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train | 001-91302 | ENG | RUS | CHAMBER | 2,009 | CASE OF NOLAN AND K. v. RUSSIA | 2 | Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Freedom of religion;Manifest religion or belief);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 1 of Protocol No. 7 - Procedural safeguards relating to expulsion of aliens (Article 1 para. 1 of Protocol No. 7 - Expulsion of an alien;Lawfully resident);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 5. Mr Nolan and K. were born in 1967 and 2001 respectively and live in Tbilisi, Georgia. Mr Nolan is the father and sole custodial parent of K. 6. Since 1988 the applicant has been a member of the Unification Church (“the Church”), a spiritual movement founded by Mr Sun Myung Moon in 1954. 7. On 21 May 1991 the Unification Church was officially registered as a religious association in the Russian Socialist Federative Soviet Republic. 8. On 29 December 2000 the Ministry of Justice of the Russian Federation granted State re-registration to the Unification Church at federal level as a centralised religious organisation. It did so on the basis of an expert opinion from the Expert Council for Conducting State Expert Examinations in Religious Studies, which stated, inter alia, the following: “In the Russian Federation neither the Unification Church nor its leaders have ever been held criminally liable. No violations of the federal law on freedom of conscience and religious associations on the part of the Unification Church or its various representatives have been established. Thus, (1) the Unification Church is a religious, non-commercial organisation and, accordingly, has the characteristics of a religious association within the meaning of section 6 § 1 of the federal law on freedom of conscience and religious associations; and (2) no indication of unlawful activities has been uncovered in its religious teachings and corresponding practice.” 9. In 1994 the Church invited the applicant to assist its activities in Russia. The Ministry of Foreign Affairs of the Russian Federation granted the applicant leave to stay in Russia. His leave to stay was subsequently renewed by the Ministry on a yearly basis through invitations issued by the registered religious organisation of the Unification Church in Moscow and an associated social organisation in St Petersburg, the Family Federation for World Peace and Unification (FFWPU). 10. The applicant lived primarily in Rostov-on-Don in southern Russia, where he worked with local branches of the FFWPU and the Youth Federation for World Peace (YFWP). He explains that, while the Unification Church, the FFWPU and the YFWP and other associations operating in Russia maintain legal independence from one another, they cooperate with one another in pursuit of similar goals. According to the applicant, these organisations acknowledge their origin in the Unification Movement founded by Rev. Moon; their different titles and legal forms reflect the specific focus of their activities and the fact that the social organisations are open to members of other faiths. 11. On 21 May 1999 the FFWPU established a local organisation in Rostov. Since the applicant’s host organisation in Russia was responsible for processing his residence registration with the police during the term of his stay, this was subsequently arranged through the Rostov FFWPU. 12. On 10 January 2000 the acting President of the Russian Federation amended, by Decree no. 24, the Concept of National Security of the Russian Federation, adopted in 1997. The relevant paragraph of Chapter IV, “Ensuring the National Security of the Russian Federation”, was amended to read: “Ensuring the national security of the Russian Federation also includes the protection of its ... spiritual and moral heritage ... the forming of a State policy in the field of spiritual and moral education of the population ... and also includes opposing the negative influence of foreign religious organisations and missionaries ...” 13. On 25 July 2000 the Promyshlenniy District Court of Stavropol, on an application by the acting Stavropol regional prosecutor, decided to dissolve the Stavropol regional branch of the FFWPU and ban its activities “irrespective of State registration” on the ground that it was “engaged in religious activities under the guise of a registered social organisation”. On 25 October 2000 the Stavropol Regional Court upheld the judgment of 25 July 2000. 14. On 3 August 2000 the Rossiyskaya Gazeta newspaper ran an article on the Unification Church’s activities in southern Russia which – according to the applicant – described in general terms the grounds subsequently endorsed by the Federal Security Service in favour of his expulsion. It was entitled “Caramels from Moon will drive to debility” («‘Гуцулочки’ от Муна до маразма доведут»): “The prosecutor’s office of the Stavropol Region has banned the activity of social organisations under the protection of which the Korean Moon ... was buying souls for $500 a piece. Once there were two public organisations registered by the Stavropol Department of Justice: the Youth Federation for World Peace (YFWP) and the Family Federation for World Peace and Unification (FFWPU). As it turned out, these so-called public movements preach one of the most dangerous religions of the past century... Outwardly inoffensive ‘pedlars’ who sell or give away the ‘New Families’ newspaper and cheap caramels lure young men and women into Moon’s family ... Young missionaries who were freely permitted to lecture to senior students at Stavropol schools introduced themselves as volunteers from the International Education Fund (IEF), [which is] one of Moon’s many ‘parishes’ ... The self-proclaimed lecturers had no documents authorising them to talk to students. To ‘sweeten’ the lectures, they distributed caramels. Later, a panel of experts from the Stavropol clinic for borderline states gave a negative appraisal of Gutsulka caramels that Moonies distributed to children and adults alike. As it turned out, an outwardly inoffensive caramel destroys the human being’s energy-information profile. Simply speaking, such caramels with little-known inclusions – in some of them small holes are visible – facilitate the conversion of neophytes into zombies. The contents of Moonies’ lectures leave a strong aftertaste of debility. It is sufficient to read the briefing materials [prepared by] the IEF – an outline of the lecture on ‘Preparation of a Secure Marriage’. Citation: ‘The genitals belong to a spouse and they only serve their purpose in a marital relationship ... Until the marriage you are the guardian of your genitals for your future spouse ...’ After some time ... [a certain young man] was introduced to the head Moonie in the Northern Caucasus, Patrick Nolan. To the newcomers he was presented as an American professor who periodically came to them from Rostov-on-Don ... In Russia, a mass of associations belong to the Moonie movement – professors, women and even mass-media employees, including cultural foundations and the aforementioned YFWP and FFWPU. All these socialites are preachers of the Unification Church. Meanwhile, as early as three years ago the [upper chamber of the Russian Parliament] declared the Unification Church a totalitarian sect and a destructive cult ... At long last the prosecutor’s office and the Federal Security Service of the Stavropol Region have started working on the Moonies. The regional prosecutor has filed an application ... for dissolution of the YFWP and banning of its activities. The same goes for the FFWPU ... One question is still open: why does such a tenacious businessman as Rev. Moon spend [resources] on Russians? There are several theories. Not long ago... addresses were confiscated from one Moonie ... Among them – the address of an American, Patrick Nolan, who passes his time in Rostov, and two e-mail addresses of the CIA. Why shouldn’t we imagine that Moon’s aim ... is to catch our homeland in a spy net consisting of millions of agents – teachers, scholars, engineers, students and servicemen ...?” [italics as in the original] 15. On 26 June 2001 the applicant’s leave to stay in Russia was renewed for another year by the Ministry of Foreign Affairs on the basis of an invitation from the FFWPU. As before, the applicant registered his residence with the police upon arrival in Rostov, through the Rostov branch of the FFWPU. 16. On 12 July 2001 the applicant’s son, K., was born. On 2 October 2001 the applicant and his wife separated; the applicant’s wife returned to the United States and the applicant retained sole custody of the child. 17. On 31 August 2001 the Kirovskiy District Court of Rostov-on-Don, on an application by the Rostov Department of Justice, decided to dissolve the Rostov FFWPU on the ground that it had failed to notify the registration authorities of the continuation of its activities for more than three consecutive years. According to the applicant, by that time the Rostov FFWPU had been incorporated for only two years and three months and had been issued with a new registration certificate by the Rostov Department of Justice just eight months previously, after undergoing re-registration. According to the judgment, the Rostov FFWPU was incorporated on 21 May 1998 or 21 May 1999, both dates being mentioned as the incorporation date. The hearing was held in the absence of both parties and the FFPWU learned of the decision after it had come into force on 17 September 2001, with no further right of appeal. 18. On 10 October 2001 the Rostov police summoned the applicant and demanded his passport. They added a stamp to the effect that his registration was “terminated”, orally notifying him that the Rostov FFWPU had been dissolved by a court order. 19. Thereafter the applicant obtained registration with the police through other FFWPU branches, first in Novorossiysk and then in Krasnodar. His residence registration in Krasnodar was valid for the entire term of his leave to stay under his current visa, that is, until 19 June 2002. 20. On 19 May 2002 the applicant travelled to Cyprus. His son stayed in Russia with his nanny. 21. At 11 p.m. on 2 June 2002 the applicant arrived at Sheremetyevo-1 Airport in Moscow on a flight from Cyprus. When he reached the passport control booth, two officers – one male and the other female – examined his passport and visa insert. The male officer left with his documents, while the other told him to wait. 22. At about 0.30 a.m. on 3 June 2002 the applicant was allowed to cross the border to collect his baggage. Border officials conducted an extensive search of his belongings. Then he was directed back through passport control and out through the passenger entry doors from the tarmac to a flight transfer bus, which took him to the airport transit hall. 23. Upon his arrival at the transit hall, officials directed the applicant to wait in a small room adjacent to their office with a desk and a sofa, but no phone, ventilation or windows. Once he entered the room, the officials locked him in from outside. Initially the applicant thought that this would be just for a few minutes, but after half an hour he realised that he was being held in an improvised detention cell. He began knocking on the door, asking to be let out. The female officer responded through the door that he would not be let out until the morning, and told him to lie down and sleep. Ten minutes after that a male officer came with the applicant’s visa stapled to a one-page document. He told the applicant that his visa had been cancelled and asked him to sign the document. The applicant did as he was requested, although he could not read the document, which was handwritten in Russian. 24. At 8.30 a.m., after knocking and shouting for twenty minutes, the applicant was allowed to leave under guard and use the toilet. 25. At 10 a.m. a man in civilian clothing came to the room and introduced himself as the official in charge of passport control officers. The applicant was told that he would not be allowed to cross the Russian border and that border officials were only following orders and were not responsible for the decision. The man said that he did not know the reason for the decision and could not disclose where the order had come from. The man apologised that the applicant had been held overnight in the room, stating that “the night crew is not too bright”. 