into agreement with the company for construction of the apartment. On 6 June 1995 the company had transferred the apartment into the applicant’s possession. Minutes had been drawn up in which the defects had been noted and accepted by the applicant and the company. The court referred to the Law on obligations (Зaкон за облигациони односи) according to which in case of defects, the buyer/acquirer’s rights expired one year after notifying the vendor i.e. the one responsible for the construction. It held that the applicant’s claim for damages was time barred as it was lodged before the court more than one year after he had first notified the company about the defects (June 1995). The court dismissed the applicant’s argument that the absolute time bar of five years for damage claims had not expired. It found it irrelevant that the claim was submitted within the absolute time bar as he failed to comply with the relative time bar of three years which ran from the moment when he became aware of the damage and that the company was responsible. The court also dismissed the applicant’s claim that the civil proceedings instituted in 1996 suspended the time bar as his claim had been rejected as being withdrawn. The decision was served on the applicant on 6 March 2001. On 21 March 2001 the applicant appealed this decision indicating the reasons in general terms. He stated: “Being dissatisfied with the Basic Court decision ... I lodge this appeal in time on account of: substantive infringement of the civil procedure; erroneous and incomplete establishment of the facts and wrong application of the substantive law. I will submit the explanation of the grounds with a subsequent submission.” In a submission lodged on 27 March 2001, the applicant inter alia contested the court’s findings that the agreement concluded with the company was of a commercial nature (contract for construction) and that consequently, the court had wrongly applied the national law concerning the time bar. He also referred to the minutes drawn on 3 July 1995 in which the company acknowledged the defects and committed itself to remedying them by 10 July 1995, as allegedly newly discovered evidence that could influence the time bar. He argued that the lower court had wrongly interpreted the law in respect of the relevance to the time bar of the civil proceedings terminated in 1996. On 28 June 2001 the Appellate Court of Skopje dismissed the applicant’s appeal. It inter alia found that: “the plaintiff [the applicant] filed his appeal in time, but he submitted the reasons and the rationale of his appeal after expiration of the time limit of 15 days...as the appeal does not provide any reasoning, the court considered the judgment on the basis contained in the appeal and within its ex officio capacity to determine substantial infringements of the procedure and the correct application of the law...” It went further on to conclude that “...the first instance court had properly established that the claim was time barred as the term of five years had expired...” It also held that the trial court had correctly applied the substantive law as the facts had been properly and fully established. It also, inter alia, repeated the parts of the lower court’s decision concerning the agreement between the applicant and the company; the time when the apartment was transferred into the applicant’s possession and the dates when the applicant had notified the company about the shortcomings and asked for rectification or compensation. On 2 November 2001 the Republic Public Prosecutor’s Office informed the applicant that there were no statutory grounds for submitting a request for the protection of legality (барање за заштита на законитоста) before the Supreme Court. According to section 106 of the Law on Civil Proceedings (Закон за парничната постапка), if a party concerned fails to attend a hearing or to take another action in the proceedings and consequently loses the right to do so, the court shall uphold that party’s request to perform that action subsequently (restoration to previous state of affairs) if it finds a reasonable explanation for the failure. When the restoration in the previous state of affairs is granted, the proceedings are restored to the state before the failure had occurred and all other decisions in that respect are considered void. Section 334 provides that, inter alia, parties can appeal the first instance decision within 15 days from the date of service of the trial court decision, if not otherwise regulated by law. According to section 337, the trial court shall by decision summon the appellant to correct or supplement the appeal if on the basis of the information provided, it cannot be determined which judgment is complained of or if the appeal was not signed. It the appellant does not comply with the court’s instruction within the time-limit given, the latter shall reject the appeal as incomplete. In case of other deficiencies, the trial court shall transmit the appeal to the Appellate Court without summoning the appellant to correct or to complete it. Section 340 § 2 prescribes inter alia, the following substantial infringements of procedure: if the court was improperly composed or the judgment was adopted by a judge or a lay-judge who had not participated at the trial hearing; if the judgment was adopted by a judge or a lay-judge who had to be removed by virtue of law, i.e. who was removed by a court decision; if the court decided a case which fell outside its competence ratione materiae; if the court wrongly ruled as to its competence ratione loci; if contrary to the law, the court decided in absentia, on the basis of a confession or a denial; if the party concerned was deprived of the opportunity to participate in the proceedings by unlawful conduct, in particular due to a lack of service; if contrary to the law, the court rejected the party’s request for an interpreter; if the court decided without a public hearing which was compulsory; if a person, lacking capacity to stand as a litigant, participated in the proceedings, or the legal entity acting as litigant was not represented by an authorised person, or if a legally incapable person was not represented by the statutory representative, or if the legal or statutory representative did not have the adequate authorisation; if the court decided on a case in which another proceedings were pending, or if it was res judicata, or if a court settlement had been concluded; if the public was excluded contrary to the law; if the impugned decision contained deficiencies which made its review impossible, in particular if it was illegible, contradictory, lacked reasoning or did not provide reasons for the relevant findings of fact or if they were unclear or contradictory. Section 342 prescribes that the substantive law is wrongly applied if the court did not apply the relevant statutory provision or if it failed to apply it properly. Section 351 § 2 provides that the Appellate Court assesses the trial court decision on the basis of the grounds set out in the appeal and having regard to its ex officio capacity to consider any substantial infringement of the civil procedure and the correct application of the law. | 0 |
train | 001-4759 | ENG | GBR | ADMISSIBILITY | 1,999 | MARTIN v. THE UNITED KINGDOM | 4 | Inadmissible | Nicolas Bratza | The applicants are British national, born in 1958 and detained in H.M. Prison Shotts, Scotland. He represented before the Court by Mr. Harvie S. Diamond, a lawyer practising at Ross Harper, Solicitors, in Glasgow, Scotland. A. The applicant owned a public house jointly with a partner. The applicant had financial difficulties and agreed to accept a sizeable loan from a customer which he was unable to repay. He agreed to act as a drugs courier in the hope of clearing his debt to the customer. On 2 February 1996 he drove a car from Glasgow to Liverpool to collect the packages and on his return to Glasgow he was stopped by the police and about 50kg of cannabis was found to the value of £135,000-£156,000. On 20 January 1997, the applicant pleaded guilty to a charge that on 2 February 1996 he was concerned in the supplying of a controlled substance, namely cannabis resin, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. At the trial the Crown accepted that the applicant's involvement was as a courier only. The court adjourned to consider a number of reports prior to sentencing the applicant. These reports included, inter alia, a Social Enquiry report, reports from the applicant's psychologist and general practitioner and a letter from the applicant's sister. These reports revealed that the applicant was previously of good character and had no previous convictions. He was a married man with 2 children and retained the support of his family. He had come under extreme financial pressure in his partnership of the public house, and the business had been repossessed. This financial anxiety, combined with the resurgence of repressed psychological problems due to childhood sexual abuse, caused the applicant to become depressed, for which he sought professional help. The applicant had become less depressed with medical assistance and had commenced a college course. On 10 February 1997, the court sentenced the applicant to five years' imprisonment. Counsel advised the applicant that the sentence was excessive and the applicant lodged a written note seeking leave to appeal against his sentence referring to, inter alia, his previous good character, the stress and depression he was under when the offence was committed, and the fact that his role was limited to that of a courier of a class B drug on one day. The medical and social reports relied on at his trial were attached to the note. The trial judge prepared a note for the appeal against sentence in which he stated that he had to balance, on the one hand, the serious nature of the offence involving a substantial quantity of cannabis, the need for the court to publicly recognise this and, on the other hand, the mitigating factors. He considered the balance had been appropriately struck. Furthermore, the grounds of appeal appeared to add nothing to that which was put before him in mitigation. Leave to appeal against the sentence was refused by a single High Court judge on 14 March 1997. He stated: "Having regard to the whole circumstances of the offence, it cannot be argued that the sentence imposed failed to take account of the matters raised in the Court of Appeal, nor that (even for an offence on a single day) the sentence excessive." The applicant was not present when the application for leave to appeal was considered and was not heard on the application by the judge. The applicant appealed against the refusal of leave to appeal. Counsel's written opinion supporting the appeal was filed at the court. His appeal against the refusal to grant leave to appeal was refused by the High Court on 3 April 1997, which adopted the same reasons as the single judge. The applicant was not present when the application for leave to appeal was being considered and was not heard on the application by the court. B. Relevant domestic law and practice In Scotland, appeals against the sentences imposed by the High Court of Justiciary are regulated by Part VIII of the Criminal Procedure (Scotland) Act 1995. The appeal lies to the High Court of Justiciary sitting as an appellate court. It is necessary for leave to appeal to be granted. There is no provision in the law of Scotland for an appeal against sentence to be heard without leave being granted, and no further national remedy if leave is refused. If leave to appeal is granted, the Crown is represented at the hearing of the appeal. Section 107 of the Criminal Procedure (Scotland) Act 1995 provides; " (1) The decision whether to grant leave to appeal for the purposes of s.106(1) of this Act shall be made by a judge of the High Court who shall - (a) if he considers that the documents mentioned in this subsection (2) below disclose arguable grounds of appeal, grant leave to appeal and make such comments in writing as he considers appropriate; and (b) in any other case- (i) refuse leave to appeal and give reasons in writing for the refusal ... (2) The documents referred to in subsection (1) above are - (a) the note of Appeal... (c) where the judge who presided at the trial furnishes a report under section 113 of this Act, that report; ... (4) Where leave to appeal is refused under subsection (1) above the appellant may, within 14 day....., apply to the High Court for leave to appeal. (5) In deciding an application under subsection (4) above the High Court shall- (a) if after considering the documents mentioned in the subsection (2) above and the reasons for the refusal, the court is of the opinion that there are arguable grounds of appeal, grant leave to appeal and make such comments in writing as the court considers appropriate; and (b) in any other case - (i) refuse leave to appeal and give reasons in writing for the refusal; ... (6) Consideration whether or not to grant leave to appeal under subsections (1) or (5) shall take place in chambers without the parties being present.” The Crown have the right to appeal against unduly lenient sentences under section 108 of the Act. Such an appeal does not require the granting of leave to appeal. | 0 |
train | 001-105434 | ENG | GBR | CHAMBER | 2,011 | CASE OF SUFI AND ELMI v. THE UNITED KINGDOM | 2 | Violation of Art. 3 (in case of expulsion to Somalia) | Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano | 10. s, may be summarised as follows. 11. The first applicant, Mr Abdisamad Adow Sufi, is a Somali national who was born in 1987 and is currently in detention in an Immigration Detention Centre in West Drayton. 12. On 30 September 2003 he entered the United Kingdom clandestinely using false travel documents. On 3 October 2003 he claimed asylum on the ground that as a member of the Reer-Hamar, a sub-clan of the minority Ahansi clan, he had been subjected to persecution by Hawiye militia, who had killed his father and sister and seriously injured him. As a consequence, he had no surviving relatives in Somalia. 13. On 15 April 2005 the Secretary of State for the Home Department refused the first applicant’s asylum application, finding, inter alia, that the fact he had remained in Somalia until 2003 undermined his claim to be a member of a minority clan. On 16 May 2005 he appealed against the refusal of the application on both asylum and human rights grounds, namely Articles 2 and 3 of the Convention. On 29 June 2005 both the asylum appeal and the human rights appeal were dismissed by an Adjudicator who found that his account of what had happened to him in Somalia was not credible. 14. On 7 October 2005 the first applicant pleaded guilty to two offences of burglary, five offences of dishonestly obtaining goods by deception and one offence of attempting to dishonestly obtain goods by deception. On 29 November 2005 he was sentenced to 18 months’ imprisonment. On 14 February 2006 he was convicted, inter alia, of threats to kill and was sentenced to a further six months’ detention at a Young Offender Institution. He was later sentenced to three months’ imprisonment following a conviction for indecent exposure in October 2007 and to thirty-two months’ imprisonment following a conviction for five counts of burglary and theft and two counts of attempted burglary in July 2009. 15. On 15 July 2006 the first applicant was served with a decision to make a deportation order, in which the Secretary of State noted the seriousness of his offences and the need to protect the public from serious crime and its effects. He also noted that he was 19 years of age, in good health and single. Although he had been resident in the United Kingdom for almost two years, he had spent his youth and formative years in Somalia. In the circumstances, it would not be unreasonable to expect him to readjust to life there. The Secretary of State for the Home Department also considered Article 8 of the Convention but concluded that the first applicant’s deportation would not constitute a disproportionate interference with his right to respect for his family and private life. 16. On 4 September 2006 his appeal against the Secretary of State’s decision was rejected by an Immigration Judge. On 1 November 2006 a deportation order against the first applicant was signed and an application for judicial review of the deportation decision was refused in January 2007. 17. On 27 February 2007 the Court granted the first applicant interim measures under Rule 39 of the Rules of Court to prevent his removal to Somalia prior to the Court’s consideration of his application. 18. The second applicant, Mr Abdiaziz Ibrahim Elmi, is a Somali national who was born in 1969 and is currently detained in an Immigration Detention Centre. 19. He was born in Hargeisa, which is now the capital of the selfdeclared state of Somaliland. When he was two years of age, his family moved to Mogadishu and he never returned to the north of the country. 20. His father, a high-ranking officer in the army during the Barré regime, was appointed to the Somali Embassy in London as a military attaché in 1988. The second applicant joined him in the United Kingdom on 18 October 1988 and was given six months’ leave to enter. On 1 March 1989 his father died. On 26 April 1989 the second applicant made an application for asylum based on his father’s position in the Somali army and the beginning of the civil war in Somalia. On 31 October 1989 he was recognised as a refugee and granted leave to remain until 31 October 1993. On 7 January 1994 he was granted Indefinite Leave to Remain in the United Kingdom. 21. The second applicant was convicted of a road traffic offence in June 1992. On 8 March 1996 he was sentenced to a total of five years and six months’ imprisonment by a Crown Court for handling stolen goods, obtaining property by deception, robbery and possessing an imitation firearm while committing an offence. On 13 November 2000 he was convicted of perverting the course of justice and sentenced to three months’ imprisonment. In the same year he was convicted on further counts of theft and road traffic offences. On 16 March 2001 he was convicted of theft by a Magistrates’ Court and placed on a curfew. On 7 June 2001 he was again convicted of theft and sentenced to 3 months’ imprisonment. On 23 May 2002 he was convicted by a Crown Court on eight counts of supplying class A drugs (cocaine and heroin) and on 7 November 2002 he was sentenced to 42 months’ imprisonment. On an unspecified date the second applicant was released on licence. On 21 June 2004 he was sentenced to 12 months’ imprisonment by a Crown Court for burglary and theft. 22. On 21 June 2006 a decision was made to issue a deportation order by virtue of section 3(5) of the Immigration Act 1971 and the second applicant was invited to rebut the presumption that his continued presence in the United Kingdom constituted a danger to the community. 23. He accepted that he was a drug addict but submitted that he did not constitute a danger to the community because he had made efforts to overcome his addiction and had recognised his past wrongdoings. However, on 4 September 2006 the Secretary of State for the Home Department found that he had failed to demonstrate that he would not constitute such a danger. In respect of his rights under Articles 2 and 3 of the Convention, the Secretary of State found that even though he had been living in the United Kingdom and could be identified as such he would not be at risk on return to Somalia as he was a member of the Isaaq, a majority clan. In respect of his rights under Article 8 of the Convention, the Secretary of State accepted that he had family ties with his three sisters and his mother in the United Kingdom but did not consider that these relationships constituted family life for the purposes of Article 8 as there was no evidence of dependency going beyond the normal emotional ties. The Secretary of State therefore concluded that his removal would not violate Articles 2, 3 or 8 of the Convention. 24. On 27 October 2006 the second applicant’s appeal against the decision of the Secretary of State for the Home Department was refused by the Asylum and Immigration Tribunal (“AIT”), which considered that he could obtain clan protection in any part of Somalia as he was a member of a majority clan. Although the AIT accepted that he would not find support in relation to his drug dependency in Somalia, it found that this did not suffice to rebut the presumption in favour of deportation. As to his Article 8 claim, the second applicant had not shown that family life existed amongst his adult siblings and, even if it did, he had not shown that his circumstances were “truly exceptional so that his removal would violate his Article 8 rights”. Finally, the AIT noted that the sale of drugs posed a danger to the community and there was a real likelihood of the second applicant reoffending. 25. A deportation order against the second applicant was signed on 8 January 2007 and on 6 March 2007 he was served with removal directions. On 14 March 2007 he requested, and was granted, interim measures under Rule 39 of the Rules of Court to prevent his removal before his application was considered by the Court. 26. On 3 March 2008 the second applicant was convicted of possession of a Class A controlled drug with intent to supply and was sentenced to eighteen months’ imprisonment. On 8 July 2010 he was again charged with possession of a Class A drug with intent to supply. A hearing has not yet taken place. 27. At the material time, following the refusal of an asylum application by the Secretary of State for the Home Department, an applicant had a right of appeal to the Asylum and Immigration Tribunal (“the AIT”). Section 103A of the Nationality, Immigration and Asylum Act 2002 (as inserted by section 81(6) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004) provided that a party to an appeal to the AIT could apply for an order that the AIT reconsider its decision on appeal on the ground that it had made a material error of law. 28. Once the appeal process against the refusal of an asylum application had been exhausted, an applicant could continue to make further submissions to the Secretary of State for the Home Department. Paragraph 353 of the Immigration Rules (HC 395, as amended by HC 1112) stated that: “When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.” 29. Where a person was not granted leave to enter the United Kingdom, he or she could be subject to administrative removal pursuant to paragraph 8 of Schedule 2 of the Immigration Act 1971. Pursuant to section 3(5) of the 1971 Act, the Secretary of State also had power to deport any person who was not a British citizen on the ground that his deportation would be “conducive to the public good”. 30. Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (“the Qualification Directive”) has the objective, inter alia, of ensuring European Union (“EU”) Member States apply common criteria for the identification of persons genuinely in need of international protection (recital six of the preamble). In addition to regulating refugee status, it makes provision for granting subsidiary protection status. Article 2(e) defines a person eligible for subsidiary protection status as someone who would face a real risk of suffering serious harm if returned to his or her country of origin. Serious harm is defined in article 15 as consisting of: (a) death penalty or execution; (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict. 31. On 17 October 2007 the Dutch Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State), when considering the case of M. and N. Elgafaji v. Staatssecretaris van Justitie (the Deputy Minister of Justice), lodged a reference for a preliminary ruling with the European Court of Justice (“ECJ”) asking, inter alia, whether article 15(c) of the Directive offered supplementary or other protection to Article 3 of the Convention. 32. The ECJ held that article 15(c) protection went beyond that of Article 3 of the Convention, which was covered by article 15(b) of the Qualification Directive. The ECJ summarised the criteria to be applied as follows: “Article 15(c) of the Directive, in conjunction with article 2(e) of the Directive, must be interpreted as meaning that the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances, and the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place ... reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat.” 33. In QD (Iraq) v Secretary of State for the Home Department [2009] EWCA Civ 620 the Court of Appeal observed that the ECJ in Elgafaji had not introduced an additional test of exceptionality, but had simply stressed that not every armed conflict or violent situation would attract the protection of article 15(c). A conflict or violent situation would only attract the protection of article 15(c) where the level of violence was such that, without anything to render them a particular target, civilians faced real risks to their lives or personal safety. 34. More recently, in the case of HM and Others (Article 15(c)) Iraq CG [2010] UKUT 331, the Upper Tribunal (Immigration and Asylum Chamber) did not consider it helpful to attempt to distinguish between a real risk of civilian deaths as a result of targeted attacks and a real risk as a result of incidental attacks. In the Tribunal’s opinion, the nexus between the generalised armed conflict and the indiscriminate violence posing a real risk to life and person was met when the intensity of the conflict involved means of combat, whether permissible under the laws or not, that seriously endangered non-combatants as well as to result in such a general breakdown of law and order as to permit anarchy and criminality occasioning the serious harm referred to in the Directive. 35. It is a well-established principle that persons will generally not be in need of asylum or subsidiary protection if they could obtain protection by moving elsewhere in their own country. This principle is reflected both in article 8 of the Qualification Directive and paragraph 339O of the Immigration Rules HC 395 (as amended), both of which provide that an applicant is not in need of international protection if there is a part of the country of origin where there is no well-founded fear of persecution or real risk of suffering serious harm, and where the applicant can reasonably be expected to stay. 36. In the cases of Januzi, Hamid, Gaafar and Mohammed v Secretary of State for the Home Department [2006] UKHL 5 and AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49 the House of Lords held that the decision-maker, taking account of all relevant circumstances pertaining to the applicant and his country of origin, must decide whether it is reasonable to expect the applicant to relocate or whether it would be unduly harsh to expect him to do so. In this regard, the relevant comparison was between the conditions which prevailed in the place of relocation and those which prevailed elsewhere in the country of his nationality, including in his former place of habitual residence. If the applicant could live a relatively normal life in the place of relocation, judged by the standards which prevailed in his country of nationality generally, and if he could reach the less hostile part without undue hardship or undue difficulty, it would not be unreasonable to expect him to move there. However, the more closely the persecution was linked to the State, and the greater the control of the State over those acting or purporting to act on its behalf, the more likely (other things being equal) that a victim of persecution in one place would be similarly vulnerable in another place within the same State. 37. The factual background to the conflict in Somalia, as described in the country reports at paragraphs 80 – 188 below and subsequently agreed by the parties, is as follows. 38. Somalia is comprised of three autonomous areas: the self-declared Republic of Somaliland in the north west, the state of Puntland in the north east, and the remaining southern and central regions. Somali society has traditionally been characterised by membership of clan families, which are subdivided into clans and sub-clans. The four majority clans are Darod, Hawiye, Isaaq and Dir. In addition there are a number of minority groups, which are also divided into sub-groups. The Digli and Mirifle take an intermediate position between the majority clans and the minority groups. 39. Somalia has been without a functioning central government since the overthrow of President Siad Barre by opposing clans in 1991. The clans could not agree on a replacement and lawlessness, civil conflict and clan warfare followed. Mogadishu was fragmented into rival, clan-based factions and control of the city was divided among warlords. The Transitional Federal Government was established in October 2004 but a combination of internal divisions within the Transitional Federal Government and insecurity in central and southern Somalia hindered it from becoming a functioning Government. In June 2006 the Union of Islamic Courts, a union of various Sharia courts, took control of Mogadishu. Following a period of fighting against a coalition of warlords called the Alliance for the Restoration of Peace and Counter-Terrorism, the Union of Islamic Courts took control of most of central and southern Somalia. United Nations Security Council Resolution 1725 (2006) authorised the deployment of an African Union and Intergovernmental Authority on Development force to protect the Transitional Federal Government. Ethiopian ground and air forces also moved into Somalia to support the Transitional Federal Government and by late December 2006 the Union of Islamic Courts had been ousted from Mogadishu and much of southern Somalia. Remnants of the Union of Islamic Courts withdrew to the southern reaches of the Lower Juba region where they continued to fight against the Transitional Federal Government and Ethiopian troops. 40. After the fall of the Union of Islamic Courts, the semblance of order and security that it had created in Mogadishu deteriorated. Roadblocks and checkpoints returned, as did banditry and violence. Furthermore, attacks by anti-government elements on Transitional Federal Government and Ethiopian forces continued in Mogadishu, with civilians frequently caught up in the fighting. Homes and public infrastructure were destroyed and a significant part of the civilian population was displaced. The fall of the Union of Islamic Courts also bought to the fore some of the inter- and intra-clan rivalries that had been suppressed during the conflict and serious clan related fighting ensued. 41. In 2007 the Alliance for the Re-Liberation of Somalia was created when Somali Islamists and opposition leaders joined forces to fight the Transitional Federal Government and Ethiopian forces. 42. On 20 August 2008 the Transitional Federal Government and the opposition Alliance for the Re-Liberation of Somalia signed a ceasefire agreement in Djibouti. At the same time, the United Nations Security Council extended the mandate of the African Union peacekeeping mission in Somalia. However, the Islamic insurgents at the heart of the escalation in violence were not party to the ceasefire agreement, and instead indicated that they would continue to fight until Ethiopian forces withdrew from Somalia. 43. By late 2008 Islamist insurgents, including a group called alShabaab, had regained control of most of southern Somalia. 44. Somalia’s Parliament met in Djibouti in January 2009 and swore in 149 new members from the Alliance for the Re-Liberation of Somalia. The Parliament also extended the mandate of the Transitional Federal Government for another two years and installed moderate Islamist Sheikh Sharif Sheikh Ahmad as the new President. 45. Ethiopia pulled its troops out of Somalia in January 2009. Soon after, al-Shabaab took control of Baidoa, formerly a key stronghold of the Transitional Federal Government. In May 2009 Islamist insurgents launched an attack on Mogadishu, prompting President Ahmad to appeal for help from abroad. 46. In October 2009 al-Shabaab consolidated its position as the most powerful insurgent group by driving its main rival, Hizbul Islam, out of the southern port city of Kismayo. Since then it has openly declared its alliance with al-Qaeda and has been steadily moving forces up towards Mogadishu. 47. In December 2010 Hizbul Islam and al-Shabaab merged. 48. The Transitional Federal Government is recognised by the United Nations and almost all key foreign powers as the legitimate government of Somalia. However, it currently controls only a small section of Mogadishu centred on the port, the airport and the presidential palace. It is largely dependent on African Union troops for its survival. 49. AMISOM is an African Union force authorised by the UN Security Council and deployed to Mogadishu to support the Transitional Federal Government. It currently consists of 5,300 Ugandan and Burundian troops. 50. Ethiopian forces joined the conflict in 2006 to help drive out the Union of Islamic Courts. They remained in Somalia until their withdrawal at the beginning of 2009. 51. Al-Shabaab began as part of the armed wing of the Union of Islamic Courts. When the 2006 Ethiopian military intervention sent the leaders of the Union of Islamic Courts into exile, a hard core of al-Shabaab fighters remained in Somalia to fight. In their April 2010 report, “Harsh War, Harsh Peace”, Human Rights Watch indicated that al-Shabaab was an alliance of factions rather than a single entity, but the group’s diverse leaders had a common agenda: defeating AMISOM and the Transitional Federal Government and extending Sharia law across Somalia. Some of its leaders have links with al-Qaeda although the extent of al-Qaeda’s influence over al-Shabaab remains unclear. 52. Al-Shabaab has emerged as the most powerful and effective armed faction on the ground, especially in southern Somalia. They have received material support from the Eritrean government, which is eager to undercut Ethiopia’s interests in the region. By the end of 2009 al-Shabaab controlled more territory than any other faction in Somalia, including Baidoa, the former seat of the Transitional Federal Government parliament, Jowhar, which had been one of the Transitional Federal Government President’s most reliable strongholds, and the strategic port of Kismayo. 53. Al-Shabaab claimed responsibility for twin suicide bombings in the Ugandan capital Kampala on 11 July 2010, which killed 79 people watching the World Cup soccer final on television. It was al-Shabaab’s first attack outside Somalia and heightened concerns about its ability to carry out more attacks in the region and beyond. 54. Hizbul Islam is another armed group which has both a Sharia agenda and the goal of driving AMISOM and the Transitional Federal Government from Mogadishu. In early 2009 it entered into an alliance with al-Shabaab but the alliance came to an end in October 2009 during the fight for Kismayo. In December 2010, however, it once again merged with alShabaab. 55. Ahlu Sunna Waljamaca is an Islamist group which professes to support a more moderate agenda. The group exists primarily in central Somalia, where it has maintained control over large strips of territory, predominantly in Galgadud and Hiran regions. 56. In February 2010 Ahlu Sunna Waljamaca signed a power-sharing and military unification pact with the Transitional Federal Government, although at times relations between the two groups were strained. 57. In NM and others (Lone women – Ashraf) Somalia CG [2005] UKAIT 00076 the AIT found that conditions in southern Somalia and particularly in and around Mogadishu were such that both men and women from minority clans were in danger of Article 3 ill-treatment and should be regarded as refugees in the absence of evidence of a clan or personal patron which could protect them. Men and women from majority clans were not likely to be in need of international protection, although individual circumstances required separate consideration. Although women were at greater risk than men, they would not be able to show that, simply as lone female returnees from the United Kingdom, they had no place of clan safety. Finally, the AIT held that the general conditions of life or circumstances in Somalia did not engage the obligations of the Refugee Convention or engage Article 3 of the Convention for all female returnees. A differential impact had to be shown. Being a single woman was not of itself a sufficient differentiator. 58. The AIT observed in passing that, on the strength of the background evidence and the expert evidence given at the hearing, it would consider that any person at real risk on return of being compelled to live in an IDP camp would have little difficulty in making out a claim under Article 3, if not under the Refugee Convention. 59. In HH & others (Mogadishu: armed conflict: risk) Somalia CG [2008] UKAIT 00022 the Asylum and Immigration Tribunal held that for the purposes of article 15(c) of the Qualification Directive, a situation of internal armed conflict existed in Mogadishu. The AIT held, however, that while all sides to the conflict had acted from time to time in such a way as to cause harm to civilians, they were not in general engaging in indiscriminate violence and, as a consequence, a person would not be at real risk of serious harm by reason only of his or her presence in that zone or area. 60. The AIT found that although clan support networks were strained, they had not yet collapsed. Majority clans continued to have arms, even though their militias no longer controlled the city. A person from a majority clan, or whose background disclosed a significant degree of assimilation with, or acceptance by, a majority clan would in general be able to rely on that clan for support and assistance, including at times of displacement. A member of a minority clan or group who had no identifiable home area where majority clan support could be found would in general be at real risk of serious harm of being targeted by criminal elements, both in any area of former residence and in the likely event of being displaced. Members of minority groups found it harder to flee and move around to escape fighting, because they were not so easily accepted in new surroundings. The AIT found that persons displaced from their home in Mogadishu without being able to find a place elsewhere with clan members or friends would likely have to spend a significant period of time in a makeshift shelter, such as those along the road to Afgooye, or in an IDP camp, and could well experience treatment proscribed by Article 3 of the Convention. 61. Finally, the AIT held that the issue of whether a person from a minority clan would be able to find majority clan support would often need specific and detailed consideration. The evidence suggested that certain minority groups could be accepted by the majority clan of the area in question, so as to call on protection from that clan. On the current evidence, it might not be appropriate to assume that a finding of minority group status in southern Somalia was in itself sufficient to entitle a person to international protection, particularly where a person’s credibility was otherwise lacking. 62. In its most recent Somali Country Guidance determination, the Asylum and Immigration Tribunal found that since its decision in HH there had been a number of significant changes in Somalia. 63. First, the AIT found that by mid-2008 the armed conflict had spread beyond Mogadishu and its environs. The AIT therefore found that a situation of internal armed conflict existed throughout central and southern Somalia. In respect of the intensity of the violence, the AIT noted that “manifestly all significant armed parties to the conflict have engaged in indiscriminate attacks”. In particular, it noted that the Ethiopians were reported to have used means of war (firing inherently indiscriminate Katyusha rockets in urban areas) and methods of warfare (using mortars and indirect weapons without guidance in urban areas) that violated International Humanitarian Law. The TGF were reported to have engaged in aggression against civilians and to have acted “as if they believe that they are immune from accountability, investigation or prosecution, including for crimes under international law”. Moreover, reports indicated that insurgents had perpetrated raids, robberies and other abuses against civilians, including rape and other forms of sexual violence. The AIT referred to information received from the Inter-Agency Standing Committee (“IASC”) which expressed concerns about: “indiscriminate bombardment of civilian areas; indiscriminate use of roadside bombs and mortars from and in civilian areas; indiscriminate shooting in response to roadside bombs; arbitrary arrest and detention of civilians, including children; forced evictions; forced recruitment, including of children; sexual and gender based violence; intimidation and assassination of journalists, aid workers and civilian officials; and extra-judicial killings.” 64. The AIT also noted that the worsening security situation was coupled with a deteriorating humanitarian situation. It observed that between 400,000 and 750,000 people had been displaced from Mogadishu and that there had been significant displacements from other towns to which armed clashes had spread. The AIT also observed first, that IDPs experienced serious problems while on the move, which included checkpoints, threats, intimidation, looting, rape, abduction and harassment; secondly, that many did not end up in camps or makeshift settlements and consequently struggled to obtain shelter, food, water and sanitation; and thirdly, that the effect of displacement appeared to reduce the ability of IDPs to count on protection from their own clan: even where they fled to a traditional area for their clan, the pressures of numbers and scarce resources could mean that newcomers were not supported or absorbed by the local community. 65. With regard to the situation in Mogadishu, the AIT considered that: “the movements of population out of Mogadishu in the past two years have been unprecedented. UN sources have estimated (at various times) that 400,000, up to as many as 750,000 (or around one third to a half), of the population of Mogadishu have been displaced. An 8 April 2008 Voice of America report states that two thirds of Mogadishu has been turned into an urban battleground. Since the beginning of 2008 there have been significantly fewer returns. Whatever the precise figures, it is clear that the ongoing violence has forced substantial numbers to flee the city more than once and flight seems an ongoing process: the IRIN report of 29 September 2008 cites Elman estimates that 18,500 people recently fled their homes due to the fighting and shelling (COIS, A 4). The COIS Reply dated 24 October 2008 states that: “[a]ccording to the UNHCR an estimated 5,500 people were displaced from the city during the week and over 61,000 since 21 September 2008”. Armed clashes have increasingly destroyed housing, market areas (Bakara market has been deliberately shelled) and infrastructure and the recent closure of the airport is likely to make matters in Mogadishu worse. According to Grayson and Munk, the aid community has been largely ineffective in providing the necessary aid to those who have stayed in Mogadishu (Nairobi evidence 65). They also state that Mogadishu is a “ghost town” and that only the most vulnerable remain there.” 66. It concluded that since HH the situation in Mogadishu had changed significantly, both in terms of the extent of population displacement away from the city, the intensity of the fighting and the security conditions there. On the available evidence the AIT considered that Mogadishu was no longer safe as a place to live for the great majority of its citizens. It did not rule out that there might be certain individuals who on the facts might be considered to be able to live safely in the city, for example if they had close connections with powerful actors in Mogadishu, such as prominent businessmen or senior figures in the insurgency or in powerful criminal gangs. However, barring cases of this kind, in the case of persons found to come from Mogadishu who were returnees from the United Kingdom, the AIT found that they would face on return a real risk of persecution or serious harm and it was reasonably likely, if they tried staying there, that they would soon be forced to leave or that they would decide not to try to live there in the first place. 67. Nevertheless, the AIT were not persuaded that the situation in central and southern Somalia had reached the threshold where civilians per se or Somali civilian IDPs per se could be said to face a real risk of persecution, serious harm or treatment proscribed by Article 3 of the Convention. First, although the levels of violence had increased in intensity, the numbers of those killed and wounded was not of great magnitude. Secondly, while the humanitarian situation was dire, it did not appear that civilians per se faced a real risk of denial of basic food and shelter and other bare necessities of life. Thirdly, while there was evidence of attacks on IDPs, in view of the huge numbers of people displaced (over a million according to some reports), it appeared that the great majority of IDPs were able to travel and subsist in IDP camps or settlements without serious setbacks. 68. Rather, the AIT assessment of the extent to which IDPs would face greater or lesser hardships, at least outside Mogadishu, would vary depending on a number of factors. In particular, the AIT noted that IDPs from more influential clans appeared to have a better chance of being tolerated in the area to which they fled; IDPs with a traditional clan area that they could travel to, especially if they had close relatives or close clan affiliations in that area, appeared to have better prospects of finding safety and support (although not if the area concerned was already saturated with fellow IDPs); those who lacked recent experience of living in Somalia appeared more likely to have difficulty dealing with the changed environment in which clan loyalties had to some extent fractured; persons returning to their home area from the United Kingdom could be perceived as having relative wealth and might be more susceptible to extortion, abduction and the like; those who lived in areas not particularly affected by the fighting and which were not seen as strategically important to any of the main parties to the conflict would appear less subject to security problems; women and girls faced the additional risks of rape, abduction and harassment; the prevailing economic conditions in the area would also be relevant, bearing in mind Somalia’s history of droughts, poor harvests and rising food prices. 69. The AIT recognised that there had been a significant change in the clan-based character of Somali society since HH was promulgated. Clan protection was not as effective as it had been in the early 1990s and conflicts over scarce resources had complicated the situation and made it unpredictable. This did not mean, however, that the clan or sub-clan had ceased to be the primary entity to which individuals turned for protection. 70. As regards internal relocation, whether those whose home area was Mogadishu (or indeed any other part of central and southern Somalia) would be able to relocate in safety and without undue hardship would depend on the evidence as to the general circumstances in the relevant parts of central and southern Somalia and the personal circumstances of the applicant. Whether or not it was likely that relocation would mean that they had to live in an IDP camp would be an important but not necessarily a decisive factor. 71. The AIT considered the safety of en route travel from Mogadishu International Airport, which was the point of return for anyone being removed to central and southern Somalia. The AIT noted that: “The airport is one of the facilities patrolled by AMISON troops (COIS, 27.13). According to Somalia Humanitarian Overview, September 2008, normally at least 5 commercial flights arrive and depart on a weekly basis to and from the rest of Somalia, Kenya, Djibouti and Dubai. The COIS Reply of 24 October 2008 notes that it is expected in the next month or so that thousands will leave via MIA to perform Haj in Saudi Arabia. At the time of HH, the airport was fully operational with flights arriving and departing regularly. However in 2008 the situation has been unsettled. There were attacks of some kind in January 2008 and the downing of a plane by a missile in March 2008 (COIS, 27.13). The airport was attacked by insurgents on 1 June 2008 as the President’s plane left for talks in Djibouti. On 14 September 2008 a group identifying themselves as Al Shabab threatened to shut the airport down, although a counter-report from Union of Islamic Courts said that the Islamist forces did not intend to close it. It was closed on 16 September. On 28 September there were mortar attacks on it upon the arrival of an AMISON military plane (COIS, A.2). A Press TV cutting dated 2 October 2008 states that 5 heavy mortars landed inside MIA injuring a number of soldiers. The assailants apparently targeted a plane trying to land. A COIS Reply dated 15 October 2008 reports an Al Shabab source as saying that on 9 October a civilian plane carrying 120 Somali deportees from Saudi Arabia managed to land without incident. A 13 October press report refers to several mortar attacks on the airport. We were told by the respondent at the outset of the hearing that removals to Somalia were temporarily suspended because of travel documentation problems, but it may well be, in the light of these recent developments, that for the immediate future at least, there would be difficulties in ensuring safe arrival in any event.” 72. In HH the AIT had concluded that those moving around Mogadishu and the environs would in general not be at risk of serious harm at checkpoints, although it left open the possibility that the situation might be different if a person were likely to encounter a non-Transitional Federal Government checkpoint alone, without friends, family or other clan members. However, in AM the AIT noted that from the second half of 2007 United Nations Office for the Co-ordination of Humanitarian Affairs estimate of the number of roadblocks/checkpoints in central and southern Somalia showed an increase from 238 in July 2007 to 400 in July 2008 and considerably more than half were under the control of insurgents. Nevertheless, while the AIT found that the Transitional Federal Government appeared by and large to have lost control of many of the roadblocks and checkpoints in central and southern Somalia, the evidence continued to indicate that they retained control of the main road from the airport into Mogadishu. While there was some evidence that the road came under attack from insurgents on a daily basis, there was clearly a great deal of ongoing movement of people along the roads in central and southern Somalia and in and around the airport and the AIT did not consider that the available evidence demonstrated a real risk en route of persecution or serious harm for travellers from the airport to Mogadishu. 73. One of the applicants in HH and one of the applicants in AM were granted leave to appeal to the Court of Appeal. Their appeals were joined to those of two other Somali applicants. 74. HH contended that the AIT had erred in its application of the provisions of article 15(c) of the Qualification Directive as it had held first, that the notion of an “individual threat” required a “differential impact ” and secondly, that article 15(c) did not add anything to Articles 2 and 3 of the Convention. Before the Court of Appeal, the Secretary of State for the Home Department accepted that the AIT had erred in its interpretation of article 15(c), but submitted that the error was not material. The Court of Appeal held that if the correct (post-Elgafaji) approach to article 15(c) had been applied to the facts found by the AIT, it was inevitable that it would have found that the population of Mogadishu as a whole was not subject to such a high level of indiscriminate violence as to justify the conclusion that merely to be there attracted entitlement to subsidiary protection. Consequently, the Court of Appeal dismissed HH’s appeal on the ground that the error of law was not material. 75. The AIT had accepted that AM was from Jowhar. It noted that there was no longer any significant fighting there but accepted that there was evidence that en route travel to Jowhar was hazardous. Nevertheless, the AIT held that it was not empowered to consider the risk faced in making the journey: rather, it was for the Secretary of State for the Home Department, in finalising the removal arrangements, to satisfy herself that there would be safe en route travel for AM. AM appealed to the Court of Appeal on the ground that this was not a lawful approach. The Court of Appeal allowed the appeal, finding that in any case in which it could be shown either directly or by implication what route and method of return was envisaged, the AIT was required by law to consider and determine any challenge to the safety of that route or method. The AIT therefore fell into error as it had declined to consider AM’s safety on return. The Court of Appeal remitted the case to the AIT to consider this issue. 76. J had sought judicial review of the Secretary of State for the Home Department’s refusal to accept as a fresh claim her submissions about the situation facing her were she to be returned to Somalia. The Administrative Court had held that if the removal directions had indicated that J was expected to go by road from Mogadishu International Airport to her home town, the evidence would have given her a strongly arguable case for judicial review. However, as the detail or method of return was neither clearly nor necessarily implicit within the immigration decision, the judicial review application had been refused. J appealed to the Court of Appeal. For the same reasons adopted in AM’s case, the Court of Appeal allowed the appeal. The Court of Appeal indicated (on an obiter basis) that the Qualification Directive and the Asylum Procedures Directive read together required that the issues of safety during return (as opposed to technical obstacles during return) should be considered as part of the decision on entitlement. Only technical obstacles could legitimately be deferred to the point at which removal directions were being made or considered. If there was a real issue of safety on return the Secretary of State had to engage with it in his decision on entitlement to protection. If he failed to do so, the appeal tribunal would have to deal with the issue. In any case, the decision on entitlement had to be made within a reasonable time and could not be left until the Secretary of State was in a position to set safe removal directions. 77. MA appealed against the rejection of his Article 3 claims by the AIT. In particular, he complained that the AIT had misdirected itself because it had focused on his failure to tell the truth when it should have asked whether there was evidence relating to his own particular situation, even ignoring his own rejected testimony, which would support his contention that there was a real risk on return. The Court of Appeal accepted that the AIT had adopted the wrong approach, apparently considering that the applicant’s lies had disabled it from reaching a conclusion on the Article 3 risk. Had it made an assessment on the basis of the available evidence, it would have had to have concluded that the applicant was at risk of Article 3 ill-treatment on return. The Court of Appeal noted that following AM, the Country Guidance relating to Mogadishu was such that most potential returnees would be entitled to subsidiary protection under article 15 of the Qualification Directive. It therefore followed that only those Somalis who could get without undue risk to a place of safety or who had access to protection against the endemic dangers could properly be deported or returned. It was accepted that MA was from a minority clan, that he had not been in Somalia for 15 years, and that for much of that time he had been in detention. There was therefore sufficient evidence before the AIT to at least establish a real risk that he would not have the necessary contacts in Mogadishu to afford him the necessary protection. 78. In AM (Evidence – route of return) Somalia [2011] UKUT (IAC) the Upper Tribunal held that the First Tier Tribunal had failed to give adequate reasons for concluding that the applicant could safely reach his home area of Afgooye from Mogadishu International Airport. However, on reconsideration the Tribunal was not satisfied that returning him would give rise to a breach of Article 3 of the Convention. In particular, it found that travel took place with some degree of frequency from the airport to the city of Mogadishu and into other areas of Somalia; that as the applicant had lived in Yemen and Saudi Arabia, he would be well able to anticipate and comply with the requirements of al-Shabaab; that there was nothing which would put him at any risk were he to encounter a Transitional Federal Government checkpoint; that the evidence did not support a finding that all men or young men were at risk of forced recruitment by al-Shabaab; and, that as the applicant was not found to be a minority clan member, and as his uncle had been able to fund his departure from Somalia, he would be able to avoid foreseeable risks and pay the relatively modest sums demanded at checkpoints. 79. The Swedish Migration Court of Appeal, which is the court of final instance in immigration cases, found that a situation of internal armed conflict existed throughout the whole of southern and central Somalia which was sufficiently serious to expose the Somali applicant to a risk of serious harm, even though he could not demonstrate that he would be specifically targeted. The court had regard to many reports which indicated that the fighting had increased in recent months and that the situation had become very unstable and unpredictable. Moreover, due to the worsening security situation, the presence of the United Nations and other international organisations had decreased and, as a consequence, detailed and updated information was hard to come by. Although the safety level in Somaliland and Puntland was considered to be acceptable, a Somali returnee could only gain admittance to those areas if he was seen as belonging or having another connection to them. As that was not the case with the applicant, the court concluded that he could not internally relocate and that he should thus be given a residence permit and subsidiary protection in Sweden. 80. The fact-finding mission interviewed a number of anonymous sources, including international NGOs, security advisors and diplomatic sources, about the current security and humanitarian situation in southern and central Somalia. In particular, the mission sought to obtain information on which groups controlled which areas, how easy it was to travel between different areas, the security and human rights situation, and the conditions in the IDP camps. 81. Sources indicated that control of Mogadishu was divided between the Transitional Federal Government, backed by AMISOM troops, and al-Shabaab. Although the sources had different views on which groups controlled which districts, they mostly agreed that the Transitional Federal Government controlled the airport, the seaport, Villa Somalia and the road between the airport and Villa Somalia. 82. Sources indicated that the security situation in Mogadishu was poor, with thousands of civilians killed in the fighting between AMISOM and al-Shabaab. Areas controlled by al-Shabaab were at risk of shelling by AMISOM, while areas controlled by AMISOM were at risk of shelling by al-Shabaab. All parties to the conflict were guilty of indiscriminate shelling. Violence was sporadic and rape was an issue in many areas. Consequently, there was a constant movement of IDPs into and out of the city. However, one diplomatic source suggested that it would be possible to live in non-conflict areas of the city, which were generally considered to be safe. 83. Sources also indicated that the nature of al-Shabaab violence had become more sophisticated over the past twelve months as foreign fighters had brought with them new tactics and techniques. They not only carried out targeted attacks against AMISOM troops and Transitional Federal Government ministers and MPs, but they also carried out random killings of civilians in Mogadishu in order to create disorder and chaos. 84. The report noted that there were regular flights into Somalia, most of which were destined for Mogadishu International Airport. The EU Special Representative informed the Mission that 15-18 flights arrived in Mogadishu each day. An airplane captain working for African Express Airways also told the Mission that his airline had carried 12,000 passengers into Mogadishu in the first eight months of 2010. 85. The road between the airport and Mogadishu was controlled by the Transitional Federal Government with AMISOM support and these groups managed all checkpoints along the route. It would not be particularly dangerous for ordinary Somalis unless they found themselves “in the wrong place at the wrong time”. However, there were reports of a failed attack on the airport on 9 September 2010 and some sources suggested that contacts were required in order to make the journey from the airport. The EU Special Representative for the EU Delegation on Somalia indicated that those members of the diaspora who regularly travelled to Mogadishu were well-connected and that mobility was limited unless the individual was aligned with a militia. Likewise, a representative from an international NGO indicated that “any Somalis returning to Mogadishu International Airport would need a lot of preparation and would need to ensure they had contacts in Mogadishu”. 86. A representative from one international NGO suggested that al-Shabaab knew who was landing at the airport as they were receiving information from Transitional Federal Government soldiers based there. 87. Most of the sources interviewed agreed that Somalis were able to move around within Mogadishu without much restriction. Two sources described the checkpoints in the city as “random” or “variable” as they tended to change according to fighting areas and the level of control of specific groups. One source suggested that checkpoints operated by the Transitional Federal Government or Hizbul Islam were more difficult to negotiate as they were operated with less discipline and normally demanded money. Al-Shabaab checkpoints normally checked that people were obeying their code of behaviour and would therefore stop women travelling alone. Some individuals operating these checkpoints would punish those who were not acting according to al-Shabaab’s rules. 88. Contrary to the majority opinion, the EU Special Representative informed the fact-finding mission that all civilians in Mogadishu would either be aligned to a militia or completely unable to get out of the town. The Special Representative even suggested that some Somalis were unable to leave their own district. 89. There was no consensus on which groups controlled the other regions in southern and central Somalia, although all agreed that al-Shabaab controlled most of the land south of a line drawn between Beletweyne and Dhusarmareb. Militias broadly aligned with the Transitional Federal Government controlled pockets of land on the Ethiopian border. Hizbul Islam was nominally in control of some small areas, including parts of the Afgooye Corridor, but al-Shabaab’s influence in these areas was significant. Finally, the region of Galmudug was controlled by a local clan-based administration which acted under the umbrella of Ahlu Sunna Waljamaca. 90. Outside Mogadishu, people were generally permitted to travel within the areas controlled by al-Shabaab although they could encounter difficulties at checkpoints if they were not obeying al-Shabaab rules. Although al-Shabaab had endeavoured to remove “illegal” checkpoints, a number of sources indicated that some clan militia checkpoints remained. The evidence appeared to suggest that it was possible to negotiate the various checkpoints, although a certain amount of risk was involved. 91. A diplomatic source stated that young men travelling in al-Shabaab held areas could be targeted by al-Shabaab for recruitment. This was supported by an international NGO, which advised that forced recruitment was becoming systematic. Young men were asked to register with al-Shabaab, including those who were stopped at checkpoints. 92. A number of sources considered the areas controlled by al-Shabaab to be stable and generally safe for those Somalis who were able to “play the game” and avoid the unnecessary attention of al-Shabaab. One the other hand, one international NGO believed that there were “no safe areas in southern-central Somalia as long as al-Shabaab and Hizbul Islam were present”. Another NGO indicated that everywhere in southern and central Somalia had been affected by violations of international humanitarian law and by a situation of generalised violence and displacement over the past three years on account of the expansion of the insurgency outside Mogadishu. Finally, a diplomatic source stated that “everywhere is volatile and can change at any time”. 93. With regard to the human rights situation, forced recruitment of adults and children appeared to be an emerging problem, particularly for those displaced in the Afgooye Corridor. Sources suggested that all parties to the conflict recruited children, although it was not certain that the Transitional Federal Government forcibly recruited them. Child recruitment was, however, very common in al-Shabaab areas, as they would forcibly recruit the eldest son from local families, some of whom were as young as ten years old. Adult males were also forced to register with al-Shabaab in Merca and Doble. 94. Moreover, the sources indicated that in al-Shabaab areas, human rights were practically non-existent because of the organisation’s interpretation of Sharia law, which was not in accordance with the beliefs of ordinary Somalis. Consequently, people lived in fear as there were serious punishments if al-Shabaab orders were not obeyed. Women in particular were routinely targeted and were not permitted to engage in trade. In addition, al-Shabaab had made a concerted effort to drive NGOs out of its areas by a number of means, including demanding payment of a “registration fee” of up to USD 15,000, looting warehouses and threatening workers. In some cases al-Shabaab had stolen aid and confiscated the assets of NGOs to sell for profit. There was therefore no international NGO presence in al-Shabaab controlled areas and health and feeding programmes had been stopped, with significant consequences for the civilian population. 95. Finally, sources were asked about the conditions in IDP camps. They indicated that although those with resources had left Mogadishu, there were some 250,000 people displaced within the city and no humanitarian assistance was available to them. Estimates suggested that there were a further 200,000 to 500,000 people in the Afgooye Corridor, which had become increasingly urbanised. It was difficult to give an exact number of the people based in the corridor because, due to the nature of the fighting, a lot of people were going back and forward to Mogadishu. Moreover, access for NGOs was difficult as the corridor was controlled by “gatekeepers” who controlled who and what moved into and out of the area. These “gatekeepers” tended to be opportunists who were not aligned to any particular group but they were able to make assistance from NGOs very difficult. Two NGOs said that it was incredibly difficult to access the corridor and, where access was possible, aid was often diverted. Moreover, landlords in the area were either selling the land that the IDPs lived on or were charging rent that they could not afford, forcing them to move on. 96. One international NGO believed that there was a hierarchy within the camps, but did not know whether it was based on clan membership or length of residence. Consequently, it could not be guaranteed that majority clan members would not face problems within the IDP camps. 97. The sources were not aware of any other significant IDP settlements within Somalia. 98. Operational Guidance Notes (“OGNs”) are produced by the Border and Immigration Agency of the Home Office. They evaluate the general, political and human rights situation in a country and provide guidance on the nature and handling of the most common type of claim. 99. The OGN on Somalia of 1 July 2010 described how fighting by Transitional Federal Government troops, allied militias, and AMISOM forces against anti-government forces in southern and central Somalia had resulted in widespread human rights abuses, including the killing of thousands of civilians, the displacement of more than one million people and widespread property damage, particularly in Mogadishu. However, a fall in clashes between government troops and insurgents had led to a substantial drop in the numbers of civilians killed in fighting in Mogadishu in 2009. The Mogadishu-based Elman Peace and Human Rights Organisation stated that 1,739 civilians were killed in fighting in 2009, down from 7,574 in 2008 and 8,636 in 2007. At least 4,911 civilians were wounded and 3,900 families displaced by clashes in 2009. 100. The report noted that while Mogadishu remained the focus of the insurgency, fighting had occurred in other parts of the country, including Beletweyne, Kismayo, the Gedo and Bakool regions, from Jowhar to Harardhere and around the central towns of Dhusamareb and Beletweyne. 101. The report indicated that restrictions on movement within Somalia had reduced significantly compared to when the AIT considered the situation in AM and AM (Somalia). In particular, checkpoints operated by the Transitional Federal Government had decreased and there were no reports of armed clan factions operating checkpoints in 2009. Al-Shabaab had established checkpoints at the exit/entry routes of the towns under its control for security reasons. It checked goods, searched people and ensured that its strict Islamic codes were enforced, but it did not collect money. There were also reports that Al-Shabaab had eradicated extortion, robbery and murder from bandits in areas it controlled. 102. With the exception of Mogadishu, there were no reports of checkpoints between towns or within towns, as was common in previous years. There were, however, several checkpoints on the route from Mogadishu towards the Central Regions and some precautions could be necessary, particularly during militia fighting. There was no evidence that those not of adverse interest to the Transitional Federal Government, al-Shabaab or groups such as Hizbul Islam or Ahlu Sunna Waljamaca, would be unable to pass through checkpoints safely. During overland trips clan protection was not required unless ongoing animosities between two rival clans were involved. Individuals would not generally need an escort, but if they considered an escort to be necessary, it would be feasible for them to arrange one either before or after arrival. It would therefore be feasible for many to return to their home areas from Mogadishu International Airport as most areas were more accessible than previously. 103. The report also noted that it was possible for Somalis to fly from Mogadishu International Airport directly to Hargeisa, in Somaliland, a region which was widely considered to be relatively safe. However, the authorities in Somaliland, like the authorities in Puntland, would only admit those who originated from the territory or those who had close affiliation to the territory through clan membership. In Somaliland, the majority clan was the Isaaq. 104. With regard to the human rights situation, the report noted that: “Al-Shabaab currently controls much of southern and central Somalia, including large portions of Mogadishu. The Transitional Federal Government has maintained control of a few areas in the south east of the city, government installations, the Presidential palace and strategic locations such as the airport and seaport. Al-Shabaab controls large portions of Mogadishu including the north and north-east parts of the city, the main stadium and the main market. It controls nearly all of Middle and Lower Jubba regions, Gedo region, Bay region, Bakool region, and parts of Lower Shabelle region. This includes control of the key port cities of Kismayo and Marka and the Kenya border town of Diif. It also wields significant influence in Middle Shabelle and Hiraan region. The human rights situation has deteriorated particularly in areas controlled by al-Shabaab and allied extremist groups. Al-Shabaab and other armed groups have continued to violate women’s rights in southern and central Somalia. Women face arbitrary detention, restriction of movement and other forms of abuse for failure to obey orders, including non-observance of dress codes. There is a rising pattern of inhuman and degrading treatment, including stoning, amputations, floggings and corporal punishment. Men too are subjected to inhuman and cruel treatment for their illicit relationship with women and other offences such as ‘spying’. Journalists have been repeatedly subjected to threats and short-term arbitrary detentions, particularly in Baidoa and Kismayo. Al-Shabaab has increasingly targeted civil society groups, peace activists, media and human rights organisations. Humanitarian assistance has been severely hampered by the prevailing insecurity and threats specifically targeting humanitarian agencies. In southern and central Somalia there is evidence that children are being exposed to recruitment into armed forces by all parties to the conflict.” 105. In respect of the humanitarian situation, the report indicated that by November 2009 the total number of displaced persons had reached 1.55 million, 93% of whom were concentrated in southern and central areas, including 524,000 in the Afgooye corridor. The security situation was having a negative impact on the relief operation. Rising threats and attacks on humanitarian operations, as well as the imposition of demands from armed groups, had made it virtually impossible for the World Food Programme (“WFP”) to continue reaching people in need in southern Somalia. Inflammatory statements by al-Shabaab against relief organisations, threats against humanitarian staff, explicit rejection of foreign food aid and demands for fees had all worsened. 106. The report concluded that while the general humanitarian situation in southern and central Somalia was poor, it was not so serious as to cause, in itself, a breach of Article 3 of the Convention. Aid agencies were subjected to obstructions and dangers in delivering aid to IDPs but most of those in need continued to be reached and efforts were being strengthened to sustain critical food operations in southern and central Somaliahe Article 3 threshold was met. 107. The report indicated that the Transitional Federal Government’s respect for human rights had improved. However, the poor human rights situation in Somalia had deteriorated further during the year, especially in the areas controlled by al-Shabaab and allied extremist groups. Human rights abuses included unlawful and politically motivated killings, kidnappings, torture, rape, amputations, beatings, official impunity, harsh and life-threatening prison conditions, and arbitrary arrest and detention. 108. With regard to movement within Somalia, the report indicated that checkpoints operated by the Transitional Federal Government and its associated militias had decreased. According to a report by UNOCHA, al-Shabaab established checkpoints at the exit/entry routes of the towns under its control for security reasons. There were no reports of checkpoints between towns or within towns, as was common in previous years. There were also no reports of armed clan factions operating checkpoints during the year. 109. The report noted that the humanitarian situation in Somalia remained dire as the fighting in Mogadishu had added more challenges to already poor conditions on the ground. An estimated 1.1 million people had been displaced and more than 475,000 had fled to neighbouring countries in the past two years. Targeted attacks on humanitarian groups had made delivery of assistance difficult and the Obama Administration had suspended assistance in areas controlled by al-Shabaab. 110. The report noted that the situation in southern Somalia and in Mogadishu in particular was unstable and the power balance in the regions, districts and urban areas could change almost from day to day. Consequently, information on area control could become out of date very quickly. 111. It was clear, however, that the military and political situation remained extremely complicated. Large areas of southern Somalia were controlled by al-Shabaab and other Islamist groups in opposition to the authorities. Many areas of Mogadishu had been the scene of shooting, shelling and fighting between Islamists and Government forces supported by AMISOM. In spite of a certain amount of stability in parts of the country, the civilian population was still the victim of indiscriminate violence, albeit to a slightly lesser extent than previously. Leading observers agreed that the situation was fragile as the Islamist groups had the will and means to continue to fight, while the Transitional Federal Government was weak and probably would not survive without the presence of AMISOM. 112. The UN Special Envoy for Human Rights, together with a number of other international observers, noted that the arrival of foreign jihadists in Somalia had resulted in al-Shabaab operations becoming “professionalised”, which meant that they were implemented with greater precision and brutality. According to a number of observers, individual al-Shabaab cells were controlled by foreign jihadists who did not wish for peace or to enter into any form of dialogue with the authorities. 113. With regard to the humanitarian situation, the report noted that while the nutritional situation was expected to improve in the year ahead on account of a good harvest, the food security situation remained poor. Food prices were high and access to clean drinking water remained a considerable problem. 114. Estimates indicated that the total number of displaced persons in Somalia was around 1.3 million. Resources in local areas were stretched to the maximum as the displaced from Mogadishu sought refuge in traditional clan areas. While clan members were prepared to share what resources they had as far as possible, displaced persons without clan connections did not have that safety net and were therefore in a more difficult position. However, the report quoted the UN Special Envoy as stating: “Monitoring the human rights situation in south and central Somalia remains very difficult due to the serious constraints on gathering information owing to security conditions. The independent expert was himself unable to visit the region. Nevertheless, major human rights concerns have been documented and the independent expert remains deeply concerned at the deterioration of the situation.” 115. The report noted that freedom of movement in Somalia had improved since January 2009 and the general impression was that the population could travel relatively freely in both government controlled areas and areas controlled by other groups. The removal of road blocks had had a positive effect on criminality as cases of “rape and run” had previously been widespread in these areas. However, in spite of the improvements, restrictions imposed by al-Shabaab on women restricted their freedom of movement and had a negative impact on their families, which were often dependant on women’s income from trading. 116. International organisations had increasingly been the target of violent attacks since 2008 and, because of the safety risk, only a few international representatives remained in southern Somalia. Like the UN and foreign embassies, business was run from main offices in Nairobi while local employees were responsible for work on the ground in Somalia. Local human rights organisations could not publish detailed reports for fear of their own safety. However, aid work in Somalia could be risky for local employees as they were increasingly coming under attack. 117. In any case, aid organisations had limited access in the areas controlled by al-Shabaab. In January 2010 the WFP decided to suspend its activities in the al-Shabaab controlled areas. This has had consequences for the population in Lower Shabelle Bay, Bakool and Gedo as access to the necessary food supplies and other aid was limited. Moreover, at the beginning of August 2010, al-Shabaab ordered the Adventist Development and Relief Agency, World Vision and Diakonia out of the areas under their control on the ground that they were operating missionary activities. With these three organisations gone, very few international aid organisations remained in place in southern Somalia. 118. With regard to the situation in Mogadishu, the report noted that conditions in the different areas varied and there was a difference between the northern and southern parts of the capital. The areas of Hodan, Hawl, Wadaag, Wardhingley, Yaqshiid, Bondheere, Shibis and Abdulaziz were the hardest hit by shelling and attacks. To a lesser extent, the districts of Medina, Dharkley, Hamar Weyne, Waaberi and Hamar Jajab were also affected by the fighting. However, the report noted that the situation was unpredictable and could easily change. For example, the Karaan district in the north had previously been considered relatively peaceful but was now shot to pieces and all its inhabitants had fled. 119. According to a well-informed international aid worker, ten people per week died in Mogadishu due to fighting. It was difficult to estimate how many of the dead were civilians. It was also difficult accurately to estimate the number of displaced. According to the UNCHR, there were around 370,000 displaced persons in Mogadishu and 360,000 in the Afgooye Corridor. However, it was possible that there were great margins of error as the UN estimates were based on satellite images and it was thought that many houses had been built to mislead aid organisations. Nevertheless, well-informed sources indicated that the situation in Somalia today was much more difficult than it had been at the beginning of the 1990s as international organisations were no longer able to carry out their tasks. Poverty was more widespread in Mogadishu than it had been previously and it was therefore more difficult to help those in need. In addition, the clan system had been weakened. 120. Outside Mogadishu the fighting was mostly localised around certain key areas and towns. Strategic towns such as Kismayo, Beletweyne and various towns in the Galgaduud had changed hands many times in recent years and there were also tensions in Bakool and Gedo. However, the main challenge for most of the population of southern Somalia was humanitarian. Fifteen percent of all children under five in southern Somalia were malnourished and medical treatment was limited, especially in villages, where it was estimated that there was one doctor per 25,000 inhabitants. 121. In his report to the Security Council on 11 May 2010, the Secretary General noted that there had been increased fighting in southern and central Somalia during the first three months of 2010. Over 110,000 people had been displaced during this period. In addition to the fighting in Mogadishu, there was also continued fighting between al-Shabaab and Hizbul Islam in Lower Juba and Lower Shabelle, and between al-Shabaab and Ahlu Sunna Waljamaca in the central region. National United Nations staff faced direct threats from armed groups in these areas and the presence of international staff in these regions was restricted. 122. The security situation continued to have a direct impact on the provision of humanitarian aid. The report noted that on 28 February 2008 al-Shabaab called for the termination of all World Food Programme (“WFP”) operations inside Somalia, and on 1 March 2010 and 7 April 2010 WFP compounds in Buale and Wajid were occupied by al-Shabaab. There had been no food distribution to over 300,000 IDPs in the Afgooye corridor since November 2009 owing to inaccessibility and another 1.1 million intended beneficiaries were not receiving food distributions throughout the south and central regions. 123. In his report to the Security Council on 9 September 2010, the Secretary General noted that volatility and insecurity had once again increased in Mogadishu. AMISOM and the Transitional Federal Government frequently engaged the insurgents in response to mortar fire and direct attacks and military operations to secure positions in key districts of Mogadishu led to fierce battles. Moreover, the frequency of attacks with improvised explosive devices had led to an increase in civilian casualties during the reporting period. According to the World Health Organisation, approximately 1,600 civilian casualties were admitted to the two main hospitals in Mogadishu from 20 March 2010 to 11 July 2010. That figure, which included almost 400 children under the age of 5 and 48 registered deaths, had left Mogadishu’s already weak health services struggling to cope with the casualties. He also reported that beyond Mogadishu, sporadic clashes between al-Shabaab and Ahlu Sunna Waljamaca continued in the central regions and the continuing insecurity had hampered UN operations in Somalia by limiting freedom of movement for UN staff and contractors. In July 2010 al-Shabaab seized the compound of the World Food Programme and the houses of six national staff. 124. The ongoing conflict, particularly in Mogadishu, had displaced 179,000 people in the first quarter and 75,000 people in the second quarter of 2010. 125. In the Secretary-General’s report of 9 November 2010 on children and armed conflict in Somalia, he noted that civilians, including children, continued to be the majority of casualties in Somalia, primarily as a result of being caught in the crossfire between the parties to the conflict, shelling and explosions. During 2009 3.64 million people, including approximately 1.8 million children, relied on humanitarian assistance. However, food supplies remained disrupted, access to clean water and medical assistance hindered, and hospitals were stretched to capacity. As from January 2010, food distribution by the World Food Programme was disrupted in all areas controlled by al-Shabaab. 126. Moreover, the climate of violence and impunity exacerbated grave violations of children’s rights as individuals were taking advantage of the lack of rule of law and the availability of arms to commit violent crimes against children and other vulnerable members of the population. This was borne out by evidence of rising levels of acts of sexual violence against children. Most at risk were women and girls living on the streets or in open and unprotected settlements for IDPs. In addition, available information indicated that al-Shabaab had undertaken systematic and widespread recruitment of children for use in the conflict. Indeed, it was alleged that at the Galduuma base between Bay and Lower Shabelle, al-Shabaab had 1,800 children, some as young as 9 years old. 127. In his most recent report to the Security Council, dated 28 April 2011, the Secretary General stated that a major military offensive against Al-Shabaab had begun on 19 February 2011. The offensive by the Ahlu Sunnah Wal Jama’a and other groups allied with the Transitional Federal Government against Al-Shabaab in southern central Somalia had focused on the Ethiopia-Kenya-Somalia border. Hostilities centred on the Gedo, Bay and Bakool regions, with armed conflict most prevalent in Bula Hawa and, to a lesser extent, in the vicinity of Beletweyne and Dolo. Troops allied with the Transitional Federal Government had taken control of the town of Dhobley, close to the Kenyan border, on 3 April 2011. Reports of heavy casualties and intensified recruitment efforts on the part of Al-Shabaab suggested that the group’s capabilities might have been reduced. However, Al-Shabaab continued to receive arms and ammunition through southern Somali ports and acquire financial resources from extortion, illegal exports and taxation. 128. At the date the report was drafted, heavy fighting had again broken out in Mogadishu and International Committee of the Red Cross reported that hospitals were swamped with war-wounded. According to a report by the Elman Peace Center of Somalia, in the first seven months of 2010 918 civilians died and 2,555 were injured as a result of the increased fighting and shelling. While most casualties appeared to have been the result either of attacks by al-Shabaab and its allies against Transitional Federal Government and AMISOM forces or retaliatory attacks by AMISOM, direct fighting between Islamists such as Ahlu Sunna Waljamaca and al-Shabaab combined with inter-clan clashes in central Somalia also contributed to the high number of deaths. In addition, reports indicated that parties to the conflict had failed to adhere to the principles of international humanitarian law relating to the protection of civilians as hostilities had been waged in urban areas and precautionary measures to avoid civilian casualties had been disregarded. 129. With regard to the human rights situation in areas under al-Shabaab’s control, United Nations Workers recorded reports of nine executions by firing squad or stoning, mostly for alleged spying or murder, five cases of amputation, mostly of suspected thieves, and the flogging or whipping of some twenty-eight individuals. In addition, seven cases of beheading were reported, including those of five workers allegedly killed in April 2010 because they were involved in reconstruction work at the Parliament, and two people were allegedly shot dead in June 2010 when they fled from a house in Mogadishu raided by Hizbul Islam because they were watching a World Cup match. 130. Displacement also continued to be a problem. According to a UNHCR report, during the first seven months of 2010 50,065 Somalis sought refuge in neighbouring countries and over 200,000 were internally displaced. As of the end of July 2010, there were 600,484 Somali refugees, mainly hosted in Kenya, Yemen, Ethiopia, Eritrea, Djibouti, Tanzania and Uganda. In addition, 1.4 million Somalis were internally displaced. Assessments conducted revealed that there was a high prevalence of sexual violence in IDP camps, victims were generally of minority clan origin, bereft of clan protection and often forced to engage in risky coping mechanisms. 131. Recruitment of children to be put on the front line remained an issue of major concern. Although recent media attention highlighted the presence of children within the ranks of forces linked to the Government, the majority of reports of new instances of child recruitment attributed responsibility to anti-Government elements. 132. The report further noted that a public health crisis persisted in southern and central Somalia. While good rains between April and June 2010 had improved the food security situation, two million people (27 percent of the total population of Somalia) continued to face a humanitarian crisis. Moreover, the number of acutely malnourished children was estimated to be 230,000, of which 35,000 were severely malnourished, and the majority of these were in southern and central Somalia. The forced movement of people on account of the conflict also limited access to clean water and basic health services. 133. UNHCR’s Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Somalia (“the Eligibility Guidelines”) were published on 5 May 2010. The Eligibility Guidelines noted that over the last three years there had been a consistent failure by all parties to respect basic principles of international humanitarian law, resulting in civilians regularly being caught in the cross-fire. Indiscriminate bombardment and military offensives were carried out in civilian areas with little or no regard for the rules of war and road-side and vehicle-borne bombs, grenade attacks in civilian areas, and deliberate attacks on civilian targets were all too frequent. Hospital records indicated that there were over 900 civilian casualties in Mogadishu in March and April 2010. Other estimates suggested that between 20 and 50 civilians were killed in Mogadishu each week. 134. While the armed conflict was a major cause of displacement, the report noted that increasing numbers of Somalis were fleeing due to fear of persecution linked to the recent political and human rights situation. Others feared persecution due to perceived or actual contravention of traditional Somali social norms and practices. These groups included members of minority clans, women of specific profiles, victims of blood feuds, Christian converts, and lesbian, gay, bisexual and transgender individuals. 135. Consequently, UNHCR concluded that the widespread disregard of their obligations under international law by all of the parties to the conflict and the reported scale of human rights violations made it clear that any person returned to southern and central Somalia would, solely on account of his or her presence there, face a real risk of serious harm. Moreover, UNHCR considered that there was no internal flight alternative available inside southern and central Somalia. 136. UNHCR identified three potential agents of persecution. First, there were Islamic militant groups such as al-Shabaab and Hizbul Islam. Both groups had been accused of, and both had admitted to, using the civilian population as human shields during military operations. Both groups also had conducted a systematic campaign of intimidation and assassination of civilians working for, associated with, or perceived to be collaborating with the Transitional Federal Government, AMISOM or the Ethiopian forces. They had also recruited young people and children into their ranks, often with threats of force and violence. Finally, they had set up Islamist administrations in areas under their control and issued decrees to restrict social behaviour. The enforcement of these decrees was often extreme and abusive and violations were punished severely by Sharia courts. 137. Secondly, UNHCR indicated that business persons and civil society figures were particularly at risk as a result of the increased criminality in Mogadishu. 138. Finally, UNHCR identified the Transitional Federal Government and AMISOM as potential agents of persecution. It noted that both groups were accused of indiscriminately shelling civilian areas of Mogadishu in reprisal to mortar attacks launched by opposition forces. In addition, both groups had also been accused of firing at civilians. 139. The report further noted that effective State protection was unavailable in southern and central Somalia given the situation of armed conflict and the inability of the government authorities to extend control over any territory outside a few districts in Mogadishu. Moreover, since 2007 clan protection had been undermined in Mogadishu and increasingly in other regions of southern and central Somalia by the ongoing conflict and by the diminution of the traditional clan systems of justice due to the favoured strict interpretations of Sharia law being implemented by al-Shabaab and Hizbul Islam in areas under their control. 140. Amnesty International noted that civilians in Mogadishu and other cities such as Dhusamareb in central Somalia and Beletweyne in the Hiran region continued to be killed and seriously injured due to the fighting between the armed opposition groups and pro-TGF forces. It noted that: “no party to the conflict appears to take the necessary precautions to avoid loss of civilian life and injury, despite their obligations to do so under international humanitarian law. Civilians are often caught up in shelling and cross-fire by all parties to the conflict, resulting in death and injury to thousands. The fighting has provoked massive displacement within and outside cities in south and central Somalia and disruption of access to humanitarian aid, which are already curtailed by insecurity and the targeting of aid workers. Civilians living in areas controlled by armed opposition groups are also increasingly subject to abduction, torture and unlawful killings.” 141. With regard to the security situation in Mogadishu, they noted that: “There are near weekly incidents of fighting and shelling between armed opposition groups on one side and Transitional Federal Government forces and AMISOM troops on the other side, and near weekly reports of civilian deaths and injuries as a result. Armed opposition groups continue to launch attacks from areas inhabited or frequented by civilians in Mogadishu, endangering the lives of civilians. They fire mortars and heavy artillery in the direction of Transitional Federal Government and AMISOM bases, near which civilians live. Transitional Federal Government and AMISOM forces are repeatedly accused of responding by firing mortars and using other artillery weapons in the direction of the attackers. All sides to the conflict use mortars and other heavy artillery, weapons which are inherently indiscriminate when used in densely populated urban areas. Some sources have even alleged to Amnesty International that AMISOM is firing BM or “Katyusha” rockets when responding to attacks by armed opposition groups. These attacks and counter-attacks invariably result in civilian deaths and injuries.” 142. The report indicated that the delivery of emergency humanitarian aid to Somalia was shrinking, as aid workers were coming under attack and armed groups were imposing restrictions on the movement of international agencies working in areas under their control. In particular, it noted that: “On 11 October 2009, Hizbul Islam in the Banadir region asked all humanitarian organisations operating in areas under their control to register within 15 days and pay a registration fee by 25 October, whilst al-Shabab in the Juba region renewed their ban against any agency wishing to operate in the region, stating “We want our people to work for their life rather than depending on food aid.” In November, al-Shabaab in Bay and Bakool regions issued a list of 11 conditions which humanitarian organisations were required to adhere to in order to continue their work in the regions. These conditions reportedly included replacing all female staff members with men within three months, an agreement not to encourage secularism or democracy in their work and a payment of $20,000 US dollars every six months to the al-Shabaab administration. This was followed on 25 November by an al-Shabaab statement ordering the World Food Programme (WFP) to immediately cease the import of relief food to the country, accusing the organisation of acting as a barrier to self-sufficiency. All local businesspeople were ordered to terminate their contracts with the WFP and the organisation was ordered to empty their warehouses and food-stocks by 1 January 2010.” 143. On 4 January 2010 the World Food Programme suspended its work in southern Somalia due to insecurity for its staff and the demands placed on them by parties to the conflict. Ninty-five percent of the areas from which the organisation had withdrawn were under the control of al-Shabaab, and al-Shabaab subsequently indicated that it would never permit the organisation to return. However, Amnesty International noted that over half of Somalia’s population was dependent on food aid and many of those people lived in the areas that the WFP had withdrawn from. 144. The report also noted that the WFP had experienced difficulties in delivering food to the IDP settlements in Afgooye, where some 360,000 persons displaced by the conflict were thought to live. On 28 February 2010 armed men stopped trucks transporting food aid from Mogadishu to Afgooye and the WFP have since stated that the last time they organised a general food distribution in Afgooye was in November 2009. 145. The report indicated that civilians in Mogadishu continued to bear the brunt of the fighting and were often caught up in shelling and cross-fire by all parties to the conflict. There were nearly weekly incidents of fighting and shelling between armed opposition groups on one side and Transitional Federal Government forces and AMISOM troops on the other, and near weekly civilian deaths and injuries as a result. 146. Medical records of the Daynile hospital on the outskirts of Mogadishu showed that for the first seven months of 2010 48 percent of its patients were suffering war-related injuries and 38 percent of those patients were women and children. Between June and July 2010, hundreds of civilians were killed or injured in Mogadishu. Some field reports claimed that there were as many as fifty deaths in one day, while UNHCR estimated that during the last week of August and the first week of September 2010, 230 civilians were killed and 400 were injured in fighting. 147. Likewise, Médecins sans Frontières stated that between 23 August and 24 September 2010 its medical team in Daynile hospital treated 542 war-wounded people and performed over 200 surgeries. Following intense fighting on 23 September 2010 MSF treated 161 war-wounded patients in one day. 148. The African Union recently signalled its intention to increase the number of AMISOM troops to 8,000 and Amnesty International believed that when this happened it was likely to result in more attacks against the force by armed Islamist groups and more retaliatory shelling by AMISOM. 149. The report noted that the fighting had also caused the destruction of homes, the separation of families during chaotic flight, and massive displacement. UNHCR estimated that 42,400 people had been displaced from within and around Mogadishu since 23 August 2010, some 25,400 having fled Mogadishu and about 17,100 others having moved to different parts of the city. 150. Al-Shabaab had also been seizing cities elsewhere in southern and central Somalia. In particular, there had been clashes in and around Kismayo, Dhusamareb, Beletweyne and Dobley. As a result, 29,000 civilians had been displaced from Dhusamareb and 25,000 had been displaced from Beletweyne. In addition to the fighting, al-Shabaab had also severely restricted humanitarian access in most of southern and central Somalia, putting civilians at risk. According to the report, humanitarian access in southern Somalia was at its lowest since the end of 2006. 151. In addition to indiscriminate attacks and the situation of generalised violence, certain categories of people were particularly at risk of targeted killing. These categories included people linked with the Transitional Federal Government, civil society activists, aid workers and journalists. Children and young men were also at high risk of being forcibly recruited to fight for the armed Islamist groups. 152. This report, which was published on 8 December 2010, focussed on the treatment of Somali refugees and asylum-seekers in Kenya, which hosted the largest number of Somali refugees in the region. As of September 2010, there were 338,151 registered refugees in the region, but it was estimated that the actual number was much higher. 153. In 2007 the Kenyan authorities closed the country’s border with Somalia and, according to estimates of Kenyan NGOs, thousands of Somali refugees were subsequently returned to Somalia by the Kenyan security forces. Some were expelled at the border while others were denied entry altogether. Many of these refugees were women and children who, according to UNHCRs eligibility guidelines, should have been granted international protection. 154. Amnesty International also received numerous reports of the Kenyan police at the closed border threatening asylum-seekers with forced removal to Somalia in order to extort bribes or arresting or detaining asylum-seekers until they paid a bribe. In addition, Somali asylum-seekers were often arbitrarily arrested, detained and charged with “illegal entry”. 155. Prior to the closure of the border, new refugees were registered and medically screened at an UNHCR-administered transit centre 15km from the border before being transported to refugee camps. When the border closed, this transit centre also closed with the consequence that refugees who made it to Kenya had to travel a further 80km to the refugee camps before they could be registered. This journey was often a dangerous one, during which Kenyan police were able to commit abuses against them with impunity. 