26. The applicant bought a ticket to Tallinn, Estonia. A border guard continued to accompany the applicant until he boarded his flight at 11.30 a.m., returning his passport, but not his visa, only before he entered the aeroplane. 27. On 26 June 2002 the applicant sent letters, through his legal representatives in Russia, by registered mail to: - the Ministry of Foreign Affairs; - the Federal Security Service (FSB) and its department in the Krasnodar Region; - the Federal Border Service, the military prosecutor’s office of that service and the Moscow Border Control; - the Ministry of the Interior and its Krasnodar department of passports and visas; and - the Ombudsman and Presidential Envoy for the Central Circuit. 28. In these letters the applicant asked why he had been denied entry and detained even though he had committed no violation and why no procedural documents had been compiled or given to him. He also complained that he had been detained for over nine hours, and that as a result of the exclusion his eleven-month-old son had been left behind in Russia without either of his parents. The applicant also requested assistance to be reunited with his son. 29. On 4 July 2002 the applicant received a new invitation issued through the Russian Ministry of Foreign Affairs. On 5 July 2002 he applied for a visa to enter Russia at the Russian consulate in Tallinn and on the same day he was issued a multiple-entry visa valid until 3 July 2003. 30. On 7 July 2002, while he was crossing the border from Finland to Russia, Russian border guards at passport control twice stamped the applicant’s visa “annulled” and denied him entry into Russia. No explanation was given. The consulate in Tallinn referred him to the Ministry’s office in Moscow. 31. On 12 April 2003 the applicant was reunited with his son whom his nanny, a Ukrainian national, had brought to Ukraine. 32. Many of the applicant’s complaints sent on 26 June 2002 did not receive a response. Of those that did, none addressed the substance of his complaints. Responses from the Moscow Border Control of the Federal Border Service of 9 July and 22 August 2002 indicated that he had been denied entry into Russia on the basis of section 27 § 1 of the Entry Procedure Act, in implementation of an order given by another (unnamed) State body. The military prosecutor’s office responded that the applicant “had not been placed in administrative detention and therefore no detention record had been drawn up”. 33. On 8 August 2002 the applicant, through his legal representative in Moscow, challenged the decision refusing his return to Russia before the Khimki Town Court of the Moscow Region. He filed the challenge on behalf of himself and his son K., listing the Moscow Border Control as defendant. 34. On 29 August 2002, at the directions hearing, the defendants disclosed that they had acted on the orders of the Federal Security Service (FSB). The court joined the FSB as a co-defendant. 35. On 5 September 2002 the defendant requested that jurisdiction be transferred to the Moscow Regional Court because matters involving State secrets could only be examined by regional courts. The court granted their request in an interim decision. 36. On 25 March 2003, after repeated adjournments, the hearing was held in camera before the Moscow Regional Court. The applicant and K. were represented by counsel and an officer of the Unification Church in Russia, both of whom were required to give an undertaking not to disclose the contents of the proceedings. 37. The Moscow Regional Court dismissed the complaint. On the issue of whether the applicant had posed a threat to national security, the judgment stated as following: “The representative of the first deputy head of the Department for the Protection of the Constitutional Order and the Fight against Terrorism, of the Russian FSB Directorate ... did not accept the appellants’ claims, and presented a written defence to the complaint ... In support of his position the representative pointed out that his client had approved the report to deny US citizen Patrick Francis Nolan entry into the Russian Federation, which was prepared by the Stavropol Regional Branch of the Federal Security Service on the basis of materials obtained as a result of operational and search measures. In the opinion of Russian FSB experts participating in the preparation of the report, the [applicant’s] activities in our country are of a destructive nature and pose a threat to the security of the Russian Federation. The representative ... emphasised that the threat to State security is created by the activities, not the religious beliefs of [the applicant].” 38. Nowhere else in the nine-page text of the judgment did the Regional Court indicate what “activities” had posed a threat to national security. It may, however, be inferred from the judgment that the applicant’s phone conversations had been intercepted by the FSB pursuant to a certain earlier court order. 39. It also appears that the Regional Court examined an information letter from the Federal Security Service of 29 May 2000, entitled “Information on the activities of representatives of non-traditional religious associations on Russian territory”, which stated, in particular, as follows: “Representatives of such foreign sectarian communities as the Jehovah’s Witnesses, Moon’s Unification Church ... under the cover of religion establish extensive governing structures which they use for gathering socio-political, economic, military and other information about ongoing events in Russia, indoctrinate the citizens and incite separatist tendencies ... Missionary organisations purposefully work towards implementing the goals set by certain Western circles with a view to creating the conditions in Russia and perfecting the procedure for practical implementation of the idea of replacing the ‘socio-psychological code’ of the population, which will automatically lead to the erasing from the people’s memory of the over a thousand-year-long history of the Russian State and the questioning of such concepts as national self-identification, patriotism, Motherland and spiritual heritage ...” 40. As to the applicant’s overnight detention, the officers of the Moscow Border Control denied in court that the applicant had been “detained” and claimed that he had bought a ticket to Tallinn and merely waited for his flight scheduled for the following day. Although the Regional Court established that the ticket had been in fact bought in the morning of 3 June 2002, it held that this fact was “of no legal significance” and ruled that the applicant had not been deprived of his liberty. 41. The Regional Court also noted that the Russian authorities had not prevented the applicant from reuniting with his son in any country other than Russia. His allegations about interference with his family life were therefore rejected as manifestly ill-founded. 42. The applicant appealed, citing as grounds, inter alia, that the Regional Court had failed to examine whether the FSB had any legitimate basis in fact for its “conclusions”. He relied on Articles 5, 8, 9 and 14 of the Convention. 43. On 19 June 2003 the Supreme Court of the Russian Federation, sitting in camera in a three-judge formation, dismissed the appeal. It held that there had been no violations of the applicant’s Convention rights. The judgment was based on the administrative competence of the FSB and the Border Control to take decisions in the field of national security and border control. It did not indicate what activities of the applicant were alleged to pose a threat to national security: “The decision on the issue whether or not the activities of a citizen (in respect of whom a conclusion barring entry into Russia has been issued) pose a threat to State security ... comes within the competence of the Russian authorities ... this right of the State is one of the basic elements of its sovereignty. Therefore, the [regional] court’s conclusion that the claims of the appellant and his representatives that the Russian FSB acted ultra vires are unfounded in the present case.” [so in the original] 44. A competent authority, such as the Ministry of Foreign Affairs or the Federal Security Service, may issue a decision that a foreign national’s presence on Russian territory is undesirable. Such decision may be issued if a foreign national is unlawfully residing on Russian territory, or if his or her residence is lawful but creates a real threat to the defensive capacity or security of the State, to public order or health, etc. If such a decision has been given, the foreign national has to leave Russia or will otherwise be deported. The decision also forms the legal basis for subsequent refusal of re-entry into Russia (section 25.10 of the Law on the Procedure for Entering and Leaving the Russian Federation, no. 114-FZ of 15 August 1996, as amended on 10 January 2003 – “the Entry Procedure Act”). 45. A foreign national will be refused entry into Russia if this is necessary for the purposes of ensuring the defensive capacity or security of the State, or protecting public order or health (section 27 § 1 of the Entry Procedure Act). 46. The Guidelines on checking the documents of persons crossing the border of the Russian Federation, ratified by order no. 0234 of the Federal Border Service of 4 August 2000 (“the Border Crossing Guidelines”), were not published or accessible to the public. The applicant submitted that they contained the following provisions, the authenticity of which was not disputed by the Government: “...upon discovery of [persons whose entry into Russia is prohibited], officials of the border control shall notify them of the grounds for refusing them entry across the border, escort them to isolated premises and place them under guard, and take measures towards deportation of such persons from the territory of the Russian Federation.” 47. The State or regional treasury is liable – irrespective of any fault by State officials – for the damage sustained by an individual on account of, in particular, unlawful criminal prosecution or unlawful application of a preventive measure in the form of placement in custody (Article 1070 § 1 of the Civil Code). A court may hold the tortfeasor liable for non-pecuniary damage incurred by an individual through actions impairing his or her personal non-property rights, such as the right to personal integrity and the right to liberty of movement (Articles 150 and 151 of the Civil Code). Non-pecuniary damage must be compensated for irrespective of the tortfeasor’s fault in the event of, in particular, unlawful conviction or prosecution or unlawful application of a preventive measure in the form of placement in custody (Article 1100 § 2). 48. The Explanatory Report to Protocol No. 7 (ETS No. 117) defines the scope of application of Article 1 of Protocol No. 7 in the following manner: “9. The word ‘resident’ is intended to exclude from the application of the article any alien who has arrived at a port or other point of entry but has not yet passed through the immigration control or who has been admitted to the territory for the purpose only of transit or for a limited period for a non-residential purpose... The word lawfully refers to the domestic law of the State concerned. It is therefore for domestic law to determine the conditions which must be fulfilled for a person’s presence in the territory to be considered ‘lawful’. ... [A]n alien whose admission and stay were subject to certain conditions, for example a fixed period, and who no longer complies with these conditions cannot be regarded as being still ‘lawfully’ present.” 49. The Report further cites definitions of the notion of “lawful residence” contained in other international instruments: “a. Residence by an alien in the territory of any of the Contracting Parties shall be considered lawful within the meaning of this Convention so long as there is in force in his case a permit or such other permission as is required by the laws and regulations of the country concerned to reside therein... b. Lawful residence shall become unlawful from the date of any deportation order made out against the person concerned, unless a stay of execution is granted.” “a. Regulations governing the admission, residence and movement of aliens and also their right to engage in gainful occupations shall be unaffected by this Convention insofar as they are not inconsistent with it; b. Nationals of a Contracting Party shall be considered as lawfully residing in the territory of another Party if they have conformed to the said regulations.” 50. The Report clarifies the notion of “expulsion” as follows: “10. The concept of expulsion is used in a generic sense as meaning any measure compelling the departure of an alien from the territory but does not include extradition. Expulsion in this sense is an autonomous concept which is independent of any definition contained in domestic legislation. Nevertheless, for the reasons explained in paragraph 9 above, it does not apply to the refoulement of aliens who have entered the territory unlawfully, unless their position has been subsequently regularised. 11. Paragraph 1 of this article provides first that the person concerned may be expelled only ‘in pursuance of a decision reached in accordance with law’. No exceptions may be made to this rule. However, again, ‘law’ refers to the domestic law of the State concerned. The decision must therefore be taken by the competent authority in accordance with the provisions of substantive law and with the relevant procedural rules.” | 1 |