156. Approximately 280,000 registered Somali refugees were confined to three refugee camps in Dadaab in north eastern Kenya, which were originally intended to accommodate 90,000 refugees. As a result of the severe overcrowding, access to shelter, water, sanitation and other essential services was impeded. As no plots of land were available, new refugees could not build shelters and instead had to stay with relatives or clan members. In addition, the water infrastructure was only designed for one third of the number of people currently living in the camps and, as a result, many refugees complained that the allocation of water was insufficient. Those living at the edges of the camps often had to walk long distances to collect water. 157. Refugees also complained of insecurity in the camps, which they attributed either to tensions between different clans or to the alleged presence of members of or sympathisers with al-Shabaab. Incidences of theft and sexual abuse were on the increase. Aid and protection agencies told Amnesty International that there were not enough police officers present in the camps adequately to address security incidents. In any case, refugees often distrusted the Kenyan police as many had been the victim of abuses by the security forces while on their way to the camps. 158. In October 2009 reports emerged that the Kenyan security forces were recruiting Somali refugees for military training in order to fight for the Transitional Federal Government in Somalia. UNHCR subsequently launched an awareness campaign in the camps, warning refugees that they would lose their refugee status if they joined armed groups. 159. Somali refugees in the Dadaab camps were generally not permitted to leave the camps, unless in exceptional circumstances, and they had almost no livelihood opportunities. They did, however, receive free humanitarian assistance in the camps. 4. Human Rights Watch: Harsh War, Harsh Peace 160. In this report, published in April 2010, Human Rights Watch documented abuses by al-Shabaab, the Transitional Federal Government and AMISOM in Somalia. The report indicated that over the past year, hostilities had raged in strategically important areas, like Mogadishu, while much of the rest of Somalia enjoyed relative peace. However, the report concluded that both the inhabitants of the shattered capital and those living in more peaceful areas had endured devastating patterns of abuse. 161. In Mogadishu and in other conflict areas in southern and central Somalia the fighting had exacted a heavy toll on civilians. In particular, the report noted that all parties to the conflict had conducted numerous mortar attacks against enemy forces in densely populated areas of Mogadishu without regard for the civilian population, causing a high loss of civilian life and property. While mortars could be highly accurate weapons if guided to their targets by spotters or guidance systems, none of the warring parties in Mogadishu had employed such methods. Opposition armed groups had indiscriminately fired mortar rounds in the general direction of Transitional Federal Government or AMISOM installations in southern Mogadishu. Transitional Federal Government and AMISOM forces sometimes responded in kind, directing mortar rounds towards the general area they had taken fire from or simply bombarding areas such as Bakara Market that were opposition strongholds. Such attacks, while of limited military value, caused considerable loss of civilian life and property damage. 162. The report noted that there had been sporadic fighting between other groups outside Mogadishu which had exacted a heavy toll on civilians. For example, clashes between Hizbul Islam and Ahlu Sunna Waljamaca around the central towns of Dhusamareb and Beletweyne displaced more that 25,000 people at the beginning of 2010. 163. The report further indicated that humanitarian workers had been targeted. According to the Office of the UN Emergency Relief Co-ordinator, 47 aid workers were killed in Somalia in 2008 and 2009. Humanitarian workers also faced a variety of other threats, from the broader trend of indiscriminate violence in conflict areas to al-Shabaab accusations of spying on behalf of western powers. For example, in early 2009 the WFP suspended delivery of food aid to a vast swath of southern Somalia controlled largely by al-Shabaab, citing the group’s escalating attacks and harassment against its staff and “unacceptable” demands for payment. 164. Forced and unlawful recruitment was also a problem. The report noted that opposition forces, especially but not exclusively al-Shabaab, were expanding their ranks by threatening those who resisted with death and at times carrying out their threats. In addition, both insurgent groups and government forces were recruiting and using child soldiers to varying degrees and had entered refugee camps in Kenya to enlist additional fighters. The report noted that al-Shabaab had recruited children in a more deliberate and systematic manner than the Transitional Federal Government or other armed groups. Thus the recruitment of children – and the fear of it – was widespread in many areas controlled by al-Shabaab. 165. The report stated that in areas controlled by al-Shabaab (much of the south of Somalia), the population was subjected to targeted killings and assaults, a repressive form of social control and brutal punishments under its draconian interpretation of Sharia law, which went well beyond its traditional interpretation in Somalia. While in many areas al-Shabaab’s rule had brought relative peace and order, security came at a steep price. In many areas, al-Shabaab dictated even minute details of daily life, from clothing styles to prayer observance to cell phone ring tones. The report indicated that: “Al-Shabaab exerts enormous control over personal lives and devotes remarkable energy to policing and penalizing conduct that it deems idle or immoral. Almost no detail is too minute to escape the group’s scrutiny. In many areas, al-Shabaab administrators have banned public gatherings, dancing at weddings, musical ringtones on cell phones, western music, and movies. They have outlawed qat chewing and cigarette smoking. They have barred men from shaving their beards and moustaches, or wearing long hair or long trousers. They have refused to allow people on the streets during prayer times. In many areas, al-Shabaab patrols break up public gatherings, no matter how small, unless they are the organizers. Frequently, al-Shabaab justifies the dispersals on the grounds that participants are engaged in ‘idle’ or ‘useless’ activity, a concept that is arbitrarily applied and often includes everything from playing soccer to talking among friends. ‘If they find a group of people talking, they may just beat them and tell them to go and do something useful’, said one man from the border village of El Wak. One young man from Kismayo said he watched an al-Shabaab patrol throw a group of teenage boys in jail one evening for playing Scrabble: ‘They said this was idle activity. They took them away and jailed them overnight and shaved some of their heads with a razor blade or a broken bottle. One of them was injured from the shaving. They won’t even let people gather to listen to the BBC, or to smoke tobacco.’” 166. Human Rights Watch also interviewed a widower in an IDP camp in the Afgoye corridor, who claimed that al-Shabaab gunmen had threatened to kill him if he didn’t stop tucking in his shirt, which they criticised as a western custom. 167. Human Rights Watch noted that while all Somalis living under local al-Shabaab administrations had to cope with onerous and repressive edicts, women bore the brunt of the group’s repression and abuse. In particular, some al-Shabaab leaders had ordered women to wear a particularly thick and bulky type of abaya, an over-gown which covered everything except the hands, face and feet. Al-Shabaab fighters would patrol neighbourhoods and punish women in lighter-weight abayas. In many cases women were beaten or whipped for wearing the wrong clothing. 168. In addition, al-Shabaab administrations ordered women to close their shops as commercial activity permitted them to “mix with men”. In a country with a vast number of war widows and female-headed households, this edict left many families without crucial sources of income. Moreover, the segregation of men and women applied to all areas of daily life. Women were not permitted to go to the market with men, even if they were relatives, and if travelling in a vehicle, they had to sit in different seats. There were reports of women being flogged at checkpoints if they were found to be sitting beside a man. 169. Finally, the report noted that in many areas, al-Shabaab leaders had embraced amputations and executions as punishment and turned them into a public spectacle. Since 2008 at least three people had been stoned to death for allegedly committing adultery. There were some unconfirmed reports that one of these people was a thirteen year old girl. 170. Human Rights Watch Annual World Report summarised the situation in Somalia as “one of the world’s worst human rights catastrophes”. Mogadishu was wracked by indiscriminate warfare in which all parties were implicated in war crimes or other serious human rights abuses, while much of the rest of the country was under the control of local administrations linked to armed opposition groups. In many of these areas the population had suffered from the abusive application of Sharia law and forced conscription of civilians, including children, as militia fighters. In addition, a humanitarian crisis of enormous proportions was unfolding, fuelled by years of drought and insecurity that had often prevented the effective delivery of aid. Some 3.75 million people – roughly half of Somalia’s remaining population – were in urgent need of humanitarian assistance. More than a million people were displaced from their homes within Somalia and tens of thousands had fled the country as refugees in 2009. 171. The delivery of humanitarian assistance to Somalia had been severely hampered by the prevailing insecurity and by threats specifically targeting humanitarian agencies. Most of the humanitarian agencies operating in Somalia had had to dramatically curtail their operations or had been driven out of southern and central Somalia altogether. In opposition-controlled areas where millions of Somalis were in need of assistance, humanitarians had come under regular threat by al-Shabaab and other groups which accused them of colluding with international efforts to back the Transitional Federal Government. 172. This report, which was published in June 2010, details the continuing abuses perpetrated by the Kenyan authorities against Somali refugees and asylum-seekers. It noted that despite the closure of the border, more than 140,000 refugees entered Kenya and registered at the Dadaab camps between 1 January 2007 and 30 April 2010. However, the closure of the border and UNHCR’s transit centre had created a lawless no man’s land in Kenya’s border area near the refugee camps. Consequently, asylum-seekers endeavouring to reach the camps were often intercepted by Kenyan police who sought to extort money from them and unlawfully arrest, detain, abuse and even deport those who could not pay. 173. Human Rights Watch spoke with dozens of Somali refugees whose vehicles had been stopped by police patrolling the border to extort money from them in exchange for free passage to the camps. In some cases, police had raped women and physically assaulted men. In many other cases, refugees were arrested and detained by the police before being permitted to register in the camps. They were detained in overcrowded cells with poor ventilation and no, or almost no, food and water. Some were not permitted to use the toilet and had to use the cell floor to urinate and defecate. Detained refugees were often released upon the payment of a bribe. If they could not pay, they were threatened with court proceedings in a last ditch attempt to extort money from them. 174. Moreover, Human Rights Watch documented eight separate incidents in which Kenyan police returned asylum-seekers to Somalia. All of these incidents, which involved 152 men, women and children, took place between September 2009 and March 2010. According to this sample, Human Rights Watch estimated that hundreds if not thousands of Somalis were being returned to Somalia each month in breach of the principle of non-refoulement. 175. Such widespread abuses compelled many asylum-seekers to travel through Kenya on smaller paths where criminals preyed on them, stealing their belongings and raping women. 176. There were further reports of serious abuses by Kenyan police officers within the refugee camps. Seven refugees told Human Rights Watch of ten separate incidents during which police had violently assaulted them or during which they had observed police assaulting other refugees. One woman complained that she had been raped by a police officer in the camps. 177. In addition, refugees reported that the police failed to respond to allegations of sexual violence within the camps. In particular, a lack of capacity and expertise impeded the prevention, investigation and prosecution of acts of sexual violence. International policing standards required 1 police officer per 400 people. Although Kenya’s official average was 1 per 800 people, the official ration in the camps was 1 per 5500 people. There were reports that the police would not investigate crimes unless the victims could pay them, and in other cases it was alleged that investigations were discontinued and perpetrators were released upon the payment of a bribe. According to UNHCR, in 2009 police in the camps prosecuted sixteen cases of sexual and gender-based violence of which seven resulted in convictions, six in acquittals, and three remained pending at the end of the year. 178. Human Rights Watch also reported that since the early 1990s, Kenya had adopted an informal encampment policy for most refugees, restricting their movement to the limited confines of the refugee camps. Refugees found outside the camps without “movement passes” were arrested, fined and imprisoned for months at a time. 179. The International Displacement Monitoring Centre estimated that as of November 2009 1.55 million people were internally displaced in south and central Somalia. Many IDPs had fled from the conflict in Mogadishu. Hundreds of mini-buses were ferrying people out of the city but, as a result of high demand, the cost of transportation was going up daily and many people were being forced to remain in the city. 180. Some IDPs had fled from conflict in other areas of southern and central Somalia. The report noted that people in Beletweyne, Kismayo and Afmadow had been displaced as a result of fighting in late 2009. In addition, up to 90 percent of the population of Dhuusamarreeb and Guriceel towns in the Galgaduud region of central Somalia fled their homes after fighting began in December 2008. Many of these people had already been displaced as a result of the fighting in Mogadishu. 181. Many of the displaced from Mogadishu moved to the already overcrowded settlements that lined the 30 kilometre road between Mogadishu and Afgooye. UNHCR had estimated that in November 2009 there were 610,000 IDPs around Afgooye, 370,000 around Mogadishu, 150,000 in Galgadud, 70,000 in Galkayo (Puntland), 66,000 in Baydhaba and 51,000 in Hiran. However, due to the security situation, it was extremely difficult to verify these figures. 182. The report further noted that half of the population in Somalia was believed to be in need of humanitarian assistance but the continuing insecurity was preventing the delivery of essential supplies. In May 2009 militia had attacked a UNICEF warehouse. In July 2009 camps in Jowhar hosting 49,000 IDPs were cut off from assistance as the WFP was unable to distribute food due to insecurity. In August 2009 UNICEF were forced to suspend the dispatch of hundreds of tons of supplies for the prevention and treatment of acute malnutrition. Targeting of humanitarian workers has also affected delivery of aid to needy populations. From 2008 to November 2009 some 42 aid workers had been killed, 33 had been abducted and 10 remained in captivity. 183. In July 2009 al-Shabaab announced a ban on a number of UN agencies in areas of southern and central Somalia under its control, including the United Nations Development Agency. Towards the end of November 2009 al-Shabaab demanded that WFP stop importing food into Somalia from January 2010 and instead buy local produce, despite the fact that the country could not meet the food needs of its population. Despite the threats, WFP managed to provide food through local and international partners where security permitted. In the first half of 2009, WFP provided food aid to 2.87 million Somalis. UNICEF and other agencies continued to provide health care and water, sanitation and health programmes in IDP settlements. However, the security situation had impacted these programmes. 184. Aid work had also been impacted by funding cuts. The USA had withheld millions of dollars from UN agencies, possibly due to a fear that donations may reach al-Shabaab, which was thought to have growing ties with al-Qaeda. In November 2009 WFP reported that its food supply to Somalia had been effectively broken as a result of the USA’s policy as it had been the largest donor to the WFP. 185. In September 2009 Oxfam reported that poor sanitation and the lack of access to basic services were creating a public health emergency in IDP camps. It described the Afgooye camps as “the world’s densest concentration of displaced people” and described the situation as “a human tragedy of ‘unthinkable proportions’”. The camps were also vulnerable to environmental problems. In October 2009 flash floods hit IDP camps in Kismayo and Mogadishu and destroyed the makeshift shelters of thousands of people. In Kismayo, rains left an estimated 36,000 people homeless and exposed them to mosquitoes and other hygiene-related problems. 186. The report noted that close to 80 percent of the Somali population had no access to safe water and nearly 50 percent had no access to sanitation. Many displaced women were forced to walk up to 10 kilometres each day to fetch water, increasing the risk of being attacked or raped by militias. IDPs often had to pay to use the latrines in the camps in addition to paying rent. As a result, many camps were littered with garbage and faeces, increasing the incidence of disease. 187. On 5 January 2010 the WFP issued a statement reporting that: “Rising threats and attacks on humanitarian operations, as well as the imposition of a string of unacceptable demands from armed groups, have made it virtually impossible for the World Food Programme (WFP) to continue reaching up to one million people in need in southern Somalia. WFP’s humanitarian operations in southern Somalia have been under escalating attacks from armed groups, leading to this partial suspension of humanitarian food distributions in much of southern Somalia. WFP’s offices in Wajid, Buale, Garbahare, Afmadow, Jilib and Beletweyne in southern Somalia are temporarily closed, and food supplies and equipment have been moved, along with staff, to safer areas in order to ensure that food assistance continues to reach as many vulnerable people as possible.” 188. The Food Security and Nutrition Analysis Unit (FSNAU) reported in its Special Brief – Post-Deyr ‘09/10 Analysis issued on 12 February 2010 that Somalia has: “... 42% of the population, or an estimated 3.2 million people, in need of emergency humanitarian assistance and/or livelihood support until June 2010. The results indicate that although there are some positive indicators in terms of the lifting of the livestock export ban and improved crop and livestock production in southern parts of the country, the food security and nutrition situation in central regions remains in crisis, where 70% of the population require assistance. The situation is exacerbated by escalating conflict and displacements, creating a double burden for drought affected populations in central regions, having to support those recently displaced yet with reduced access to assistance from aid agencies due to the insecurity. Emergency levels of acute malnutrition continue to be reported, with 1 in 6 children in Somalia acutely malnourished and in need of specialist care. Of these children, 1 in 22 is severely malnourished and at a 9 times increased risk of death compared to well-nourished children. However, in south and central Somalia the rates are higher, with 1 in 5 children acutely malnourished of which 1 in 20 is severely malnourished. These national rates of acute malnutrition continue to be amongst the highest in the world. Currently, these rates translate into estimated 240,000 children under 5 years of age in Somalia being acutely malnourished, of which 63,000 are severely malnourished. More than two thirds of these children are located in south and central Somalia, the areas most affected by the current conflict. The people currently in crisis include 1.25 million rural people affected by drought, 580,000 urban people who struggle with very high food and non-food prices, and 1.39 million internally displaced people (IDPs) who are fleeing from the conflict.” 189. In a report of 21 December 2009, entitled “Top ten under-reported humanitarian stories of 2009, MSF described the situation in Somalia as follows: “In 2009, the Somali population continued to fall victim to indiscriminate violence, while severe drought plagued parts of the country. Millions of people urgently require health care, yet the enormous gap between the needs of Somalis and the humanitarian response on the ground continues to widen. Ongoing abductions and killings of international and Somali aid workers is thwarting the efforts of humanitarian organizations to respond, and the public health-care system remains in near total collapse. ...The impact of such high levels of violence and insecurity stretches far beyond MSF’s surgical units, contributing to a general lack of access to basic lifesaving medical care countrywide. MSF’s ability to provide assistance was further diminished when in April two MSF staff members were abducted in Huddur in Bakool region leading to the closure of its largest health centre in south and central Somalia and four other health posts. In June an MSF employee died in an explosion in Belet Weyne, Hiraan region, which killed 30 other people. In July, the heightened insecurity forced MSF, for the first time in 17 years, to close activities in its pediatric hospital and three other health clinics in northern Mogadishu as staff were forced to flee for their own safety. Another major challenge is the lack of qualified medical staff in Somalia, with so many health workers among those who have fled the violence and no medical universities open. In December 2008, there was a ray of hope with the graduation of 20 doctors from Benadir University in Mogadishu—the first graduating class of new physicians in two decades. This hope was short-lived with the bombing of the next graduation ceremony on December 3, 2009, killing 23 people, mostly graduates, and wounding more than 50 others. The lack of free medical care available throughout the country exacerbates the health issues people face as a result of chronic poverty and this year’s severe drought. Although little reliable data is available at the national level, health-care indicators in Somalia are among the worst in terms of immunization, maternal mortality, malnutrition and access to basic health care services. According to the World Health Organization, women have a one in ten lifetime risk of dying during pregnancy or childbirth. One in five children under the age of five is acutely malnourished.” 190. On 16 September 2010 IRIN reported that property owners in Somalia’s Afgooye corridor were selling the land on which thousands of IDPs had been settled for years, displacing them anew. The new landlords were building structures for rent, but few could afford to pay the prices asked. Some well-placed sources had heard reports that the people buying the land had links with piracy. 191. On 1 October 2010 the UN News Centre reported that according to UNHCR estimates, 410,000 IDPs from Mogadishu had sought refuge in the Afgooye corridor, which represented a considerable increase from 366,000 in September 2009. This increase was thought to be a reflection of the deteriorating security in the city since 2007. In addition to the 410,000 IDPs living in Afgooye, there were another 55,000 displaced people in Dayniile, north of Mogadishu, 15,200 in the Bal’cad corridor in the northern periphery of city, and 7,260 others in Kax Shiiqaal in the western outskirts. Mogadishu itself had an estimated 372,000 IDPs. 192. The report noted that there had been a rapid urbanisation of the Afgooye corridor, which was clearly apparent in the satellite imagery. Structures in Afgooye were becoming more permanent as hopes faded for a safe return to the capital any time soon. According to UNHCR, living conditions in the Afgooye corridor were extremely difficult, with people struggling to feed themselves and lacking other basic necessities, while as the precarious security situation prevented humanitarian agencies from accessing those in need. Some assistance was getting there through local partners, but the amounts were minuscule compared to the needs. 193. The Secretary-General’s Special Representative for Somalia, Augustine Mahiga, said that without peace in southern and central Somalia, it would be difficult to envisage profound and lasting changes in the precarious human rights situation there, especially with regard to the right to life, and even basic human rights such as the right to food, shelter, education and health. 194. On 3 February 2011 the Guardian reported that Somalia was once again facing a malnutrition crisis. An estimated 2.4 million people – about a third of Somalia’s population – required humanitarian aid after the failure of recent rains and drought had overtaken insecurity as the leading cause of displacement. In fact, it was reported that as a consequence of the drought, the exodus from conflict-racked Mogadishu in recent years had been reversed, with thousands of people now leaving the countryside for the capital in search of food and water. 195. On 17 February 2011 UN News Centre reported that severe drought in Somalia was once again exacerbating the humanitarian crisis with more people becoming internally displaced and others moving into refugee camps across the border in Kenya. Malnutrition rates among children, already above emergency levels in Somalia, had risen and an estimated 2.4 million people – 32 per cent of the country’s 7.2 million people – were in need of relief aid. | 1 |
train | 001-90051 | ENG | GBR | GRANDCHAMBER | 2,008 | CASE OF S. AND MARPER v. THE UNITED KINGDOM | 1 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction) | Anatoly Kovler;Christos Rozakis;Corneliu Bîrsan;Egbert Myjer;Françoise Tulkens;Giovanni Bonello;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Kristaq Traja;Ledi Bianku;Mark Villiger;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen;Stanislav Pavlovschi | 9. The applicants were born in 1989 and 1963 respectively and live in Sheffield. 10. The first applicant, Mr S., was arrested on 19 January 2001 at the age of 11 and charged with attempted robbery. His fingerprints and DNA samples were taken. He was acquitted on 14 June 2001. 11. The second applicant, Mr Michael Marper, was arrested on 13 March 2001 and charged with harassment of his partner. His fingerprints and DNA samples were taken. Before a pre-trial review took place, he and his partner had reconciled, and the charge was not pressed. On 11 June 2001, the Crown Prosecution Service served a notice of discontinuance on the applicant’s solicitors, and on 14 June 2001 the case was formally discontinued. 12. Both applicants asked for their fingerprints and DNA samples to be destroyed, but in both cases the police refused. The applicants applied for judicial review of the police decisions not to destroy the fingerprints and samples. On 22 March 2002 the Administrative Court (Rose LJ and Leveson J) rejected the application [[2002] EWHC 478 (Admin)]. 13. On 12 September 2002 the Court of Appeal upheld the decision of the Administrative Court by a majority of two (Lord Woolf CJ and Waller LJ) to one (Sedley LJ) [[2003] EWCA Civ 1275]. As regards the necessity of retaining DNA samples, Lord Justice Waller stated: “... [F]ingerprints and DNA profiles reveal only limited personal information. The physical samples potentially contain very much greater and more personal and detailed information. The anxiety is that science may one day enable analysis of samples to go so far as to obtain information in relation to an individual’s propensity to commit certain crime and be used for that purpose within the language of the present section [section 82 of the Criminal Justice and Police Act 2001]. It might also be said that the law might be changed in order to allow the samples to be used for purposes other than those identified by the section. It might also be said that while samples are retained there is even now a risk that they will be used in a way that the law does not allow. So, it is said, the aims could be achieved in a less restrictive manner ... Why cannot the aim be achieved by retention of the profiles without retention of the samples? The answer to [these] points is as I see it as follows. First the retention of samples permits (a) the checking of the integrity and future utility of the DNA database system; (b) a reanalysis for the upgrading of DNA profiles where new technology can improve the discriminating power of the DNA matching process; (c) reanalysis and thus an ability to extract other DNA markers and thus offer benefits in terms of speed, sensitivity and cost of searches of the database; (d) further analysis in investigations of alleged miscarriages of justice; and (e) further analysis so as to be able to identify any analytical or process errors. It is these benefits which must be balanced against the risks identified by Liberty. In relation to those risks, the position in any event is first that any change in the law will have to be itself Convention compliant; second any change in practice would have to be Convention compliant; and third unlawfulness must not be assumed. In my view thus the risks identified are not great, and such as they are they are outweighed by the benefits in achieving the aim of prosecuting and preventing crime.” 14. Lord Justice Sedley considered that the power of a chief constable to destroy data which he would ordinarily retain had to be exercised in every case, however rare such cases might be, where he or she was satisfied on conscientious consideration that the individual was free of any taint of suspicion. He also noted that the difference between the retention of samples and DNA profiles was that the retention of samples would enable more information to be derived than had previously been possible. 15. On 22 July 2004 the House of Lords dismissed an appeal by the applicants. Lord Steyn, giving the lead judgment, noted the legislative history of section 64(1A) of the Police and Criminal Evidence Act 1984 (PACE), in particular the way in which it had been introduced by Parliament following public disquiet about the previous law, which had provided that where a person was not prosecuted or was acquitted of offences, the sample had to be destroyed and the information could not be used. In two cases, compelling DNA evidence linking one suspect to a rape and another to a murder had not been able to be used, as at the time the matches were made both defendants had either been acquitted or a decision made not to proceed for the offences for which the profiles had been obtained: as a result it had not been possible to convict either suspect. 16. Lord Steyn noted that the value of retained fingerprints and samples taken from suspects was considerable. He gave the example of a case in 1999, in which DNA information from the perpetrator of a crime was matched with that of “I” in a search of the national database. The sample from “I” should have been destroyed, but had not been. “I” had pleaded guilty to rape and was sentenced. If the sample had not been wrongly detained, the offender might have escaped detection. 17. Lord Steyn also referred to statistical evidence from which it appeared that almost 6,000 DNA profiles had been linked with crime-scene stain profiles which would have been destroyed under the former provisions. The offences involved included 53 murders, 33 attempted murders, 94 rapes, 38 sexual offences, 63 aggravated burglaries and 56 cases involving the supply of controlled drugs. On the basis of the existing records, the Home Office statistics estimated that there was a 40% chance that a crime-scene sample would be matched immediately with an individual’s profile on the national database. This showed that the fingerprints and samples which could now be retained had in the previous three years played a major role in the detection and prosecution of serious crime. 18. Lord Steyn also noted that PACE dealt separately with the taking of fingerprints and samples, their retention and their use. 19. As to the Convention analysis, Lord Steyn inclined to the view that the mere retention of fingerprints and DNA samples did not constitute an interference with the right to respect for private life but stated that, if he were wrong in that view, he regarded any interference as very modest indeed. Questions of whether, in the future, retained samples could be misused were not relevant in respect of contemporary use of retained samples in connection with the detection and prosecution of crime. If future scientific developments required it, judicial decisions could be made, when the need occurred, to ensure compatibility with the Convention. The provision limiting the permissible use of retained material to “purposes related to the prevention or detection of crime ...” did not broaden the permitted use unduly, because it was limited by its context. 20. If the need to justify the modest interference with private life arose, Lord Steyn agreed with Lord Justice Sedley in the Court of Appeal that the purposes of retention – the prevention of crime and the protection of the right of others to be free from crime – were “provided for by law”, as required by Article 8 of the Convention. 21. As to the justification for any interference, the applicants had argued that the retention of fingerprints and DNA samples created suspicion in respect of persons who had been acquitted. Counsel for the Home Secretary had contended that the aim of the retention had nothing to do with the past, that is, with the offence of which a person had been acquitted, but was to assist in the investigation of offences in the future. The applicants would only be affected by the retention of the DNA samples if their profiles matched those found at the scene of a future crime. Lord Steyn saw five factors which led to the conclusion that the interference was proportionate to the aim: (i) the fingerprints and samples were kept only for the limited purpose of the detection, investigation and prosecution of crime; (ii) the fingerprints and samples were not of any use without a comparator fingerprint or sample from the crime scene; (iii) the fingerprints would not be made public; (iv) a person was not identifiable from the retained material to the untutored eye; (v) the resultant expansion of the national database by the retention conferred enormous advantages in the fight against serious crime. 22. In reply to the contention that the same legislative aim could be obtained by less intrusive means, namely by a case-by-case consideration of whether or not to retain fingerprints and samples, Lord Steyn referred to Lord Justice Waller’s comments in the Court of Appeal, which read as follows: “If justification for retention is in any degree to be by reference to the view of the police on the degree of innocence, then persons who have been acquitted and have their samples retained can justifiably say this stigmatises or discriminates against me – I am part of a pool of acquitted persons presumed to be innocent, but I am treated as though I was not. It is not in fact in any way stigmatising someone who has been acquitted to say simply that samples lawfully obtained are retained as the norm, and it is in the public interest in its fight against crime for the police to have as large a database as possible.” 23. Lord Steyn did not accept that the difference between samples and DNA profiles affected the position. 24. The House of Lords further rejected the applicants’ complaint that the retention of their fingerprints and samples subjected them to discriminatory treatment in breach of Article 14 of the Convention when compared to the general body of persons who had not had their fingerprints and samples taken by the police in the course of a criminal investigation. Lord Steyn held that, even assuming that the retention of fingerprints and samples fell within the ambit of Article 8 of the Convention so as to trigger the application of Article 14, the difference of treatment relied on by the applicants was not one based on “status” for the purposes of Article 14: the difference simply reflected the historical fact, unrelated to any personal characteristic, that the authorities already held the fingerprints and samples of the individuals concerned which had been lawfully taken. The applicants and their suggested comparators could not in any event be said to be in an analogous situation. Even if, contrary to his view, it was necessary to consider the justification for any difference in treatment, Lord Steyn held that such objective justification had been established: firstly, the element of legitimate aim was plainly present, as the increase in the database of fingerprints and samples promoted the public interest by the detection and prosecution of serious crime and by exculpating the innocent; secondly, the requirement of proportionality was satisfied, section 64(1A) of PACE objectively representing a measured and proportionate response to the legislative aim of dealing with serious crime. 25. Baroness Hale of Richmond disagreed with the majority, considering that the retention of both fingerprint and DNA data constituted an interference by the State in a person’s right to respect for his private life and thus required justification under the Convention. In her opinion, this was an aspect of what had been called informational privacy and there could be little, if anything, more private to the individual than the knowledge of his genetic make-up. She further considered that the difference between fingerprint and DNA data became more important when it came to justify their retention as the justifications for each of these might be very different. She agreed with the majority that such justifications had been readily established in the applicants’ cases. 26. PACE contains powers for the taking of fingerprints (principally section 61) and samples (principally section 63). By section 61, fingerprints may only be taken without consent if an officer of at least the rank of superintendent authorises the taking, or if the person has been charged with a recordable offence or has been informed that he will be reported for such an offence. Before fingerprints are taken, the person must be informed that the prints may be the subject of a speculative search, and the fact of the informing must be recorded as soon as possible. The reason for the taking of the fingerprints is recorded in the custody record. Parallel provisions relate to the taking of samples (section 63). 27. As to the retention of such fingerprints and samples (and the records thereof), section 64(1A) of PACE was substituted by section 82 of the Criminal Justice and Police Act 2001. It provides as follows: “Where (a) fingerprints or samples are taken from a person in connection with the investigation of an offence; and (b) subsection (3) below does not require them to be destroyed, the fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken but shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence, or the conduct of a prosecution. ... (3) If (a) fingerprints or samples are taken from a person in connection with the investigation of an offence; and (b) that person is not suspected of having committed the offence, they must, except as provided in the following provisions of this section, be destroyed as soon as they have fulfilled the purpose for which they were taken. (3AA) Samples and fingerprints are not required to be destroyed under subsection (3) above if (a) they were taken for the purposes of the investigation of an offence of which a person has been convicted; and (b) a sample or, as the case may be, fingerprint was also taken from the convicted person for the purposes of that investigation.” 28. Section 64 in its earlier form had included a requirement that if the person from whom the fingerprints or samples were taken in connection with the investigation was acquitted of that offence, the fingerprints and samples, subject to certain exceptions, were to be destroyed “as soon as practicable after the conclusion of the proceedings”. 29. The subsequent use of materials retained under section 64(1A) is not regulated by statute, other than the limitation on use contained in that provision. In Attorney-General’s Reference (No. 3 of 1999) [2001] 2 AC 91, the House of Lords had to consider whether it was permissible to use in evidence a sample which should have been destroyed under the then text of section 64 of PACE. The House considered that the prohibition on the use of an unlawfully retained sample “for the purposes of any investigation” did not amount to a mandatory exclusion of evidence obtained as a result of a failure to comply with the prohibition, but left the question of admissibility to the discretion of the trial judge. 30. The Data Protection Act was adopted on 16 July 1998 to give effect to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 (see paragraph 50 below). Under the Data Protection Act “personal data” means data which relate to a living individual who can be identified (a) from those data; or (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual (section 1). “Sensitive personal data” means personal data consisting, inter alia, of information as to the racial or ethnic origin of the data subject, the commission or alleged commission by him of any offence, or any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings (section 2). 31. The Act stipulates that the processing of personal data is subject to eight data protection principles listed in Schedule 1. Under the first principle personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless (a) at least one of the conditions in Schedule 2 is met; and (b) in case of sensitive personal data, at least one of the conditions in Schedule 3 is also met. Schedule 2 contains a detailed list of conditions, and provides, inter alia, that the processing of any personal data is necessary for the administration of justice or for the exercise of any other functions of a public nature exercised in the public interest by any person (§ 5 (a) and (d)). Schedule 3 contains a more detailed list of conditions, including that the processing of sensitive personal data is necessary for the purpose of, or in connection with, any legal proceedings (§ 6 (a)), or for the administration of justice (§ 7 (a)), and is carried out with appropriate safeguards for the rights and freedoms of data subjects (§ 4 (b)). Section 29 notably provides that personal data processed for the prevention or detection of crime are exempt from the first principle except to the extent to which it requires compliance with the conditions in Schedules 2 and 3. The fifth principle stipulates that personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes. 32. The Information Commissioner created pursuant to the Act (as amended) has an independent duty to promote the following of good practice by data controllers and has power to make orders (“enforcement notices”) in this respect (section 40). The Act makes it a criminal offence not to comply with an enforcement notice (section 47) or to obtain or disclose personal data or information contained therein without the consent of the data controller (section 55). Section 13 affords a right to claim damages in the domestic courts in respect of contraventions of the Act. 33. A set of guidelines for the retention of fingerprint and DNA information is contained in the Retention Guidelines for Nominal Records on the Police National Computer 2006 drawn up by the Association of Chief Police Officers in England and Wales. The Guidelines are based on a format of restricting access to the Police National Computer (PNC) data, rather than the deletion of that data. They recognise that their introduction may thus have implications for the business of the non-police agencies with which the police currently share PNC data. 34. The Guidelines set various degrees of access to the information contained on the PNC through a process of “stepping down” access. Access to information concerning persons who have not been convicted of an offence is automatically “stepped down” so that this information is only open to inspection by the police. Access to information about convicted persons is likewise “stepped down” after the expiry of certain periods of time ranging from five to thirty-five years, depending on the gravity of the offence, the age of the suspect and the sentence imposed. For certain convictions the access will never be “stepped down”. 35. Chief police officers are the data controllers of all PNC records created by their force. They have the discretion in exceptional circumstances to authorise the deletion of any conviction, penalty notice for disorder, acquittal or arrest histories “owned” by them. An “exceptional case procedure” to assist chief police officers in relation to the exercise of this discretion is set out in Appendix 2. It is suggested that exceptional cases are rare by definition and include those where the original arrest or sampling was unlawful or where it is established beyond doubt that no offence existed. Before deciding whether a case is exceptional, the chief police officer is instructed to seek advice from the DNA and Fingerprint Retention Project. 36. Under the 1995 Criminal Procedure Act of Scotland, as subsequently amended, the DNA samples and resulting profiles must be destroyed if the individual is not convicted or is granted an absolute discharge. A recent qualification provides that biological samples and profiles may be retained for three years, if the arrestee is suspected of certain sexual or violent offences even if a person is not convicted (section 83 of the 2006 Act, adding section 18A to the 1995 Act.). Thereafter, samples and information are required to be destroyed unless a chief constable applies to a sheriff for a two-year extension. 37. The Police and Criminal Evidence Order of Northern Ireland 1989 was amended in 2001 in the same way as PACE applicable in England and Wales. The relevant provisions currently governing the retention of fingerprint and DNA data in Northern Ireland are identical to those in force in England and Wales (see paragraph 27 above). 38. According to a recent report by the Nuffield Council on Bioethics, the retention of fingerprints, DNA profiles and biological samples is generally more controversial than the taking of such bioinformation, and the retention of biological samples raises greater ethical concerns than digitised DNA profiles and fingerprints, given the differences in the level of information that could be revealed. The report referred, in particular, to the lack of satisfactory empirical evidence to justify the present practice of retaining indefinitely fingerprints, samples and DNA profiles from all those arrested for a recordable offence, irrespective of whether they were subsequently charged or convicted. The report voiced particular concerns at the policy of permanently retaining the bioinformation of minors, having regard to the requirements of the 1989 United Nations Convention on the Rights of the Child. 39. The report also expressed concerns at the increasing use of the DNA data for familial searching, inferring ethnicity and non-operational research. Familial searching is the process of comparing a DNA profile from a crime scene with profiles stored on the national database, and prioritising them in terms of “closeness” to a match. This allows possible genetic relatives of an offender to be identified. Familial searching might thus lead to revealing previously unknown or concealed genetic relationships. The report considered the use of the DNA database in searching for relatives as particularly sensitive. 40. The particular combination of alleles in a DNA profile can furthermore be used to assess the most likely ethnic origin of the donor. Ethnic inferring through DNA profiles is possible as the individual “ethnic appearance” is systematically recorded on the database: when taking biological samples, police officers routinely classify suspects into one of seven “ethnic appearance” categories. Ethnicity tests on the database might thus provide inferences for use during a police investigation in order, for example, to help reduce a “suspect pool” and to inform police priorities. The report noted that social factors and policing practices lead to a disproportionate number of people from black and ethnic minority groups being stopped, searched and arrested by the police, and hence having their DNA profiles recorded; it therefore voiced concerns that inferring ethnic identity from biological samples might reinforce racist views of propensity to criminality. 41. The Council of Europe Convention of 1981 for the protection of individuals with regard to automatic processing of personal data (“the Data Protection Convention”), which entered into force for the United Kingdom on 1 December 1987, defines “personal data” as any information relating to an identified or identifiable individual (“data subject”). The Convention provides, inter alia: “Personal data undergoing automatic processing shall be ... (b) stored for specified and legitimate purposes and not used in a way incompatible with those purposes; (c) adequate, relevant and not excessive in relation to the purposes for which they are stored; ... (e) preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored.” “Personal data revealing racial origin, political opinions or religious or other beliefs, as well as personal data concerning health or sexual life, may not be processed automatically unless domestic law provides appropriate safeguards. ...” “Appropriate security measures shall be taken for the protection of personal data stored in automated data files against accidental or unauthorised destruction or accidental loss as well as against unauthorised access, alteration or dissemination.” 