train | 001-88667 | ENG | RUS | CHAMBER | 2,008 | CASE OF LYANOVA AND ALIYEVA v. RUSSIA | 3 | Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 2;Violation of Art. 2 (procedural aspect);No violations of Art. 3 (substantive aspect);Violation of Art. 5;Violation of Art. 13+2;No violation of Art. 13+3;Failure to comply with Art. 38-1-a;Pecuniary damage - award;Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 6. The applicants were born in 1956 and 1958 respectively. The first applicant lives in the town of Karabulak, the Republic of Ingushetia, the second applicant lives in Grozny. 7. The first applicant used to live in Grozny, at 10 Lyapidevskogo Street. She has six children, three sons and three daughters. Her son Murad Lyanov was born in 1983. 8. The second applicant lives in Grozny, at 2 S. Dudayev Boulevard, apt. 51. Her son Islam Dombayev was born in 1984. She has two other sons born in 1980 and 1997. Before the hostilities she worked for the Ministry of Defence, as did her husband and several close relatives. In 1996 they were forced to leave Chechnya because of separatist attacks on their family, and lived in Ingushetia for several years as internally displaced persons. They returned to Grozny on 29 May 2000. 9. On 28 June 2000 the first applicant and her son Murad Lyanov were at home. That evening two friends of Murad, T. (born in 1982) and Islam Dombayev, came to their house. Murad asked the applicant’s permission to go with them and to spend the night at T.’s home. The applicant agreed because she knew the boys, who lived nearby. 10. The second applicant submitted that her son Islam Dombayev, the first applicant’s son Murad Lyanov and T. had been good friends. The second applicant’s son had a guitar and they often played it in the courtyard of the applicant’s house. They did not normally go out on the street after 9 p.m. because of the curfew imposed by the military. On 28 June 2000 at about 11 p.m. they had gone to T.’s house at 53 Sadovaya Street (also referred to as Pervaya Sadovaya Street), adjacent to their street, to spend the night there. Islam Dombayev had his guitar with him. 11. On 29 June 2000 in the morning the first applicant went to the passport desk of the Leninskiy District Department of the Interior (VOVD) in order to obtain a new passport for her son. She returned home at about 3 p.m. and her daughter told her that Murad had not come home. The first applicant went to see T.’s mother, who told her that her son was not at home either. 12. On 29 June 2000 in the morning the second applicant, worried about her son, asked a group of servicemen in Sadovaya Street if they had seen three young men. The soldiers replied that they had detained them and sent them to Khankala, the main Russian military base in Chechnya. The women found the commander of the unit in an armoured personnel carrier (APC), but he denied knowing anything about the three teenagers. 13. On 30 June 2000 the applicants and T.’s mother went to the Leninskiy VOVD and submitted an application concerning the alleged detention of their sons. On the same day an investigator from that office came to T.’s house and questioned the three women. 14. According to the applicants, in the first few days after the three boys’ disappearance it became clear from the soldiers’ answers that the boys had been detained late at night on 28 June 2000 by a joint group of servicemen of the special police forces (OMON) from Pskov and special mission brigade no. 8 of Interior Ministry troops (referred to below as Obron-8) stationed in the district. The soldiers had detained the teenagers during a night raid, brought them to the headquarters of Obron-8 and the next morning had taken them to the Khankala military base. 15. The applicants submitted a copy of the report dated 29 June 2000 sent by the commander of the Pskov OMON unit, Yu. G., to the head of the Leninskiy VOVD. It read as follows: “I can report that during the night of 28 to 29 June 2000, [a group of servicemen], together with a reconnaissance unit of Obron-8, staged an ambush in Sadovaya Street, where explosive devices had previously been found, in order to prevent the planting of mines and explosive devices. At about 11.30 p.m. the group detained three persons covertly moving in the area. A search revealed a number of components and parts of explosive devices, notably: a warhead from a 152-mm shell with an opening for a detonator; a round for a portable anti-tank gun, also prepared as an explosive device; some wires. One of the detainees attempted to flee. The detainees had no identity documents in their possession. They were taken to Obron-8 headquarters where they were brought to the special [counter-intelligence] unit for questioning. One of the detainees resembled the description of a rebel fighter (“boyevik”) who had attacked roadblock no. 17 on 24 June 2000 using a flamethrower. ... On the morning of 29 June 2000 the individuals concerned were taken to “Pamir” by the servicemen of Obron-8. No shots were fired during their arrest.” 16. On 1 July 2000 an investigator from the Leninskiy VOVD brought the second applicant her son’s guitar. He told her it had come from the commander of Obron-8, G., who alleged that his servicemen had found it in the street. 17. On 8 July 2000 the same investigator told the second applicant that the three boys had been transferred to Khankala and that the Main Intelligence Service (GRU) of the army was in charge of them. He also allegedly told her that he could do nothing in the circumstances and that she should instead contact the military commander of Grozny. 18. The applicants have had no news of their sons since this time. 19. Immediately after the detention of their sons, the applicants and other members of their families started to search for them. On numerous occasions, both in person and in writing, they applied to the prosecutors at various levels, the Ministry of the Interior, the Special Envoy of the Russian President in the Chechen Republic for rights and freedoms, military commanders, the administrative authorities, the media and public figures. 20. The applicants personally visited detention centres, police stations, military bases and prisons in Chechnya as well as further afield in the north Caucasian area. The second applicant also went to look at the bodies discovered in a mass burial site in February 2001 in the village of Dachnoye, near the Khankala military base. 21. Besides personal visits, the applicants sent numerous letters to the prosecutors and other authorities, in which they stated the facts of their sons’ arrest and asked for assistance and details of the investigation. The applicants submitted copies of letters they had written, all conforming to roughly the same model. 22. The applicants received very little substantive information from official bodies about the investigation into the disappearances. On several occasions they were sent copies of letters stating that their requests had been forwarded to various prosecutors’ offices. The summary below is based on the letters retained by the applicants and the replies they received from the authorities. 23. On 10 August 2000 both applicants were informed by the Grozny Prosecutor’s Office that it had opened a criminal investigation under Article 126 of the Criminal Code into the abduction of their sons. 24. On 18 August 2000 an investigator from the Grozny Prosecutor’s Office informed the applicants that a criminal investigation file (no. 12113) had been opened following their applications. The investigation had established that the three teenagers had been detained by officers from the Pskov OMON and Obron-8 during an ambush in Sadovaya Street and that they had been taken to Obron-8 headquarters the same night. The servicemen from Obron-8 had refused to appear when summoned and could not be questioned; the whereabouts of the three teenagers therefore remained unknown. A special request had been forwarded to the military prosecutor’s office. 25. On 23 August 2000 a lawyer from the NGO Memorial wrote to the Prosecutor General on the first applicant’s behalf and asked him to ensure that a proper investigation would be conducted into the disappearance of the three minors. 26. On 29 August 2000 an investigator from the Grozny Prosecutor’s Office requested the military prosecutor of military unit no. 20102, based in Khankala, to comply with the request of 9 August 2000 and to ensure that G., the commander of Obron-8, and the other servicemen who had detained three minors in Sadovaya Street on 28 June 2000 would be questioned. 27. On 28 September 2000 the Military Prosecutor’s Office for the north Caucasian area instructed the military prosecutor of military unit no. 20102 to “carefully verify the allegations of involvement by servicemen of Obron-8 in the boys’ disappearance”. 28. On 14 November 2000 the military prosecutor of military unit no. 20102 replied to the first applicant that there were no reasons to conclude that servicemen stationed in the Leninskiy district of Grozny had been involved in the detention of her son and two other men. The lists of detainees maintained by the military prosecutors, the Federal Security Service (FSB), the Ministry of the Interior and the Ministry of Justice contained no reference to the three missing persons. The contingent of Obron-8 (military unit no. 3723) had returned to their home station on expiry of their period of service in Chechnya, and measures were being taken to establish their whereabouts and to question them about the circumstances of the alleged detention. 29. On 9 December 2000 a lawyer from the NGO Memorial wrote to the Chief Military Prosecutor on the first applicant’s behalf. She referred to the latest letter from the military prosecutor and asked why the requests to question the servicemen of Obron-8 had not been acted upon while they were still in Chechnya. The letter asked the Chief Military Prosecutor to intervene and to ensure that a proper investigation would be carried out. 30. On 9 January 2001 the office of the Chief Military Prosecutor replied to Memorial, stating that the investigation was being carried out by the local prosecutor in Chechnya, to whom all requests should be forwarded. The involvement of military servicemen in the disappearance had not been established, and the military prosecutors therefore had no responsibility for the case. 31. On 12 February 2001 the military prosecutor of military unit no. 20102 informed the second applicant that his office was in charge of investigating the criminal case concerning the abduction of her son and two others. He stated that she would be informed of any progress in the investigation. 32. On 19 March 2001 the military prosecutor of military unit no. 20102 forwarded the first applicant’s complaint to the Grozny Prosecutor’s Office and asked that it be included in case file no. 14/33/0065-01, which had been forwarded to that office on 7 March 2001. The letter further stated that the investigation had established no connection between military servicemen and the abduction of the three men, and had been closed under Article 5 § 2 of the Code of Criminal Procedure [absence of corpus delicti]. 33. At the end of 2001 and beginning of 2002 the second applicant wrote to the Russian President, the Prosecutor General, members of the State Duma, other public figures and the media. She stated the facts of her son’s detention and disappearance and commented on the lack of progress in the investigation despite the fact that the names and positions of the persons who had detained the three minors were known. She listed the authorities she had previously applied to with her requests. She referred to her family’s ties with the Ministry of Defence and explained that her son could have had no links with the “Wahhabists”, or illegal armed groups. She asked them to help her establish her son’s whereabouts. 34. On 1 June 2002 the Prosecutor’s Office of the Chechen Republic replied to the second applicant. The letter stated that following her request, which had been forwarded by the Security Council, criminal case no. 12113 had been re-examined. The investigation in that case had been twice suspended under Article 195 § 3 of the Code of Criminal Procedure for failure to identify the culprits. Each time these decisions had been quashed by a supervising prosecutor. In November 2000 the investigation had concluded that the kidnapping of Islam Dombayev, Murad Lyanov and [T.] had been committed by the servicemen of Obron-8, and the case had been transferred to the military prosecutors. On 6 March 2001 a military investigator had closed the proceedings on the ground that no servicemen had been involved in the kidnapping, and on 7 March 2001 the file had been transferred back to the Grozny Prosecutor’s Office. The letter further stated that the submissions of Yu. G. and G., commanders of the OMON unit and of Obron-8 respectively, had contained substantial discrepancies which the investigation had failed to clarify “for a number of objective reasons”. On 29 May 2002 the decision of 28 April 2001 by the investigator from the Grozny Prosecutor’s Office to suspend the investigation had been quashed and the case file had been forwarded to that office for further investigation. 35. On 7 June 2002 the second applicant received a similar reply signed by the acting Prosecutor of the Chechen Republic, who added that he would personally supervise progress in the investigation. 36. On 8 August 2000 a criminal investigation (no. 12113) was instituted into the disappearance of the applicants’ sons on the night of 28-29 June 2000. 37. The Government submitted that on 22 August 2000 the second applicant had been granted the status of victim in the criminal proceedings; on 28 March 2001 the first applicant had been granted the same status. The second applicant had been questioned by an investigator from the prosecutor’s office on 22 August 2000 and 25 March 2005. She stated that on the night of 28 June 2000 her son, together with the first applicant’s son, had gone to the house of their friend T., who lived at 53 Pervaya Sadovaya Street in Grozny, where they had intended to spend the night. They had not returned home the next day. The first applicant and T.’s mother made similar statements. 38. On 30 June 2000 an inspection carried out at 53 Pervaya Sadovaya Street showed no evidence that a crime had been committed. 39. On 1 July 2000 the serviceman who had the second applicant’s son’s guitar submitted that he had found it in Pervaya Sadovaya Street on the night of 29 June 2000. 40. On 6 March 2001 the military prosecutor’s office of the United Group Alignment (UGA) terminated the criminal proceedings against the officials of the Ministry of Defence on account of the lack of a corpus delicti. 41. According to the Government’s submissions made prior to the Court’s decision as to the admissibility of the present application, T.’s neighbours E. and A. and more than twenty officials of the Ministry of the Interior and the Ministry of Defence who had been serving in Grozny during the relevant period were questioned in the course of the investigation. They had no information concerning the whereabouts of the applicants’ sons. Although investigative steps had been taken, no other witnesses had been found. The records of the units of the Ministry of Defence deployed in Grozny during the relevant period had been examined but no information had been found concerning the arrest of the applicants’ sons and T. The investigative authorities had also obtained information from other State bodies concerning special operations conducted in Chechnya and had taken other measures in order to establish the applicants’ sons’ whereabouts. Relevant inquiries had been made on 9, 12 and 29 August 2000, 8 and 25 October 2000, 21 June 2002, 1 and 31 July 2002 and 28 March 2005. However, it had not been established that representatives of the State authorities had been involved in the abduction of the applicants’ sons and T. They had not been held in detention facilities either. 42. The following information concerning the progress of the investigation was provided by the Government in their submissions following the Court’s decision as to the admissibility of the present application. 43. The preliminary investigation in criminal case no. 12113 had been suspended a number of times, since the persons to be charged with the offence had not been identified. The applicants had been informed of all the decisions taken. After a number of suspensions and re-openings, the criminal investigation was resumed on 14 February 2005 by the Prosecutor’s Office of the Leninskiy District of Grozny (the Leninskiy District Prosecutor’s Office). 44. On 17 February 2005 the investigative authorities questioned investigator M., who submitted that in the night of 28-29 June 2000 T., Islam Dombayev and Murad Lyanov had disappeared and their relatives had filed an application on that subject with the Grozny Prosecutor’s Office. Officers of the OMON unit presented documents to the effect that a joint group of the Pskov OMON and intelligence unit of Obron-8 had detained three persons who had not had their identification papers with them. The persons had been detained when installing a makeshift explosive device in Sadovaya Street and taken to the premises of Obron-8 in Grozny. There was no information to confirm that the persons detained had been T., Islam Dombayev and Murad Lyanov. In order to establish the whereabouts of the applicants’ sons and T., M. had visited Khankala on several occasions and had met with various officials. 45. On 4 March 2005 the head of the FSB of the Chechen Republic replied that there was no information concerning T., Islam Dombayev and Murad Lyanov in either the register or the archives of the penitentiary system. Similar information was submitted by the penitentiary authorities of the Republic of Kabardino-Balkaria. 46. On 5 March 2005 the deputy head of the FSB of the Chechen Republic replied that the FSB had not conducted any operations aimed at detention of the applicants’ sons and T. 47. On 9 March 2005 the head of the Urus-Martan District Office of the Interior (ROVD) replied that he had no information about either the institution of criminal or administrative proceedings against T., Islam Dombayev and Murad Lyanov or their detention in the temporary detention centre of the ROVD. 48. On 17 March 2005 the head of criminal police of the Shatoy ROVD submitted that the three disappeared persons had not been apprehended or placed in the temporary detention centre of the ROVD. 49. On unspecified dates the heads of the penitentiary authorities of the Krasnodar Region, the Perm Region, the Volgograd Region and the Republic of Ingushetia replied that T., Islam Dombayev and Murad Lyanov were not registered in detention facilities. According to replies from the prosecuting authorities of the Chechen Republic at various levels, criminal proceedings had not been instituted against the applicants’ sons and T. 50. On 21 March 2005 the Leninskiy District Prosecutor’s Office suspended the investigation on account of the failure to identify persons to be charged with the offence. 51. On 23 March 2005 the Prosecutor’s Office of the Chechen Republic quashed the above decision and resumed the investigation. 52. On 28 May 2005 the investigation was suspended on account of the failure to identify the culprits. The applicants were informed accordingly. 53. On 11 June 2005 the deputy prosecutor of the Leninskiy District Prosecutor’s Office quashed the above decision and resumed the investigation. 54. On 13 June 2005 the investigating authorities questioned S., who submitted that from May to September 2000 he had been seconded to the Chechen Republic and did not remember that the three men had been arrested. It is not clear who S. was. 55. On 27 June 2005 the senior investigator of the Pskov Prosecutor’s Office questioned as a witness an officer of the Pskov OMON. The officer submitted that the order for the joint operation of the Pskov OMON and Obron-8 in Sadovaya Street had been given by the commander of the joint unit. Four officers of Obron-8 had taken part in the operation, however, he could not remember their names. In the course of the operation they had arrested three men. Following the instructions of the officer on duty they had taken them to Obron-8 headquarters. They had been received by the head of intelligence of Obron-8 in the rank of captain. The witness together with other officers of the OMON had spent the night at Obron-8 headquarters. In the morning the apprehended persons had been taken to Khankala. 56. On 14 July 2005 the investigation was suspended on account of the failure to identify the culprits. The applicants were informed accordingly. 57. On 1 November 2005 the Leninskiy District Prosecutor’s Office resumed the investigation. The applicants were notified accordingly. 58. On an unspecified date the Information Centre of the Ministry of the Interior notified the investigating authorities that it had no information concerning the whereabouts of T., Islam Dombayev and Murad Lyanov. 59. On 7 November 2005 the investigator questioned the mother of T., who submitted that after her son’s abduction she had spoken to the Obron privates, who had told her that they had apprehended three men who had been transferred to Khankala. K., the commander of the search group, had also said that the arrested persons had been held in Khankala. 60. On 8 November 2005 the investigator questioned Ms A., who submitted that she had known the Dombayev family since 1995. She had learned about Islam Dombayev’s disappearance on the next day. She did not know who could have abducted him. 61. On 14 November 2005 the investigator questioned Ms N., who submitted that in the summer of 2000 she had heard screaming outside and had gone out into the street. There she had learned from her neighbours about the abduction of Islam Dombayev and his friends. 62. On 16 November 2005 the investigator questioned Mr B., who made submissions similar to those of Ms N. 63. On 25 November 2005 the investigator questioned Ms Z., who submitted that in the summer of 2000 she had learned from the second applicant that her son had been abducted together with two other boys. 64. On an unspecified date an investigator of the Karabulak Prosecutor’s Office questioned the first applicant, who submitted that in the summer of 2000 she had returned to Grozny together with her son Murad Lyanov to obtain a new passport. In the evening of 28 June 2000 T. and Islam Dombayev had come to their home and later had left for a walk together with her son. On the next day she had learned that her son had been abducted by unknown persons in camouflage uniforms. 65. On 16 December 2005 an investigator of the Sverdlovsk Prosecutor’s Office questioned K., who submitted that since 5 May 2000 he had been in charge of the search for missing persons. Officers of the Pskov OMON had told him then that they had arrested three young men and transferred them to officers of Obron-8. After his repeated visits to the premises of Obron-8, a guitar was handed over to him. He had passed it on to the second applicant. 66. On an unspecified date an investigator of the Prosecutor’s Office of the Mozdok District of Alania questioned P., who submitted that from June to August 2000 he had been seconded to the Temporary United Alignment of Agencies and Units of the Ministry of the Interior [ВОГО и П МВД – временная объединенная группировка органов и подразделений МВД] located at Usanova Street in Mozdok. He had no information concerning the abduction of T., Islam Dombayev and Murad Lyanov in the night of 28-29 June 2000. 