42. Recommendation No. R (87) 15 of the Committee of Ministers regulating the use of personal data in the police sector (adopted on 17 September 1987) states, inter alia: “2.1. The collection of personal data for police purposes should be limited to such as is necessary for the prevention of a real danger or the suppression of a specific criminal offence. Any exception to this provision should be the subject of specific national legislation. ...” “3.1. As far as possible, the storage of personal data for police purposes should be limited to accurate data and to such data as are necessary to allow police bodies to perform their lawful tasks within the framework of national law and their obligations arising from international law. ...” “7.1. Measures should be taken so that personal data kept for police purposes are deleted if they are no longer necessary for the purposes for which they were stored. For this purpose, consideration shall in particular be given to the following criteria: the need to retain data in the light of the conclusion of an inquiry into a particular case; a final judicial decision, in particular an acquittal; rehabilitation; spent convictions; amnesties; the age of the data subject, particular categories of data.” 43. Recommendation No. R (92) 1 of the Committee of Ministers on the use of analysis of deoxyribonucleic acid (DNA) within the framework of the criminal justice system (adopted on 10 February 1992) states, inter alia: “3. Use of samples and information derived therefrom Samples collected for DNA analysis and the information derived from such analysis for the purpose of the investigation and prosecution of criminal offences must not be used for other purposes. ... ... Samples taken for DNA analysis and the information so derived may be needed for research and statistical purposes. Such uses are acceptable provided the identity of the individual cannot be ascertained. Names or other identifying references must therefore be removed prior to their use for these purposes. 4. Taking of samples for DNA analysis The taking of samples for DNA analysis should only be carried out in circumstances determined by the domestic law; it being understood that in some states this may necessitate specific authorisation from a judicial authority. ... 8. Storage of samples and data Samples or other body tissue taken from individuals for DNA analysis should not be kept after the rendering of the final decision in the case for which they were used, unless it is necessary for purposes directly linked to those for which they were collected. Measures should be taken to ensure that the results of DNA analysis are deleted when it is no longer necessary to keep it for the purposes for which it was used. The results of DNA analysis and the information so derived may, however, be retained where the individual concerned has been convicted of serious offences against the life, integrity or security of persons. In such cases strict storage periods should be defined by domestic law. Samples and other body tissues, or the information derived from them, may be stored for longer periods – when the person so requests; or – when the sample cannot be attributed to an individual, for example when it is found at the scene of an offence. Where the security of the state is involved, the domestic law of the member State may permit retention of the samples, the results of DNA analysis and the information so derived even though the individual concerned has not been charged or convicted of an offence. In such cases strict storage periods should be defined by domestic law. ...” 44. The Explanatory Memorandum to the Recommendation stated, as regards item 8: “47. The working party was well aware that the drafting of recommendation 8 was a delicate matter, involving different protected interests of a very difficult nature. It was necessary to strike the right balance between these interests. Both the European Convention on Human Rights and the Data Protection Convention provide exceptions for the interests of the suppression of criminal offences and the protection of the rights and freedoms of third parties. However, the exceptions are only allowed to the extent that they are compatible with what is necessary in a democratic society. ... 49. Since the primary aim of the collection of samples and the carrying out of DNA analysis on such samples is the identification of offenders and the exoneration of suspected offenders, the data should be deleted once persons have been cleared of suspicion. The issue then arises as to how long the DNA findings and the samples on which they were based can be stored in the case of a finding of guilt. 50. The general rule should be that the data are deleted when they are no longer necessary for the purposes for which they were collected and used. This would in general be the case when a final decision has been rendered as to the culpability of the offender. By ‘final decision’ the CAHBI [Ad hoc Committee of Experts on Bioethics] thought that this would normally, under domestic law, refer to a judicial decision. However, the working party recognised that there was a need to set up databases in certain cases and for specific categories of offences which could be considered to constitute circumstances warranting another solution, because of the seriousness of the offences. The working party came to this conclusion after a thorough analysis of the relevant provisions in the European Convention on Human Rights, the Data Protection Convention and other legal instruments drafted within the framework of the Council of Europe. In addition, the working party took into consideration that all member States keep a criminal record and that such record may be used for the purposes of the criminal justice system ... It took into account that such an exception would be permissible under certain strict conditions: – when there has been a conviction; – when the conviction concerns a serious criminal offence against the life, integrity and security of a person; – the storage period is limited strictly; – the storage is defined and regulated by law; – the storage is subject to control by Parliament or an independent supervisory body.” 45. According to the information provided by the parties or otherwise available to the Court, a majority of the Council of Europe member States allow the compulsory taking of fingerprints and cellular samples in the context of criminal proceedings. At least twenty member States make provision for the taking of DNA information and storing it on national databases or in other forms (Austria, Belgium, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Luxembourg, the Netherlands, Norway, Poland, Spain, Sweden and Switzerland). This number is steadily increasing. 46. In most of these countries (including Austria, Belgium, Finland, France, Germany, Hungary, Ireland, Italy, Luxembourg, the Netherlands, Norway, Poland, Spain and Sweden), the taking of DNA information in the context of criminal proceedings is not systematic but limited to some specific circumstances and/or to more serious crimes, notably those punishable by certain terms of imprisonment. 47. The United Kingdom is the only member State expressly to permit the systematic and indefinite retention of DNA profiles and cellular samples of persons who have been acquitted or in respect of whom criminal proceedings have been discontinued. Five States (Belgium, Hungary, Ireland, Italy and Sweden) require such information to be destroyed ex officio upon acquittal or the discontinuance of the criminal proceedings. Ten other member States apply the same general rule with certain very limited exceptions: Germany, Luxembourg and the Netherlands allow such information to be retained where suspicions remain about the person or if further investigations are needed in a separate case; Austria permits its retention where there is a risk that the suspect will commit a dangerous offence and Poland does likewise in relation to certain serious crimes; Norway and Spain allow the retention of profiles if the defendant is acquitted for lack of criminal accountability; Finland and Denmark allow retention for one and ten years respectively in the event of an acquittal and Switzerland for one year when proceedings have been discontinued. In France, DNA profiles can be retained for twenty-five years after an acquittal or discharge; during this period the public prosecutor may order their earlier deletion, either on his or her own motion or upon request, if their retention has ceased to be required for the purposes of identification in connection with a criminal investigation. Estonia and Latvia also appear to allow the retention of DNA profiles of suspects for certain periods after acquittal. 48. The retention of DNA profiles of convicted persons is allowed, as a general rule, for limited periods of time after the conviction or after the convicted person’s death. The United Kingdom thus also appears to be the only member State expressly to allow the systematic and indefinite retention of both profiles and samples of convicted persons. 49. Complaint mechanisms before data-protection monitoring bodies and/or before courts are available in most of the member States with regard to decisions to take cellular samples or retain samples or DNA profiles. 50. Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data provides that the object of national laws on the processing of personal data is notably to protect the right to privacy as recognised both in Article 8 of the European Convention on Human Rights and in the general principles of Community law. The Directive sets out a number of principles in order to give substance to and amplify those contained in the Data Protection Convention of the Council of Europe. It allows member States to adopt legislative measures to restrict the scope of certain obligations and rights provided for in the Directive when such a restriction constitutes notably a necessary measure for the prevention, investigation, detection and prosecution of criminal offences (Article 13). 51. The Prüm Convention on the stepping up of cross-border cooperation, particularly in combating terrorism, cross-border crime and illegal migration, which was signed by several member States of the European Union on 27 May 2005, sets out rules for the supply of fingerprinting and DNA data to other Contracting Parties and their automated checking against their relevant databases. The Convention provides, inter alia: “2. ... The Contracting Party administering the file may process the data supplied ... solely where this is necessary for the purposes of comparison, providing automated replies to searches or recording ... The supplied data shall be deleted immediately following data comparison or automated replies to searches unless further processing is necessary for the purposes mentioned ... above.” 52. Article 34 guarantees a level of protection of personal data at least equal to that resulting from the Data Protection Convention and requires the Contracting Parties to take into account Recommendation No. R (87) 15 of the Committee of Ministers of the Council of Europe. 53. The Council framework decision of 24 June 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters states, inter alia: “Establishment of time-limits for erasure and review Appropriate time-limits shall be established for the erasure of personal data or for a periodic review of the need for the storage of the data. Procedural measures shall ensure that these time-limits are observed.” 54. In the case of R. v. R.C. [[2005] 3 SCR 99, 2005 SCC 61] the Supreme Court of Canada considered the issue of retaining a juvenile first-time offender’s DNA sample on the national database. The court upheld the decision by a trial judge who had found, in the light of the principles and objects of youth criminal justice legislation, that the impact of the DNA retention would be grossly disproportionate. In his opinion, Fish J observed: “Of more concern, however, is the impact of an order on an individual’s informational privacy interests. In R. v. Plant, [1993] 3 S.C.R. 281, at p. 293, the Court found that section 8 of the Charter protected the ‘biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state’. An individual’s DNA contains the ‘highest level of personal and private information’: S.A.B., at paragraph 48. Unlike a fingerprint, it is capable of revealing the most intimate details of a person’s biological make-up. ... The taking and retention of a DNA sample is not a trivial matter and, absent a compelling public interest, would inherently constitute a grave intrusion on the subject’s right to personal and informational privacy.” 55. Article 40 of the United Nations Convention on the Rights of the Child of 20 November 1989 states the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society. 56. The National Council for Civil Liberties (“Liberty”) submitted case-law and scientific material highlighting, inter alia, the highly sensitive nature of cellular samples and DNA profiles and the impact on private life arising from their retention by the authorities. 57. Privacy International referred to certain core data-protection rules and principles developed by the Council of Europe and insisted on their high relevance for the interpretation of the proportionality requirement enshrined in Article 8 of the Convention. It emphasised, in particular, the “strict periods” recommended by Recommendation No. R (92) 1 of the Committee of Ministers for the storage of cellular samples and DNA profiles. It further pointed out a disproportionate representation on the United Kingdom National DNA Database of certain groups of the population, notably youth, and the unfairness that that situation might create. The use of data for familial testing and additional research purposes was also of concern. Privacy International also provided a summary of comparative data on the law and practice of different countries with regard to DNA storage and stressed the numerous restrictions and safeguards which existed in that respect. | 1 |
train | 001-103578 | ENG | POL | ADMISSIBILITY | 2,011 | MISZCZYNSKI v. POLAND | 3 | Inadmissible | Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva | The applicant, Mr Franciszek Miszczyński, is a Polish national who was born in 1959 and lives in Świdnica. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. From 16 April 2006 until 25 June 2010 the applicant was detained in Kłodzko Prison. On the latter date he was released. The applicant submitted that he had been held in inadequate living and sanitary conditions. In particular, all the cells which he had occupied were overcrowded. From 10 May to 25 July 2006 the applicant was detained in cell no. 225, which measured twenty-two square metres and was shared by ten to fourteen people at a time. The cell was furnished with six bunk beds, four tables and a number of stools. A bathroom with a toilet cubicle and a washbasin were accessible from the cell. There was one window, which was partly covered by a bunk bed. The applicant did not make any statements as to whether or not he lodged any complaints with the penitentiary authorities regarding the conditions of his detention or any other aspect of his detention in Kłodzko Prison. He submitted, however, among other documents, Xerox copies of four letters of reply sent by the Wrocław Regional Inspectorate of the Prison Service (Okręgowy Inspektorat Służby Więziennej) on 20 July and 6 November 2006, and by the Central Board of the Prison Service (Centralny Zarząd Służby Więziennej) on 29 August and 13 October 2006. The letters in question have typewritten headings and text. In the space reserved for the name of the addressee and the address the words: “Kłodzko Prison” (Zakład Karny w Kłodzku) or “Prison, Boh. Getta Street no. 16, 570300 Kłodzko (Zakład Karny ul. Boh. Getta 16, 57-300 Kłodzko) are typed in bold letters. The name of the addressee in these letters has been erased and two of the letters in question have an empty space directly above the address. In the remaining two letters, however, the applicant’s own name has been handwritten in the empty space. The letters in question contain replies of the relevant penitentiary authorities to complaints about irregularities in treating correspondence, which had been made by a prisoner detained in Kłodzko Prison. Moreover, the applicant brought a civil action under Article 417 of the Civil Code. He sought compensation on account of overcrowding and resulting from it, inadequate living and sanitary conditions in Kłodzko Prison. On 9 February 2007 the Kłodzko District Court (Sąd Rejonowy) dismissed the applicant’s claim for compensation. The applicant failed to lodge an appeal in compliance with procedural requirements. On 26 June 2007 the Kłodzko District Court rejected his application for leave to lodge an appeal out of time. | 0 |
train | 001-57611 | ENG | BEL | CHAMBER | 1,989 | CASE OF BRICMONT v. BELGIUM | 2 | Preliminary objection rejected (non-exhaustion);Violation of Art. 6;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | C. Russo | 7. Mr Georges Bricmont, a retired lawyer (avocat), was born in Paris in 1917, and his wife Mrs Louise Bricmont-Barré, a housewife, was born at Nismes in Belgium in 1921. They both had Belgian nationality when they lodged their application but Mr Bricmont acquired Canadian citizenship in 1984, and Mrs Bricmont acquired it in 1986. They have been domiciled in Quebec city (Canada) since 19 November 1980. 8. Following an extradition request made by Belgium on 14 January 1986, Mr Bricmont was taken into custody a week later at Quebec Detention Centre pending extradition. He was extradited on 13 July 1988 and held in custody at Nivelles Prison before being conditionally released on 28 September 1988 under a ministerial decree of the previous day which did not impose any restrictions on his movements; he was thus able to rejoin his wife in Quebec. In the normal course of events he will be eligible for permanent release on 20 January 1991. 9. From 1969 to 1977 Mr Bricmont was the friend, lawyer and agent of Prince Charles of Belgium, Count of Flanders and former Regent of the Kingdom (who died on 1 June 1983); he was responsible for managing some of the Prince’s assets, and on various occasions was assisted in this task by Mrs Bricmont. 10. Among other cases he dealt with was one concerning a former manager of the Prince’s assets, Baron Allard, who was prosecuted on various charges of forgery, uttering forged documents, breach of confidence and deception. It ended with a judgment by the Brussels tribunal de première instance (regional court of first instance) on 13 September 1972, in which the court ruled that several of the charges were statute-barred and acquitted the defendant on the remaining charges. Evidence had been taken from the Prince during the judicial investigation, but he had not received the necessary authorisation to appear at the trial. 11. Mr Bricmont also sold various items of the Prince’s movable property and real estate. On 21 July 1971, the Prince concluded with Baron Allard a settlement under which the Prince recovered large amounts of land. The properties were: (i) the Sansovino estate, comprising land - owned by Caldana, a non-commercial partnership governed by French law, 99% of whose shares were owned by Florazur, a company incorporated under Swiss law - and buildings in Cannes; and (ii) land at Biot on the Riviera, owned by Bois Fleuri, a non-commercial partnership under French law, half of whose shares belonged to the Volpone Anstalt, an institution incorporated under Liechtenstein law. In 1973, Baron Allard also reassigned a debt which he was owed by the Florazur company. 12. On 8 February 1973, Mr Bricmont, acting on the Prince’s behalf, negotiated the sale of the Cannes estate through the Filminter and Lissignol Anstalten, a sale which was subsequently not completed. Both earlier and subsequently, he allegedly effected sales through various Anstalten which resulted in the Cannes estate becoming the property of the Chimark and Socosef Anstalten. The Volpone Anstalt, which was transferred to the Egamecon Anstalt, was allegedly finally absorbed by Socosef. 13. On 18 January 1977, all relations between Mr Bricmont and the Prince ceased, and at Mr Bricmont’s request the Prince signed a general discharge covering all the managerial acts performed. 14. The Prince’s new general agent, Mr Gilson de Rouvreux, who had been asked by the Prince to clarify the situation regarding the latter’s property, requested Mr Bricmont to provide information about the movement of funds and shares belonging to the Prince; in particular, he tried to trace what had become of the assets returned by Baron Allard. When Mr Bricmont refused in a letter of 5 May 1977, Mr Gilson de Rouvreux became convinced that the Prince’s assets had come under the control of the Socosef Anstalt, which belonged to third parties who could only be the applicants. 15. On 9 August 1977, acting on behalf of the Prince, Mr Gilson de Rouvreux lodged a criminal complaint with the Brussels Crown Prosecutor’s Office alleging forgery of documents, uttering of forged documents, breach of confidence and misappropriation of assets. On 9 September 1977, the Prince joined the criminal proceedings as a civil party seeking damages; he accused Mr Bricmont of having divested him of his fortune by making him sign a series of documents effecting transfers of assets. Mr Bricmont, it was claimed, had at the time explained to the Prince that the transfers were designed solely to protect his assets from creditors, the tax authorities and his statutory heirs by depersonalising them behind the veil of Anstalten - which supposedly belonged to him but in reality were under the control of the applicants. 16. After questioning Mr and Mrs Bricmont, the investigating judge charged them on 27 January 1978. Mr Bricmont was questioned on several other occasions during the year. 17. Under Articles 510 and 511 of the Code of Criminal Procedure, princes of the blood can "never be summoned as witnesses", unless a special royal decree has authorised them to appear in court; with that exception, their evidence is given in writing and taken by the President of the Court of Appeal or the presiding judge of the tribunal de première instance, as the case may be. In accordance with these provisions, evidence was taken from the Prince by the President of the Brussels Court of Appeal on 9 November 1977 and 28 April 1978 (see paragraphs 38-39 below). 18. Mr and Mrs Bricmont requested the investigating judge to arrange a confrontation with the Prince and to hear various witnesses including Mr Gruner and Mr Casse. Mr Gruner (who subsequently died) was the manager of the relevant Anstalten, which were formed and had their registered address at the office of his employer, Mr Merkt, the Prince’s lawyer in Geneva. Mr Casse was very actively involved with the Sansovino estate in Cannes as a chartered surveyor. On 18 July 1979, the investigating judge questioned the Prince, and on 23 October 1979 he held a confrontation - authorised by a royal decree of 2 July (see paragraph 40 below) - between the Prince and Mr Bricmont. 19. At the request of a large number of journalists, the Senior Assistant Crown Prosecutor in Brussels held a press conference in October 1977. He confirmed that the Prince had lodged a complaint alleging misappropriation of funds; and, in reply to questions, he added that the investigating judge had ordered a number of measures including searches, one of which had been made at Mr Bricmont’s home. He also disclosed that Mr Bricmont’s name was cited in the complaint. Several Belgian daily newspapers mentioned the prosecutor’s statement. 20. Once the investigation was completed, the file was put before the chambre du conseil (Committals Chamber) of the Brussels tribunal de première instance, which held eleven hearings between 18 March and 24 April 1980. 21. On 31 March and 2 April 1980 respectively, Mrs and Mr Bricmont filed pleadings in which they applied for a declaration that the investigation was null and void. They submitted that the October 1977 press conference (see paragraph 19 above) had infringed the rights of the defence, as had the inclusion in the criminal file of confidential correspondence between lawyers (see paragraph 56 below), the investigative measures based on that correspondence and the procedure for taking evidence from the Prince. In the alternative, they asked the chambre du conseil to stay the proceedings until various investigative measures had been taken. 22. In an order of 3 June 1980 the chambre du conseil held that it had not been shown that the Crown Prosecutor’s conduct had been designed to predispose the witnesses and judges against the accused or that it had had that effect. It also ruled that there had been no breach of professional confidentiality and that evidence had been lawfully taken from the Prince, as a party seeking damages, without his taking an oath. As to the application for a stay, it considered that the requested investigative measures were not necessary at that stage. The chambre du conseil accepted that there were extenuating circumstances in respect of the offences to which criminal penalties attached and committed the accused for trial by the tribunal de première instance. It endorsed the following charges against Mr Bricmont: nine counts of forgery and uttering forged documents, twelve of deception, five of misappropriation of assets, one of handling and one of breach of professional confidentiality; and the following against Mrs Bricmont: three counts of forgery and uttering, four of deception, one of misappropriation of assets, one of theft and one of handling. These counts included: (a) count A1, against Mr Bricmont, of forgery and uttering, in respect of the sale to the Filminter Anstalt of the shares of Florazur, a company incorporated under Swiss law; (b) count A3, against Mr Bricmont, of forgery and uttering, in respect of the sale on 13 December 1973 of the Volpone Anstalt to the Agamecon Anstalt; (c) count A8, against both accused, of forgery and uttering, in respect of a deed of gift dated 19 May 1976 (see paragraph 64 below); (d) count A9, against Mrs Bricmont, of forgery and uttering, in respect of a contract creating a trust (contrat de fiducie) of 1 October 1976; (e) count A10, against Mr Bricmont, of forgery and uttering, in respect of the discharge from agency dated 18 January 1977 (see paragraph 13 above); and (f) count C4, alleging that Mr and Mrs Bricmont misappropriated 50 Florazur shares to the detriment of the Prince. 23. On 6 November 1980, the Indictments Chamber of the Brussels Court of Appeal declared the applicants’ appeal against the order of the chambre du conseil inadmissible. It held that in challenging the lawfulness of the investigating judge’s appointment to deal with the case and the validity of the investigation, Mr and Mrs Bricmont had not raised a plea of no jurisdiction within the meaning of Article 539 of the Code of Criminal Procedure, which was the only ground of appeal available to them. 24. The applicants appealed on points of law against the order of 3 June 1980 and the judgment of 6 November 1980. On 14 November 1980, they each filed pleadings which contained the following passage: "The appellants realise that the Belgian judiciary in general will continue to refuse them a fair trial because the original complainant was formerly Regent of the Kingdom and because, secondarily, his associate Mr Mossoux, who joined the complaint in the proceedings before the chambre du conseil, has power over certain socialist personalities who in turn control a number of partisan appointments and promotions in the judiciary." 25. On 7 January 1981, the Second Chamber of the Court of Cassation declared the appeal inadmissible because it had been made against an preliminary decision taken at the investigation stage, before the final decision within the meaning of Article 416 of the Code of Criminal Procedure. 26. At the beginning of the hearing the presiding judge of the Second Chamber had asked Mr and Mrs Bricmont whether they wished to maintain their allegations. Mr Bricmont agreed to delete the passage reproduced above, but Mrs Bricmont refused to do so. Following this incident, which was entered in the record, the Crown Prosecutor summoned Mr and Mrs Bricmont to appear before the Brussels tribunal de première instance on a charge of contempt of court in relation to the Belgian judiciary. The court held that the charge was not made out and acquitted Mr and Mrs Bricmont in a judgment of 15 December 1981. 27. At the end of proceedings during which, in particular, the defendants had each filed their pleadings on 23 September 1981, the Brussels tribunal de première instance gave judgment on 15 February 1982. 28. By way of preliminary observation, it stated that all the documents in the file disclosed "a clear and inexplicable want of diligence in seeking the truth". It noted among other things the following "obstacles": (a) the deficiencies in the investigation, the main examples being: the failure to have the accounts audited; the failure to take evidence from Mr Gruner, who had died in the meantime (see paragraph 18 above); the failure to make any inquiries about Mr and Mrs Bricmont’s characters; the failure to take evidence from Mrs Bricmont and to arrange a confrontation with the Prince in respect of various charges; the investigating judge’s refusal, without giving reasons, to grant the Bricmonts’ application for production of the painting "Storm over Cannes" ("Orage sur Cannes") (see paragraph 68 below); the fact that the persons best placed to provide information had been neither summoned nor examined as witnesses, despite Mr and Mrs Bricmont’s formal request; the failure to arrange a confrontation in respect of all the charges between the applicants and the civil parties, which the court had not been able to remedy - despite its wish and the applicants’ requests - because the civil parties (who produced, to justify their failure to attend, medical certificates, which in the Prince’s case had twice been confirmed by a court-appointed medical expert) had not appeared in person at any of the hearings; (b) the irregularity of the Prince’s examination on 9 November 1977 and 28 April 1978 (see paragraph 17 above) owing to the fact that, as a civil party giving evidence, he was not covered by Articles 510 and 511 of the Code of Criminal Procedure, and the investigating judge accordingly had jurisdiction to question him. The court stated that although it was not empowered to quash those steps taken in the investigation which might be null and void, it had to have regard to the irregularities complained of by Mr Bricmont and refrain from basing its decision on any irregular proceeding; (c) the fact that Mr and Mrs Bricmont had no access to the files until committed for trial as they were not in custody, and the investigating judge’s absence from the hearings, which was difficult to justify; (d) the failure of the Prince and Mr Mossoux to appear before the court; and (e) the lack of credibility of each of the parties to the case. 29. The court considered each of the charges on the basis of only those documents which had been lawfully seized or produced. It found that the prosecution was time-barred in respect of some of the charges and that others were not admissible. For the rest, it acquitted the defendants and in consequence declared that it had no jurisdiction to try the claims of the civil parties. 30. Prince Charles and the prosecution appealed. At the hearing on 17 November 1982 the applicants filed pleadings in which, relying on the impugned judgment, they submitted that the investigation had been null and void. 31. In its judgment of 9 March 1983 the Seventh Criminal Chamber of the Brussels Court of Appeal gave a ruling first on the Prince’s proceedings against Mr and Mrs Bricmont and then on other criminal proceedings which Mr Bricmont had instituted against the Prince on 29 June 1981 for false accusation. 32. As regards the former proceedings, the Court of Appeal first dealt with the applicants’ submissions. It held in the first place that neither Mr Gilson de Rouvreux’s placing of various lawyers’ letters in the file nor the fact that the file contained a letter of 3 May 1977 from Mr Bricmont to Mr Merkt was a ground for declaring the proceedings null and void. No breach of professional confidentiality had been established against these two lawyers, and the investigating judge had seized the aforementioned letter lawfully. The Court of Appeal did not explicitly rule on an application in the alternative by the Bricmonts to have Mr Merkt heard as a witness on oath. The court considered it regrettable that evidence had been taken from the Prince in an unusual manner, "probably out of consideration for the civil party, consideration which [was] not legally justified and which, moreover, appear[ed] to have given rise to other abnormal but not unlawful circumstances". It held, however, that the examinations were not such as to render the proceedings null and void and that the disputed statements had only the weight of mere information. It did not expressly rule on the applicants’ submissions that the refusal of the investigating judge and the chambre du conseil to arrange a confrontation with the Prince or to examine him at all had breached Article 6 (art. 6) of the Convention. Nor, in the Court of Appeal’s view, were the proceedings vitiated by the breaches of professional confidentiality alleged against the prosecution at first instance on account of the October 1977 press conference, among other things (see paragraph 19 above). Admittedly, the investigating judge alone had authority to hold a press conference during a judicial investigation, but a breach of professional confidentiality could only entail nullity of proceedings in whole or in part if it had given rise to the judicial investigation or was the only thing which had made it possible to discover the guilty person or prove his guilt. On the other hand, a breach of professional confidentiality by a member of the judiciary or any other person bound by the confidentiality of the investigation in a broad sense could not flaw proceedings in which the evidence had been obtained lawfully; to decide otherwise would compound the effects of a personal failing on the part of the representative of the State by wholly unjustifiable and possibly substantial damage either to law and order or to the victim or victims. Mr and Mrs Bricmont had relied on two other grounds of nullity to impugn the committal order of 3 June 1980: the failure to deal with their pleadings and the conduct of the investigating judge, who, they said, had merely made a "mini-report" at the first hearing by the chambre du conseil. The Court of Appeal ruled that on the facts the first complaint was unfounded. It also dismissed the second complaint, as it did not find that there had been any infringement of the rights of the defence or of the principle that judicial proceedings must be adversarial, in view of the fact that the presiding judge of the chambre du conseil had not felt it necessary to recall the investigating judge as he was leaving the room after making his report. The applicants had further claimed that the Court of Appeal could not in law judge their case fairly owing to an incident which had occurred on 7 January 1981, following which they had been summoned to appear before the Brussels tribunal de première instance for contempt of court (see paragraphs 24 and 26 above). The Court of Appeal held on this point that if this claim were well-founded in law, "it would be sufficient for any person desirous of evading any judicial proceedings", whether civil or criminal, "to ensure impunity by committing a contempt of court directed at the Belgian judiciary in general". The Court of Appeal did not explicitly reply to the Bricmonts’ application for discovery of the gouache "Storm over Cannes" (see paragraph 69 below). 33. After considering the merits of the case, the Court of Appeal set aside the judgment of 15 February 1982 of the Brussels tribunal de première instance. It found that some of the charges were statute-barred and held that others had not been made out, but it convicted on the following counts: (a) A1, A3, A8 and A10, against Mr Bricmont; (b) A9, against Mrs Bricmont; and (c) C4, against both defendants. As a consequence, the Court of Appeal sentenced Mr Bricmont to five years’ imprisonment, Mrs Bricmont to fifteen months suspended for three years and both of them to a fine of 2,000 Belgian francs. In its ruling on the civil claim, it ordered Mr and Mrs Bricmont to pay to the Prince provisional compensation of 3 million francs and to return certain company shares to him. As to Mr Bricmont’s proceedings against the Prince, the Court of Appeal acquitted the latter, holding that he was not guilty of false accusation; and it accordingly declared that it had no jurisdiction to entertain Mr Bricmont’s civil claim for damages. 34. On 17 March 1983 Mr and Mrs Bricmont appealed on points of law against the Brussels chambre du conseil’s order of 3 June 1980 and against the Court of Appeal’s judgment of 9 March 1983. In pleadings dated 3 June 1983 they relied on a large number of grounds. They criticised the Court of Appeal for, inter alia, not having dealt either with the complaint that the investigation was null and void owing to the fundamental deficiencies in it - which the tribunal de première instance had in their view summed up perfectly (see paragraph 28 above), even if it had not drawn all the legal inferences from them - or with their submissions concerning the presence in the criminal file of various confidential letters, including the one of 3 May 1977 (see paragraph 32 above). They also claimed that the Court of Appeal had not given reasons for its decision as required by law, as it had failed to find that the publicity given to the case by the Crown Prosecutor at the October 1977 press conference (see paragraph 19 above) and when making submissions in relation to another case infringed their defence rights and their right to a fair trial. Mr Bricmont added that the Court of Appeal had likewise not given reasons as required by law for its ruling that counts A1 and A3 were not time-barred or for its decision that count C4 had been substantiated (see paragraph 22 above). Mrs Bricmont complained that she had not been asked to submit a defence to the charge of uttering which the Court of Appeal had found to be made out against her. 35. On 9 August 1983, Mr and Mrs Bricmont filed supplementary pleadings. Notwithstanding the terms of the second paragraph of Article 420 bis of the Code of Criminal Procedure, they considered that these pleadings were admissible having regard to the requirements of a fair trial and the rights of the defence. They complained of a violation of the principle of equality of arms due to the special procedure adopted for questioning the Prince and they developed their plea based on the nullity of the proceedings (failure to arrange a confrontation, the press conference, proceedings for contempt, etc.). 36. The Court of Cassation dismissed the appeal on 18 January 1984 without taking into account the supplementary pleadings, which had been filed outside the time-limit provided for in the second paragraph of Article 420 bis of the Code of Criminal Procedure. It declared the appeal inadmissible in so far as it again (see paragraph 24 above) related to the order made on 3 June 1980 by the chambre du conseil of the Brussels tribunal de première instance, on the ground that in criminal cases a party could not appeal to the Court of Cassation twice against the same decision. In so far as the appeal was directed against the Court of Appeal’s judgment of 9 March 1983, the Court of Cassation ruled, firstly, on the plea that the investigation was null and void. When listing, on appeal, the irregularities noted in the judgment at first instance, the applicants had confined themselves to illustrating their complaint that the court below, having failed to draw all the inferences from the situation they had described, had infringed Article 6 (art. 6) of the Convention because it was impossible for the Court of Appeal to "separate the investigative measures which could be accepted from those which [had to] be ruled inadmissible, as they [were] intertwined with one another to the point of forming an incoherent whole". In the Court of Cassation’s view, the Court of Appeal had, when closely scrutinising each of the charges, implicitly but definitely decided that the investigation was not incoherent as alleged. The Court of Cassation went on to hold that in the impugned judgment - and it cited the reasons given - the Court of Appeal had dealt with the argument relating to the confidentiality of the letter of 3 May 1977. As regards the argument concerning the publicity given to the case by the Crown Prosecutor, the Court of Cassation held that it could not infer any violation of the rights of the defence or of Article 6 § 1 (art. 6-1) of the Convention from the mere fact that the prosecution had allegedly breached professional confidentiality. Moreover, in order to assess whether a case had been heard fairly, the trial had to be looked at as a whole; in view of the fact that Mr and Mrs Bricmont had had the opportunity during the proceedings before the trial courts to challenge freely the evidence adduced against them by the prosecution, they could not claim to be victims of an infringement of the rights of the defence or of their right to a fair trial within the meaning of the Convention. As to the pleas based on the failure to give reasons for the convictions on counts A1, A3 and C4 (see paragraph 22 above), the Court of Cassation rejected them as lacking any legitimate interest: the sentence passed on Mr Bricmont was justified by the other charges which had been proved against him. Nor did the court find any infringement of Mrs Bricmont’s defence rights in regard to count A9. Lastly, the Court of Cassation held that the appeal on points of law which Mr Bricmont had also lodged as a civil party (see paragraph 33 in fine above) was inadmissible, as Mr Bricmont had apparently not had notice of it served on the Prince as the party being directly cited. 37. On 26 October 1977, the Prince wrote to the investigating judge that he wished to give evidence to the President of the Brussels Court of Appeal. In a letter the next day the investigating judge asked the President to take evidence from the Prince, in accordance with Article 511 of the Code of Criminal Procedure (see paragraph 17 above), and he attached a list of some fifty questions. 38. On 9 November 1977, the President took unsworn statements from the Prince. A record was made solely of the replies to the aforementioned questions. 39. On 21 April 1978, the investigating judge informed the President of the Brussels Court of Appeal that he thought it necessary for the Prince to be examined a second time, and he drew up a new list of some forty questions. The Prince gave evidence - again unsworn - on 28 April, and a record was made on this occasion likewise. 40. By a royal decree of 2 July 1979, which referred to Article 510 of the Code of Criminal Procedure (see paragraph 17 above), the Prince was authorised to appear as complainant and civil party before the investigating judge of the tribunal de première instance. The examination took place on 18 July 1979 and related to counts A8 and A10 (see paragraph 22 above). The Prince also intimated that he wished to clarify a point in his statement of 9 November 1977 concerning a will in Mr Bricmont’s favour. He said: "There has been a misunderstanding; it is not true that it was Mr Bricmont who added a nought to the figure intended for him. I was the one who altered the amount at his request. I wrote fifty million instead of five million. You have put before me annexe no. 3 to document 195 in the ‘Investigation’ bundle; that is the document in question. It was Mr Bricmont, then, who was appointed executor of the will at his own request." 41. The investigating judge also arranged a confrontation between the Prince and Mr Bricmont, on 23 October 1979. He put before them, among other things, the deed of gift of 19 May 1976 (see paragraph 64 below) and reminded them of their statements on the subject, which they confirmed. The matter of the will was again discussed. 42. In the proceedings before the chambre du conseil Mr and Mrs Bricmont claimed that the investigation was null and void, in particular for having infringed the rights of the defence on account of the procedure adopted for taking evidence from the Prince. They asked the court to stay the proceedings pending implementation of various investigative measures including the examination of the Prince, and further confrontations between them and him, on the other charges (see paragraph 21 above). 43. In its order of 3 June 1980 the chambre du conseil considered that the impugned examinations had been held in accordance with Article 511 of the Code of Criminal Procedure and that the measures sought by Mr and Mrs Bricmont were not necessary for it to be able, in full knowledge of the facts, to give its decision on the application for a committal for trial (see paragraph 22 above). 44. A royal decree of 21 August 1981, issued under the aforementioned Article 510, authorised the Prince to appear as a witness before the Brussels tribunal de première instance, where the trial was due to open on 21 September 1981. On 8 September 1981, Dr Devos, the Prince’s doctor, and Dr Verhelst, a hospital physician who was consulted, stated that the Prince’s general physical and psychological condition did not permit of his appearing at the court hearings. They considered that the severe psychological and emotional stress to which he would be subjected would overtax him and that he was no longer in a fit state to withstand it. At the request of the Brussels Crown Prosecutor, the Bruges Crown Prosecutor appointed a medical expert on 12 September 1981 to verify that the Prince’s health was as described. Dr Floré, the expert appointed, stated in his report of 18 September (passage translated from the Dutch): "He is an old man, fairly tall and rather undernourished. He gives an impression of frailty and vulnerability. When questioned, he stated that he suffered from asthma, chronic bronchitis, osteo-arthritis and a hiatus hernia which compelled him to sleep in a sitting position. He also said that he easily became impatient in any situation that was at all stressful and that he then tended to react like someone who was panicking. The news of the medical expert’s visit had in itself sufficed to cause a reaction of this kind. Similarly, in such a situation, he had attacks of tachycardia, lost his ability to react appropriately and was completely at a loss. When he had to travel he had himself driven by car, as he himself had given up driving some six years earlier. He walks slowly and hesitantly, limping slightly and leaning on a stick in his right hand. He speaks in a confidential, emotional, friendly manner which is occasionally slightly naïve and childlike, with a weak, hoarse voice, and coughs from time to time. He is lucid but has difficulty concentrating for any length of time, occasionally repeats himself and often has to search for words. If in this way he loses the thread of the conversation, he becomes nervous, goes red, loses his self-assurance and seeks support from his listener. In short, he is an old man growing weak, who is living for the time being in a protective environment, in a fragile, delicate state of balance. It is clear that the slightest stress overtaxes him. At the end of a conversation he is visibly tired. For these reasons I conclude that his physical and psychological resistance has become insufficient for him to be heard as a witness at the hearing and accordingly precludes him from being so heard." 45. Shortly before the end of the trial, the Crown Prosecutor requested a further opinion from the forensic medical expert. In a report of 4 December 1981 Dr Floré recorded that the state of the Prince’s health had not improved since the previous medical examination. 46. In their pleadings of 23 September 1981 (see paragraph 27 above) Mr and Mrs Bricmont asked the Brussels tribunal de première instance to stay the proceedings until the Prince’s health was restored, so that a confrontation with him could be arranged and he could be examined as a witness. The court refused this application in a judgment given on the same day, holding that, having regard to the Prince’s poor state of health, continuing the trial in his absence could not be deemed an unfair trial contrary to Article 6 (art. 6) of the Convention. Mr and Mrs Bricmont appealed, but subsequently withdrew their appeals. 47. In its judgment of 15 February 1982 (see paragraphs 27-29 above) the Brussels tribunal de première instance included among other deficiencies in the investigation the failure to arrange a confrontation between the applicants and the Prince on all the charges; despite its earnest wish, it had not been able to remedy this situation as, on the strength of medical certificates, the Prince had not appeared in person at any of the hearings. The court also held that the examinations of the Prince by the President of the Court of Appeal on 9 November 1977 and 28 April 1978 were irregular, as the Prince had been heard as a civil party, not as a witness, so that Articles 510 and 511 of the Code of Criminal Procedure did not apply and the evidence should have been taken by the investigating judge. Admittedly, the court had no jurisdiction to set aside any investigative measures that might be null and void, but it had to have regard to the irregularities complained of by Mr Bricmont and to grant his request that it should not base its decision on any irregular proceeding. 48. In their appeal pleadings of 17 November 1982 (see paragraph 30 above) Mr and Mrs Bricmont complained in particular of the manner in which evidence was taken from the Prince on 9 November 1977. Mr Bricmont also criticised the investigating judge and the chambre du conseil for having refused to arrange a confrontation between him and the Prince and to question the Prince on all the charges; they had, in his view, thus infringed Article 6 § 3 (d) (art. 6-3-d) of the Convention. He also relied on Article 6 (art. 6) on the ground that the prosecution had not requested, in accordance with the aforementioned Article 510, a royal decree authorising the Prince to appear before the Court of Appeal as a witness. 49. On 23 November 1982, Mr and Mrs Bricmont had the following entered in the record of the hearing: "The prosecution stated that it was willing to accept as true that the Baron Richard was recently walking with the Count of Flanders in the Avenue Louise". 50. In its judgment of 9 March 1983 (see paragraphs 31-33 above) the Court of Appeal deemed it regrettable that evidence had been taken, on 9 November 1977 and 28 April 1978 (see paragraphs 38-39 above), from the Prince in an unusual manner, "probably out of consideration for the civil party, consideration which [was] not legally justified and which moreover appear[ed] to have given rise to other abnormal but not unlawful circumstances". It held, however, that this did not amount to a ground for declaring the proceedings null and void; in particular, it noted that: "... as the Count of Flanders was not questioned as a witness, since he was a complainant, or moreover by the judge who would have had jurisdiction if he had been examined as a witness, the disputed statements have only the weight of mere information, just as if the Count of Flanders had provided the same explanations in a formal letter to the investigating judge or orally to a police officer, or again exactly as if the investigating judge had taken evidence from him without administering an oath, which he is entitled to do and which is to be recommended in respect of a civil party." 51. In a letter of 25 August 1977 Mr Gilson de Rouvreux gave the Senior Assistant Crown Prosecutor the name of certain people who might be able to provide particulars of the case. Three of them were summoned, including Mr Casse (see paragraph 18 above). 52. In their pleadings filed with the chambre du conseil (see paragraph 21 above) Mr and Mrs Bricmont applied for Mr Casse and Mr Gruner to be examined (see paragraph 18 above). The chambre du conseil did not, however, consider it necessary to hear evidence from those persons in order to decide whether the applicants should be committed for trial. 