67. On 1 December 2005 the investigation was suspended on account of the failure to identify the culprits. The applicants were informed accordingly. 68. On 15 August 2007 the deputy prosecutor of the Leninskiy District of Grozny quashed the above decision and resumed the investigation. The applicants and T.’s mother were informed accordingly. 69. According to the Government, the possible involvement of servicemen of Obron-8 in the abduction of T., Islam Dombayev and Murad Lyanov had been investigated. To that end, the case file had been sent to the military prosecutor’s office. However, neither the victims nor the witnesses questioned had stated from whom exactly they had learned that T., Islam Dombayev and Murad Lyanov had been “apprehended”. Therefore, it appeared impossible to establish the exact circumstances of the event. Officers of the Pskov OMON confirmed their previous statements that on 28-29 June 2000, together with servicemen of Obron-8, they had apprehended three young men aged between 15 and 20 in Sadovaya Street in Grozny and had taken them to Obron-8 headquarters. However, it had not been established by the investigation that the three men were the applicants’ sons and T. Since the involvement of servicemen in the abduction of T., Islam Dombayev and Murad Lyanov had not been confirmed, the investigation was suspended. The applicants and T.’s mother were informed accordingly, however, they did not appeal against the suspension. 70. According to the first applicant, following her request for information on the progress of the investigation of 13 August 2007, on 15 August 2007 the prosecutor of the Leninskiy District of Grozny unofficially provided her with a print-out of the outline of the investigative measures on five pages, the relevant parts of which read as follows: “Criminal case no. 12113 was opened on 8 August 2000... into abduction of [T.], M. A. Lyanov and I. K. Dombayev in the night of 28-29 June 2000 around 12 midnight in First Sadovaya Street in Grozny... [by] unidentified persons in camouflage uniform... Commander of [the Pskov OMON], [P. I.], who was questioned on this subject, submitted that on 28 June 2000 at around 9 p.m. servicemen of Obron-8 arrived at their location and informed them about the need to lie in ambush in Sadovaya Street where members of illegal armed groups used to install explosive devices... most frequently. ...[E]ight servicemen proceeded to the street indicated. There they split into two groups of four, concealed themselves and set up an ambush on both sides of the street... In a while a group of three young men passed by. Approximately one minute later the second group informed them by the portable radio transmitter that they had apprehended those young men. When [P. I.] approached them with his group, he noticed the three young men lying on the ground with an artillery shell... and a wire reel near them. After the arrest they had taken the young men to the Obron-8 headquarters and transferred [them] to the head of intelligence of Obron-8 whose name was Volodya. The latter told them that he had reported the arrest to Khankala. The apprehended [persons] did not have identification papers with them. [P. I.] had no information about their religious affiliations. Similar statements were made by officers of [the Pskov OMON] [V.], [A.] and [K-v]. According to the report of [Yu. G.], the commander of [the Pskov OMON], ... in the night of 29 June 2000 officers of [the Pskov OMON] together with Obron-8 in the course of a special operation in Sadovaya Street apprehended three persons who had with them the components of an explosive device. They took the persons to Obron-8 headquarters and transferred [them] to a special unit. In the morning of 29 June 2000 [officers of] Obron-8 took [the apprehended persons] to “Pamir”... From the report of the head of Obron-8 headquarters [Yu. G.] knew that the apprehended persons had been transferred to Khankala. The head of Obron-8 headquarters, [Kal-v.], when questioned denied that his servicemen had apprehended and sent to Khankala anybody in the night of 29 June 2000. [He also denied that] an ambush in Sadovaya Street had been set up that night. [The second applicant submitted that]... official of the Leninskiy VOVD [temporary office of the interior], [K.], had told them that their sons had been apprehended by servicemen of Obron-8 and taken to Khankala. [K.] also handed over to them the guitar of I. Dombayev which, according to him, had been found at Obron-8 headquarters. [T.’s mother and the first applicant] made similar statements. [K.] submitted that on 30 June 2000 he formed a part of ... a group that searched for Dombayev and others who had disappeared in the night of 29 June 2000. ...[T]hey established that on 29 June 2000 Islam Dombayev, Murad Lyanov and [T.] had been detained by officers of [the Pskov OMON] and transferred to servicemen of Obron-8. In the beginning of July [K.] seized from private [O.] a guitar which belonged to I. Dombayev and handed it over to his mother. The latter recognised her son’s guitar. Officers of the OMON explained to [K.] that the young men had been apprehended in Sadovaya Street [because they had an] explosive device. The servicemen refused to provide any explanations in this respect. Officers of [the Pskov OMON] [A.], [K-v], [V.] and [G-v] confirmed that together with servicemen of... Obron-8 in the night of 28-29 June 2000 they had apprehended three [persons] and taken them to Obron-8 headquarters. They had not known the personal particulars [of the persons concerned], and the apprehended persons had not had their identification papers with them. However, while they were being questioned witness [K-v] noted the surnames of the apprehended persons – [T.], Lyanov and Dombayev. They had learned from the servicemen that the apprehended persons had had an explosive device. They had provided explanations concerning the circumstances of the arrest of three persons in the night of 29 June 2000 to the Grozny Prosecutor’s Office... Witness [G.] (Volodya)... submitted that... since 1998 he had been serving in military unit no. 3723... From June to August 2000 he had been seconded to Grozny as a head of [intelligence unit]. Their unit, [Obron-8] had been located not far from Sadovaya Street... Because of the nature of his post he had always remained at headquarters, had not planned any special operations, and had not previously heard the surnames Dombayev, Lyanov and [T.]... Taking into account the evidence obtained and having sufficient grounds to believe that servicemen of Obron-8 had been involved in the abduction of Dombayev, [T.] and Lyanov, on 5 November 2000 the Prosecutor’s Office of the Chechen Republic transferred the present criminal case to the Prosecutor’s Office of military unit no. 20102 for further investigation. The investigation conducted by the military prosecutor’s office established the following. According to the inspection report of the register of military actions of Obron-8... the entries of 27, 28, 29 and 30 June 2000 contained no information that any persons had been arrested... According to the extract of the register of military actions of military unit no. 3723 on _8.06 (the year is not indicated, the digit before 8 is missing...), in the course of [an intelligence operation] in Sadovaya Street the mine clearing group had found a mine. The mine was destroyed. A joint operation on passport check had been conducted between 5 and 7 [it is not clear a.m. or p.m.]... Three persons had been apprehended upon suspicion of participation in an illegal armed group. [Eight servicemen of military unit no. 3723, including [G.], submitted that they did not know anything about the arrest of Dombayev, Lyanov and [T.]. Two of the servicemen added that it had not been within the responsibilities of their unit to effect arrests and that they had not conducted any joint operations with OMON.] [B.], the commandant of military unit no. 3723’s headquarters submitted that from May to August 2000 he had served as a commander of the military operational reserve of military unit no. 3723 in Grozny [VOrez]. The responsibilities of [VOrez] had included accompanying officials of the Ministry of the Interior during passport checks and “sweeping” operations [зачистка]. Effecting arrests had not been within their responsibilities. Every special operation had been organised according to a military instruction from the headquarters in Khankala. The instructions had been kept at [VOrez’s archives]. Results of the special operations had been reflected in the register of military actions... Not less than fifteen servicemen had participated in every such operation together with a similar number of officials of the Ministry of the Interior. His servicemen had never taken part in an ambush... [The Pskov OMON] had been located not far from them. [However, [B.’s]] servicemen had never interacted with it. He had never met [Yu. G.]. No OMON officers had ever spent a night at his unit’s headquarters. In the end of June 2000 an investigator of the Grozny Prosecutor’s Office of Chechen origin and a woman of Chechen origin had arrived at his unit. They had alleged that his servicemen had apprehended three young men on 28 June 2000, which had been proved by a guitar [at unit headquarters]. He offered him access to all the premises of the unit, but they had refused [to examine them]. However, the investigator had seized a guitar from a serviceman [B. did not remember his surname], which, according to the woman, had belonged to her son. According to the serviceman, he had found this guitar in the street in the course of engineering intelligence... [B.’s] servicemen had not arrested anybody with an explosive device on 28-29 June 2000 and had not taken anybody to their headquarters either... After [B.] had seen the report of the commander of [the Pskov OMON] [Yu. G.] concerning the arrest together with servicemen of Obron-8 of three persons in the night of 29 June 2000, [B.] said that the information contained in the report was not accurate. The inspection report of the register of encrypted telegrams from [VOrez] of military unit no. 3723 contained no information concerning the arrest of three persons by servicemen on 28-29 June 2000 ... Following the results of the preliminary investigation, on 6 March 2001 the military prosecutor’s office suspended the present criminal case... in the part related to involvement in the offence of servicemen of [VOrez] of military unit no. 3723 and on 7 March 2001 transferred the case to the Prosecutor’s Office of the Chechen Republic. In the course of the additional investigation the Grozny Prosecutor’s Office instructed the Prosecutor’s Office of the Pskov Region to take additional investigative steps with officers of [the Pskov OMON], who had apprehended the applicants’ sons, so as to clarify discrepancies between [their] statements and those of Obron-8 servicemen. Witnesses [P. I.], [Yu. G.] and [D. I.] confirmed their previous statements as well as the fact that on 28-29 June 2000 in Sadovaya Street in Grozny they had arrested together with servicemen of Obron-8 three young men of [Chechen] origin aged between 15 and 20. [Yu. G] also confirmed the contents of his report concerning the arrest in the course of [the operation described]. [Neither the Ministry of the Interior nor other law-enforcement agencies] had any information on the applicants’ sons whereabouts. Requests had also been sent to [detention facilities and law-enforcement agencies of other regions], however, it appeared impossible to establish the whereabouts of the disappeared persons. The investigating authorities had no information that the applicants had visited [detention facilities] in the north Caucasian area. The preliminary investigation in the criminal case had been suspended on numerous occasions, most recently on 26 March 2002, on account of the failure to identify persons to be charged with the offence... On 14 February 2005 the decision to suspend the investigation... was quashed, the investigation was resumed. ...[A]t present the investigation is under way.” 71. On 19 June 2003 the second applicant filed a complaint with the Leninskiy District Court of Grozny concerning the inactivity of the Grozny Prosecutor’s Office and the prosecutor’s office of military unit no. 20102. 72. On 22 July 2003 the Leninskiy District Court of Grozny dismissed the complaint. No appeal was lodged against this decision and on 4 August 2003 it entered into force. According to the second applicant, she was not provided with a copy of the decision and had therefore been unable to lodge an appeal. 73. Despite specific requests made by the Court on several occasions, the Government did not submit copies of any documents from the file in criminal case no. 12113. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Russian Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings. At the same time, the Government suggested that a Court delegation could have access to the file at the place where the preliminary investigation was being conducted, with the exception of “the documents [disclosing military information and the personal particulars of the witnesses], and without the right to make copies of the case file and transmit it to others”. 74. For a summary of relevant domestic law see Akhmadova and Sadulayeva v. Russia, no. 40464/02, § 67-69, 10 May 2007. | 1 |
train | 001-71901 | ENG | SVK | ADMISSIBILITY | 2,005 | VESELA AND LOYKA v. SLOVAKIA | 4 | Inadmissible | Nicolas Bratza | The applicants, Ms Marta Veselá and Mr Tobiáš Loyka, are Slovakian nationals, who were born in 1939 and 1947 respectively and live in Bratislava. They are represented before the Court by Mr P. Kočička, a lawyer practising in Banská Bystrica. The respondent Government are represented by Mrs A. Poláčková, their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants set up a commercial limited liability company (“the company”) with a seat in Bratislava. Under Article 18 § 2 of the Civil Code in conjunction with the applicable provisions of the Commercial Code the company has a distinct legal personality. The company was later transformed into a joint stock company, its name was changed and its seat was moved to Banská Bystrica and than back to Bratislava. Since 23 October 2001 the name of the company has been PEAT GROUP Inc., a.s. The applicants each own 50% of shares in the company and the first applicant is the chairperson of its board of directors and the second applicant is the chairperson of its supervisory board. On 27 February 2001 the Banská Bystrica Regional Court (Krajský súd) made an insolvency order against the company. The order was however quashed on appeal by the Supreme Court (Najvyšší súd) on 31 July 2001. On 20 December 2001 a new insolvency order was made. Under Article 14 § 1 (a) and (l) of the Bankruptcy and Composition Code (Law no. 328/1991 Coll., as amended), the declaration of insolvency entailed an automatic transfer of the right to make any dispositions in respect of the company’s estate and its operational affairs to the bankruptcy trustee. Pursuant to subparagraph 1 (d) in conjunction with subparagraph 5 of Article 14 of the Code, any pending judicial or other proceedings involving the company were automatically stayed and could only continue on the trustee’s request. The insolvency proceedings are still pending. In 1996 the company bought certain real property including a peat plant. The property was subject to a claim by a group of original owners and legal successors of original owners for restitution of their ownership title under the Land Ownership Act (Law no. 229/1991 Coll., as amended). The restitution claim was granted by the Dolný Kubín Land Office (Okresný úrad, odbor pozemkový, poľnohospodárstva a lesného hospodárstva) in July 1996 and by the Tvrodšín Land Office in May 1997. The decisions of July 1996 and May 1997 were quashed on the company’s administrativelaw appeals by the Banská Bystrica Regional Court on 29 November 1996 and the Košice Regional Court on 15 March 2003 respectively. In the proceedings leading to the judgment of 15 March 2003 the bankruptcy trustee informed the Košice Regional Court by a letter of 15 November 2002 that she was the person entitled to act in the name of the company. By a letter of 16 December 2002 she requested under Article 14 § 5 the Bankruptcy and Composition Code that the proceedings continue. In the meantime, on 31 January and 3 March 2000, respectively, the Tvrdošín Land Office had again granted the restitution claim in so far as brought by two categories of claimants. The trustee challenged these decisions by an administrativelaw appeal which is still pending in the Košice Regional Court. On 3 September 2003 the Tvrdošín Land Office dismissed the whole of the restitution claim. Several of the claimants challenged the dismissal by an administrativelaw appeal which is also still pending in the Košice Regional Court. | 0 |
train | 001-98811 | ENG | IRL | ADMISSIBILITY | 2,010 | STAPLETON v. IRELAND | 1 | Inadmissible | Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra | 1. The applicant, Mr Robert Stapleton, is an Irish national born in 1943. He did not communicate his current address to the Court. He was represented before the Court by Mr E. Gillet, Ms L. Levi and Mr S. Engelen, lawyers practising in Brussels. 2. 3. The applicant lived in the United Kingdom until 1985, when he and his family took up residence in Spain. In the early 1990s the family moved to France and, in 1994, to Ireland. A magistrates’ court in the United Kingdom issued a warrant for the applicant’s arrest on 15 January 2004, following which the United Kingdom (“the issuing State”) issued a European arrest warrant on 29 July 2005. The warrant concerned thirty charges of fraud allegedly committed by him between 1978 and 1982. The United Kingdom authorities maintained that they did not know of the applicant’s whereabouts until 2001. 4. On 14 September 2005 the Irish police (Ireland being “the executing State”) arrested the applicant pursuant to the European arrest warrant. He was released on bail on 16 September 2005. In defence of the surrender proceedings before the Irish High Court, the applicant argued that the European arrest warrant was not in accordance with the law, did not contain offences corresponding to those in Ireland, that his surrender was prohibited by section 37 of the European Arrest Warrant Act 2003 (“the 2003 Act”) as it would be incompatible with Articles 3 and 6 of the Convention, and that the delay in pursuing charges undermined his capacity to defend himself and breached section 40 of the 2003 Act. 5. By a judgment dated 21 February 2006, the High Court accepted the applicant’s argument that the delay at that stage (of up to twenty-seven years) had been such as to create a real risk that the applicant would not receive a fair trial, so that his surrender had to be refused in accordance with section 37 of the 2003 Act. The remaining grounds were rejected on their merits, except the ground concerning section 40 of the 2003 Act which it found was unnecessary to examine. 6. As regards the delay, the Irish High Court found that, pursuant to section 37 of the 2003 Act, the applicant enjoyed a Convention and constitutional right to a trial within a reasonable time, a right he was entitled to rely on and: “... have protected on the first occasion on which it becomes relevant for argument, and it is not a matter to be postponed so that it can be ventilated at some date in the future in another country, and after the [applicant] has been returned in custody to that place. Section 37 of the 2003 Act mandates that this court shall not order the surrender of a requested person if to do so would not be compatible with this State’s obligations under the Convention or its Protocols or would constitute a breach of any provision of the Constitution. Under each instrument the [applicant] enjoys the right to a trial in due course of law, including within a reasonable period of time. There is in my view no meaningful distinction to be drawn between surrendering the respondent to the requesting State to face a trial which would be either unfair or not within a reasonable time, and him actually facing such a trial.” 7. Moreover, the Irish High Court found that it was in just as good a position as the United Kingdom courts to determine whether the applicant could receive a fair trial after such a lapse of time since that assessment was considered on the balance of probabilities. The applicant’s case was unique: even with the greatest expedition thereafter he was likely to stand trial thirty years after the alleged offences at the earliest. There came a time, in the High Court’s view, when no matter who was responsible for the major part of the delay, the lapse of time had to give rise to an assumption of prejudice, even if a court were to conclude that the assertion of actual prejudice was weak. Where the Irish High Court was in a position to conclude that no person could be expected to defend himself adequately after such a period of time (excluding sexual offences to which special considerations applied), it would be incompatible with the State’s obligations under the Convention for it to order his return to the issuing State in the hope that his rights would be vindicated there. Indeed, the High Court was not convinced that the applicant had the same probability of staying his proceedings in the United Kingdom as he would have in Ireland because, if his absence from the United Kingdom could be interpreted as a delay imputable to him, he was unlikely to succeed in his application in the United Kingdom to stay the proceedings. The jurisprudence of the British courts which had been opened to the Irish High Court indicated that there was not the same regard for a free-standing right to an expeditious trial in the United Kingdom even in the absence of actual prejudice. The High Court went on: “I cannot accept that the rights of the [applicant] under the Constitution would not be contravened by his being surrendered at this point in time to face trial on these charges, and I do not believe that it would be appropriate to expose him to the hazard that his rights might not be vindicated there in the same manner in which they would in my view in this jurisdiction. That is not an indication in any way that this court does not have the high level of confidence in the neighbouring jurisdiction which is referred to in the [Council] Framework Decision [2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between member States – “the Framework Decision”]. That aspiration, if I can call it that for the moment, was not sufficient for the Oireachtas to decide that it was unnecessary to enact section 37 of the 2003 Act. The Framework Decision itself states that it respects fundamental rights, and that it does not prevent member States from applying its constitutional rules of, inter alia, due process. I do not read that as being confined to the process of extradition, especially when read in conjunction with section 37.” 8. Since the High Court operating under the 2003 Act could not be constrained by prior extradition jurisprudence, the alleged excessive delay was to be considered under broad constitutional principles and not to be confined to whether it had been shown that an order to surrender would be “unjust, invidious or oppressive”. The High Court continued: “In my view the length of the lapse of time, as I have already stated, is so long, including a period from at least 1994 to 2005 when the respondent was living in this country and for which I regard the authorities in the United Kingdom to be very largely to blame, that all other considerations which may be laid against the respondent pale into insignificance. There comes a time, and twenty-eight years since the date of alleged commission of a fraud is within this concept, that it must be presumed that it is simply not possible to guarantee a fair trial, no matter how assiduous the trial judge may be to ensure that the jury is appraised [sic] and properly instructed as to the potential for delay to dull the memory and prevent the marshalling of evidence. No trial after twenty years can be a trial within any concept of reasonable expedition, even allowing for the time in Spain up to 1993/1994. But that apart, it must be assumed in a case of this kind, and in the light of the evidence set forth by the respondent in his affidavits, that memories of detail will have faded if not disappeared, and this will apply equally to any witness who may still be available to be called either by the prosecution or by the respondent. He has sworn that certain witnesses are deceased or their whereabouts are unknown to him. He must be given the benefit of the doubt in this regard. ... There is evidence ... that files are by now destroyed. But even if actual prejudice was not established to the required degree, and I lean in favour of the view that it has been, I am completely satisfied that the lapse of time since 1978/1982 to the present time and any further date at which a trial would likely take place, goes way beyond any time by which a fair trial within a reasonable time can take place in respect of these offences. This is not a case in which the time question is in any way marginal. It can be presumed that the respondent is prejudiced, and the sheer length of time which has passed renders to a large extent irrelevant the allegation that the respondent may have deliberately absented himself from the United Kingdom around 1984/1985 in order to escape the attentions of the authorities arising from the liquidation of his companies.” 