53. In a formal notice sent to the Brussels Crown Prosecutor following Mr Gruner’s death and served by bailiff on 19 March 1981, Mr and Mrs Bricmont requested that letters rogatory should be issued with a view to having Mr Casse examined on a statement he had signed on 16 February 1981 concerning count A1 (see paragraph 22 above). This statement, which was filed with the chambre du conseil, clarified the content of two others, which were dated 21 December 1979 and had been included in the criminal file. In it Mr Casse described a conversation he claimed to have had with the Prince in November 1976, in which the Prince allegedly stated that he had received a sum of two million French francs as the sale price for his rights in the Caldana partnership, which owned the Sansovino estate (see paragraph 11 above). The formal notice served by the bailiff read as follows: "During the judicial investigation into [Mr Bricmont] ... no evidence was taken from the two persons who, together with [Mr and Mrs Bricmont] and the complainant, were the vital witnesses of the main facts which were to be set out in the prosecution’s application of 2 November 1979 for committal for trial, namely Mr Pierre Gruner, a non-lawyer colleague of Mr René Merkt of the Geneva Bar, and Mr Casse, a chartered surveyor and consultant to the courts in Cannes; All applications to the chambre du conseil by [Mr and Mrs Bricmont] for additional investigative measures were rejected, as the prosecution was opposed to any examination of the witnesses Gruner and Casse; Mr Gruner has died, and his death makes it much more difficult to establish the truth and, consequently, for [Mr and Mrs Bricmont] to defend themselves; [Mr and Mrs Bricmont] today run a considerable risk of being deprived of the vital evidence of Mr Gabriel Casse if he is not very soon examined under letters rogatory, as he is elderly and has just overcome serious health problems; ... Mr Gabriel Casse must be asked to confirm the terms of his statement of 16 February 1981 before a judicial authority who will also put to him any questions necessary for establishing the truth and who will at the same time be able to report to the office of the Brussels Crown Prosecutor on Mr Casse’s professional and personal reputation; The said statement of 16 February 1981 has a direct bearing on the merits of the charge of forgery ("faux intellectuel") allegedly founded on the receipt signed by the Prince of Belgium on 2 December 1972, a charge on which the subsequent charges depend; ... It is necessary as a matter of urgency to remedy this shortcoming in the investigation consisting in refusing Mr and Mrs Bricmont’s request for an examination of the two witnesses who, because of the extent of their exclusive personal knowledge of vital facts, could have shown the complainant’s accusations to be baseless ...; The application is based on Article 6 § 3 (d) (art. 6-3-d) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; ... ." In the applicants’ submission, an examination of Mr Casse would have enabled them to clear themselves of the three main charges against them found to be established, namely counts A1, A9 and C4 (see paragraph 22 above). 54. On 27 March 1981, the public prosecutor in Grasse gave effect to letters rogatory issued by the office of the Brussels Crown Prosecutor, who had requested that Mr Casse should be examined concerning: "(1) the relations he [had] had and [might] still have with Mr and Mrs Bricmont; and (2) the content of the appended ‘statements’". When examined by the Cannes police on 20 June 1981, Mr Casse answered the first question and confirmed his statement of 16 February 1981. 55. In its judgment of 15 February 1982 (see paragraphs 27-29 above) the Brussels tribunal de première instance noted among other deficiencies in the investigation the failure to take evidence from Mr Gruner - who had died since the investigation had been completed - and the fact that the persons best placed to provide information had been neither summoned nor examined as witnesses, despite Mr and Mrs Bricmont’s formal request. 56. In their appeal pleadings of 17 November 1982 (see paragraph 30 above) Mr and Mrs Bricmont applied for Mr Merkt to be examined under oath (see paragraph 18 above), "in order to discover the date on which and the circumstances in which the photocopy of the confidential letter which his colleague and client Georges Bricmont had sent him on 3 May 1977 [had come] to leave his chambers" (see paragraph 32 above). Relying on Article 6 (art. 6) of the Convention, they maintained that in so doing they were not abusing their defence rights, as Mr Merkt was the only person from whom they were asking the court to take evidence. 57. In December 1982, the applicants produced a fresh statement by Mr Casse, dated 17 December 1982, in which he said that he was at the judicial authorities’ disposal to confirm on oath the content of his earlier statements (see paragraph 53 above). 58. In its judgment of 9 March 1983 (see paragraphs 31-33 above) the Court of Appeal did not expressly rule on the application for Mr Merkt to be examined but when considering the ground of nullity allegedly arising from the presence of the letter of 3 May 1977 (see paragraph 56 above) in the file, held that no breach of professional confidentiality had been made out against Mr Merkt; it expressed no view on the weight to be attached to Mr Casse’s statements. 59. On 27 September 1977, the investigating judge in Brussels sent a telegram to his colleague at the tribunal de grande instance at Mont-de-Marsan (France), requesting him to issue a warrant to search an estate at Vielle-Soubiran occupied by Mr and Mrs Bricmont and seize on those premises any documents relating to eleven companies and Anstalten. On the same day, he telegraphed the investigating judge in Geneva asking him, firstly, to have the home of Mr Natalizzi, an accountant who had succeeded Mr Gruner, searched and all the shares of a particular company and the documents relating to four Anstalten seized, and, secondly, to obtain from Mr Merkt the books, files and correspondence relating to various Anstalten. On 28 September 1977, the investigating judge in Geneva duly made an order to this effect. Mr Bricmont’s letter of 3 May 1977 to Mr Merkt (see paragraph 32 above) was seized on this occasion. On 30 September 1977, the investigating judge in Brussels sent a similar telegram to his colleague at the tribunal de grande instance in Grasse. In another telegram on 19 October 1977, he asked his colleague in Paris to request the Banque de Paris et des Pays-Bas and the Banque Nationale de Paris to provide a statement of all the transactions on accounts opened in the names of the applicants or of a particular company. On 9 January 1978, he issued further letters rogatory for dispatch to the investigating judge in Geneva, asking the latter to have documents seized and inquiries made at the Banque de Paris et des Pays-Bas in Geneva in connection with an allegedly forged document dated 18 February 1974 which certified the payment to the Prince of the purchase price of some furniture. These various searches did not reveal the whereabouts of the books of the Anstalten. 60. In the proceedings before the chambre du conseil Mr and Mrs Bricmont applied for evidence to be taken from senior officials of the Geneva branch of the Banque de Paris et des Pays-Bas, but without success. 61. In its judgment of 15 February 1982 (see paragraphs 27-29 above) the Brussels tribunal de première instance noted among other deficiencies in the investigation the failure to have any audit carried out in respect of the transactions made on the instructions of or in the name of the Prince and the applicants (the numbers of various Belgian or foreign bank accounts of theirs were in the file). As to the relevant Anstalten, it appeared that an inspection could well have been made of their accounts - the documents seized included many statements, so that it would have been possible to approach the banks in order to find out what transactions had been made on these accounts, at least in so far as the case related to them. At all events, there was nothing to show the contrary. At the same time, the court found that Mr Bricmont had made "the great mistake" of failing to keep any systematic, chronological accounts of the sums he received or paid on the Prince’s behalf and of sometimes not answering precise questions put by the court. 62. In their appeal pleadings Mr and Mrs Bricmont mentioned the failure, noted by the trial court, to carry out an audit and relied on it in order to argue that the investigation was null and void on account of the deficiencies in it. In response to the criticisms the court had made of him, Mr Bricmont said he considered it unacceptable that the Prince, not content with refusing to assist in establishing the truth, should blame his opponent for the way in which he had noted transfers of funds effected without any bank records being made at the Prince’s own request. 63. In its judgment of 9 March 1983 (see paragraphs 31-33 above) the Court of Appeal did not rule expressly on the submissions which the applicants based on the nullity of the investigation. In declaring charges A3 and A10 to have been made out, it had regard, inter alia, to the fact that Mr Bricmont had not produced any book-keeping documents. In order to determine the sentence, it noted lastly that the written pleadings revealed that the Prince wished as far as possible to conceal the assets of his estate from the tax authorities, his creditors and his statutory heirs, and that Mr Bricmont had taken advantage of this to attempt to divest him of his fortune. 64. On 30 August 1978, Mr Bricmont forwarded to the investigating judge a copy of a document dated 19 May 1976, which read as follows: "I, the undersigned Count of Flanders, Prince Charles of Belgium, hereby give Mr Georges Bricmont of the Brussels Bar, failing whom Mrs Bricmont, power to dispose of the companies and Anstalten that I own or control." He claimed that the Count of Flanders thereby recognised the existence of "gifts from hand to hand", and that by the operation of Article 938 of the Civil Code the charges of misappropriation of shares of or documents of title to companies or Anstalten were therefore deprived of a vital element. In a letter of 8 September 1978 Mr Bricmont told the investigating judge that the gift had in reality been made principally to his wife. 65. On 22 November 1978, Mrs Bricmont obtained an order from the presiding judge of the court in Grasse appointing a bailiff, Mr Bernard, to draw up an inventory of the contents of a château in which, until February 1976, she had had the use of an office as chairman and managing director of Sansovino, a limited company, and as general manager of Caldana, a non-commercial property partnership. Mr Bernard’s intervention was unconnected with the criminal proceedings pending in Brussels; it was prompted by Mrs Bricmont’s desire to have an inventory of her furniture and other articles in the custody of the court-appointed administrator of the Caldana company, Mr Denape. The bailiff’s task therefore consisted in recording that there were a number of pictures among other things, but did not include noting the text of any dedications on them. On 3 January 1979, Mr Bernard recorded that in a locked cabinet in the administrative office there were four pictures signed by the Count of Flanders and dedicated to Mr and Mrs Bricmont, including a gouache "Storm over Cannes" dated 21 January 1976. 66. After her husband had been questioned on 2 October 1979 about the deed of gift of 19 May 1976, Mrs Bricmont wrote to the investigating judge on 22 October 1979. She thought it absolutely essential that he should be aware of the text of the dedication of 21 January 1976 on the gouache "Storm over Cannes", which showed that the Prince was well-disposed towards her. Mrs Bricmont added: "... it would be advisable for you to submit it to the Prince, who will be able to tell you if he indeed wrote it. If so, he will also be able to tell you whether he is giving up, in the present case, his false insinuations about imaginary uses of documents signed in blank. Attached is a report of 3 January 1979 by a bailiff, Mr Bernard of Cannes, who established after discussion with Mr Denape that the four pictures in question are deposited in my office at Château Sansovino. They are in a metal cabinet which, like the office, is locked. I have the keys of the cupboard and of the office, but do not have any access to them. Access has been forbidden me only by Mr Denape without any court decision but with threats of physical restraint by the caretakers and Mr Busuttil if I attempt to enter and regain possession of the articles belonging to me. Mr Denape’s behaviour is all the more unwarranted as nobody disputes my ownership of the articles in question. I accordingly urge you to send letters rogatory to the Alpes Maritimes département in order to secure the return to me or, failing that, the seizure of the aforementioned personal articles which I consider vital to my defence and which are in the house at Sansovino. In particular: letters, notes, photos and pictures. It is not necessary to have the locks of the furniture and premises of the house forced since Mr Denape and I each have some of the keys. It will be sufficient for the French police responsible for executing the letters rogatory to ask Mr Denape and myself to accompany them to the premises in order to open the building and the furniture for them and indicate to them the items whose return I am seeking both for your information and for the needs of my defence." 67. In the proceedings before the chambre du conseil Mr and Mrs Bricmont again applied for production of the text of the dedication, but to no avail. 68. In its judgment of 15 February 1982 (see paragraphs 27-29 above) the Brussels tribunal de première instance mentioned among other deficiencies in the investigation "the refusal by the investigating judge, without giving any reasons, to grant the defendants’ application to have the text recorded and an identification made of the author of the dedication on the gouache ‘Storm over Cannes’, which was at Cannes in the possession of the interim administrator Mr Denape and whose dedication they claimed gave credence to their version of events". When considering count A8, relating to the deed of gift of 19 May 1976 (see paragraphs 22 and 64 above), the court thought it regrettable that the "investigative measure (consisting in issuing letters rogatory) [had] not [been] carried out as the rights of the defence dictated it should have been"; the court found it "equally regrettable that the defendants [had] not given, albeit from memory, the content of this dedication". 69. In their appeal pleadings of 17 November 1982 (see paragraph 30 above) Mr and Mrs Bricmont applied, in respect of count A8, for an order that the civil party should produce the gouache "Storm over Cannes" as "the dedication, dated 21 January 1976, would establish that this gift [had] indeed [been] intended as such by the donor". In its judgment of 9 March 1983 (see paragraphs 31-33 above) the Brussels Court of Appeal did not give an express ruling on this point. It did, however, refer to the pleadings of the civil party, the Count of Flanders, which stated that the application was a "diversionary attack". | 1 |
train | 001-58763 | ENG | DEU | GRANDCHAMBER | 2,000 | CASE OF ELSHOLZ v. GERMANY | 1 | Violation of Art. 8;No violation of Art. 14+8;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | Luzius Wildhaber | 9. The applicant, a German national born in 1947, lives in Hamburg. He is the father of the child, C., born out of wedlock on 13 December 1986. On 9 January 1987 he acknowledged paternity and undertook to pay maintenance for C. He fulfilled this obligation regularly. 10. Since November 1985 the applicant had been living with the child's mother and her elder son Ch. In June 1988 the mother, together with the two children, moved out of the flat. The applicant continued to see his son frequently until July 1991. On several occasions, he also spent his holidays with the two children and their mother. Subsequently, no more visits took place. 11. The applicant attempted to visit his son with the assistance of the Erkrath Youth Office (Jugendamt), acting as mediator. When questioned by an official of the Youth Office at his home in December 1991, C. stated that he did not wish to have further contacts with the applicant. 12. On 19 August 1992 the applicant applied to the Mettmann District Court (Amtsgericht) for a decision granting him a right of access (Umgangsregelung) to C. on the first Saturday of every month, between 1 p.m. and 6 p.m. The applicant maintained that the mother had refused him access to C. because he had accused her of having failed to ensure the supervision of the child when he had broken his arm in a playground accident in July 1991 and as a result of which he had stopped the voluntary monthly payments of 700 German marks which he claimed to have made at the mother's request in addition to the stipulated child maintenance. The mother contested the applicant's submissions. She stated that the applicant had always been very generous to her but that he had not paid her any maintenance. 13. The District Court, after a hearing on 4 November 1992 and having heard C. on 9 November 1992, dismissed the applicant's request on 4 December 1992. The court observed that Article 1711 § 2 of the Civil Code (Bürgerliches Gesetzbuch) concerning the father's right to personal contact with his child born out of wedlock (see paragraph 24 below) was conceived as an exemption clause which had to be construed strictly. Thus, the competent court should order such access only if this was advantageous and beneficial for the child's well-being. According to the court's findings, these conditions were not met in the applicant's case. The District Court noted that the child had been heard and had stated that he no longer wished to see his father who, according to the child, was bad and had beaten his mother repeatedly. The mother likewise had strong objections to the applicant which she had imparted to the child, so that the child had no possibility of building an unbiased relationship with his father. The District Court concluded that contacts with the father would not enhance the child's well-being. 14. On 8 September 1993 the applicant applied to the District Court for an order requiring the child's mother to consent to a family therapy for him and the child and for an order determining his right of access after contacts with his son had successfully resumed. 15. On 24 September 1993 the Erkrath Youth Office recommended that the court should obtain a psychological expert opinion on the question of access rights. 16. Having heard C. on 8 December 1993 and his parents at an oral hearing on 15 December 1993, the District Court dismissed the applicant's renewed request to be granted access on 17 December 1993. In so doing, the court referred to its prior decision of 4 December 1992 and found that the conditions under Article 1711 of the Civil Code were not met. It noted that the applicant's relationship with the child's mother was so strained that the enforcement of access rights could not be envisaged as this would not be in the interest of the child's well-being. The child knew about his mother's objections to the applicant and had adopted them. If C. were to be with the applicant against his mother's will, this would put him into a loyalty conflict which he could not cope with and which would affect his well-being. The court added that it was irrelevant which parent was responsible for the tension; it placed particular emphasis on the fact that important tensions existed and that there was a risk that any further contacts with the father would affect the child's undisturbed development in the family of the custodial parent. After two long interviews with the child, the District Court reached the conclusion that his development would be endangered if the child had to take up contact with his father contrary to his mother's will. At these interviews the child had called his father “nasty” or “stupid”, adding that on no account did he wish to see him and said also: “Mummy always says Egbert is not my father. Mummy is afraid of Egbert.” The District Court furthermore considered that the facts of the case had been established clearly and exhaustively for the purposes of Article 1711 of the Civil Code. It therefore found it unnecessary to obtain an expert opinion. 17. On 13 January 1994 the applicant, represented by counsel, lodged an appeal (Beschwerde) against this decision, requesting that that decision be quashed, that an expert opinion be obtained on the questions of access and of the child's true wishes in this respect, and that the father's access rights be determined accordingly. 18. On 21 January 1994 the Wuppertal Regional Court (Landgericht), without a hearing, dismissed the applicant's appeal. In so doing, it first stated that there were doubts on the admissibility of the appeal as the applicant, by letter of 12 January 1994, had informed the court of first instance that he would respect that court's decision, and had requested help in order to reach a friendly settlement. Furthermore, the Regional Court found that the grounds of appeal contained in his submissions did not fully coincide with the request addressed by the applicant to the court of first instance. The Regional Court, however, left open the question of whether or not the appeal was inadmissible and decided that in any event the applicant's request for access rights had to be dismissed as access was not in the interests of the child's well-being. It was not sufficient that such contacts were compatible with the child's well-being; they had to be advantageous and beneficial (nützlich und förderlich), and necessary for the child's equilibrium (seelisch notwendiginter alia, the reasons for which the father wished to have contacts with the child, that is, whether his motives were emotional or based on other factors. In this context the relationship between the parents had to be taken into account as well. The Regional Court concluded, in line with the decision appealed against, that the tensions between the parents had a negative effect on the child, as was confirmed by the hearings with the child held on 9 November 1992 and 8 December 1993, and that contact with his father was not therefore in the child's best interest, even less so because this contact had in fact been interrupted for about two and a half years. It was irrelevant who was responsible for the break-up of life in common. What mattered was that in the present situation contact with the father would negatively affect the child. This conclusion, in the Regional Court's view, was obvious, which was why there was no necessity of obtaining an opinion from an expert in psychology. Moreover, Article 1711 § 2 of the Civil Code did not provide for a psychological therapy to prepare a child for contact with his or her father. The Regional Court finally observed that there was no necessity to hear the parents and the child again since there was no indication that any findings more favourable for the applicant could result from such a hearing. 19. On 19 April 1994 a panel of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain the applicant's constitutional complaint (Verfassungsbeschwerde). According to the Federal Constitutional Court, the complaint did not raise any issues of a general character affecting the observance of the Constitution. In particular, the question of whether Article 1711 of the Civil Code was compatible with the right to family life as guaranteed by Article 6 § 2 of the Basic Law (Grundgesetz) did not arise, as the ordinary courts had based the denial of the applicant's request for access rights not only on the ground that such a right would not serve the child's well-being, but also on the much stronger reason that it was incompatible with the child's well-being. Furthermore, the right to a fair hearing was not violated by the fact that the applicant had not been heard personally and that his request to obtain an expert opinion had been rejected. 20. The statutory provisions on custody and access are to be found in the German Civil Code (Bürgerliches Gesetzbuch). They have been amended on several occasions and many were repealed by the amended Law on Family Matters (Reform zum Kindschaftsrecht) of 16 December 1997 (Federal Gazette (Bundesgesetzblatt-BGBl) 1997, p. 2942), which came into force on 1 July 1998. 21. Article 1626 § 1 reads as follows: “The father and the mother have the right and the duty to exercise parental authority [elterliche Sorge] over a minor child. The parental authority includes the custody [Personensorge] and the care of property [Vermögenssorge] of the child.” 22. Pursuant to Article 1626 a § 1, as amended, the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect (declaration on joint custody) or if they marry. According to Article 1684, as amended, a child is entitled to have access to both parents; each parent is obliged to have contact with, and entitled to have access to, the child. Moreover, the parents must not do anything that would harm the child's relationship with the other parent or seriously interfere with the child's upbringing. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties; and they may order the parties to fulfil their obligations towards the child. The family courts can, however, restrict or suspend that right if such a measure is necessary for the child's welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child's well-being would be endangered. The family courts may order that right of access be exercised in the presence of a third party, such as a Youth Office authority or an association. 23. Before the entry into force of the amended Law on Family Matters, the relevant provision of the Civil Code concerning custody and access for a child born in wedlock was worded as follows: “1. A parent not having custody has the right to personal contact with the child. The parent not having custody and the person having custody must not do anything that would harm the child's relationship with others or seriously interfere with the child's upbringing. 2. The family court can determine the scope of that right and can prescribe more specific rules for its exercise, also with regard to third parties; as long as no decision is made, the right, under Article 1632 § 2, of the parent not having custody may be exercised throughout the period of contact. The family court can restrict or suspend that right if such a measure is necessary for the child's welfare. 3. A parent not having custody who has a legitimate interest in obtaining information about the child's personal circumstances may request such information from the person having custody in so far as this is in keeping with the child's interests. The guardianship court shall rule on any dispute over the right to information. 4. Where both parents have custody and are separated not merely temporarily, the foregoing provisions shall apply mutatis mutandis.” 24. The relevant provisions of the Civil Code concerning custody of and access to a child born out of wedlock were worded as follows: “Custody over a minor child born out of wedlock is exercised by the child's mother ...” “1. The person having custody of the child shall determine the father's right of access to the child. Article 1634 § 1, second sentence, applies by analogy. 2. If it is in the child's interests to have personal contact with the father, the guardianship court can decide that the father has a right to personal contact. Article 1634 § 2 applies by analogy. The guardianship court can change its decision at any time. 3. The right to request information about the child's personal circumstances is set out in Article 1634 § 3. 4. Where appropriate, the youth office shall mediate between the father and the person who exercises the right of custody.” 25. Like proceedings in other family matters, proceedings under former Article 1711 § 2 of the Civil Code were governed by the Act on Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit). 26. According to section 12 of that Act, the court shall, ex officio, take the measures of investigation that are necessary to establish the relevant facts and take the evidence that appears appropriate. 27. In proceedings regarding access, the competent youth office has to be heard prior to the decision (section 49(1)(k)). 28. As regards the hearing of parents in custody proceedings, section 50a(1) stipulates that the court shall hear the parents in proceedings concerning custody or the administration of the child's assets. In matters relating to custody, the court shall, as a rule, hear the parents personally. In cases concerning placement into public care, the parents shall always be heard. According to paragraph 2 of section 50a, a parent not having custody shall be heard except where it appears that such a hearing would not contribute to the clarification of the matter. | 1 |
train | 001-88516 | ENG | SWE | ADMISSIBILITY | 2,008 | LANDEN v. SWEDEN | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra | 1. The applicant, Mr Tommy Landén, is a Swedish national who was born in 1945 and lives in Järfälla. He was represented before the Court by Mr S. Svahnström, a lawyer practising in Täby. The Swedish Government (“the Government”) were represented by their Agent, Ms C. Hellner, Ministry for Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant ran a contracting business dealing with excavation and drilling of wells for fresh water and geothermal heating. In 1987 and 1989 he purchased two excavators, for which he obtained financing from two credit institutions. According to the two contracts for purchase by instalments, the excavators were to remain the property of the credit institutions until the full purchase price had been paid. The interest fixed in the contracts was 12.5 and 14.7%, respectively. 4. In June 1991, the applicant’s contracting business went bankrupt. As a consequence, by a decision of the District Court (tingsrätten) of Lindesberg of 15 July 1991, a third credit institution, which apparently had acquired title to the two contracts mentioned above, claimed possession of the two excavators. According to the applicant, the credit institution did not render any account to him concerning the further administration of the excavators but he learned much later that they had been sold to a buyer in the Netherlands, allegedly for a price much below their market value. 5. Apparently, title to the two contracts were later acquired by a fourth credit institution, Handelsbanken Finans AB (hereinafter “Handelsbanken”). In the autumn of 1992, Handelsbanken applied to the Enforcement Service (kronofogdemyndigheten) for a payment order (betalningsföreläggande) against the applicant. It claimed 577,813 Swedish kronor (SEK; corresponding to approximately 61,000 euros (EUR)) in recovery of the debt and annual interest on overdue payments of 24%. According to the applicant, neither that application nor the Enforcement Service’s injunction to reply was served on him. 6. By a decision of 2 December 1992, the Enforcement Service issued a payment order, in accordance with Handelsbanken’s application. The decision stated that the applicant had been served with the Service’s reply injunction but had failed to contest the bank’s claim. According to the applicant, as with the application by Handelsbanken and the Service’s reply injunction, he did not receive the payment order. It appears, however, that the order was sent to his registered address at Kopparberg. This address was not changed by the applicant although, after the bankruptcy, he bought a caravan, moved away from the house he had been renting and came to live, for several years, at various temporary places. Allegedly, in the late 1990s, he reported to the authorities that he lived in Järfälla. 7. On 3 October 2002 the applicant received from a debt-recovery company owned by Handelsbanken a claim for repayment of the debt, now amounting to SEK 577,813 plus SEK 1,665,726 (approximately EUR 175,000) in accrued interest. Apparently without having received a reply from the applicant, Handelsbanken subsequently applied to the Enforcement Service for enforcement of the 1992 payment order. 8. In a reply to the Service dated 5 November 2002, the applicant contested the claim which, he asserted, was completely unknown to him and, in any event, statute-barred. He further stated that, if the case was not dismissed, he wished to see the original documents relating to the debt with his signature. 9. By a decision of 5 December 2002, the Enforcement Service dismissed Handelsbanken’s claim. Basing itself on the incorrect assumption that the debt in question concerned a consumer credit – for which a three-year period of limitation applied, as opposed to ten years for a commercial credit –, the Service found that the 1992 payment order was no longer enforceable. 10. Handelsbanken appealed to the District Court of Stockholm. By a letter of 27 January 2003, the applicant’s legal counsel requested that the Enforcement Service be ordered to give information on how and when Handelsbanken’s application for a payment order and the Service’s subsequent decision of 2 December 1992 had been served on the applicant. 11. Three days later, the Enforcement Service informed counsel for the applicant by telephone that the entire file had been destroyed, as ten years had passed since the 1992 decision. 12. On 18 March 2003 the District Court rejected Handelsbanken’s appeal against the Enforcement Service’s decision of 5 December 2002. The reasons were, however, different from those given by the Service. The District Court noted that, under sections 5 and 7 of the Statute of Limitations Act (Preskriptionslagen, 1981:130), the running of the period of limitations was interrupted by an application to a court or to the Enforcement Service, such interruption, however, requiring additionally that the debtor had been served with the creditor’s application. The court further stated that the burden to prove that such service had taken place rested with the creditor, in this case Handelsbanken, which had had the opportunity to secure evidence in this respect. Noting that the only proof of service that had been presented was the statement in the decision of 2 December 1992 that the applicant had been served with the Service’s reply injunction, the court concluded that Handelsbanken had failed to show that the running of the period of limitation had been interrupted. 13. Handelsbanken appealed to the Svea Court of Appeal (Svea hovrätt). Confident that the appellate court would find in his favour, the applicant stated, in a submission of 14 April 2003, that there seemed to be no reason to have an oral hearing since the case concerned “a simple matter of law”. 14. Further on 14 April 2003 the applicant instituted proceedings before the Göta Court of Appeal (Göta hovrätt), requesting that the Enforcement Service’s decision of 2 December 1992 be set aside due to a miscarriage of justice (domvilla). He claimed that the decision had been taken without his having been duly served with the injunction to reply, in accordance with the provisions of the Code of Judicial Procedure (Rättegångsbalken). He did not invoke any evidence. 15. Handelsbanken argued in these proceedings that the payment order had been sent in the applicant’s name to his registered address. In relation to the applicant’s claim that he had not had any contact with Handelsbanken after the excavators had been reclaimed in 1991, Handelsbanken stated that it had sent letters by ordinary mail to the applicant on 13 occasions between 1993 and 2002 requesting him to pay the debt. Due to a special agreement with the postal service any letter not successfully delivered to the addressee would usually be returned, but none of the letters sent to the applicant had allegedly been returned. Furthermore, Handelsbanken had already applied for enforcement of the payment order in 1994 but had been informed by the Enforcement Service, in a report of 12 January 1995, that the applicant lacked attachable property. In the same report, the Service stated that it had been in contact with the applicant during the course of the matter. Furthermore, Handelsbanken asserted that, according to a note made by the above-mentioned debt-recovery company, the applicant had called the company on 31 October 1994 and asked for copies of “everything”. Consequently, Handelsbanken strongly doubted that the applicant, before receiving the application for enforcement on 3 October 2002, had been unaware of its claim and the payment order. 16. The submissions of Handelsbanken were sent to the applicant but he did not submit any comments in reply. 17. In the present proceedings before the Court, the applicant claimed that after his bankruptcy he had not had any contact whatsoever with the Enforcement Service until November 2002 when he received the application for enforcement of the payment order. He had felt that the Service had caused him harm in the bankruptcy proceedings and had not wished to have any further contact with the Service. He further rejected Handelsbanken’s assertion that he had called the debt-recovery company in October 1994. In any event, he asserted that such a contact could not have cured the failure in the autumn of 1992 to properly serve him with the injunction to reply in the payment order proceedings. These statements were, however, not submitted to the Göta Court of Appeal. 18. By a decision of 24 October 2003, the Göta Court of Appeal rejected the applicant’s request in regard to miscarriage of justice. The court first rejected Handelsbanken’s objection that the case should be dismissed on the ground that the matter was already pending before the Svea Court of Appeal (lis pendens). In so doing, it stressed that the Svea Court of Appeal case concerned the question whether the claim was statute-barred whereas the case before the Göta Court of Appeal determined whether any procedural error had been committed in the handling of the claim. With regard to the substance of the latter issue, the court noted that the decision of the Enforcement Service stated that the applicant had been duly served and considered that there was no reason to question the accuracy of this statement. Consequently, there had not been any miscarriage of justice. 19. On 21 September 2004 the Supreme Court (Högsta domstolen) refused leave to appeal against the above decision of the Göta Court of Appeal. 20. In the enforcement proceedings, pending before the Svea Court of Appeal, the applicant changed his view on the necessity of an oral hearing following the decision by the Göta Court of Appeal in the proceedings concerning miscarriage of justice. Thus, he asked the Svea Court of Appeal to hold a hearing, at which he wished to be heard about the service of documents in the case. The court, however, informed the parties that it found a hearing unnecessary. The applicant was given an opportunity to submit final observations in writing. He did so and, at the same time, reiterated his request for a hearing. 21. By a decision of 15 December 2004, the Svea Court of Appeal reversed the District Court’s decision of 18 March 2003. The appellate court interpreted the preparatory works (prop. 1979/80:119, p. 69 et seq.) of section 7, subsection 2 of the Limitations Act (Preskriptionslagen, 1981:130) and found that the requirement to serve the application for a payment order on the debtor in order to interrupt the running of the period of limitations did not apply to situations where the matter had been finalised with a decision by the Enforcement Service. Instead, the requirement of service, contained in this rule of exception, was aimed at cases where a creditor applied for a payment order and then withdrew the claim before service had taken place, with the purpose of starting a new period of limitations. Consequently, in assessing the period of limitations in the present case, it was irrelevant whether the payment order had been properly served or not. That period should therefore be counted from 2 December 1992, the date of the Service’s decision. The court noted that it was undisputed that Handelsbanken’s claim for enforcement had been introduced within ten years from that date. 22. The Court of Appeal went on to examine the applicant’s objection that the payment order had been issued under such circumstances that there were reasons to quash it. The court noted that a writ of execution could be quashed in enforcement proceedings only in highly exceptional situations. Noting that the applicant’s objection had been examined in the case concerning miscarriage of justice and that that examination had not led to the order being quashed, the court found no reason to question the validity of the payment order as a writ of execution. 23. The Court of Appeal therefore concluded that there were no impediments to the enforcement of the payment order and returned the matter to the Enforcement Service for further processing. 24. As questions concerning service of documents were of no relevance to the determination of the case, the Court of Appeal further found that there was no reason to hold an oral hearing and, accordingly, refused the applicant’s request in this respect. 25. On 14 February 2005 the Supreme Court refused the applicant leave to appeal against the Svea Court of Appeal’s decision of 15 December 2004. 26. Chapter 3 of the Enforcement Code (Utsökningsbalken) contains provisions on execution titles. Section 21 provides the following on objections to enforcement: “If the defendant shows that he has satisfied an obligation to pay or other obligation to which the application for enforcement relates, enforcement may not take place. This also applies if the defendant as a set-off invokes a claim that has been confirmed by an execution title which may be enforced or which is based on a promissory note or other written evidence of debt, and the general preconditions for set-offs are met. Nor may enforcement take place if the defendant claims that another circumstance relating to the dealings between the parties constitutes an impediment to enforcement and the objection cannot be ignored. If a situation referred to in the first or second paragraph is at hand and a measure of enforcement has already been taken in the case, the measure shall be annulled, if this is possible. The decision of the Enforcement Service by reason of an objection referred to in the first or second paragraph does not prevent the matter from being considered by a court.” 27. An objection based on a circumstance relating to the parties’ dealings may only concern the substantive judicial relationship between the parties, for instance that the person seeking enforcement has granted the defendant a respite for the payment, that they have agreed on a service in return for the payment or that the execution title has become statute-barred (see Walin, Gregow, Löfmarck, Utsökningsbalken – en kommentar (commentary to the Enforcement Code), 3rd edition (1999), pp. 105-107). 28. In a case where the defendant had claimed that a decision constituting an execution title was unlawful or at least incorrect, the Supreme Court, which dismissed the objection by a decision of 3 September 1984, stressed that the scope for rejecting an execution title in an enforcement case is extremely limited (NJA 1984, p. 602). In a more recent decision, taken on 18 December 2006 (NJA 2006, p. 657), the Supreme Court expressed the following: “A basic principle in cases of enforcement is that the enforcing authority has no right to examine anew issues that have been determined in the execution title. Upon appeal in enforcement cases, the courts’ powers are no wider than those of the Enforcement Service. Accordingly, in so far as the courts’ determination is concerned, objections against an execution title, which refer to circumstances dating back to time before it was issued, cannot be examined in the enforcement case. In respect of decisions taken by an administrative authority, it is likely that there is a somewhat wider scope for such objections, but then they would, as a rule, concern issues that have not been examined in the execution title.” 29. Section 7 of the Limitations Act reads as follows: “Where a limitation period is interrupted through the commencement of legal proceedings or otherwise through the pleading of a claim as stated in section 5, subsection 3, a new limitation period shall run in accordance with the provisions of section 2 from the day of the publication of a judgment or a final decision or from the day on which the legal proceedings are concluded in any other way. Where, prior to the expiry of the new limitation period, the case is appealed or the proceedings are resumed for any other reason, the period of limitation is interrupted, and a new period of limitation shall run from the day of the conclusion of the resumed proceedings. However, where the legal proceedings are concluded without the debtor having been served with, or otherwise informed of, the creditor’s statement of claim, the period of limitation shall be calculated as if no interruption had occurred. The claim shall nevertheless not be barred by the expiry of the limitation period earlier than one year after the conclusion of the proceedings. The period of limitation may no be extended more than once pursuant to the provisions of the second paragraph, second sentence.” | 0 |