9. The Supreme Court disagreed and allowed the appeal by judgment dated 26 July 2007. It identified the essential issue as being the extent to which the Irish courts should apply their own case-law as regards delays in criminal proceedings in the context of surrender requests. The parties agreed that section 40 of the 2003 Act was not relevant as it applied to charges that were statute-barred, which was not the case in the present proceedings. 10. The Supreme Court, referring to the case-law of the Court of Justice of the European Communities, noted that it had to interpret section 37 of the 2003 Act so far as possible in the light of, and so as not to be in conflict with, the provisions of the Framework Decision (Case C-105/03, Pupino [2005] ECR I-5285). The cornerstone of the entire system was the principle of mutual recognition of judicial decisions and mutual trust of the legal systems of the other member States. There was no relevant distinction between the applicable Convention and constitutional provisions, both referring to the right to a fair trial. 11. Article 1 § 3 of the Framework Decision, read with the recitals thereto (notably recitals 6 and 10) as well as Article 6 §§ 1 and 2 of the Treaty on European Union (as interpreted in Case C-303/05 Advocaten voor de Wereld [2007] ECR I-3633) meant that the courts of the executing State, when deciding whether to make an order for surrender, had to proceed on the assumption that the courts of the issuing State were obliged to respect Convention rights. The High Court was mistaken in considering that the applicant was entitled to have his right to a speedy trial considered on the “first occasion”, namely, in the Irish Courts. The High Court was also mistaken as to the identified possible differences between the level of protection in the British and Irish jurisdictions as regards speedy trial and, indeed, in seeking parity of criminal procedure in the receiving State: the Supreme Court could not see that any differences discerned by the High Court between the right to seek a prohibition of trial in the British and the Irish courts could amount to an infringement of the right to a fair trial, or fair procedures, whether by reference to the Convention or to the Constitution. It continued: “[t]hey certainly did not amount, as per criteria established in prior Irish case law, to ‘a clearly established and fundamental defect in the system of justice of [the] requesting State’.” 12. The Supreme Court found that on the facts of the case, the applicant could seek a remedy in the United Kingdom based on the very long period of time which had elapsed since the alleged commission of the offences. Moreover, it would be demonstrably more efficient and appropriate for this to be done in the State where the prosecuting and police authorities, witnesses and material evidence was more readily available and where points of British domestic law (jurisprudential or otherwise) could be relied upon more advantageously. Accordingly, the High Court had erred in refusing the applicant’s surrender. 13. While it was not strictly necessary to rule on the effect of the applicant’s “very substantial contribution” to the lapse of time, the Supreme Court found, inter alia, that the major part of the delay was from 1985 to 2001 when the applicant was absent from the United Kingdom and his whereabouts were unknown to the British authorities. The applicant, in its view, bore entire responsibility for that delay. On this basis alone the Supreme Court would have rejected the applicant’s opposition, based on the delay to date, to his surrender. 14. The Supreme Court therefore made an order for the applicant’s surrender to the British authorities. 15. Before the applicant could be surrendered by Ireland to the United Kingdom he absconded. His current whereabouts are unknown but he is represented by the above-mentioned lawyers practising in Brussels, who submit on his behalf that he cannot return to Ireland where his family resides because he would be arrested and surrendered to the United Kingdom. 16. Following the receipt of the applicant’s request for an interim ruling under Rule 39 of the Rules of Court to prevent his extradition to the United Kingdom, on 21 December 2007 the President of the Fourth Section of the Court decided that the request did not fall within the scope of Rule 39 and refused the interim measure requested. 17. Article 6 §§ 1 and 2 of the Treaty on European Union provide as follows: “1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the member States. 2. 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.” 18. The Framework Decision provides for the execution in any member State (“the executing State”) of a judicial decision made in another member State (“the issuing State”) for the arrest and surrender of a person for the purpose of criminal proceedings (or the execution of a custodial sentence). The Preamble to the Framework Decision provides in its relevant parts as follows: “Whereas: ... 5. The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice. 6. The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the ‘cornerstone’ of judicial cooperation. ... 8. Decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the member State where the requested person has been arrested will have to take the decision on his or her surrender. ... 10. The mechanism of the European arrest warrant is based on a high level of confidence between member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the member States of the principle set out in Article 6 § 1 of the Treaty on European Union, determined by the Council pursuant to Article 7 § 1 of the said Treaty with the consequences set out in Article 7 § 2 thereof. ... 12. This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union, in particular Chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person’s position may be prejudiced for any of these reasons. This Framework Decision does not prevent a member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media.” 19. The relevant parts of Article 1 provide as follows: “... 2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision. 3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.” 20. The 2003 Act was enacted to give effect to the Framework Decision. Section 37 is entitled “Fundamental rights” and section 37(1) reads in its relevant part as follows: “A person shall not be surrendered under this Act if: (a) his or her surrender would be incompatible with the State’s obligations under: (i) the Convention; or (ii) the Protocols to the Convention; (b) his or her surrender would constitute a contravention of any provision of the Constitution (other than for the reason that the offence specified in the European arrest warrant is an offence to which section 38(1)(b) applies); ...” | 0 |
train | 001-79432 | ENG | TUR | CHAMBER | 2,007 | CASE OF EVRENOS ÖNEN v. TURKEY | 3 | Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings | null | 4. The applicant was born in 1937 and lives in İzmir. 5. The applicant is the owner of a potable and industrial water station in İzmir. By a letter dated 9 July 2001 the authorities from the İzmir Health Directorate informed the Karşıyaka Public Prosecutor about the fact that the applicant's company was not complying with the requirements of the relevant regulation concerning the packaging and marketing of spring and mineral waters. 6. On 24 August 2001, in his statements taken by the Karşıyaka Public Prosecutor, the applicant maintained that he had been already told by the authorities that the way he was selling water was in breach of the relevant regulation and that he had consequently closed his business earlier that year. 7. On 28 November 2001 the Karşıyaka Public Prosecutor issued an advance payment order of 1,898,208,000 Turkish Liras (TRL) for the applicant, for failure to respect the rule concerning the packaging and marketing of spring and mineral waters, provided in decree law no. 560. The applicant did not pay the fine within ten days as required by the order. 8. On 14 December 2001 the applicant filed a petition with the Karşıyaka Magistrate's Court, challenging the decision of the Public Prosecutor. He claimed that he had already made a payment. In his submissions to the court, the Public Prosecutor explained that the payment made by the applicant was for a previous offence, which took place on 26 May 1999. 9. On 22 January 2002 the Karşıyaka Magistrate's Court dismissed the objection and issued a penal order, by which it increased the fine to TRL 2,847.312.000, due to the applicant's failure to comply with the advance payment order. 10. On 19 February 2002 the applicant filed an objection with the Karşıyaka Criminal Court of First Instance, against the penal order of 22 January 2002, alleging, in particular, a breach of Article 6 § 3 (c) of the Convention. 11. On 4 March 2002 the Karşıyaka Criminal Court of First Instance upheld the decision of the Magistrate's Court, holding that it was in accordance with the law. 12. The applicant paid the fine on 3 May 2002, 28 May 2002 and 2 July 2002, in three equal instalments. 13. Article 17 Decree law no. 560 (amended by law no. 4128) on the packaging and marketing of spring and mineral waters, provides that the manufacturing, packaging and selling of the spring and mineral waters are under the authorisation of the Ministry of Health. The principles and procedural requirements concerning these subject matters are regulated by the Ministry of Health. Article 18 A (l) of the same law provides that a company who acts in breach of Article 17 of the decree law no. 560 would be closed, affixed with a seal and be subject to a fine. Should the company commit the same offence again, the fine would be doubled. 14. Article 465 § 4 of the former Criminal Code provide as follows: “If the action does not cause any sickness or prevent the victim from attending his/her usual occupation (...) the offender shall be sentenced to 2 to 6 months' imprisonment or to a fine of TRL 200 to 2,500. However, the legal proceedings may be initiated only upon the victim's complaint.” 15. The relevant Articles of the Code of Criminal Procedure which was in force at the time of the events, read as follows: “Save the exceptional circumstances described by law, the courts shall decide on objections filed against the penal orders without holding a hearing. If the objection is upheld, the same court shall decide on the merits of the case.” “The judge at the Magistrates' Court may, without holding a hearing, rule on the offences which are within the jurisdiction of the Magistrates' Court and it may subsequently issue a penal order. Only the sentencing to a fine, an imprisonment up to three months, a suspension of a certain profession and a seizure (...) may be adjudicated by a penal order. (...)” “If the judge at the Magistrates' Court considers that the lack of a hearing may put the offender in an unfavourable situation, then it could be decided to hold a hearing. “ “In addition to the conviction, it should be noted in the penal order, the designation of the offence, the applicable provisions of law, the relevant evidence, and the possibility of raising an objection within eight days after its notification (...). The petition which raises an objection to the penal order shall be approved by the trial judge. (...)” “A hearing shall be held if the objection is raised against an imprisonment sentence given by a penal order. (...) The suspect can be represented by a defence counsel during the hearing. (...) The objections against the penal orders (...) are examined by a judge at the criminal court of first instance, in line with the procedure described under Articles 301, 302 and 303. The objection would suspend the execution of the penal order.” 16. In a judgment given on 30 June 2004 the Constitutional Court declared Article 390 § 3 of the Code of Criminal Procedure unconstitutional and a nullity. It held that lack of a public hearing before the Criminal Court of First Instance that examines the objections against the penal orders, would be in breach of the right guaranteed under Article 6 of the Convention, as well as Article 36 of the Constitution. 17. Additionally, the new Criminal Code and the Code of Criminal Procedure which came into force on 1 June 2005, contain no provision concerning penal orders. | 1 |