train | 001-69208 | ENG | TUR | CHAMBER | 2,005 | CASE OF KOKU v. TURKEY | 3 | Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Life);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | Feyyaz Gölcüklü | 9. The applicant, a Turkish citizen of Kurdish origin, was born in 1963 and lives in the United Kingdom. He is the brother of Hüseyin Koku, who was allegedly detained by the police on 20 October 1994 and whose body was found in a location outside the town of Pötürge, in south east Turkey on 26 April 1995. 10. The facts of the case, particularly concerning events which occurred between 20 October 1994 and 26 April 1995, are disputed by the parties. 11. The facts as presented by the applicant are set out in Section B below (paragraphs 12-41). The Government’s submissions concerning the facts are summarised in Section C below (paragraphs 42-58). The documentary evidence submitted by the applicant and the Government is summarised in Sections D (paragraphs 59-87) and E (paragraphs 88-93) respectively. 12. The applicant’s brother, Hüseyin Koku, was born in the town of Elbistan in south-east Turkey, in 1958. In 1978 he married Fatma Koku (née Güzel) and by 1994 they had had six children, aged at that time between 6 and 15 years. 13. Hüseyin Koku and his family were active in local politics in Elbistan. Hüseyin became an active member of the pro-Kurdish Democracy Party (DEP). Following the closure of DEP by the Constitutional Court in 1994 and the arrest of the DEP Members of Parliament, the People’s Democracy Party (HADEP) was set up as a successor to DEP. Hüseyin Koku was one of the founding members of HADEP’s Elbistan district organisation and he became the chairman of HADEP’s Elbistan branch. 14. At the end of March 1994, or the beginning of April 1994, Hüseyin Koku was arrested, taken into custody and placed in detention on remand. He was accused of membership of, and helping and abetting, the Kurdistan Workers’ Party (PKK). During his time in prison he was kept blindfolded, given electric shocks, subjected to falaka and to Palestinian hanging, hosed down with ice cold water, deprived of water and sleep and beaten with truncheons and iron bars. On 10 May 1994 he was released pending trial and was acquitted on 17 May 1994 due to a lack of evidence against him. 15. As a prominent local HADEP politician, Hüseyin Koku was the subject of harassment and intimidation by the police, and, in particular, by the Governor of Elbistan, Mr Şükrü Görücü. Mr Görücü threatened to kill him and alleged that he was a traitor to the State and further alleged that HADEP was a terrorist party. Mr Görücü also told Hüseyin Koku that “he would be removed quickly”. Hüseyin took this threat seriously and discussed it with other HADEP party officials. In an article published in the Özgür Ülke newspaper on 11 November 1994, the president of HADEP’s Kahramanmaraş branch was reported as saying that Hüseyin Koku had told him about the threats made by the local Governor in Elbistan. 16. At this time, Hüseyin Koku was also regularly followed by plain-clothes police officers and received anonymous telephone calls and threats. Another brother of Hüseyin’s and the applicant’s, Ali Koku, who worked closely with Hüseyin for HADEP, left Turkey because of political persecution and is currently living in the United Kingdom. 17. On or about 17 October 1994, a number of Kurds from the Cumhuriyet neighbourhood in Elbistan went to the local HADEP office and informed HADEP officials that plain-clothes security forces were painting red crosses on houses belonging to Kurdish families in the neighbourhood and were taking down house numbers and personal details of everyone in the area. This was of concern to the families because there had been a massacre of Alevi Kurds in Kahramanmaraş in the late 1970s, prior to which houses had been marked in a similar way. Hüseyin Koku made a statement about this to the Özgür Ülke newspaper. 18. On the following day, that is on 18 October 1994, Hüseyin Koku was summoned to the office of the Elbistan Mayor. The Mayor told him that, when they had previously arrested and imprisoned him, they had thought that he would not continue with his political activities in the area. He warned Hüseyin to resign from the party, close down the branch and leave the area. The Mayor also told him that if he listened to his advice, nothing would happen to him, but if he did not, the Mayor could not be responsible for what happened to him. The Mayor also told Hüseyin that he believed that Hüseyin and other HADEP members were assisting the PKK. Hüseyin replied that he was an elected representative and that he was not doing anything illegal. Hüseyin later reported this meeting to the administrative board members of the Elbistan branch of HADEP, including Mustafa Yeter, the local HADEP deputy chairman. 19. On 20 October 1994 Hüseyin was walking along Malatya Street in Elbistan between midday and 1 p.m., accompanied by his wife Fatma, when he was abducted by plain-clothes police officers carrying walkie-talkies, who then drove him away in a white Renault. The incident was witnessed by Fatma Koku, who was three to four metres away from Hüseyin at the time. The three men had introduced themselves as police officers and told Hüseyin that he would be going with them to the police station. 20. Another eye-witness to the abduction was Mr Bulut Yılmaz who was also active within the HADEP party in Elbistan at this time and who knew Hüseyin well. Mr Yılmaz recognised one of the plain-clothes police officers as one who had previously confiscated newspapers from his shop. 21. Later on 20 October 1994 Fatma Koku went to the HADEP office to tell her husband’s colleagues what had happened. 22. On 21 October 1994 Fatma Koku went to the Elbistan Police Headquarters, accompanied by Mustafa Yeter, to obtain information about her husband’s whereabouts. She was told that Hüseyin had not been taken into custody. She was then referred to the gendarmerie and subsequently to the Prosecutor’s office. Further inquiries were made by other members of the family, but no information was given to them. Fatma Koku also contacted the applicant to inform him that her husband – his brother – had been taken into custody on the previous day. 23. Ali Koku accompanied Fatma Koku to five or six police stations in Elbistan shortly after the abduction, but at each station they were told that Hüseyin Koku was not being detained there. 24. On 31 October 1994 a statement made by the Elbistan Governor, Şükru Görücü, was published in the local newspaper, Elbistanın Sesi. In this statement Mr Görücü denied that Hüseyin had been detained. 25. On 1 November 1994 Fatma Koku lodged a criminal complaint with the Elbistan Prosecutor about the disappearance of her husband. She provided a photograph of him and requested that the matter be investigated. Her petition was counter-signed by both the Prosecutor and the Security Director on 1 November 1994. 26. Also on 1 November 1994 Amnesty International published an ‘Urgent Action’ bulletin in respect of the disappearance of Hüseyin Koku. 27. On 3 November 1994 Fatma Koku and a number of HADEP executives petitioned the Elbistan Governor and requested him to carry out an investigation into Hüseyin’s disappearance. 28. One evening on or about 5 November 1994, a telephone call was made to Hüseyin Koku’s house which was answered by his 13-year old daughter, Özlem. During the telephone call, she was made to listen to the voice of her father whilst he was being tortured. Fatma Koku went immediately to the police station to complain about this telephone call, but the police were not interested and even made fun of her. A complaint about the call was lodged with the Prosecutor but, as far as the applicant was aware, no steps were taken by the Prosecutor to investigate the matter. About two and a half months later the Koku family were called to the Cumhuriyet neighbourhood police station in Elbistan where they were asked questions about the telephone call. Fatma Koku asked the police officers why they had not investigated her husband’s case before. One of the police officers replied to Fatma, “I knew Hüseyin well, but if I saw him now, I would not recognise him and neither would you”. She asked what he meant by this, but was sent away. 29. Fatma Koku and other family members went to meet with Şükrü Görücü, but he provided them with no information about Hüseyin Koku’s whereabouts and instead he insulted and threatened Fatma. 30. Following Hüseyin Koku’s abduction, Mustafa Yeter and Hasan Güner were made temporary leaders of HADEP’s Elbistan branch. They were later arrested and subjected to torture. Mr Yeter was threatened by the police not to talk about Hüseyin Koku’s case or to ask further questions about him or highlight the case abroad. He was told to resign or he would suffer the same fate as others. 31. On 24 April 1995 the Elbistan Prosecutor called Fatma Koku to his office and questioned her about her husband. He asked her whether Hüseyin could have been killed by the PKK. Fatma replied that her husband had never had any contact with the PKK and that there was no reason to believe that he had been abducted or killed by them. She said that her husband had previously been detained for alleged involvement with the PKK but had been released. She told the Prosecutor that neither she nor her husband’s family had ever had any problems with anyone. 32. On or about 27 April 1995 Fatma Koku was informed by the police that a body had been found near the town of Pötürge, in Malatya province, about 150 kilometres from Elbistan. Fatma and members of the Koku family went to Pötürge to see the decapitated body of Hüseyin Koku, which had been separated into three or four pieces. Most of the body was in a state of decomposition. 33. The Pötürge Prosecutor took statements from the Koku family members present. The security forces told the relatives that an autopsy would be carried out within 15 days and that the body would be released afterwards. 34. On 28 April 1995 Fatma Koku made several formal complaints to the Prosecutor, requesting that the murder of her husband be investigated and the necessary action be taken. 35. On 12 May 1995 Amnesty International published another ‘Urgent Action’ bulletin about Hüseyin Koku. 36. According to the autopsy report drawn up by the Forensic Medicine Directorate on 29 June 1995, there were two bullet wounds in the body, including one in the skull. 37. In July 1995 Fatma Koku was summoned to the police station and was asked about the petitions she had made in respect of her husband. While at the police station, she signed a document which she believed confirmed that she had submitted those petitions. 38. The Koku family have not been informed by the Prosecutor or any other official about any investigation being undertaken into her husband’s disappearance and murder. 39. On 23 August 1995 Hüseyin Koku’s body was released to the family’s lawyer. The body was buried the same day. Members of the security forces surrounded the area during the burial to prevent anyone other than close family from entering. 40. The applicant kept in contact with Mr Mehmet Kaya, another member of HADEP’s Elbistan branch, throughout this period. Mr Kaya told the applicant in 1996 that HADEP would be making a statement about the abduction and murder of his brother during the forthcoming annual general meeting of HADEP. Mr Kaya and two other local HADEP politicians were shot and killed on their way back from that annual general meeting. 41. The applicant took up the matter with various international organisations, including Amnesty International. He sought advice from his MEP, Mr Alf Lomas, who petitioned the European Parliament concerning Hüseyin Koku’s death. At this time, while making telephone calls to Turkey, the applicant would on several occasions be cut off and a Turkish-speaking voice would interrupt and threaten him. 42. The Court notes that the Government did not submit observations on the merits of the case (see paragraph 7 above). The following submissions are therefore taken from the observations submitted to the Commission on 15 May 1996 and from the additional observations submitted on 10 April 1997, i.e. prior to the application being declared admissible. 43. According to the Government, the authorities first became aware of the disappearance of Mr Hüseyin Koku on 3 November 1994, following the receipt of the petition submitted by Mrs Fatma Koku to the Kahramanmaraş Governor (see paragraph 91 below). Upon receipt of this petition, the Deputy Governor of Kahramanmaraş requested information from a number of authorities. 44. On 7 November 1994 the Elbistan Gendarme Headquarters sent a reply to the Deputy Governor. According to this reply, Hüseyin Koku had not been taken into the custody by the gendarmerie. 45. Also on 7 November 1994 the Police Headquarters informed the Deputy Governor that Hüseyin Koku had not been detained by them on or around 20 October 1994. 46. On 9 November 1994 the Kahramanmaraş Governor sent his report to the Ministry of the Interior, according to which a number of newspapers had carried reports of the alleged disappearance of Hüseyin Koku. On 23 October 1994 the Özgür Ülke newspaper had run the headline, “Director of HADEP’s Elbistan Branch Taken into Custody”. On 5 November 1994 the same newspaper had reported, “HADEP’s Elbistan Director Missing” and asked, “Was HADEP Director Killed?”. On 29 October 1994 the Nevroz newspaper had carried the headline, “Custody in Elbistan”. The accuracy of these articles had been assessed by the Kahramanmaraş security units and it had been established that Hüseyin Koku had not been taken into custody. He had, however, been arrested in 1982 and 1994 in connection with his alleged membership of outlawed organisations. On the basis of his past activities, the Kahramanmaraş Governor concluded in his report that it was possible that Hüseyin Koku had left the country through illegal means in order to join the PKK or to carry out activities on behalf of the PKK. 47. On 10 November 1994 a reply was given to the Secretary of State for Human Rights, who had apparently enquired on 2 November 1994 whether Hüseyin Koku had been treated at the Kahramanmaraş State Hospital for injuries sustained as a result of torture. The reply stated that between the dates of “20 November 1994 and 10 November 1994”, Hüseyin Koku had not requested any kind of treatment from this hospital and neither had he been brought there by the police. 48. On 11 November 1994 the chief of the Elbistan Police Headquarters sent a letter to the chief of the Kahramanmaraş Police Headquarters in which he wrote that he had questioned a number of persons who owned shops on Malatya Street where Hüseyin Koku had allegedly been taken away by the police. None of these persons had any information about such an incident. On the basis of this information and also on the basis of statements taken from Fatma Koku and Özlem Koku, the Elbistan police chief concluded that the allegation was one of many similar allegations made with the aim of dishonouring the security forces. 49. On 26 June 1995 the Chief Public Prosecutor of Elbistan sent to the Ministry of Justice’s International Law and Foreign Relations Directorate (hereinafter “the Directorate”) a letter in which reference was made to information sent to the Ministry previously. This letter informed the Directorate of the discovery of Hüseyin Koku’s body, together with three keys, on 26 April 1995; one of these keys had been for the door to the HADEP party office building, one for Hüseyin Koku’s house and the third one for a briefcase belonging to Hüseyin Koku. 50. In view of the contents of the briefcase, it had been established that Hüseyin Koku was conducting an extramarital affair with a certain C.E., who was a married woman. Adultery being an offence at the relevant time, C.E.’s husband had made a complaint to the authorities against Hüseyin Koku which had resulted in a decision not to prosecute, taken by the Elbistan Prosecutor on 20 December 1993. A number of letters found in the briefcase revealed the unfaithful acts of C.E. 51. The Chief Public Prosecutor further referred to a statement taken from Ahmet Güzel, Fatma Koku’s brother, by the Pötürge Prosecutor on 28 April 1995. According to this statement, Mehmet Çolak, the father of C.E., had told Mr Güzel on 22 October 1994 that, “... they fucked him up and got rid of him ...”. This had been understood to be a reference to Hüseyin Koku. 52. The Chief Public Prosecutor, taking into account the above information, concluded in his letter to the Directorate that the death of Hüseyin Koku was closely connected to his extra-marital affair with C.E. 53. According to the autopsy report of 26 June 1995, drawn up by the Forensic Medicine Directorate in Istanbul, there were two bullet wounds on the body and another one in the skull. 54. In a letter of 8 September 1995 the Elbistan Prosecutor informed the Directorate of all the facts and evidence collected until that date. 55. On 1 March 1996 the Elbistan Prosecutor sent another letter to the Directorate. Referring to the application lodged with the Commission, the Prosecutor informed the Directorate that the death of Hüseyin Koku would be explained when the preliminary investigation, which had been started by the Pötürge Prosecutor after the discovery of the body, was completed. 56. On 21 March 1996 the Ministry of Justice sent a letter to the Directorate, informing the latter of the above mentioned correspondence. According to this letter, the allegations directed against State officials were illusory and had been made for propaganda purposes. 57. A letter drawn up on 22 March 1996 by the Ministry of Interior’s General Security Directorate referred to the above mentioned facts and reports and stated that the body of Hüseyin Koku had been buried by his family in Elbistan on 23 August 1995. 58. In their additional observations submitted to the Commission on 10 April 1997, the Government finally submitted that the Pötürge Prosecutor’s investigation into the death of Hüseyin Koku was still pending under file no. 1995/42 and that it would continue until the expiry of the statutory limitation period. 59. The following information appears from the documents submitted by the Government. 60. Pursuant to an interim decision adopted by the Malatya State Security Court (hereinafter “the Malatya Court”) on 10 May 1994, the applicant’s brother, Hüseyin Koku, was released from prison pending the outcome of criminal proceedings brought against him on account of his alleged PKK membership and on suspicion of aiding and abetting that organisation. 61. On 17 May 1994 the Prosecutor at the Malatya Court decided to discontinue the prosecution of the applicant’s brother on account of a lack of sufficient evidence to show his involvement in such offences. 62. At 1 p.m. on 26 April 1995 Emin Ziya Kekeç, a village guard, informed the commander of the Tepehan Gendarme Station of his discovery of a dismembered body in a location near Arguça hamlet of Sinan village, situated within the administrative jurisdiction of the town of Pötürge. The commander of the Tepehan Gendarme Station, together with a number of soldiers under his command, went to the location where the body had been found by Mr Kekeç. They were unable to find any bullets at the scene. 63. Mr Zeki Polat, the Prosecutor of the town of Pötürge, arrived at the scene shortly after the gendarmes and recorded his findings in a report. Mr Polat also instructed a photographer to photograph the body. The soil under and around the body parts was searched for bullets, spent bullet cases and for similar evidence, but none were found. 64. A wallet, found in the deceased’s jacket pocket, contained an electricity bill and a piece of scrap paper. Noting that these papers were very wet and risked being torn, a decision was taken to read them at a later stage when they were dry. A key for a door lock, a small, rusty flick-knife and two rusty telephone tokens were also found in the jacket pocket. 65. Dr Kağan Denge and Dr Naim Özata, who had arrived at the scene together with the Prosecutor, detailed their findings in a report drawn up during the examination of the body. According to this report, the body was badly decomposed and body parts and bones were lying around. The head was missing. Bones had been scattered around the body, possibly by wild animals. The examination carried out on the body parts did not reveal any firearm injuries. The internal organs had all disappeared. The doctors were unable to establish the cause of death and a decision was therefore taken to send the remains of the body to the Forensic Medicine Directorate in Istanbul. 66. On 27 April 1995 the Pötürge Prosecutor sent a fax message to his colleague in the town of Elbistan, asking the latter to help establish the identity of the body by checking the information found in the jacket pocket. 67. On 28 April 1995 Fatma Koku examined the clothes found on the body and concluded that they belonged to her husband Hüseyin Koku. The Pötürge Prosecutor then sent the remains of the body, together with the reports drawn up at the site where it had been found, to the Forensic Medicine Directorate and asked for the cause of death to be established. 68. Also on 28 April 1995, a report was drawn up by two gendarmes. According to this report, the key found on the body belonged to a briefcase owned by Hüseyin Koku which was being kept in the house of his brother-in-law, Ahmet Güzel. The briefcase was opened by the gendarmes who found a number of documents in it. These documents related, inter alia, to the criminal proceedings brought against Hüseyin Koku on account of his alleged adultery with C.E. 69. On 29 April 1995 a number of soldiers and village guards once more visited the site where the body had been found and searched for the missing head. They found the skull in three pieces. 70. Later that same day, the Pötürge Prosecutor and Dr Denge visited the area and examined the bones found by the soldiers earlier that day. Dr Denge observed that the posterior part of the skull had a bullet entry, measuring 1 x 1 centimetre. This bullet had also caused a fracture in the skull. The Prosecutor forwarded the skull pieces to the Forensic Medicine Directorate in Istanbul. 71. Between 28 and 30 April 1995 statements were taken by the authorities from members of Hüseyin Koku’s family, who stated that they had heard that Hüseyin Koku had been having an extra-marital affair with C.E. and that C.E.’s family were angry with Hüseyin. 72. On 1 May 1995 Fatma Koku submitted a petition to the Elbistan Prosecutor and asked for the remains of her husband to be returned to her after they had been examined in Istanbul. 73. On 25 May 1995 the Forensic Medicine Directorate began its examination of the remains of the body. The Ballistics Department was asked to establish whether the clothes worn by the deceased bore any damage caused by a bullet or sharp objects. In case bullet damage was found, the Ballistics Department was requested to establish the distance from which the bullet had been fired. 74. On 26 May 1995 the Pötürge Prosecutor, Zeki Polat, sent a letter to his colleague in the town of Elbistan, stating that, in his opinion, the affair Hüseyin Koku had being conducting with C.E. could be connected with his death in October 1994. Mr Polat asked the Elbistan Prosecutor to take statements from members of C.E.’s family who lived in the town of Elbistan. 75. The Pötürge Prosecutor also sent a letter to the Forensic Medicine Directorate on 26 May 1995 and urged them to expedite the examination of the remains of Hüseyin Koku’s body. 76. On 1 June 1995 Pötürge Prosecutor Mr Polat drew up a report in which he detailed the developments that had taken place in the investigation. According to this report, Hüseyin Koku, chairman of HADEP’s Elbistan branch, had been found dead on 26 April 1995 with a possible bullet entry wound on his skull. Mr Polat had also found out from the Elbistan Prosecutor that the disappearance of Hüseyin Koku in October 1994 had been brought to the attention of that Prosecutor. The husband of C.E. had also disappeared 15-20 days prior to the disappearance of Hüseyin Koku and C.E. had then started living with another man in Gaziantep. Hüseyin Koku had gone to Gaziantep prior to his disappearance and had had a row with that man. 77. On 13 June 1995 the Ballistics Department concluded that the large number of cuts and other damage on the clothes had been caused by rotting. 78. On 29 June 1995 the Forensic Medicine Directorate recorded in their report that Hüseyin Koku had been shot in the head from behind. It was also observed that another bullet had gone through the spine. It was concluded that the two bullets had caused the death but that it was not possible to establish the distance from which the bullets had been fired. The report contains no information as regards the time of death. 79. In a letter of 18 August 1995 the Prosecutor in Elbistan requested the Prosecutor in the city of Gaziantep to question C.E. in order to establish whether she had any information about the death of Hüseyin Koku. 80. On 23 August 1995 the remains of Hüseyin Koku’s body were returned to the Pötürge Prosecutor, who then handed them over to the family’s lawyer for burial. 81. On 5 September 1995 a statement was taken from C.E. by the Prosecutor in Gaziantep. In her statement C.E. denied that she had had a relationship with Hüseyin Koku and added that she did not know anything about his death. 82. On 18 January 1996 a certain Mr Aziz Dalkılıç was questioned by a gendarme officer in relation to “the killing of a person by two people in a location near Sinan village in the autumn of 1994”. Mr Dalkılıç stated that at around 3 p.m. one day in late October 1994, he and his wife had gone to the forest to collect leaves for his animals. Approximately two hours later, when they had finished collecting leaves and had begun their journey back in a tractor, they had seen three men, one of whom was lying on the ground, with his face down, between two rocks, and the other two had “taken positions”. The two men who had “taken positions” were wearing clothing and hats similar to military uniforms and military boots. All three men were wearing light brown vests, similar to the type in which ammunition could be carried. Mr Dalkılıç was able to see the barrel of the gun of one of the men. He did not think that the men had seen him or his wife. He had not heard any gun shots. He and his wife had been scared and taken another path which took them to the asphalt road. On their way home, they had seen a minibus whose driver he knew. He had told the minibus driver that he and his wife had seen three armed men and asked the minibus driver to inform the gendarme station. 83. The following day Mr Dalkılıç had been summoned to the gendarme station where he was questioned about what he and his wife had witnessed the previous day. He had heard at a later date that the soldiers had gone to the area to look for the three men but that they were unable to find them. 84. At 9 a.m. on 2 February 1996 Mr Dalkılıç was collected from his house by gendarmes and taken to the place where he had seen the three persons. Mr Dalkılıç showed the gendarmes the two rocks between which the “dead man”, who was wearing military clothing, had been lying. 85. Also on 2 February 1996 Mr Dalkılıç was questioned by the Pötürge Prosecutor. Mr Dalkılıç repeated the version of events contained in his previous statement made to the gendarmerie and added that the three men, all with long hair, had been wearing commando uniforms and berets. He did not think any of them was dead. The person lying between two rocks was not moving but the other two were. Although he had told the minibus driver that he had seen three armed men, in fact only two of them had been armed. The fact that the men had longer hair than soldiers’ had led him to form the opinion that the two men were terrorists. 86. On 8 March 1996 the Prosecutor at the Malatya Court sent a letter to the Prosecutor in Elbistan and asked him whether an investigation had been carried out into the disappearance of Hüseyin Koku in October 1994. The Prosecutor also referred in his letter to the following correspondence: 87. On 24 September 1996 the Elbistan Prosecutor forwarded to the Directorate the decision taken by his office on 20 December 1993 not to prosecute Hüseyin Koku and C.E. for adultery. 88. The following information appears from the documents submitted by the applicant. 89. On 1 November 1994 Fatma Koku submitted a petition to the Prosecutor’s office in the town of Elbistan. Mrs Koku alleged in that petition that her husband had been taken away by plain-clothes police officers in a Renault car at around midday on 20 October 1994. She further stated that she had already contacted the Elbistan Police Headquarters where she had been told that her husband had not been detained by the police. She finally stated that her fears for her husband’s safety were heightened following the publication of a press release – drawn up by the Governor of Elbistan – in the local paper on 31 October 1994. According to that communiqué, her husband had not been detained by the police. She asked the Prosecutor to look for her husband. Mrs Koku enclosed a photograph of her husband with her petition and wrote her address on the petition. 90. Mrs Koku’s petition was accepted by the Prosecutor the same day. On the petition the Prosecutor wrote his instructions according to which “[Hüseyin Koku] should be searched for in the places where he may be”. It also appears that this petition and the instructions were forwarded to the Elbistan Police Headquarters the same day. 91. On 3 November 1994 Mrs Koku submitted a similar petition, together with a photograph of her husband, to the office of the Governor of Kahramanmaraş. 92. Mr Bulut Yılmaz sent three letters to the applicant’s lawyers in which he described his eye-witness account of the abduction of Hüseyin Koku on 20 October 1994 (see paragraph 20 above). Mr Yılmaz left Turkey in 1995 and settled in Switzerland where he was subsequently granted political asylum. According to these letters, Mr Yılmaz had seen two plain-clothes police officers talking to Hüseyin Koku on Malatya Street in Elbistan on 20 October 1994. Hüseyin had then got into the white Renault car and left with the police officers. 93. The applicant submitted to the Court a chronology of incidents, listing attacks against representatives of pro-Kurdish political parties, in particular the People’s Labour Party (HEP), DEP and HADEP, between 1990 and 2001. This chronology lists a large number of attacks against members of these pro-Kurdish political parties who either died or were left injured as a result. It also lists armed attacks and bombings, etc. against the premises of these parties. According to the list, over sixty politicians belonging to the above mentioned political parties have been murdered between the entry into the Parliament of HEP in 1990 and the abduction of Hüseyin Koku in October 1994. 94. The relevant domestic law and practice are set out in the judgment of Tepe v. Turkey (no. 27244/95, §§115-122, 9 May 2003). | 1 |
train | 001-100717 | ENG | RUS | ADMISSIBILITY | 2,010 | SOPOT v. RUSSIA | 4 | Inadmissible | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | The applicant, Mr Aleksey Vladimirovich Sopot, is a Russian national who was born in 1988 and is serving a prison sentence. He is represented before the Court by Mr Yu. Chigayev, a lawyer practising in Pechory, Pskov Region. The respondent Government are represented by Mr G. Matyushkin, 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 has been disabled since childhood. He suffers from Scheuermann's disease (kyphosis), spinal arachnoiditis, and myelopathy. Following two operations in 2002 and 2005, he also developed spastic paraparesis. On 25 February 2006 the applicant was arrested and charged with numerous offences, including murder and theft of firearms. His pre-trial detention was extended on several occasions. On 11 October 2006 the Pskov Town Court of the Pskov Region extended the applicant's pre-trial detention until 14 November 2006. The applicant applied for release, referring to the seriousness of his condition and lack of medical assistance in the pre-trial detention facility. He also submitted medical documents indicating that he was in need of further examination and treatment at a specialised medical institution. The court decided that the applicant's ill-health did not render him unfit for detention. On 8 November 2006 the Pskov Regional Court upheld the decision of 11 October 2006 on appeal. The applicant remained in detention pending investigation and trial. On 18 January 2007 the Pskov Regional Court found the applicant guilty as charged and sentenced him to thirteen years' imprisonment. On 15 March 2007 the Supreme Court of Russia upheld the applicant's conviction on appeal. From 3 March 2006 to 18 January 2007 the applicant remained in custody pending investigation and consideration of the criminal charges against him. He was detained in remand prison no. 1 in Pskov. According to the documents submitted by the Government, the prison comprised a medical unit with qualified staff. The unit was licensed to carry out general treatment and therapy, lab testing, anaesthetics, intensive care, dentistry, psychiatric and substance abuse treatment, X-ray examination, ultrasonography, anti-tuberculosis treatment and surgery. According to the medical file, the applicant received medical treatment and consultations as follows. On 3 March 2006 he was examined by a general practitioner and had general tests, including fluorography and blood tests. Noting that the applicant's condition was typical of someone who had previously undergone spinal surgery, the doctor concluded that there was no need for any treatment. On 25 August 2006 the applicant complained about regular pain around the surgical stitches and leg cramps. He was examined by the head of the medical unit who recommended a consultation with a neurologist. On 27 September 2006 the applicant was examined by a general practitioner and a neurologist. The applicant complained of pain in the lumbar and thoracic regions. The doctors detected loss of sensitivity in his left leg, loss of mass in the right shin and partial paraparesis. The doctors prescribed pentoxyfilline, lucetam, cavinton, and diclofenac. The latter medication was not administered in view of the low severity of the pain. It was further recommended that the applicant undergo an X-ray examination and consult a neurosurgeon. The applicant received the remainder of the medication free of charge. On 27 September 2006 the applicant had another fluorography. On 28 September 2006 the applicant underwent an X-ray examination of the spinal cord. On 12 October 2006 a regional hospital where the applicant had undergone treatment submitted certain medical documentation concerning the applicant's condition, including a medical certificate issued on 14 April 2006 by a district outpatient clinic and confirming that the applicant had undergone two operations on the spinal cord and that he was in need of further examination and another operation. On 2 November 2006 the applicant was examined by a neurosurgeon from a regional hospital. He confirmed the earlier diagnosis, noting that the applicant's condition did not call for urgent surgery. He considered that, subject to the results of magnetic resonance imaging and computed tomography of the spinal cord, the applicant might require another operation on the spinal cord. On 11 December 2006 the applicant was examined by an ophthalmologist. On 12 December 2006 the remand prison prepared the documents necessary for the applicant's disability assessment. On 26 December 2006 the Chief Medical Expert Bureau of the Pskov Region examined the applicant's medical file and classified his disability as “category three”. The applicant's appeal was to no avail. The 1995 Law on the conditions of detention of suspects and accused (закон «О содержании под стражей подозреваемых и обвиняемых в совершении преступлений») (as amended) provides that inmates are entitled to medical assistance (section 17). If an inmate's health deteriorates, the medical officers of the remand prison are obliged to examine him promptly and inform him of the results of the examination in writing. If the inmate requests to be examined by staff of other medical institutions, the administration of the detention facility is to organise such an examination. If the administration refuses, the refusal can be appealed against to a prosecutor or court. If an inmate suffers from a serious disease, the administration of the remand prison is obliged immediately to inform the prosecutor, who can carry out an inquiry into the matter (section 24). | 0 |
train | 001-105125 | ENG | MLT | CHAMBER | 2,011 | CASE OF AQUILINA AND OTHERS v. MALTA | 3 | Violation of Art. 10;Non-pecuniary damage - award | David Scicluna;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva | 6. The applicants were born in 1942, 1973 and 1954 respectively and live in Malta. When the facts that gave rise to the complaint occurred, the first applicant was the editor of the newspaper “The Times of Malta”, the second applicant was a court reporter for the said newspaper and the third applicant was the registered newspaper’s printer. 7. On 20 June 1995 a bigamy case, in which the accused was represented by Dr A., was to be heard before the Court of Magistrates. Dr A. was called a number of times but he failed to appear. The accused explained that there had been trouble between them in view of requests for excessive fees which he was unable to pay. According to the second applicant, the presiding magistrate repeatedly expressed his intention in open court to find Dr A. in contempt of court. Indeed, in the chaotic atmosphere in the courtroom, the second applicant heard the magistrate find Dr A. to be in contempt of court. According to the second applicant, she subsequently attempted to verify this fact through the records of the proceedings, but both the magistrate and the court deputy registrar had already left their chambers. She therefore verified what she had heard with another reporter present in the courtroom. He confirmed her version. 8. A decision of the same date in the relevant bigamy proceedings referred to the fact that Dr A.’s client’s request to replace his lawyer at that stage of the proceedings verged on contempt of court. However, in view of the circumstances as explained to the court, the case was adjourned. 9. On 21 June 1995, the Times of Malta newspaper published a report entitled ‘Lawyer found in Contempt of Court’. It reported, inter alia, that Dr A. had been found guilty of contempt of court for failing to appear before a magistrate hearing the final stages of a bigamy case. 10. On the same day Dr A. called the second applicant and protested vigorously about the article. Subsequently, the second applicant proceeded to verify the information by checking the record of the proceedings. However, the relevant information was not registered therein. In consequence on 22 June 1995 the newspaper published a report entitled ‘Lawyer Not Found in Contempt of Court’ which reproduced the relevant record of the proceedings and stated that “any inconvenience caused to Dr A. is regretted”. 11. Nonetheless, on the same day, Dr A. brought civil proceedings for defamation under Part III of the Press Act (actions arising from press offences). The applicants pleaded, inter alia, that the publication was privileged under section 33 (d) of the Press Act (see Relevant domestic law below), that it was not libellous, that mitigation in accordance with section 28 (2) of the Press Act should be applied in view of the apology published on the following day and that the third applicant had not read the report prior to its publication (see Relevant domestic law). 12. By a decision of 13 June 1997, the court, while acknowledging that the record of the case did not cover the entire proceedings, allowed the applicants to present evidence. On 24 February 1998, in his testimony, the prosecutor in the bigamy case explained that Dr A. had not appeared at the hearing. The prosecutor related that he had tried to keep the magistrate calm and was nearly found guilty of contempt himself because he was playing defence lawyer. The prosecutor stated that, at that moment, the magistrate dictated a minute, which he thought was directed towards him, that if he opened his mouth he would himself be found in contempt of court. He had also understood, at that moment, that the magistrate found Dr A. to be in contempt of court because he did not appear. The prosecutor reiterated that, at that moment, the magistrate was very angry and that he understood that he had found Dr A. guilty of contempt. When asked whether the impugned article reflected what really went on in the court room, the prosecutor replied “effectively it reflects what happened in court in short”. He continued to say that while much more was said in the court room, at that time, the phrase in the article “the magistrate found Dr A. to be in contempt of court” reflected the impression he had had as to what effectively happened at that moment in time. 13. On 5 November 1999 the Civil Court found against the applicants. It rejected the applicants’ first two above-mentioned defence pleas. In its presentation of the facts the court recalled the above mentioned evidence. It, however, found that the article did not coincide properly with what had happened, in particular in its heading, since, as appeared clearly from the minutes of the hearing, it was not true that the plaintiff was found guilty of contempt of court. Thus, the publication was not a fair report of the proceedings. Consequently, it could not be considered privileged. The court went on to note that the defendants tried to diminish their blame for their incorrect reporting by proving that the hearing had been chaotic. It was for this reason that the journalist misunderstood what had happened. The defendants had further shown that the prosecutor too had misunderstood what had happened, as he had also understood that the plaintiff had been found guilty of contempt. In the court’s view, however, this merely highlighted the need for the reporter to verify her information. The reporter’s interest in publishing information was legitimate. However, it could not be more important than someone’s reputation. The statement that Dr A. had been found to be in contempt of court surely harmed his reputation as it incited the supposition that he had not fulfilled his duties as a lawyer. Thus, it found the statement in question to be defamatory and taking account of the fact that they had published an apology and that the printer had not read the report at issue, it ordered the applicants to pay, in solidum, 300 Maltese liras (MTL – approximately 720 euros (EUR)) in damages with interest and costs, but limiting the third applicant’s responsibility to MTL 150 (approximately EUR 360) plus interest. 14. The applicants appealed and Dr A. cross-appealed. 15. On 27 June 2003 the Court of Appeal rejected both appeals, reiterating that the statement had not reflected the truth and adding that when the statement was in itself injurious, mischievous intent (“animus injurandi”) was presumed. 16. On 31 May 2004 the applicants brought constitutional redress proceedings, claiming that they had published a faithful version of what went on in the courtroom and that the above-mentioned judgments breached their right to freedom of expression. Despite the applicants’ opposition, Dr A. was allowed to intervene in the proceedings. 17. On 24 May 2007 the Civil Court (First Hall) found against the applicants. 18. While extensively reiterating the principles derived from the Court’s case-law, the Civil Court noted that during the defamation proceedings it was established that the fact reported had not been true, and that the applicants had a duty to verify the relevant information. Upon examination of the record of the defamation proceedings, the Civil Court in its constitutional jurisdiction concluded that the domestic courts’ conclusions had not been unreasonable. The fact that the applicants had published an apology was of little relevance, if any, if the information published in the first place was false. In such circumstances it was not unreasonable for the courts to protect Dr A.’s reputation and limit the applicants’ right to freedom of expression. 19. On 4 June 2007 the applicants appealed. On 16 January 2008 the Constitutional Court rejected the applicants’ appeal. It held that a journalist had to assume responsibility for what he or she decided to publish. If an item was presented as fact then the journalist must be able to prove it. Even if acting in good faith, the press may only publish facts and not what appears to it to be fact. Had the second applicant verified the record of the proceedings she could have avoided misinforming the public. Citing the Court’s case-law, the Constitutional Court held that, while it was not for them to establish the veracity of the facts at issue, the domestic courts’ judgments in favour of Dr A. had not infringed the applicants’ rights under Article 10. The public had a duty to be informed of true and verified facts, in good faith, as was to be expected from professional journalism. 20. Section 28 of the Press Act, Chapter 248 of the Laws of Malta, relates to damages for defamatory libel. Subsection 2, in so far as relevant, reads as follows: “In any case to which this article applies, the defendant may, in mitigation of damages, prove that he made or offered to make an apology to the plaintiff for such defamation before the commencement of the action for damages or, as soon afterwards as he had an opportunity of doing so where the action commenced before there was an opportunity of making or offering such apology: Provided that the defendant shall not be allowed to adduce such proof in mitigation of damages if he has raised a plea of justification in terms of section 12.” 21. According to section 33 (d) of the Press Act, in so far as relevant, the following are privileged publications, in that no action shall lie in respect of them: “Publications of reports of any proceedings in a court of justice in Malta provided such reports are fair reports of the proceedings and the publication of such reports or proceedings is not prohibited by law or by the court...” 22. Article 518 of the Criminal Code, Chapter 9 of the Laws of Malta, reads as follows: “The acts and documents of the courts of criminal justice shall not be open to inspection, nor shall copies thereof be given, without the special permission of the court, except by or to the Attorney General, by or to the parties concerned or by or to any advocate or legal procurator authorised by such parties; but any act, which is pronounced in open court, shall be open to inspection by any person, and copies thereof may be given on payment of the usual fee: Provided that a procès-verbal and any depositions and documents filed therewith shall be open to inspection, and copies thereof shall be given, only at the discretion of the Attorney General and on payment of such fees as may be prescribed by the Minister responsible for justice ....” | 1 |
train | 001-67401 | ENG | TUR | CHAMBER | 2,004 | CASE OF TAŞKIN AND OTHERS v. TURKEY | 1 | Violation of Art. 8;Violation of Art. 6-1;Not necessary to examine Art. 2 and 13;Non-pecuniary damage - financial award | Georg Ress | 11. The case concerns the granting of permits to operate a gold mine in Ovacık, in the district of Bergama (İzmir) The applicants live in Bergama and the surrounding villages. 12. Mr Sefa Taşkın, born in 1950, was formerly the mayor of Bergama. He now lives in Dikili, ten kilometres away from the Ovacık gold mine. Mr Tahsin Sezer, born in 1952, lives with his family in the village of Çamköy, which is 300 metres from the mine. He is a farmer and owns land in the surrounding area. Mr Ali Karacaoğlu, born in 1950, lives with his family in the village of Çamköy. He owns land adjacent to the mine, on which he grows tobacco and olive trees. Mrs Günseli Karacaoğlu, born in 1976, is the wife of the muhtar (elected local official) of the village of Çamköy. She is a livestock farmer. Mr Muhterem Doğrul, born in 1949, lives in Çamköy. He is a livestock farmer. He and his family own an olive grove adjacent to the mine. Mr İbrahim Dağ, born in 1951, lives in Çamköy. He is a livestock farmer and owns agricultural land near the mine, on some of which olive trees have been planted. Mr Ali Duran, born in 1976, lives with his family in Çamköy. He is a livestock farmer. Mr Sezer Umaç, born in 1978, used to live in the village of Süleymanlı, which is 900 metres from the mine. He asserts that he left the village recently on account of damage to the environment. Mrs Ayşe Öçkan is the widow of Mr İzzet Öçkan, who died on 13 January 2004. She lives in the Bergama area and owns land near the mine. Mr Hasan Geniş, born in 1968, lives in the village of Süleymanlı. He is a driver. 13. The applicants alleged that, as a result of the Ovacık gold mine’s development and operation, they had suffered and continued to suffer the effects of environmental damage; specifically, these include the movement of people and noise pollution caused by the use of machinery and explosives. 14. On 16 August 1989 the public limited company E.M. Eurogold Madencilik (“the company”), subsequently renamed Normandy Madencilik A.Ş., received authorisation to begin prospecting for gold. 15. On 4 July and 12 August 1991 the Directorate of Mines at the Ministry of Mines and the Ministry for Forests issued the two required permits to the company. 16. On 14 January 1992 the İzmir Directorate of Public Works sent a letter to the Ministry of the Environment requesting its opinion on the Ovacık gold mine. 17 On 12 February 1992 the Ministry of Energy and Natural Resources issued the company with an operating permit for the Ovacık gold mine. This permit was valid for ten years and authorised the use of cyanide leaching in the gold extraction process. 18. On 22 June 1992 the company began felling trees in part of the forestry area granted to it. The rest of the forest was left untouched in order to form a protection zone. 19. In accordance with section 10 of the Environment Act (Law no. 2872 – see paragraph 91 below), the procedure for an environmental impact report was launched on the Ministry of the Environment’s initiative. 20. On 26 October 1992 a public meeting was held as part of the preparations for the impact report. During that meeting, the public criticised, inter alia, the tree felling and the use of explosives and sodium cyanide; they also expressed their concerns about the seepage of waste into underground water supplies. The experts attending the meeting were asked a number of questions about the waste-retaining dam, the risks in the event of an earthquake and the state in which the gold mine would be left after its closure. In particular, there were calls for a referendum and for the necessary measures to be taken. The experts described other countries’ experiences in this area. Mr İpekoğlu explained that this type of activity always carried a certain risk, which had to be managed correctly. Mr Erdem criticised the way in which the impact study was being prepared and recommended that a new procedure be started. The mayor, Mr Taşkın, explained that the municipal council had given considerable thought to the disputed gold mine and its impact on the environment. He stated that he was not against its operation; however, he did ask that the necessary measures be taken, particularly with regard to the waste-retaining dam and the introduction of a rigorous monitoring system. Finally, he pointed out that an earthquake had occurred in the region in 1938. 21. After twenty-seven months of preparation, the impact report was submitted to the Ministry of the Environment. On 19 October 1994, basing its decision largely on the conclusions of that report, the Ministry decided to issue an operating permit for the Ovacık gold mine. 22. The mine was ready to start operating as of November 1997, when the other administrative procedures had been completed and, according to the Government, all necessary measures had been taken in order to comply with national and international standards. 23. On 8 November 1994 some of the residents of Bergama and the neighbouring villages, including the applicants, applied to the İzmir Administrative Court requesting judicial review of the Ministry of the Environment’s decision to issue a permit. They based their arguments, inter alia, on the dangers inherent in the company’s use of cyanide to extract the gold, and especially the risks of contamination of the groundwater and destruction of the local flora and fauna. They also criticised the risk posed to human health and safety by that extraction method. 24. On 2 July 1996 the Administrative Court dismissed the applicants’ request. It held that the gold mine fulfilled the criteria set out in the environmental impact report and that the decision in issue had been adopted in accordance with the authorisation procedure for environmentally sensitive projects. 25. On 25 April 1997, with a view to protecting public order and preventing disturbances and in view of the numerous protests which had followed the delivery of the Administrative Court’s judgment, the İzmir provincial governor ordered that the mine’s operation be suspended for one month. 26. On 13 May 1997 the Supreme Administrative Court, to which the applicants had appealed, overturned the lower court’s judgment. It assessed the physical, ecological, aesthetic, social and cultural effects of the mining activity in question as described in the environmental impact survey and the various expert reports which had been submitted to it. It held that those reports demonstrated the risk posed to the local ecosystem and to human health and safety by sodium cyanide use; it concluded that the operating permit in issue did not serve the public interest and that the safety measures which the company had undertaken to implement did not suffice to eliminate the risks involved in such an activity. The relevant passages of the Supreme Administrative Court’s judgment read as follows: “The environmental impact report and expert reports examined the impact of cyanide use on the atmosphere, underground water sources, flora and fauna, the disturbance linked to noise and vibrations, and regional planning issues. [It is noted that] the potential for soil erosion in the region through the effects of water (flooding) and wind is relatively high and the level of erosion of forestry land falls into Categories 2 and 3 and, in certain areas, Category 1 ... The soil is permeable; the area forms part of the [high-risk zone] for earthquakes. Rainfall in the area in question will result in flooding in summer and spring on account of its distribution and force; flooding occurs in these seasons in the [proposed] tailings area. The region’s inhabitants use the groundwater; in the event of seepage, it could become polluted by toxic waste. Cyanide has a high pH value, which is influenced by rainfall: when the pH level falls, the cyanide may transform into hydrogen cyanide (HCN). HCN, a gas with a relatively low boiling point (25.7o), is likely to enter the atmosphere ... [In addition,] the risk of seepage of materials into the groundwater may last twenty to fifty years ... [and,] in the event of seepage into the atmosphere or soil, there may be adverse consequences for the environment and for the flora and fauna. [However, the above-mentioned reports note that guarantees such as] the operating company’s good faith, scrupulous observance of the conditions set out in the operating contract, and trust in the monitoring and supervision to be carried out by the central and local authorities led to the conclusion that the decision in question served the public interest ... It appears from the above-mentioned reports that cyanide use in gold mining and the other heavy elements which are subsequently released constitute a potential risk which would endanger the environment and human health; in particular, when cyanide, an extremely toxic substance, mixes with soil, water and air, it becomes harmful to all living beings. Consequently, it is possible that waste material containing cyanide, after pumping to the retaining dams, could seep into and pollute water sources and other sites [where water is used] ... The region’s flora and fauna are also threatened. [Accordingly], it must be borne in mind that cyanide use poses a considerable risk to human health and the environment ... In the light of the technical and legal conclusions and bearing in mind the State’s obligation to protect the right to life [and] to a healthy environment ..., it is appropriate to overturn the judgment appealed against, given that the gold mine’s disputed operational methods entail the risks set out in the environmental impact report and the expert reports and that, should those risks be realised, human health would be clearly affected, directly or indirectly, through environmental damage ...” 27. On 15 October 1997, in compliance with the Supreme Administrative Court’s judgment, the Administrative Court annulled the Ministry of the Environment’s decision to issue a permit. 28. On 1 April 1998 the Supreme Administrative Court upheld the Administrative Court’s judgment. 29. By virtue of section 52(4) of Law no. 2577 on administrative procedure (“Law no. 2577”), the Supreme Administrative Court’s judgment of 13 May 1997 entailed ipso facto a stay of execution of the Ministry of the Environment’s decision to issue a permit (see paragraph 97 below). 30. In a letter of 26 June 1997, the İzmir Bar Association asked the İzmir provincial governor’s office to ensure that the Supreme Administrative Court’s judgment was enforced and, accordingly, to order that all operations be halted at the mine. 31. On 27 June 1997 the İzmir provincial governor’s office replied that there had been no final judgment and that the Ministry of Energy and Natural Resources had expressed its support for the continuing operation of the mine. 32. On 20 October 1997 the Ministry of the Environment was served with the Supreme Administrative Court’s judgment. On 23 October 1997 the Ministry invited the relevant authorities to reconsider the conditions attached to the operating permits in issue in view of the Supreme Administrative Court’s judgment. 33. On 24 December 1997 the applicants sent letters containing enforcement notices to the Minister of the Environment, the Minister of Energy and Natural Resources and the Minister for Forests, as well as to the İzmir provincial governor, requesting enforcement of the administrative courts’ decisions. 34. On 6 January 1998 the applicants brought an action in damages before the Ankara District Court against, among others, the Prime Minister, the ministries concerned and the İzmir provincial governor for non-enforcement of the administrative courts’ decisions. 35. On 27 February 1998 the İzmir provisional governor’s office ordered that the mine be closed. According to the Government, the mine carried out no mining activities until April 2001. 36. On 3 March 1998 the public prosecutor at the Bergama Police Court brought criminal proceedings against the senior managers of the mining company, alleging that the company had used cyanidation in extraction operations at the mine without prior authorisation. 37. On 27 March 1998 the İzmir gendarmerie drew up a report following inspection of the site. It noted the use of three tonnes of cyanide, which had facilitated the extraction of a nugget of mixed gold and silver weighing 932 grams. This report also indicated that eighteen tonnes of cyanide were still stocked at the site. 38. On 25 November 1999 the Ankara District Court dismissed the applicants’ action in damages. 39. On 25 September 2001 the Court of Cassation overturned the judgment of 25 November 1999 and remitted the case to the first-instance court. It found inertia on the part of the ministers concerned, who had taken no measures to prevent extraction using the cyanidation process within the time-limit provided for in section 28(1) of Law no. 2577 (see paragraph 96 below), despite the fact that they had been notified of the Supreme Administrative Court’s judgment annulling the mine’s operating permit. 40. On 16 October 2002 the Ankara District Court, hearing the case on remittal, followed the Court of Cassation’s judgment and allowed the applicants’ claim. 41. The criminal proceedings were abandoned in February 2001. 42. On 12 October 1998, 28 January 1999 and 3 March 1999, the company contacted various ministries in order to obtain a permit. Specifically, it claimed to have taken additional measures to ensure better safety in the gold mine’s operation and referred, inter alia, to a risk assessment report on this question drawn up by the British company Golder Associates Ltd. 43. The then Prime Minister intervened directly with regard to the company’s request. On an application from him, the Supreme Administrative Court, in an advisory opinion of 5 December 1999, ruled that its judgment of 13 May 1997 could not be interpreted as an absolute prohibition on the use of cyanide in gold mining operations and that there were grounds for taking specific circumstances into consideration. 44. In a separate development, the Prime Minister instructed the Turkish Institute of Scientific and Technical Research (“TÜBİTAK”) in March 1999 to prepare a report assessing the potential impact of cyanide use in the gold-mining operations. In October 1999 TÜBİTAK’s report was submitted. It had been prepared by ten scientists who were experts in environmental issues, environmental law, chemistry, hydrogeology, geology, engineering geology and seismology. The report concluded that the risks to human life and the environment set out in the Supreme Administrative Court’s judgment had been completely removed or reduced to a level within the acceptable limits, given that the mine was to use environmentally friendly advanced technology based on the “zero discharge” principle and that the risk of adverse impact on the ecosystem was, according to scientific criteria, much lower than the maximum acceptable level. 45. On 5 January 2000 the Prime Minister submitted the TÜBİTAK report to the Ministry of the Environment, requesting its opinion on the operation of the gold mine in question. 46. On 31 January 2000 the Ministry indicated its approval of the mine’s activities, in the light of the report’s conclusions. 47. On 5 April 2000 the Prime Minister’s Office drew up a report on the operation of the mine. The report concluded that, having regard to the additional measures taken by the company, the conclusions of the TÜBİTAK report, the Ministry of the Environment’s favourable opinion and the opinion of the President’s Administration, which had emphasised the economic importance of an investment of this type, the operation of the mine could be authorised. 48. On 1 June 2001 the First Division of the İzmir Administrative Court gave judgment following an application for judicial review, brought by eighteen residents of Bergama, including Mr Sefa Taşkın, with regard to the report issued by the Prime Minister’s Office on 5 April 2000. The Division decided to annul the report, which, in its opinion, constituted an enforceable administrative decision giving rise to the issuing of the requested permits. It held that, notwithstanding the measures taken by the company, it had been found in judicial decisions which had become final that the “risk and threat” in question resulted from the use of sodium cyanide in the gold mine concerned and that it was impossible to conclude that those risks could be avoided by implementing new measures. Equally, it had been established that the risk connected with the accumulation of heavy elements or cyanide could persist for twenty to fifty years and was likely to infringe the right of the area’s inhabitants to a healthy environment. Accordingly, it was appropriate to conclude that the decision in issue could circumvent a final judicial decision and was incompatible with the principle of the rule of law. 49. On 26 July 2001, at the Prime Minister’s request, the Supreme Administrative Court decided to suspend execution of the judgment of 1 June 2001. It found that the report of 5 April 2000 did not constitute an enforceable decision and was not open to appeal before the administrative courts. In addition, it held that only the ministries concerned, namely those of the Environment, of the Interior, of Health, of Regional Planning, of Energy and Natural Resources and for Forests were entitled to rule on this matter. 50. On 14 February 2001 the Fourth Division of the İzmir Administrative Court, on an application for judicial review brought by fourteen residents of Bergama, found that no environmental impact report had been drawn up by the Ministry of the Environment in connection with the operation of the gold mine. Consequently, it dismissed the application without examining the merits on the ground that no enforceable administrative decision had been taken. The Supreme Administrative Court upheld this judgment on 26 September 2001. 51. On 28 March 2003, on an application by a Mrs Lemke, a resident of Bergama, the First Division of the İzmir Administrative Court decided to set aside the report of 5 April 2000. 52. Proceedings are pending before the administrative courts. 53. On 6 October 2000 the Directorate General of Forests adopted a decision which extended the operating permit which had been issued to the company on the basis of the TÜBİTAK report. 54. Initially, in a judgment of 21 November 2001, the Fourth Division of the İzmir Administrative Court dismissed the application for a stay of execution of the Directorate General of Forests’ decision. 55. However, on 23 January 2002, the First Division of the İzmir Administrative Court, on an application from Mrs Lemke, decided to suspend execution of the decision of 6 October 2000, considering that the issuing of such a permit was incompatible with the rule of law and that irreparable damage would result from its enforcement. 56. That judgment was upheld by the İzmir Regional Administrative Court on 20 March 2002. 57. In a judgment of 7 June 2002, the Fourth Division of the İzmir Administrative Court dismissed an application for judicial review lodged by eighteen residents of Bergama against the decision of 6 October 2000, considering that the latter had been based on the issuing of a permit dated 12 February 1992, which was valid for a ten-year period. 58. On 27 March 2003 the Supreme Administrative Court upheld the judgment of 7 June 2002. 59. In parallel, on 3 May 2002 the Directorate General of Forests gave permission, inter alia, for the establishment of a security area around the gold mine and for the construction of roads, a drilling zone and a waste-retaining dam. 60. On 13 November 2003 the Third Division of the İzmir Administrative Court, ruling on an application by Mrs Lemke, dismissed the application for a stay of execution of the Directorate General of Forests’ decision of 3 May 2002. That refusal was confirmed on 24 December 2003 by the İzmir Regional Administrative Court. 61. Proceedings are pending before the administrative courts. 62. On 22 December 2000 the Ministry of Health adopted a decision authorising continued use of the cyanidation process at the mine for an experimental one-year period. The company was notified of this authorisation by the İzmir provincial governor’s office on 24 January 2001. On 2 February 2001 a supervisory and audit committee was set up at the İzmir provincial governor’s office. The company began mining operations on 13 April 2001. 63. On 24 May 2001 the application for judicial review lodged by several Bergama residents (Mrs Genç and others) was dismissed by the Third Division of the İzmir Administrative Court on the ground that the decision being challenged did not constitute an enforceable act. 64. On 24 June 2002 the Supreme Administrative Court upheld the judgment of 24 May 2001. 65. In a judgment of 10 January 2002, the İzmir Administrative Court, on an application by the İzmir Bar Association, decided to suspend execution of the provisional permit issued by the Ministry of Health, holding that the issuing of such a permit was incompatible with the rule of law. 66. That judgment was upheld by the İzmir Regional Administrative Court on 20 March 2002. 67. On 3 December 2002 the İzmir Administrative Court dismissed the application for judicial review brought by the İzmir Bar Association against the provisional permit on the ground that it did not have standing to bring the proceedings. On 12 November 2003 the Supreme Administrative Court upheld the Administrative Court’s judgment. 68. On 12 February 2004 the Ministry of the Environment and Forests extended the permit concerning “the chemical processing unit and waste pond” for a period of three years. 69. In a judgment of 27 May 2004, the Third Division of the İzmir Administrative Court set aside the provisional permit issued by the Ministry of Health on 22 December 2000. In particular, it considered that the risks highlighted in the judgment of 15 October 1997 were, inter alia, linked to the use of sodium cyanide in the gold mine concerned and to the climatic conditions and features of the region, which was situated in an earthquake zone. It held that those risks and threats could not be eliminated by supplementary measures which continued to be based on the same leaching process. It also concluded that the issuing of the permit in issue was incompatible with the principle of the rule of law, in that that administrative decision was in reality intended to amend a judicial decision that had become final. 70. Proceedings are pending before the administrative courts. 71. On 13 January 2001 the Ministry of the Environment issued a three-year permit for the “chemical processing unit and waste pond”. On 16 February 2001 it also authorised the company to import sixty tonnes of sodium cyanide. 72. On 24 May 2001 the Third Division of the İzmir Administrative Court dismissed an application for judicial review brought by fourteen residents of Bergama against the issuing of a provisional operating permit to the company. It held that there was no enforceable administrative decision. 73. On 10 and 23 January 2002 the İzmir Administrative Court, acting on two applications for annulment of the provisional permit submitted by the İzmir Bar Association and a resident of the region, and having regard to the considerations set forth in the Supreme Administrative Court’s judgment of 13 May 1997, which had become final, ordered the suspension of the permit. 74. Proceedings are pending before the administrative courts. 75. On 29 March 2002 the Council of Ministers adopted a “decision of principle” stating that the gold mine situated in the vicinity of Ovacık and Çamköy, in the district of Bergama (İzmir) and belonging to the company Normandy Madencilik A.Ş., could continue its activities. The decision was not made public. At the Court’s request, the Government sent the Court the text of the decision, which reads as follows: “According to the reports drawn up hitherto, it has been established that the gold mine situated in the vicinity of Ovacık and Çamköy, in the district of Bergama (İzmir), is a mining concern which contains mineral reserves amounting to 24 tonnes of gold and 24 tonnes of silver, provides employment for 362 persons and is worth 1,200 million United States dollars [USD] in added value to our country, including USD 280 million of direct revenue. It has been established that the decision to be taken in respect of this investment is of some importance, in that it will pave the way for six other gold mines. These mines, which have been located through prospecting costing a total of USD 200 million, will, with an investment of USD 500 million, create 1,450 jobs and be worth USD 2,500 million to the economy in direct terms and USD 10,000 million indirectly. Furthermore, according to experts in this field, our country has more than 6,500 tonnes of potential gold deposits, which represents a market value of USD 70,000 million, or USD 300,000 million taking added value into account. According to the report prepared by the ten scientists from the Turkish Institute of Scientific and Technical Research in October 1999, ‘the suspected risks to human health and the environment have been completely removed or reduced to levels considerably lower than the maximum acceptable limits’. Furthermore, given that the results of checks carried out during the test period permitted by the Ministry of Health were below the reference values, no negative data have been detected. The ‘Chemical substances’ section of the report by the United Nations World Commission on Environment and Development (1987), which presented the concept of sustainable development to international public opinion for the first time, indicates that chemical substances represent 10% of international trade and that there are 70,000 to 80,000 types of chemical substance. Toxicity data is unavailable for 80% of these. We note that the toxicity data for cyanide are known and that the cyanide leaching process, in development for over a century, is now at the leading edge of technology and can be applied without damage to human health provided that the necessary precautions are taken. In examining the progress made by the Bergama/Ovacık gold mine over the past twelve years, it is appropriate to note that the cyanide leaching process described in the 1991 environmental impact report – that is, carried out without filtering, based solely on clay pressure and subject to natural decomposition in the waste pond – has been discontinued. Advanced technology is now in place: the base of the waste pond is lined with clay and a high-density polyethylene geomembrane, and a cyanide filtering unit, a heavy-metals purification system [duraylama], an inspection shaft and various measuring tools are also used. For the above reasons, and bearing in mind their contribution to the country’s economy, it is considered advisable that the gold and silver mining concerns in the vicinity of Ovacık and Çamköy, in the district of Bergama (İzmir), operated by the company Normandy Madencilik A.Ş. under permit no. IR3549 of 12 February 1992, should continue their activities.” 76. On 30 July 2002 the Eighth Division of the Supreme Administrative Court declared inadmissible an application for judicial review brought by the İzmir Bar Association seeking annulment of the Council of Ministers’ decision of 29 March 2002 on the ground of procedural irregularity. 77. On 7 March 2004 the Supreme Administrative Court, sitting as a full court, set aside the judgment of 30 July 2002. In particular, it held that the Council of Ministers’ decision had not been published in the Official Gazette and had not been made public, although it was clear that the resumption of the gold mine’s activities had been based on it. The Supreme Administrative Court held that, in view of the appellant’s inability to obtain a copy of the disputed decision, the court ought to have obtained one of its own motion with a view to ensuring effective exercise of the judicial appeal. 78. On 23 June 2004 the Sixth Division of the Supreme Administrative Court ordered a stay of execution of the Council of Ministers’ decision. It noted, inter alia: “After the judgment which cancelled the Ministry of the Environment’s authorisation, it is clear that this Ministry did not decide to commission a new environmental impact report which would have enabled the operating company to demonstrate that it had taken measures to reduce or completely remove the adverse effects of the activity in question, as highlighted in the previously cited judgments ... Consequently, the Council of Ministers’ decision to authorise the activities of the gold mine in question was unlawful, given that the decision to issue a permit, based on the environmental impact report, had been overturned by the courts and that no other decision had been adopted pursuant to the Environment Act and the related regulations ...” 79. The application for judicial review of the Council of Ministers’ decision is still pending before the Supreme Administrative Court. 80. On 18 August 2004 the İzmir provincial governor’s office, referring to the judgment of 23 June 2004, ordered that production at the mine be halted. 81. In a letter of 27 August 2004, the Ministry of the Environment and Forests informed the Normandy Madencilik A.Ş. company that it was issuing a favourable opinion on the final environmental impact report submitted by the company. 82. The Normandy Madencilik A.Ş. company explained that, once the required permits had been issued in 1994, 1996 and November 1997, the gold mine was ready to start production. From 20 to 23 February 1998 production took place on an experimental basis. These activities were intended to provide an opportunity to check that the equipment was operating correctly, and were not geared towards commercial production. During this experimental period, 150 tonnes of ore were processed, producing 0.932 kg of gold, whereas the mine’s daily operational capacity was 1,000 tonnes of ore. 83. On 19 February 1998 the İzmir provincial governor’s office was informed of the experimental production. On 27 February 1998 it ordered the closure of the mine (see paragraph 35 above). In addition, it instituted criminal proceedings, abandoned in February 2001, against the company and its managers. 84. The rate of cyanide concentration in the tailings pond was measured until 27 February 1998. Those measurements show that the concentration rate was considerably lower than the internationally accepted norm. Furthermore, there was no seepage from the tailings pond into the surrounding environment. 85. The company pointed to the fact that there had been no activity at the gold mine after the administrative courts had ruled on the applications for judicial review. Subsequently, draconian new measures, which exceeded international standards, had been taken to ensure compliance with the specifications set out in the judicial decisions. In addition, two reports on the risks connected to the tailings pond and the use of sodium cyanide had been drawn up. Both concluded that those risks were negligible. 86. In 1999, on the basis of the risk assessment reports, the company reapplied for an operating permit for the gold mine in question. 87. Following the TÜBİTAK report, drawn up at the Prime Minister’s request, the company obtained the necessary permits and began production at the mine in April 2001. It is still operating at present. 88. Since the resumption of production at the mine, several studies to assess the risks or operating conditions have been carried out by Golder Associates Ltd, by a monitoring and auditing committee set up by the İzmir provincial governor’s office and by the ministries concerned. 89. In addition, the company disseminates a monthly report entitled “The Ovacık Gold Mine’s Monthly Environmental Report” to the public, non-governmental organisations and universities. 90. 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. ...” 91. Section 10 of the Environment Act (Law no. 2872), published in the Official Gazette on 11 August 1983, 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.” 92. Section 28 of Law no. 2872 states: “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.” 93. Under section 13 of the Administrative Procedure Act (Law no. 2577), anyone who sustains damage as a result of an act by the authorities may, within one year of the commission of the alleged act, claim compensation from them. Should all or part of the claim be dismissed, or if no reply is received within sixty days, the victim may bring administrative proceedings. Furthermore, under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages for pecuniary loss (Articles 41-46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal courts as to a defendant’s guilt (Article 53). However, under section 13 of the Civil Servants Act (Law no. 657), anyone who has sustained loss as a result of an act carried out in the performance of duties governed by public law may, in theory, only bring an action against the public authority by which the civil servant concerned is employed and not directly against the civil servant (Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. Where the act in question is found to be illegal or tortious and, consequently, is no longer an “administrative” act or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim’s right to bring an action against the authority on the basis of its joint liability as the official’s employer (Article 50 of the Code of Obligations). 94. The regulations on environmental impact were first adopted by the Ministry of the Environment on 7 February 1993. A second set of regulations followed on 27 June 1997. New regulations were adopted and published in the Official Gazette on 6 June 2002. The regulations currently in force are those which were published in the Official Gazette on 16 December 2003. Under paragraph 7 of and Appendix I to those regulations, impact studies must be carried out on mining projects where the area of the site concerned is greater than twenty-five hectares. The procedure for preparing a report is launched following a request by the prospective developer to the Ministry of the Environment. An evaluation committee made up of experts and representatives from the relevant entities and from the prospective developer is set up (paragraph 8). This committee specifies how the public inquiry will be conducted (paragraph 9) and subsequently identifies the arrangements for and content of the impact report, which must be drawn up at the latest within one year following the decision on the report’s structure (paragraph 10). The ensuing report is made available to the public and examined by the committee, which determines whether it complies with the specifications and may ask for additional reports (paragraph 12). Finally, having regard to all the elements submitted for its consideration, the Ministry of the Environment decides whether or not to issue authorisation. The relevant provincial governor’s office informs the public of the Ministry’s decision through the appropriate channels. Where their requests for authorisation are refused, prospective developers may submit a new request, provided that all the circumstances which gave rise to the refusal have been removed (paragraph 14). In addition, whatever the Ministry’s decision, an application for judicial review may be made to the administrative courts. Paragraph 6 of the regulations reads as follows: “Where natural persons and legal entities plan to carry out a project that comes within the scope of these regulations, they must draw up an environmental impact report [Çevresel etki değerlendirme raporu – ‘impact report’ or ‘IR’], submit it to the relevant authorities and implement the project in accordance with the decision taken ... Where no decision has been taken to authorise the project submitted for an impact report, or where no decision has been taken confirming that no such authorisation is necessary, no approval, authorisation or building permit may be issued in respect of those projects, and investment in connection with the project cannot take effect.” 95. 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.” 96. The relevant parts of section 28 of the Administrative Procedure Act (Law no. 2577) provide as follows: “(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.” 97. 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.” 98. 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. 1)) 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.” 99. The Aarhus Convention (“Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters”, ECE/CEP/43) was adopted on 25 June 1998 by the United Nations Economic Commission for Europe in application of Principle 10 of the Rio Declaration, and came into force on 30 October 2001. To date, thirty countries have ratified it. Turkey has not signed the Aarhus Convention and has not acceded to it. The Aarhus Convention may be broken down into the following areas: – Developing public access to information held by the public authorities, in particular by providing for transparent and accessible dissemination of basic information. – Promoting public participation in decision-making concerning issues with an environmental impact. In particular, provision is made for encouraging public participation from the beginning of the procedure for a proposed development, “when all options are open and effective public participation can take place”. Due account is to be taken of the outcome of the public participation in reaching the final decision, which must also be made public. – Extending conditions for access to the courts in connection with environmental legislation and access to information. 100. 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; ...” | 1 |
train | 001-109298 | ENG | RUS | CHAMBER | 2,012 | CASE OF KOLEGOVY v. RUSSIA | 3 | Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Adversarial trial;Public hearing);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award | Anatoly Kovler;André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert | 5. The applicants, who are a couple, were born in 1934 and 1932 respectively. The second applicant died in 2006. The first applicant lives in Skhodnya, the Moscow Region. 6. The applicants, both wheelchair-bound and having firstdegree disability status, repeatedly requested social-security services to provide them with a car adapted to their disability. Their numerous complaints in this respect to the General Prosecutor’s Office, Members of the State Duma, and Administration of the President of the Russian Federation proved unsuccessful. As it was mentioned in the authorities’ letters to the applicants, according to the medical expert report ordered by the social-security services, the first applicant was not entitled to a free car and driving was contra-indicated in respect of the second applicant. 7. On 18 November 2003 the applicants, apparently assisted by counsel, lodged a claim against the Ministry of Labour challenging the refusal to provide them with a car and claiming compensation for non-pecuniary damage. 8. On 15 March 2004 the Basmannyy District Court of Moscow (“the district court”) fixed the hearing for 14 May 2004 and at some point, apparently on the same date, summoned the applicants to appear at the hearing. 9. According to the Government, on 30 March 2004 one of the applicants received the respective notification. They submitted a copy of an acknowledgment-of-receipt card containing information on the date and time of the hearing, the name of the court, the date of notification, and signatures of a recipient and a postman. 10. According to the applicants, they did not receive the summons. 11. On 14 May 2004 the district court, having heard the defendant’s representatives, rejected their claim because the applicants had lodged it against a wrong defendant. The court established that the social welfare services did not belong to the Ministry of Labour and that the latter did not have power to review their decisions. The applicants were absent from the hearing. The court found, with reference to the acknowledgment-of-receipt card, that they had been duly summoned and examined the case in their absence. The representative of the respondent authority was present. 12. On 30 June 2004 the applicants’ representative received a copy of the judgment of 14 May 2004. 13. On 5 July 2004 the applicants appealed against the judgment. They complained, inter alia, that their right to a fair trial had been violated as neither they nor their lawyer had had a chance to attend the hearing due to their having been summoned belatedly. 14. On 14 July 2004 the district court on the applicants’ request extended the time-limit for lodging the grounds of appeal. 15. On 6 October 2004 the Moscow City Court adjourned the examination of the applicants’ appeal until 20 October 2004, having found that the parties had not been notified of the date of the hearing in a timely manner. 16. According to the Government, at some point the district court dispatched summonses to the parties, including the applicants, informing them of the date and time of the appeal hearing. According to the applicants, neither they nor their representative received the summons. 17. On 20 October 2004 the Moscow City Court upheld the judgment of 14 May 2004 on appeal. The court examined the case in the applicants’ absence, having mentioned that they had been notified of the appeal hearing. As regards the applicants’ complaint about their absence from the hearing at the first instance court, the appeal court found that they had been properly summoned. The court further upheld the lower court’s finding that the civil action was lodged against the wrong defendant. 18. On 12 December 2008 the application was communicated to the Government. 19. On 21 January 2009 the Moscow City Court requested the case file from the district court in order to prepare’s observations on the admissibility and merits of the application. 20. On 27 January 2009 the Moscow City Court received the case file. 21. On 4 February 2009 Ms Stakhiyeva, the first applicant’s representative before the Court, requested the district court to grant her access to the case file concerning the applicants’ civil proceedings. 22. On the same date the registry of the district court rejected her request having advised her that she could be granted access to the file not earlier than ten days following the request. 23. On 5 February 2009 the President of the district court refused to examine the representative’s oral complaint in this respect, apparently having provided no reasons for the decision. It appears that on the same date the lawyer lodged a written complaint about the refusal to allow her to study the file, but the petition remained unanswered. 24. On 27 February 2009 the registry of the district court again rejected the applicant’s new request for access to the file, and on the same date the President of the district court disallowed her complaint in this respect. 25. On 10 March 2009 the registry of the Moscow City Court returned the case file to the district court. 26. On 25 March 2009 the Government advised the Court that the file had been transferred to the district court and was available for study. On 27 March 2009 this letter was forwarded by the Court to the applicant’s representatives. 27. On 9 April 2009 the Court received the Government’s observations and on 29 April 2009 forwarded them to the applicant’s representatives with a request to provide observations in reply. 28. On 12 May 2009 the applicant’s lawyer requested to grant her access to the case file. She submits that on the same date the registry disallowed her request, and the President of the court refused to discuss the matter with her. 29. On 14 May 2009 she was advised by the registry of the district court that the file was available at the registry. 30. On 18 May 2009 the lawyer studied the case file. 31. On 9 June 2009 the applicant’s lawyers submitted the observations in reply to the Government’s observations on the applicants’ case. For a summary of relevant domestic law provisions see Gusak v. Russia, no. 28956/05, § 20, 7 June 2011. | 1 |
train | 001-115011 | ENG | MDA | CHAMBER | 2,012 | CASE OF STRUC v. THE REPUBLIC OF MOLDOVA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria | 6. The applicant was born in 1980 and lives in Bălţi. 7. On 16 August 2006 the applicant was arrested together with another person on suspicion of having committed aggravated hooliganism, which included injuring a third person with a knife. On 18 January 2007 the prosecutor prepared the indictment and sent the case to the trial court. 8. In a complaint dated 14 February 2007 the applicant, who was being detained at the time at the Ungheni police station, informed the Ungheni District Court that he had been ill-treated on the same day at around 5 p.m. by officer R.B., who had kicked and punched him, causing head trauma and a bleeding wound, as well as pain in the thoracic region and in his left leg. Two of the applicant’s cellmates (S. and P.) also signed the complaint, confirming that they had seen injuries on the applicant’s body. 9. According to the Government, this complaint was in fact lodged with the prosecutor on 16 February 2007, the applicant stating that he had not complained earlier for fear of further ill-treatment. Only after seeing his lawyer on 16 February 2007 had he complained officially of his alleged illtreatment two days earlier. 10. On 16 February 2007 an ambulance was called for the applicant. The doctor found cerebral trauma and head injury, contusion of soft tissue in the thoracic region and on the left thigh, and excoriations. 11. On 27 February 2007 the Ungheni prosecutor’s office found that S., the applicant’s cellmate on 14 February 2007, had confirmed having been told by the applicant of the beating on that date and having seen the injury on the applicant’s head. He also stated that the applicant had asked staff at the police station to call for an ambulance, which they had refused to do. It was also established that the applicant had been taken out of his cell at around 5 p.m. on 14 February 2007 and taken to the office of B., the deputy head of the Ungheni police station. R.B. had declared that he had been in Chişinău at the relevant time and had not ill-treated anybody. According to a medical report of 19 February 2007 an excoriation had been found on the right side of the applicant’s head, which had been caused by the applicant being hit – or hitting against – a blunt object, possibly on 14 February 2007. On 23 February 2007 the applicant had been seen by a neurologist, who had found no signs of head trauma. Finally, the prosecutor found that the applicant had “constantly simulated feeling unwell, and had been escorted to the Ungheni polyclinic on numerous occasions, the doctors finding no illness”. The prosecutor decided not to initiate a criminal investigation against officer R.B. since he had not committed any offence. The applicant challenged that decision before the Ungheni District Court. 12. On 12 April 2007 the applicant’s mother complained to the Prosecutor General’s Office about the refusal of the Ungheni prosecutor’s office to initiate a criminal investigation. On 10 May 2007 the Prosecutor General’s Office replied that that question had been examined and rejected in a well-founded decision. 13. On 13 February 2008 the prosecutor again refused to initiate a criminal investigation into the applicant’s alleged ill-treatment. 14. On 29 February 2008 the Ungheni District Court rejected the applicant’s complaint against the prosecutor’s decision of 27 February 2007 as not complying with the statutory requirements concerning preliminary complaints to a hierarchically superior prosecutor. 15. On 16 June 2009 the applicant’s lawyer asked for the quashing of the prosecutor’s decisions of 27 February 2007 and 13 February 2008. He relied on the findings of the Supreme Court of Justice in its judgment of 9 September 2008 (see paragraph 36 below). 16. On 18 June 2009 the Ungheni prosecutor’s office rejected the applicant’s lawyer’s request as unfounded, finding that it had not been established that the applicant had been ill-treated. On 24 June 2009 the applicant’s lawyer challenged that decision before the Ungheni District Court. On 7 July 2007 the Ungheni District Court granted his request and quashed the prosecutor’s decisions of 27 February 2007, 13 February 2008 and 16 June 2009. 17. On 21 August 2009 a criminal investigation into the applicant’s complaint of ill-treatment was initiated. 18. On 12 October 2009 the applicant asked to be officially declared an aggrieved party in those criminal proceedings. On 20 October 2009 the Ungheni District Court ordered the applicant’s transfer from prison no. 13 in Chişinău to the remand centre of the Ungheni police station for twenty days in order for him to be officially declared an aggrieved party and to interview him. 19. On 17 December 2009 the applicant was officially recognised as an aggrieved party by a prosecutor from the Ungheni prosecutor’s office on the premises of that office. On 21 December 2009 the applicant asked for R.B.’s dismissal from his functions and his arrest. This was refused on 22 December 2009. 20. On 23 December 2009 the applicant asked for the case to be transferred to the Prosecutor General’s Office in order to ensure against possible influence by R.B. on prosecutors in the Ungheni prosecutor’s office, since R.B. was still a police officer at the Ungheni police station. The applicant also complained of the absence of his lawyer during a cross-examination of himself and R.B., during which the latter had allegedly threatened the applicant with violence, in the presence of the prosecutor, because of his complaints; the prosecutor did not react. This request was rejected on 1 February 2009 by the Ungheni prosecutor’s office. 21. On 31 December 2009 the prosecutor decided not to initiate a criminal investigation against R.B. since no signs of a crime had been established. The applicant challenged that decision before the Ungheni District Court. On 17 June 2010 that court rejected the applicant’s complaint as unfounded. 22. The applicant claims that owing to his conditions of detention he became ill with pulmonary tuberculosis and pneumonia. The applicant was held at five different detention facilities during his detention; he did not specify the dates of transfers from one such facility to another. It appears from his correspondence with various State authorities and the medical records that he was detained in prison no. 13 from 30 October until 14 November 2006, following which he was transferred back to the Ungheni police station. On 5 April 2007 he was transferred to prison no. 11 and on 16 November 2007 to prison no. 13. 23. On 25 December 2006 the applicant’s mother asked the investigating judge to order her son’s release in order to allow him to follow a course of treatment for the two illnesses. The applicant made similar requests on 7, 12 and 20 February 2007. 24. On an unknown date prior to 13 February 2007 a doctor specialising in respiratory diseases in the Ungheni polyclinics wrote to the Ungheni prosecutor’s office stating that he had examined the applicant on 26 October and 21 December 2006 and had found no signs of active tuberculosis, but only the remaining traces of a previous episode of tuberculosis. On 13 February 2007 a prosecutor from the Ungheni prosecutor’s office rejected the applicant’s complaints, finding that he had been taken to the Ungheni polyclinic on several occasions after he complained of having tuberculosis. Moreover, he had been visited on several occasions by ambulance doctors while in detention. On none of these occasions had the diagnosis of tuberculosis been confirmed, and he had thus not been registered with a specialist doctor. He had been given the necessary treatment for his chronic bronchitis. 25. According to a medical certificate issued on 19 December 2006, he was sent from the Ungheni police station to prison no. 11 for “retreatment”; the certificate gave his diagnosis as “pulmonary tuberculosis” and stated that treatment had been prescribed.” 26. On 30 March 2007 a prosecutor from the Ungheni prosecutor’s office wrote to the head of the Ungheni police station stating that on 22 March 2007 it had been established that persons detained in that station were allowed only twenty minutes a day of exercise instead of an hour as required by law. Moreover, the cells smelled bad, which was a sign of poor ventilation and inadequate disinfection. 27. On 11 March 2010 the applicant asked to be transferred to the hospital for detainees (prison no. 16 in Pruncul), but received no reply. He made another such request on 22 March 2010. In reply, he was informed on 24 March 2010 by the head of prison no. 3 in Leova that he would be transferred shortly thereafter. On 19 April 2010 the applicant complained to the prison authorities that he had still not been transferred. On 3 May 2010 he complained to the head of prison no. 6 in Soroca about threats to his life. He was then transferred to prison no. 3 in Leova. On 6 May 2010 the applicant complained to the Prosecutor General’s Office about his conditions of detention and of an alleged violation of his right to make telephone calls. On 24 September 2010 he was allegedly beaten while taking his daily walk, while the prison guards were absent for an unexplained reason. 28. In a letter to the Government Agent dated 23 March 2010 the head of the Penitentiaries Department described the conditions of the applicant’s detention and gave details of his medical treatment. According to that letter, at the time the applicant was being detained in prison no. 13 in cells corresponding to the legal requirements and which were well lit and ventilated, with sufficient heating and access to tap water and a toilet separated from the rest of the cell. The applicant had been given medical assistance; the list of various medical check-ups and interventions spanned more than five pages. Special attention was given by the prison doctors to verifying whether the applicant’s tuberculosis had reoccurred. To that end, tests specifically aimed at discovering the presence of active tuberculosis, including X-ray examinations, had been carried out upon his arrival at prison no. 13 on 7 September 2006 and every day between 26 and 29 October 2006, then on 30 November and 1 December 2006, 26 February 2007 and on a regular basis thereafter. On none of these occasions had there been a confirmation of the diagnosis of active tuberculosis. The tests showed only the presence of the remaining traces of the tuberculosis from which the applicant had suffered in 2001 in Russia. For that reason the applicant was not registered in the national Information System for the Monitoring of Tuberculosis. The letter contained annexes with medical certificates confirming the description detailed above. The applicant did not submit evidence contradicting the above. 29. On an unspecified date the applicant complained to the Bălţi Court of Appeal that he had been detained without a legal basis between 30 October and 14 November 2006, since no valid court order for his arrest had been made covering that period. He asked for a criminal investigation to be initiated into his unlawful detention. The complaint was forwarded to the Ungheni prosecutor’s office, which rejected it on 15 August 2007. 30. On 17 August 2009 the applicant asked the Prosecutor General’s Office to quash the prosecutor’s decisions of 27 June and 15 August 2007 concerning the refusal to initiate a criminal investigation into his unlawful detention. It is unclear whether he received a reply. 31. On 18, 19 and 24 August 2009 the applicant complained to the Prosecutor General’s Office, the Ungheni District Court and the Bălţi Court of Appeal, asking to be released immediately in view of the judgment adopted by the Supreme Court of Justice on 9 September 2008 (see paragraph 36 below), but this was refused. 32. On 4 April 2007 the applicant was convicted by the Ungheni District Court and sentenced to nine years’ imprisonment. The court found that during the night of 13 August 2006 he had committed several crimes together with another person: they had first insulted the staff of a bar and smashed beer bottles there, then they had started an argument with customers in another bar and the applicant had struck one of them with a knife. Later that night they insulted and hit a girl after she had refused their sexual advances. The court also decided to maintain the preventive measure of arrest in respect of the applicant. 33. The applicant’s sentence was upheld by the Bălţi Court of Appeal on 6 June 2007. 34. On 4 December 2007 the Supreme Court of Justice quashed the judgment of the Court of Appeal, finding that that court had failed to deal with the applicant’s complaint that he had been ill-treated. The case was sent for a retrial by the second-instance court. 35. On 12 March 2008 the Bălţi Court of Appeal upheld the first-instance court’s judgment. It found that the applicant’s ill-treatment had not been established, as was clear from the decisions not to initiate a criminal investigation taken by the prosecutor on 27 February 2007 and 13 February 2008. 36. On 9 September 2008 the Supreme Court of Justice quashed that judgment. It found that the lower court had failed to establish the fact that the prosecution had not carried out an effective and speedy investigation into the applicant’s complaint of ill-treatment, in spite of the evidence in support of that complaint. That evidence was sufficient, in the court’s view, to establish that the applicant had been ill-treated by the police, in breach of Article 3 of the Convention. In his decision of 29 February 2008, the investigating judge had refused to examine the applicant’s complaint in substance and had not forwarded it to the competent prosecutor, as required by law, but had rejected it. Moreover, the prosecutor’s reasons for refusing to initiate a criminal investigation were contradicted by the findings he had made, establishing that injuries had been caused to the applicant while he had been in detention and therefore under the control of the police. The court also found that the applicant’s rights under Articles 6 and 13 of the Convention had been breached. In the operative part of its judgment the court did not mention any violation of the applicant’s rights, but sent the case for re-examination. 37. On 20 January 2010 the Bălţi Court of Appeal partly accepted the applicant’s appeal, upholding his conviction but reducing his sentence to seven years’ imprisonment. 38. On 16 June 2010 the Supreme Court of Justice rejected his appeal in cassation. It noted that the Court of Appeal had taken into consideration the findings of the Supreme Court of Justice in its judgment of 9 September 2008 and had carefully assessed all the evidence in the file before reaching its conclusion. That judgment was final. 39. On 9 December 2011 the applicant lodged a civil action against the Ministry of Finance claiming compensation for the excessive length of the criminal proceedings in his case. On 13 February 2012 Chișinău Court of Appeal accepted his claim and awarded him 5,000 Moldovan lei (MDL, approximately 317 Euros (EUR) at the time) in compensation for the non-pecuniary damage caused to him, as well as MDL 2,000 (EUR 127) for legal costs. That judgment was confirmed by the final judgment of the Supreme Court of Justice on 11 April 2012. | 1 |
train | 001-110450 | ENG | TUR | COMMITTEE | 2,012 | CASE OF MEHMET NURİ ÇAÇAN v. TURKEY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre | 4. The applicant was born in 1970 and lives in Bitlis. 5. On 29 April 2000 the applicant was arrested and imprisoned after a criminal conviction. 6. During the imprisonment it was found that the applicant was mistakenly incarcerated due to his personal identity card being used by his brother in commission of a crime. 7. On 25 July 2000 the Istanbul State Security Court found in favour of the applicant and ordered his release. 8. The applicant could only be released on 7 August 2000 because of extended paperwork. 9. On 4 February 2002 the Istanbul State Security Court ordered the acquittal of the applicant. 10. On 27 October 2000 the applicant lodged criminal complaint with the Bakırköy Assize Court requesting compensation for his unlawful detention for a period of three months and eight days, pursuant to Law no. 466. 11. During the course of the proceedings, the court held twenty one hearings. The applicant was present only at one of them, which was held on 19 July 2001. The applicant’s lawyer did not attend to any of the hearings despite having been notified. 12. On 7 March 2007 the court partially granted the applicant’s request. 13. On 15 April 2009 the Court of Cassation quashed the judgment of the first-instance court on the ground that the proceedings before the Istanbul State Security Court had not been finalised at the time when the applicant brought the compensation action before the assize court. It held that the applicant had failed to comply with a prerequisite in order to bring such an action. 14. On 25 September 2009 the court dismissed the case in line with the decision of the Court of Cassation. 15. According to the information in the case file the proceedings are currently pending before the Court of Cassation. | 1 |
train | 001-23338 | ENG | ITA | ADMISSIBILITY | 2,002 | BOSO v. ITALY | 1 | Inadmissible | null | The applicant, Mr Giampiero Boso, is an Italian national who was born in 1960 and lives in Eraclea. He was represented before the Court by Ms W. Viscardini, of the Padua Bar. The applicant was married. In 1984 his wife, who was pregnant, decided to have an abortion despite his opposition. Her pregnancy was terminated on 10 October 1984. On 8 November 1984 the applicant brought an action against his wife in the San Donà di Piave magistrate’s court, seeking compensation for the infringement of his rights as a potential father and of the unborn child’s right to life. The applicant further challenged the constitutionality of Law no. 194 of 1978, arguing that it contravened the principle of equality between spouses as enshrined in Articles 29 and 30 of the Italian Constitution in that it left it entirely to the mother to decide whether to have an abortion and took no account of the father’s wishes. The applicant’s wife maintained that she had acted in accordance with section 5 of Law no. 194 of 1978, by which she alone had the right to decide whether to undergo an abortion. In an order (no. 389) of 31 March 1988 the Constitutional Court declared the constitutionality issue manifestly ill-founded on the ground that the Law complained of was based on a policy decision to grant the mother full responsibility for an abortion, and that that decision was not illogical, especially as the effects of pregnancy, both physical and mental, were felt primarily by the mother. Having regard to the Constitutional Court’s decision, the magistrate’s court dismissed the applicant’s action in a judgment of 18 May 1990. The applicant appealed against that judgment to the Venice District Court. He raised a further constitutionality issue, submitting that section 5 of Law no. 194 of 1978 infringed Articles 2, 8 and 12 of the Convention and Articles 2, 10 and 11 of the Italian Constitution. In a judgment of 24 June 1993 the Venice District Court dismissed the appeal on the ground that the right to compensation under Article 2043 of the Civil Code presupposed that the applicant’s wife’s conduct had been unlawful, whereas she had acted in accordance with Law no. 194 of 1978. The Court further held that the constitutionality issue raised by the applicant was essentially the same as that raised at first instance and accordingly declared it manifestly ill-founded. The applicant appealed on points of law to the Court of Cassation, arguing, in particular, that section 5 of Law no. 194 of 1978 infringed Articles 2, 8 and 12 of the Convention, which protected the right to life and the right to found a family. In a judgment of 19 June 1998, the text of which was deposited at the registry on 5 November 1998, the Court of Cassation dismissed the applicant’s appeal. It had regard to the Constitutional Court’s decision of 31 March 1988 and further held that declaring the abortion legislation unconstitutional would not have had any bearing on the applicant’s claim for compensation. The claim was in any event bound to fail in the absence of any unlawful conduct on the part of the applicant’s wife, who had made use of a right to which she was entitled. Law no. 194 of 1978 allows doctors to terminate a pregnancy in specified circumstances. By section 4 of the Law, a woman may decide to have her pregnancy terminated before the twelfth week where continuation of the pregnancy, childbirth or motherhood might endanger her physical or mental health, in view of her state of health, her economic, social or family circumstances, the circumstances in which conception occurred or the likelihood of abnormalities or of malformations of the foetus. The woman may apply to a health centre (struttura socio-sanitaria), a clinic (consultorio) established under Law no. 405 of 2 July 1975 or her doctor. By sections 2 and 5 of the Law, clinics and health centres must carry out the necessary medical examinations. Where an abortion is requested because of the impact of economic, social or family circumstances on the pregnant woman’s health, they must also (a) examine possible solutions to the problems, together with the woman and, with her consent, the potential father; (b) help the woman to overcome the problems that have led her to request an abortion; and (c) take any appropriate measures to help the woman by providing her with all the necessary assistance both during the pregnancy and after the birth. Where the woman applies to her doctor, the doctor carries out the necessary medical examinations and, together with the woman and the potential father, discusses the reasons for her decision to request an abortion, having regard also to the results of the examinations. The doctor informs the woman of her rights, the welfare facilities available to her, and the clinics and health centres at her disposal. In cases of emergency, a doctor from the clinic or health centre or the woman’s own doctor immediately issues her with a certificate attesting that termination of the pregnancy is urgently required. On the basis of the certificate, the woman may report to one of the establishments authorised to perform abortions. If the results of the medical examination indicate that there is no emergency, the doctor draws up a certificate, which the woman must also sign, attesting that she is pregnant and that her request for an abortion has been made in accordance with section 4 of the Law. At the same time the doctor gives her seven days to think the matter over. Once that period has elapsed, the woman may request the termination of her pregnancy at an authorised establishment, on the basis of the medical certificate. Beyond the first ninety days, an abortion may be carried out (a) where pregnancy or childbirth entails a serious threat to the woman’s life; or (b) where conditions entailing a serious threat to the woman’s physical or mental health have been diagnosed, including serious abnormalities or malformations of the foetus. The abortion process is covered by the Personal Data Protection Act (Law no. 675/1996). There is no provision in law allowing the potential father to prevent an abortion from taking place. | 0 |
train | 001-84652 | ENG | CZE | ADMISSIBILITY | 2,008 | MARCIN v. THE CZECH REPUBLIC | 4 | Inadmissible | Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova | The applicant, Mr Zdeněk Marcín, is a Czech national who was born in 1943 and lives in České Budějovice. 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. In 1971 the applicant inherited a house with a garden and surrounding land belonging to his grandmother who, in 1953, together with her husband, incorporated her real estate in a local agricultural cooperative. In November 1990 another grandson living abroad appealed against the original inheritance decision. In November 1992 the cooperative was transformed into a private enterprise. On 13 April 1993 the applicant brought a civil action at the Kolín District Court (okresní soud) against the cooperative in order to recover the incorporated property. On 21 September 1995 the proceedings were suspended pending the reopened inheritance proceedings. A bankruptcy order was made regarding the cooperative's property. The proceedings were therefore stayed ex lege. On 28 February 2000 the District Court distributed the inheritance among the applicant and other heirs. On 6 September 2000 the Prague Regional Court (krajský soud) partly modified this decision. The Regional Court's decision became final on 23 November 2000. In a resolution of 18 October 2004 the bankruptcy proceedings against the bankrupt's property were cancelled. The resolution became final and conclusive on 17 November 2004. In a judgment of 19 September 2005 the District Court ordered the cooperative to pay CZK 48,410 (EUR 1,809) to the applicant, dismissing the remainder of his claims. On 4 November 2005 the applicant appealed. On 7 February 2006 the District Court rejected his appeal as having been filed outside the statutory time-limit which had expired on 3 November 2005, the District Court's judgment having been notified to the applicant on 19 October 2005. The applicant filed a complaint against this decision. In a letter of 25 July 2006 the President of the District Court informed him that the Regional Court had returned the case-file to the District Court with an instruction that the judgment of 19 September 2005 should be properly notified to the applicant. It appears that the proceedings are still pending. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court's decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007). | 0 |
train | 001-113819 | ENG | FRA | CHAMBER | 2,012 | CASE OF HARROUDJ v. FRANCE | 3 | Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life) | André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger | 5. The applicant was born in 1962 and lives in Villeurbanne. 6. Zina Hind was born on 3 November 2003 in Algeria and was abandoned immediately by her biological mother, who gave birth anonymously. As her father was also unknown, Zina Hind became a ward of the Algerian State on 3 December 2003. The director of social services in Boumerdès (Algeria) was appointed as her guardian. 7. On 13 January 2004 the President of the court of Boumerdès granted the applicant, then aged 42 and unmarried, the right to take the child Zina Hind into her legal care (kafala). He also authorised Zina Hind to leave Algeria and settle in France. 8. In a decision of 19 January 2004, the President of the court of Bordj Menaïel (Algeria) admitted a request for the child to take the same name and authorised the change from Zina Hind to Hind Harroudj. 9. Hind Harroudj arrived in France on 1 February 2004. Since then she has been living with the applicant and the applicant’s mother. 10. On 8 November 2006 the applicant applied for the full adoption of Hind. In support of her request she argued that to enable Hind to be adopted was the solution most consistent with “the best interests of the child”, within the meaning of Article 3 § 1 of the Convention on the Rights of the Child of 20 November 1989 and Article 1 of the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption. 11. In a judgment of 21 March 2007 the Lyons tribunal de grande instance dismissed her application for adoption, after noting that kafala gave her parental authority, enabling her to take any decisions in the child’s interest. The court found that kafala gave the child the protection to which all children were entitled under the international conventions. It further pointed out that, under Article 370-3 of the French Civil Code (see paragraph 23 below), a child could not be adopted if the law of his or her country prohibited adoption, which it did in the case of Hind, as the Algerian Family Code stipulated: “adoption is prohibited by the Sharia and by legislation” (see paragraph 17 below). The applicant appealed against that judgment. 12. In a judgment of 23 October 2007 the Lyons Court of Appeal upheld the judgment of the court below: “Article 370-3, second paragraph, of the Civil Code, inserted by the Law of 6 February 2001 on Intercountry Adoption, stipulates: ‘Adoption of a foreign minor may not be ordered where his or her personal law prohibits that institution, unless the minor was born and resides habitually in France’. The choice-of-law rule, in so far as it refers to the personal law, is not discriminatory and is compliant with Articles 8 and 14 of the European Convention on Human Rights and with international law; Article 4 (a) of the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption provides that adoption may take place only if the competent authorities of the State of origin have established that the child is adoptable, this not being the case where adoption is prohibited. Hind Harroudj was born in Algeria. Article 46 of the Algerian Family Code authorises kafala, but prohibits adoption. Under French law, simple or full adoption creates a legal parent-child relationship for the benefit of the adopters and cannot be equated with kafala. The Algerian Family Code does not provide for any exception to the prohibition of adoption where the child has no established parentage. The executive decree of 13 January 1992 on changes of name does not establish parent-child relationships, as the holder of the right of kafala retains the status of guardian. The kafala system preserves the child’s interests by conferring legal status on the care provided by guardians. It is expressly recognised by Article 20 § 3 of the Convention on the Rights of the Child of 20 November 1989. Islamic law makes other provision for the inheritance of property. Accordingly, the above-mentioned provisions do not run counter to the child’s best interests.” 13. The applicant lodged an appeal on points of law. Under Articles 8 and 14 of the Convention, she relied on Hind’s right to respect for her family life, submitting that it was in the child’s interest for a legal parent-child relationship to be established between them, and that her inability to adopt Hind entailed a disproportionate interference with her own family life. She argued that the fact of denying her the right to adopt had the effect of establishing a difference in treatment in respect of the child’s family life on account of the child’s nationality and country of origin, as children born in countries which did not prohibit adoption could be adopted in France. 14. In a judgment of 25 February 2009 the Court of Cassation dismissed her appeal on points of law: “After noting that the choice-of-law rule in Article 370-3, second paragraph, of the Civil Code, referring to the personal law of the adopted child, was consistent with the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption – the application of which is intended only for adoptable children, excluding those whose country of origin prohibits adoption – the Court of Appeal did not establish any difference in treatment in respect of the child’s family life or disregard the right to respect for the latter, in finding that Article 46 of the Algerian Family Code prohibited adoption but authorised kafala and in rejecting the application for adoption, in so far as kafala was expressly recognised by Article 20, paragraph 3, of the New York Convention of 26 January 1990 [adopted on 20 November 1989] on the Rights of the Child, as preserving, on a par with adoption, the child’s best interests. ...” 15. Adoption, emanating from classical Roman law, which based it on the “imitation of nature” (the principle of adoptio naturam imitatur in the Institutes of Justinian) creates, between the adopter and the adoptee, a legal relationship that is identical to that existing between parent and child. Although certain States make a distinction between several levels of adoption (most often between full adoption and simple adoption), this characteristic is always present. 16. Under Islamic law adoption is prohibited (haraam). However, the right is accorded a special institution: kafala or “legal care”. In Muslim States, with the exception of Turkey, Indonesia and Tunisia, kafala is defined as a voluntary undertaking to provide for a child and take care of his or her welfare, education and protection. 17. The procedural arrangements for establishing kafala depend on the domestic law of each Muslim State. The relevant provisions of the Algerian Family Code thus read as follows: “Adoption (tabanni) is prohibited by the Sharia and by legislation.” “Kafala is an undertaking to assume responsibility for supporting, educating and protecting a minor child in the same manner as a father would care for his son. It is established by a legal act.” “Kafala is granted upon appearance before the judge or notary, with the child’s consent when he or she has a father and mother.” “The holder of the right of kafala (the kafil) must be a Muslim, a sensible and upright person, and be in a position to support the fostered child (the makfoul), with the capacity to protect him or her.” “The fostered child may be of known or unknown parentage.” “The fostered child shall retain his or her original legal parent-child relationship if of known parentage. Otherwise, Article 64 of the Civil Status Code shall be applied in respect of the child.” “Should the father and mother, or one of them, request the reinstatement under their guardianship of the fostered child, it will be for the child, provided he or she is of an age of discernment, to choose whether or not to return to his parents. If the child is not of such an age, he may be returned only with the judge’s authorisation, taking into account the interests of the fostered child.” 18. Articles 20 and 21 of the United Nations Convention on the Rights of the Child, of 20 November 1989, read as follows: “1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State. 2. States Parties shall in accordance with their national laws ensure alternative care for such a child. 3. Such care could include, inter alia, foster placement, Kafala of Islamic law, adoption, or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.” “States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration ...” 19. The relevant provisions of the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, adopted in the context of the Hague Conference on Private International Law, read as follows: “The States signatory to the present Convention, Recognising that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, ... Recognising that intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her State of origin, Convinced of the necessity to take measures to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights, and to prevent the abduction, the sale of, or traffic in children, ... Have agreed upon the following provisions” “The objects of the present Convention are - (a) to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognised in international law; ... (c) to secure the recognition in Contracting States of adoptions made in accordance with the Convention.” “... 2. The Convention covers only adoptions which create a permanent parent-child relationship.” “An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin - (a) have established that the child is adoptable; (b) have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child’s best interests; ...” 20. The relevant provisions of the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children, also adopted in the context of the Hague Conference on Private International Law, read as follows: “(1) The objects of the present Convention are - (a) to determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child; (b) to determine which law is to be applied by such authorities in exercising their jurisdiction; (c) to determine the law applicable to parental responsibility; (d) to provide for the recognition and enforcement of such measures of protection in all Contracting States; (e) to establish such co-operation between the authorities of the Contracting States as may be necessary in order to achieve the purposes of this Convention. (2) For the purposes of this Convention, the term ‘parental responsibility’ includes parental authority, or any analogous relationship of authority determining the rights, powers and responsibilities of parents, guardians or other legal representatives in relation to the person or the property of the child.” “The measures referred to in Article 1 may deal in particular with – ... (c) guardianship, curatorship and analogous institutions; (d) the designation and functions of any person or body having charge of the child’s person or property, representing or assisting the child; (e) the placement of the child in a foster family or in institutional care, or the provision of care by kafala or an analogous institution; ...” “The Convention does not apply to - ... (b) decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption; ...” 21. Out of the twenty-two Contracting States of which a comparative law study has been made (Albania, Armenia, Austria, Azerbaijan, Belgium, Bosnia-Herzegovina, Denmark, Finland, “the former Yugoslav Republic of Macedonia”, Georgia, Germany, Greece, Ireland, Italy, the Netherlands, Russia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom), where, as a result of historical factors, either the majority of the population is traditionally Muslim or there are sufficiently large Muslim communities, none of them regard kafala established abroad as adoption. In cases where the domestic courts have recognised the effects of kafala granted in a foreign country, they have always treated it as a form of guardianship or curatorship, or as placement with a view to adoption. 23. Law no. 2001-111 of 6 February 2001 inserted new provisions in the Civil Code concerning intercountry adoption, including the new Article 3703 in Chapter III (Choice-of-law rule concerning the legal parent-child relationship established by adoption and the effect in France of adoptions granted abroad) in Title VIII on legal parent-child relationships by adoption. The Article reads as follows: “The requirements for adoption are governed by the national law of the adopter or, in case of adoption by two spouses, by the law which governs the effects of their marital relationship. Adoption, however, may not be granted where it is prohibited by the national laws of both spouses. Adoption of a foreign minor may not be ordered where his or her personal law prohibits that institution, unless the minor was born and resides habitually in France ...” 24. Law no. 2003-1119 of 26 November 2003 on immigration control, foreign residents in France and nationality amended Article 21-12 of the Civil Code, concerning acquisition of French nationality by declaration. It now reads as follows: “A child who was the subject of a simple adoption by a person of French nationality may, until the age of majority, declare, in the manner provided for in Articles 26 et seq. hereof, that he opts for the status of French national, provided he resides in France at the time of his declaration. However, the obligation of residence is dispensed with where the child was adopted by a French national who does not have his habitual residence in France. The following may also opt for French nationality under the same conditions: 1o A child who, for at least five years, has been in foster care in France and brought up by a French national or who, for at least three years, has been entrusted to the child welfare service. 2o A child in foster care in France and brought up in conditions that have allowed him to receive, for at least five years, a French education, from either a public body, or a private body satisfying the characteristics determined by a decree issued after consultation of the Conseil d’Etat.” 25. Decree no 93-1362 of 30 December 1993 pertaining to declarations of nationality, and to decisions of naturalisation, redintegration, and of loss, forfeiture and withdrawal of French nationality (amended by decree no. 2010-527 of 20 May 2010) reads as follows: “In order to make the declaration provided for in Article 21-12 of the Civil Code, the applicant shall provide the following documents: ... (4) Where the applicant is a child who has been fostered in France and raised by a French national, the certificate of French nationality, civil registration certificates, any documents emanating from the French authorities that show the said foster parent has French nationality and any document proving that the child was placed in foster care in France and has been raised by that person for at least five years; ...” 26. Before the Law of 6 February 2001, the ordinary courts and the Court of Cassation had adopted a flexible position, allowing the conversion of kafala into adoption subject to the consent of the minor’s representative “having regard to the effects attached by French law to adoption and, in particular, in the case of full adoption, to the complete and irrevocable nature of the severance of the relationship between the minor and his blood relatives or the guardianship authorities of his country of origin” (Court of Cassation, First Civil Division, 10 May 1995, no. 93-17634). Following the enactment of the law, the Court of Cassation changed its position, quashing the judgments of courts of appeal which had granted simple adoption in respect of Moroccan and Algerian children in the kafala care of French couples (Court of Cassation, First Civil Division, 10 October 2006, no. 06-15264 and no. 06-15265). That solution has remained constant since then (see, for example, Court of Cassation, First Civil Division, 9 July 2008, no. 07-20279; Court of Cassation, First Civil Division, 28 January 2009, no. 0810034; and more recently, Court of Cassation, First Civil Division, 15 December 2010, no. 0910439). 27. In reports of 2004 and 2005, and in an opinion of 2007, the Children’s Advocate and the High Council for Adoption drew attention to the administrative difficulties encountered for the fostered child (access to visas, welfare rights) as a result of the lack of a legal parent-child relationship with the foster parent and to the difficulties of acquiring nationality. The report on adoption by J.-M. Colombani, deposited on 19 March 2008, noted that any evolution of the legal aspects of the situation appeared difficult and proposed cooperation with the two main countries concerned (Algeria and Morocco) especially with a view to adapting the conditions for the granting of a visa on a family reunification basis. The report explained that the Franco-Algerian Agreement of 27 December 1968 enabled children in kafala care to benefit from a family reunification measure in France provided that the other conditions for such a measure were met (income, housing). In 2010 the French Ombudsman called on the legislature to reconsider the question of kafala, advocated that children placed by judicial decision in kafala care should, at a minimum, be eligible for simple adoption and requested the abolition “of the five-year period of residence required by Article 21-12 of the Civil Code for French nationality to be sought by children placed by judicial decision in kafala care and raised by a French national, the possession of nationality being the only means for such children to become adoptable”. Lastly, two private member’s Bills, one on the adoption of children lawfully placed in kafala care, tabled by Senator A. Milon on 10 March 2011, the other on abandoned children and adoption tabled by Member of Parliament M. Tabarot on 8 February 2012, have been registered with the Presidency of the National Assembly and with that of the Senate. The aim of the Bills is for placement in kafala care by judicial decision or non-judicial decision (the Milon Bill) to be equated with simple adoption. | 0 |
train | 001-75419 | ENG | DNK | ADMISSIBILITY | 2,006 | COMERT v. DENMARK | 4 | Inadmissible | Snejana Botoucharova | The applicant, Mr Hamit Cömert, is a Turkish national who was born in 1967 and lives in Konya. He is represented before the Court by Mr Haci Ali Özhan, a lawyer practising in Ankara. The Government are represented by their Agent, Mr Peter Taksøe-Jensen, of the Ministry of Foreign Affairs, and their Co-agent, Mrs Nina Holst-Christensen, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is a Turkish national, born in 1967. He entered Denmark in 1980, when he was thirteen years old. Four years later, in Turkey he married a Turkish woman who remained in their country of origin. There, the spouses had a daughter in 1987 and a son in 1989. In 1992, the applicant’s wife and his two children entered Denmark under the rules regarding family unification. In 1994 the spouses had another daughter. On 19 April 2002 the applicant was detained on remand, charged with sexual offences allegedly having been committed throughout the past four years against his eldest daughter as from the time when she was eleven years old. An indictment of 6 June 2002 was submitted to the Copenhagen City Court (Københavns Byret), before which the applicant, the daughter and three witnesses were heard, including a teacher in whom the daughter had confided, and a police officer who worked at the institution where the daughter had been placed. The applicant pleaded not guilty and explained among other things that he had commenced sleeping on a mattress in his daughter’s bedroom some years ago, approximately every 14 days, usually in connection with him having come home from a late night out. He did not wish to wake up his wife and his youngest daughter, who slept in the spouses’ bedroom. Also, he was suffering from backache, and it did him good to sleep on a flat surface. In response to the fact that a forensic examination of the sheets in his daughter’s bedroom revealed sperm cells, the applicant explained that he had slept with his wife in the daughter’s bedroom. Before the Court the daughter explained among other things that the applicant had started sleeping with her when she was eleven years old in connection with her mother having gone to Turkey for a funeral. The applicant’s wife was called to the witness stand but declined to give testimony against her husband. She was therefore exempted in accordance with the Administration of Justice Act (Retsplejeloven). By judgment of 11 July 2002, pursuant to sections 232; 210, subsection 3 taken together with subsection 1; and 222, subsection 2 taken together with subsection 1; section 224; and partly section 21 of the Penal Code (Straffeloven) the applicant was convicted of having sexually abused his daughter by resorting to violence and threats during the period from the beginning of 1998 until April 2002 The Court found it established that the sexual abuse involved masturbation, oral sex, and attempts of intercourse, the latter having failed only because the daughter had expressed pain and because it had been physically impossible for the applicant. The applicant was also convicted pursuant to section 266 of the Penal Code for having uttered threats against his daughter’s life in that, after the sexual abuse had been reported to the police, he sent her a Short Message Service (SMS) in which he wrote: “you are superfluous in Denmark, if I see you on the street, I will kill you. This I promise”. Also, it was found established that he had sent her an SMS in which he threatened to come and “fuck her” if she did not call him within 10 minutes. The applicant was sentenced to 3 years’ imprisonment. Furthermore, pursuant to section 22 (ii) and (vi) of the Aliens Act (Udlændingeloven) he was expelled from Denmark forever. As to the latter the court noted on the one hand that the applicant had entered Denmark when he was 13 years old, that he had lived there for 21 years, and that his father and three siblings also lived in Denmark. On the other hand the court noted the seriousness and the nature of the crime, that the applicant’s mother and five siblings lived in Turkey, that the applicant had maintained strong contact with them and that almost every year he had spent his vacation in Turkey. On 31 October 2002, on appeal, the judgment was upheld by the High Court of Eastern Denmark (Østre Landsret), before which the applicant’s wife agreed to testify. She confirmed that in March 1998 she had been in Turkey for sixteen days to participate in a funeral, and stated among other things that she had initiated a divorce from the applicant. Leave to appeal against the judgment to the Supreme Court (Højesteret) was refused by the Leave to Appeal Board (Procesbevillingsnævnet) on 10 January 2003. By judgment of 3 February 2003 the Copenhagen City Court granted the applicant’s wife a divorce and awarded her custody over the three children. The applicant did not request access to any of his children. On 28 January 2004 the applicant was released from prison and expelled to Turkey. The applicant’s father and brother who lived in Denmark also returned to Turkey, and the applicant’s family in Turkey thus consisted of his parents and five siblings. In the summer of 2004 the applicant’s wife went to Turkey to obtain a divorce from the applicant also according to Turkish law. It appears that the applicant objected thereto and that the proceedings thereon are still pending. During that summer the applicant’s two youngest children visited him and his family in Turkey. During the summer of 2005 the applicant’s son stayed with him in Turkey. The Aliens Act provided in so far as relevant: Section 22 “An alien who has lawfully lived in Denmark for more than the last seven years, and an alien issued with a residence permit under sections 7or 8 may be expelled if: ... (ii) the alien, for several criminal counts, is sentenced to minimum 2 years’ imprisonment or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this duration; ... (vi) the alien is sentenced, pursuant to provisions in Parts XII and XIII of the Penal Code or pursuant to section 119(1) and (2), 180, 181, 183(1) and (2), 183 a, 186(1), 187(1), 192 a, section 210(1) and (3), cf. subsection (1), section 216, 222, sections 224 and 225, cf. sections 216 and 222, section 237, 245, 245 a, 246, 252(2), 261(2), section 276, cf. section 286, sections 278 to 283, cf. section 286, section 288 or 290(2) of the Penal Code, to imprisonment or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this nature. Section 26: 1. “In deciding on expulsion, regard must be had to the question whether expulsion must be assumed to be particularly burdensome, in particular because of: (i) the alien’s ties with the Danish community, including whether the alien came to Denmark in his childhood or tender years; (ii) the duration of the alien’s stay in Denmark; (iii) the alien’s age, health, and other personal circumstances; (iv) the alien’s ties with persons living in Denmark; (v) the consequences of the expulsion for the alien’s close relatives livening in Denmark; (vi) the alien’s slight or non-existent ties with his country of origin or any other country in which he may be expected to take up residence; (vii) the risk that, in cases other that those mentioned in section 7(1) and (2), the alien will be ill-treated in his country of origin or any other country in which he may be expected to take up residence. 2. An alien may be expelled pursuant to section 22(iv) to (vi) unless the circumstances mentioned in subsection 1 above constitute a decisive argument against doing so.” | 0 |
train | 001-77786 | ENG | AUT | CHAMBER | 2,006 | CASE OF KOBENTER AND STANDARD VERLAGS GMBH v. AUSTRIA | 3 | Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 8. The first applicant, an Austrian national born in 1960 and living in Vienna, is an editorial journalist at the newspaper “Der Standard”. The second applicant is the owner and publisher of this newspaper. 9. On 26 October 1997 a group of homosexuals, the “Austrian Forum of Gays and Lesbians” (“Österreichisches Schwulen- und Lesbenforum”, ÖSLF) held a demonstration in St. Pölten, at which the editors of the magazine “Der 13. – Zeitung der Katholiken für Glaube und Kirche” (The 13th – Newspaper of Catholics for Faith and Church) took pictures of participants and published them together with an article written by K. D. in its issue of 13 November 1997. That article reflected a negative and hostile position towards homosexual relationships, suggesting, inter alia, that “they [homosexuals] ought to be disciplined 'gender-specifically' with whips and pizzles! (sie gehören 'geschlechtsspezifisch' mit Peitsche und Ochsenziemer zurechtgewiesen)” and that “nazi-methods should be applied to them!” It read further that “homosexuals now crawl like rats out of their holes and are fed 'lovingly' by politicians and church officials”. 10. Subsequently 44 homosexual persons filed a private prosecution (Privatanklage) against the author K. D. for defamation and a compensation claim under the Media Act against the owner and publisher of “Der 13.” 11. On 13 July 1998 the Linz Regional Court (Landesgericht) found that certain passages of the article constituted the offence of insult (Beleidigung) under Section 115 of the Criminal Code (Strafgesetzbuch) and ordered the owner and publisher of “Der 13.” to pay compensation to four plaintiffs who could be identified on the pictures. It dismissed the compensation claim as regards the other plaintiffs and acquitted K. D. The court found that K. D. had not mentioned any of those plaintiffs' name in his article and that it could not be established that he had known that his text would be illustrated by these pictures. On pages 14-15 the judgment contained an excursus about the nature of homosexuality, referring to a book called “Lexicon of love (Lexikon der Liebe)” and the results of an opinion survey on this topic. It read, inter alia, that “in truth, homosexuality includes also the lesbian world and, of course, that of animals”, which was followed by a long passage describing in detail examples of same-sex practices among different animals. 12. Subsequently, politicians and representatives of the Austrian Forum of Gays and Lesbians publicly criticised the deciding judge K.-P. B. for the text and style of this judgment, which was documented in a number of press releases by the Austrian Press Agency (APA) of 13 July, 1 and 2 September 1998, including an article published by “Der Standard” with the title “The judge and the dear cattle (Der Richter und das liebe Vieh)” on 1 September 1998. 13. On 2 September 1998 “Der Standard” published two articles written by the first applicant, whereby the first one referred to the commentary (Kommentar) at issue on page 32, which read as follows: “The punishment chamber (Strenge Kammer) Samo Kobenter It is strange how often the avowed defenders of western values are inclined to adopt draconian methods when they feel them to be jeopardised by people with different beliefs, ideas or lifestyles. If a writer in some odd rag just says he would like to flog gay people or beat them with bulls' pizzles, that would not normally be worth mentioning, other than to say that everyone is entitled to live out his sexual fantasies and obsessions as he pleases, even in words, as long as the objects or subjects of his desires derive as much pleasure from it as he does. Where such matters are being dealt with in court, however, we might expect at the end of the twentieth century that a judge of even minimal enlightenment would, at the very least, deliver a judgment that differs more than somewhat from the traditions of medieval witch trials. A judge in Linz, K.-P. B., has achieved the feat of acquitting a defendant who was given the benefit of the doubt although no doubt was apparent – on the contrary, the judge's reasoning handed the flogger enough arguments to justify the threats of punishment he had made so enthusiastically, even if only in writing. That flies in the face, for a start, of any conception of law which sees the courtroom as more than just a punishment chamber for all possible tendencies. Lending support to a homophobe's venomous hate campaign with outrageous examples from the animal kingdom casts doubt on the intellectual and moral integrity of the judge concerned. The fact that public clarifications are now needed to the effect that homosexuals are not animals prompts concern about the state of this country.” 14. On 18 September 1998 judge K.-P. B. decided that the above-mentioned excursus on pages 14-15 be taken out of the judgment of 13 July 1998. 15. Subsequently disciplinary proceedings were opened against judge K.-P. B. On 20 July 1999 the Innsbruck Court of Appeal (Oberlandesgericht), acting as disciplinary authority, imposed the disciplinary penalty of a warning. On 20 September 1999 the Supreme Court (Oberster Gerichtshof) confirmed this decision. 16. In the meantime, judge K.-P. B. filed a private prosecution against the first applicant for defamation (Üble Nachrede) and a compensation claim under the Media Act against the second applicant on account of the above article published on 2 September 1998. 17. On 29 June 1999 the St. Pölten Regional Court convicted the first applicant of defamation under Section 111 §§ 1 and 2 of the Criminal Code and imposed a fine of ATS 13,500 (EUR 981) on him, suspended on one year's probationary period. It also ordered the second applicant to pay ATS 50,000 (EUR 3633) in compensation to judge K.-P. B. under Section 6 of the Media Act and to publish the judgment. It found in particular that the following statements were capable of lowering judge K.-P. B. in the public esteem, constituting the slanderous reproach that he had violated his obligations under the law and the rules on professional conduct (Gesetzes- und Standespflichten), required of a judge: a) the judgment delivered by the private prosecutor would only differ somewhat from the traditions of medieval witch trials (das vom Privatankläger gefällte Urteil würde sich nur “marginal von den Traditionen mittelalterlicher Hexenprozesse abheben”) and b) that judge K.-P. B. would lend support to a homophobe's venomous hate campaign with outrageous examples from the animal kingdom (und dieser würde “die geifernde Hetze eines Homophoben mit haarsträubenden Belegen aus dem Tierreich stützen”). 18. The Court noted, inter alia, that even if the reasoning of that judgment contained irrelevant annotations, it could not be inferred from it that the private prosecutor K.-P. B. believed that different rights were accorded to homosexuals and heterosexuals, nor that he had compared homosexuals with animals or that he had put them on an equal footing. 19. On 11 November 1999 the applicants appealed against this judgment, claiming that the article at issue criticised exclusively the reasoning of the judgment and not the way in which judge K.-P. B. had conducted the trial. The statements were permissible value judgments based on facts and, thus, protected under Article 10 of the Convention. Arguing that journalistic liberty also allowed a certain degree of exaggeration and even provocation, and considering the public discussion caused by the reasoning of the judgment not only in various media but also among judges, the polemical style of the article was not disproportionate either. 20. On 16 February 2000 the Vienna Court of Appeal dismissed the applicants' appeal and confirmed the Regional Court's judgment. It found that an average reader, interested in the subject-matter, would understand by the first statement that the private prosecutor had grossly violated fundamental procedural rights, such as the principles of impartiality and adversarial hearings, which were regularly breached in medieval witch trials. Thus, this reproach of violating the rules on professional conduct required of a judge consisted in concrete facts, which were not proved true by the records of the trial. The second statement was not only a value judgment, but also insinuated that judge K.-P. B. had sided with the accused K. D. and had, thus, been partial. As it was not mentioned in the article that judge K.-P. B. had impartially conducted the trial and that only certain passages of the judgment were subject to that criticism, the statements could not be considered as value judgments based on facts. Rather, in their context, they were disparaging statements of facts, falling outside the scope of protection of Article 10 of the Convention. Since certain passages of the above judgment proved to be legally superfluous, as affirmed by the private prosecutor's decision of 18 September 1998 taking them out, they could have been subject to (fair) comment. 21. Section 6 § 1 of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim damages from him. In this context “defamation” has been defined in Section 111 of the Criminal Code (Strafgesetzbuch), as follows: “1. As it may be perceived by a third party, anyone who makes an accusation against another of having a contemptible character or attitude, or of behaving contrary to honour or morality, and of such a nature as to make him contemptible or otherwise lower him in public esteem, shall be liable to imprisonment not exceeding six months or a fine (...) 2. Anyone who commits this offence in a printed document, by broadcasting or otherwise, in such a way as to make the defamation accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year or a fine (...) 3. The person making the statement shall not be punished if it is proved to be true. As regards the offence defined in paragraph 1, he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true." | 1 |
train | 001-68105 | ENG | NLD | ADMISSIBILITY | 2,005 | EMESA SUGAR N.V. v. THE NETHERLANDS | 3 | Inadmissible | null | The applicant, Emesa Sugar N.V., is a public limited company, having its registered seat in Oranjestad (Aruba). It is represented before the Court by Mr G. van der Wal and Mr P. Kreijger, who are both lawyers practising in Brussels. The respondent Government are represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs. The European Commission is represented by Messrs G. Marenco and C. Ladenburger, and Mrs S. Fries. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant company's activities include the operation of a sugar factory on Aruba and the export of sugar to the European Communities (EC). Since Aruba produces no sugar, the sugar is bought from cane sugar refineries in Trinidad and Tobago. After purchase, the sugar is transported to Aruba, where it is cleaned, milled and packed. The applicant company operates within the legal framework of the European Council Decision 91/482/EEC of 25 July 1991. This Council Decision is based on Part IV of the EC Treaty, relating to the association of overseas countries and territories with the EC. Aruba is one of these “overseas countries and territories” (“OCT”). Part IV of the EC Treaty provides the basis for the abolition of customs duties on goods originating from OCTs when imported into the EC. In accordance with Article 187 of the EC Treaty, the details of and the procedure for the association of the OCTs with the EC are set out in an Implementing Convention. Since 1964, there have been several successive Implementing Conventions. The European Council Decision 91/482/EEC is the sixth Implementing Convention. The original version of the sixth Implementing Convention provided for the possibility of importing goods originating from the OCT to the EC free of customs duties or charges. Goods were considered to be of OCT origin not only when they were wholly obtained within the OCT concerned, but also if they were obtained from one of the ACP (Africa, Caribbean, Pacific) States or the EC and underwent work or processing in the OCT. The sixth Implementing Convention was amended at mid-term by the European Council Decision 97/803/EEC of 24 November 1997. This amendment severely impeded the commercial operations of the applicant company, since it limited the levy free imports of sugar of ACP/OCT origin within the EC to 3,000 tonnes per year. Following the adoption of the European Council Decision 97/803/EEC, the applicant company instituted summary injunction proceedings (kort geding) before the President of the Regional Court (arrondissementsrechtbank) of The Hague seeking an interim order prohibiting: On 19 December 1997 the President of the Regional Court of The Hague declined jurisdiction to hear the applicant company's claims against the Netherlands State and the Central Board for Agricultural Products, as the Industrial Appeals Tribunal (College van Beroep voor het Bedrijfsleven) was the competent judicial body for claims concerning import levies, agricultural levies and/or import licences. As to the applicant company's claim against the authorities of Aruba, the President decided to refer a number of questions to the Court of Justice of the European Communities (ECJ) for a preliminary ruling, within the meaning of (former) Article 177 of the EC Treaty, on the validity of Council Decision 97/803EC of 24 November 1994 and, pending the outcome of the proceedings before the ECJ, provisionally granted the interim measure sought by the applicant company against the authorities of Aruba. A hearing was held before the ECJ on 16 March 1999 and, on 1 June 1999, the Advocate General to the ECJ presented his Opinion. Under Article 18 of the AC Statute of the ECJ and Article 59 of the Rules of Procedure of the ECJ, the submission of the Opinion of the Advocate General brought the oral proceedings before the ECJ to an end. The applicant company's request of 11 June 1999 to be allowed to respond to the Opinion was rejected by the ECJ in an order of 4 February 2000. The ECJ held inter alia: “2. The EC Statute of the Court of Justice and the Rules of Procedure of the Court make no provision for the parties to submit observations in response to the Advocate General's Opinion. 3. However, Emesa relies on the case-law of the European Court of Human Rights concerning the scope of Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter 'the Convention'), and in particular on the judgment of 20 February 1996 in Vermeulen v Belgium (Reports of Judgments and Decisions, 1996-I, p. 224). ... 8. As the Court has consistently held, fundamental rights form an integral part of the general principles of law, the observance of which it ensures (see, in particular, Opinion 2/94 of 28 March 1996 [1996] ECR I-1759, paragraph 33). For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have cooperated or of which they are signatories. The Convention has special significance in that respect (see, in particular, Case C-260/89 ERT [1991] ECR I-2925, paragraph 41). 9. Moreover, those principles have been incorporated in Article 6(2) of the Treaty on European Union, according to which 'The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law'. According to Article 46(d) of the Treaty on European Union, the Court is to ensure that this provision is applied 'with regard to action of the institutions, in so far as [it] has jurisdiction under the Treaties establishing the European Communities and under [the] Treaty [on European Union]'. 10. It is also appropriate to recall the status and role of the Advocate General within the judicial system established by the EC Treaty and by the EC Statute of the Court of Justice, as set out in detail in the Court's Rules of Procedure. 11. In accordance with Articles 221 and 222 of the EC Treaty, the Court of Justice consists of Judges and is assisted by Advocates General. Article 223 lays down identical conditions and the same procedure for appointing both judges and Advocates General. In addition, it is clear from Title I of the EC Statute of the Court of Justice, which, in law, is equal in rank to the Treaty itself, that the Advocates General have the same status as the Judges, particularly so far as concerns immunity and the grounds on which they may be deprived of their office, which guarantees their full impartiality and total independence. 12. Moreover, the Advocates General, none of whom is subordinate to any other, are not public prosecutors nor are they subject to any authority, in contrast to the manner in which the administration of justice is organised in certain Member States. They are not entrusted with the defence of any particular interest in the exercise of their duties. 13. The role of the Advocate General must be viewed in that context. In accordance with Article 222 of the EC Treaty, his duty is to make, in open court, acting with complete impartiality and independence, reasoned submissions on cases brought before the Court of Justice, in order to assist the Court in the performance of the task assigned to it, which is to ensure that, in the interpretation and application of the Treaty, the law is observed. 14. Under Article 18 of the EC Statute of the Court of Justice and Article 59 of the Rules of Procedure of the Court, the Opinion of the Advocate General brings the oral procedure to an end. It does not form part of the proceedings between the parties, but rather opens the stage of deliberation by the Court. It is not therefore an opinion addressed to the judges or to the parties which stems from an authority outside the Court or which 'derives its authority from that of the Procureur Général's department [in the French version, "ministère public"]' (judgment in Vermeulen v Belgium, cited above, paragraph 31). Rather, it constitutes the individual reasoned opinion, expressed in open court, of a Member of the Court of Justice itself. 15. The Advocate General thus takes part, publicly and individually, in the process by which the Court reaches its judgment, and therefore in carrying out the judicial function entrusted to it. Furthermore, the Opinion is published together with the Court's judgment. 16. Having regard to both the organic and the functional link between the Advocate General and the Court, referred to in paragraphs 10 to 15 of this order, the aforesaid case-law of the European Court of Human Rights does not appear to be transposable to the Opinion of the Court's Advocates General. 17. Moreover, given the special constraints inherent in Community judicial procedure, connected in particular with its language regime, to confer on the parties the right to submit observations in response to the Opinion of the Advocate General, with a corresponding right for the other parties (and, in preliminary ruling proceedings, which constitute the majority of cases brought before the Court, all the Member States, the Commission and the other institutions concerned) to reply to those observations, would cause serious difficulties and considerably extend the length of the procedure. 18. Admittedly, constraints inherent in the manner in which the administration of justice is organised within the Community cannot justify infringing a fundamental right to adversarial procedure. However, no such situation arises in that, with a view to the very purpose of adversarial procedure, which is to prevent the Court from being influenced by arguments which the parties have been unable to discuss, the Court may of its own motion, on a proposal from the Advocate General or at the request of the parties, reopen the oral procedure, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see, in particular, with regard to the reopening of the oral procedure, the order of 22 January 1992 in Case C-163/90 Legros and Others, not published in the ECR, and the judgment of 16 July 1992 in Case C-163/90 Legros and Others [1992] ECR I-4625; the order of 9 December 1992 in Case C-2/91 Meng, not published in the ECR, and the judgment of 17 November 1993 in Case C-2/91 Meng [1993] ECR I-5751; the order of 13 December 1994 in Case C-312/93 Peterbroeck, not published in the ECR, and the judgment of 14 December 1995 in Case C-312/93 Peterbroeck [1995] ECR I-4599; the order of 23 September 1998 in Case C-262/96 Sürül, not published in the ECR, and the judgment of 4 May 1999 in Case C-262/96 Sürül [1999] ECR I-2685; and the order of 17 September 1998 in Case C-35/98 Verkooijen, not published in the ECR). 19. In the instant case, however, Emesa's application does not relate to the reopening of the oral procedure, nor does it rely on any specific factor indicating that it would be either useful or necessary to do so. 20. Emesa's application for leave to submit written observations in response to the Advocate General's Opinion must therefore be dismissed.” By a judgment of 8 February 2000, the ECJ gave the requested preliminary ruling in which it upheld the validity of Council Decision 97/803EC of 24 November 1994. The summary injunction proceedings before the President of the Regional Court of The Hague were subsequently discontinued. | 0 |
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