train | 001-68739 | ENG | LTU | CHAMBER | 2,005 | CASE OF UZKURELIENE AND OTHERS v. LITHUANIA | 3 | No violation of Art. 6-1;No violation of P1-1 | David Thór Björgvinsson | 8. The first applicant is Mrs Eugenija Užkurėlienė, born in 1939 and living in Vilnius. The second applicant is Mr Povilas Čyžius, born in 1936 and living in the Kupiškis area in the Panevėžys region. The third applicant is Mr Stanislovas Čyžius, born in 1938 and living in Panevėžys. The fourth applicant is Ms Janina Čyžiutė, born in 1932 and living in the Kupiškis area. 9. The applicants are brothers and sisters. Before the Soviet occupation of Lithuania in 1940 the applicants' father owned 33.87 hectares of land (“the original land”). The land was nationalised by the Soviet authorities in the 1940s. Following the restoration of Lithuanian independence in 1990, the applicants became entitled to a claim in regard to their late father's land under the Restitution of Property Act (“the Act”). 10. On 25 September 1991 the applicants requested that compensation in land be given to them in accordance with the Act. 11. On 10 December 1993 the applicants changed their position, requesting that the original land be returned to them in kind. By letter of the administrative authorities of 31 January 1994 the applicants were informed that part of the original land (8.74 hectares) had already been allocated to a third person, FS, by decision of the Ministry of Agriculture of 30 December 1992. The applicants were informed that that part of the land could thus not be returned to them. 12. On 15 February 1994 the applicants applied to a court, requesting that the decision of 30 December 1992 be quashed. On 20 June 1994 the Vilnius City First District Court rejected the applicants' action. On 18 July 1994 the Supreme Court rejected the applicants' appeal against that judgment. 13. On 22 March 1995 the Supreme Court refused to grant leave for a cassation appeal. 14. On 4 October 1996 the applicants brought a fresh court action, requesting the return of the original land. On 29 June 1998 the Kupiškis District Court rejected the applicants' action. On 15 September 1998 the Panevėžys Regional Court rejected the applicants' appeal against that decision. The applicants submitted a cassation appeal to the Court of Appeal. 15. On 3 May 1999 the Court of Appeal quashed the lower decisions, returning the case for a fresh examination at first instance. 16. On 28 October 1999 the Kupiškis District Court again rejected the applicants' action. On 21 December 1999 the Panevėžys Regional Court upheld the first instance judgment. The applicants submitted a cassation appeal to the Supreme Court. 17. On 22 May 2000 the Supreme Court adopted a final judgment whereby it quashed the decisions of 28 October and 21 December 1999. The Supreme Court concluded that the authorities and the lower courts had been responsible for the delays in restoring the applicants' rights under the Act. It held inter alia: “From the material in possession it appears that the plaintiffs submitted a request to restore their property rights on 25 September 1991. Pursuant to Article 19 [of the Act], a decision on the request must have been adopted within three months from that date. ... [The] plaintiffs' right to an effective remedy was [therefore] violated. ... The plaintiffs had submitted enough evidence [enabling the administrative authorities] to adopt a decision on restitution of their property rights, even more so as the case-file contains no evidence that other persons claim restitution of property rights in regard to the land which belonged to the plaintiffs' father. ... Having regard to the fact that the plaintiffs' property rights have not been restored since 1991 ... [further litigation] would breach the plaintiffs' rights guaranteed by Articles 6 and 13 of the Convention ... ” 18. In the judgment of 22 May 2000 the Supreme Court ordered that the Panevėžys regional administration “take a decision to restore the [applicants'] property rights to the land which belonged to [their father] prior to the nationalisation”. 19. With respect to the applicants' claim about the allocation of part of the original land (8.74 hectares) to FS, the Supreme Court noted that in their original application for restitution of their property rights the applicants had asked for compensation, not for return of the original land, and that they had changed their claim only on 10 December 1993, i.e. almost a year following the authorities' decision of 30 December 1992 to allocate the impugned portion of land to FS. The Supreme Court concluded that thus the applicants could not have this part of the original land returned to them. It also noted however that the applicants were entitled to compensation for the impugned portion of land in accordance with the provisions of the Act. 20. On 20 March 2002 the Panevėžys regional administration made an offer to the first applicant to afford her compensation in land for 5.36 hectares of her late father's former land that could not be returned in kind. The necessary formalities for the transfer of property rights to the first applicant have not yet been finalised as she did not reply to a number of the administration's letters requesting her to sign the relevant papers. 21. By a decision of the regional administration of 30 August 2002, the second and third applicants were returned in kind 16.08 hectares of the original land. 22. On the same date the administration allotted the fourth applicant 3.67 hectares of land in compensation for the equivalent part of the original land that could not be returned in kind. 23. On 9 July 2002 the regional administration made an offer for the fourth applicant to be allotted a further 1.69 hectares of land in compensation. On 17 December 2002 and 5 July 2004 the regional administration made an offer to compensate the fourth applicant for a further 1.22 hectares of her father's former land. The formalities for the transfer of property rights to her in this respect have not yet been finalised as she did not reply to a number of the administration's letters requesting her to sign the relevant papers. 24. On 17 December 2002 the regional administration made an offer to the second applicant to compensate in land for 0.78 hectares of the original land that could not be returned to him. The formalities for the transfer of property rights to him have not yet been finalised as he did not reply to a number of the administration's letters to sign the relevant documents. 25. On 12 February 2004 all four applicants were returned jointly a further 3.51 hectares of the original land. 26. On 19 July 2004 the regional administration afforded the first and the third applicant a further compensation in land for 1.56 hectares of the original land that could not be returned in kind. 27. The Restitution of Property Act (Nuosavybės teisių ... atkūrimo įstatymas) (of 1991, amended on numerous occasions) provides for two forms of restitution: 1) the return of the property in certain circumstances, 2) compensation in other cases (compensation can be made in land or money). On 27 May 1994 the Constitutional Court examined the issue of compatibility of the Constitution with the domestic laws on restitution of property rights. In its decision the Constitutional Court held inter alia that possessions which had been nationalised by the Soviet authorities since 1940 should be considered as “property under the de facto control of the State”. The Constitutional Court also stated: “The rights of a former owner to particular property have not been restored until the property is returned or appropriate compensation is afforded. The law does not itself provide any rights while it is not applied to a concrete person in respect of a specific property item. In this situation the decision of a competent authority to return the property or to compensate has such a legal effect that only from that moment does the former owner obtain property rights to a specific property item.” The Constitutional Court also held that fair compensation for property which could not be returned was compatible with the principle of the protection of property. In decisions of 15 June and 19 October 1994 the Constitutional Court emphasised that the notion of restitution of property rights in Lithuania essentially denoted partial reparation. In this respect the Constitutional Court noted that the authorities of Lithuania as a re-established State in 1990 were not responsible for the Soviet occupation half a century ago, nor were they responsible for the consequences of that occupation. The Constitutional Court held that since the 1940s many private persons had bought, in accordance with the legislation applicable at the material time, various property items which had been previously nationalised. The denial of these factual and legal aspects was impossible, and the domestic legislation on restitution of property rights duly took into account not only the interests of the former owners, but also the interests of private persons who had occupied or purchased the property under lawful contracts. On 20 June 1995 the Constitutional Court also said that the choice by the Parliament of the partial reparation principle was influenced by the difficult political and social conditions in that “new generations had grown, new proprietary and other socio-economic relations had been formed during the 50 years of occupation, which could not be ignored in deciding the question of restitution of property”. On 8 March 1995 the Constitutional Court ruled that a person who qualifies for compensation for property which cannot be returned is entitled to choose the form of compensation (land or money) by giving written permission for the authorities to proceed with the decision. The Constitutional Court also held that the executive authorities have discretion to decide on appropriate compensation in each case, but that a person is entitled to contest that compensation by way of a court action. Under Article 18 of the Restitution of Property Act (all versions until 1999), the authorities were required to obtain the written permission of the person concerned before they determined the actual compensation for the property which could not be returned. Pursuant to the version of the Restitution of Property Act as amended from 2 June 1999, the executive authorities are now entitled to decide the question of compensation without the person's approval. That decision can be appealed to a court in accordance with the procedure established in Article 19 of the Act. No stamp duty is required to file such an action. | 0 |
train | 001-75190 | ENG | TUR | ADMISSIBILITY | 2,006 | DEMIR AND OTHERS v. TURKEY | 4 | Inadmissible | null | The applicants, whose names appear in the appendix, are Turkish nationals. They are represented before the Court by Ms H. D. Deyar and Mr B. Deyar, lawyers practising in Diyarbakır. The facts of the case, as submitted by the parties, may be summarised as follows. Until 1994 the applicants lived in Ziyaret (Fis), a village of the Lice district in Diyarbakır, where they own property. It is to be noted that the documents attesting ownership of property, which Ali Balare, Asiye Balare, Emin Balare Emin Balare, Abdullah Balare, Zeki Balare, Zeliha Balare, Zeliha Balare and İmiş Balare, Mahsun Fidan, Şahin Fidan, Dilan Fidan, Netice Fidan, Necla Fidan and Abdulmuttalip Fidan (Application nos. 27901/02 and 28740/02) used in Ziyaret, bear their mothers’ names. It is further to be noted that the documents attesting ownership of property, which Mehmet Can Fidan, İbrahim Fidan, Fatma Fidan, Necla Fidan, Meyrem Fidan, Mehmet Ali Fidan, Mekin Fidan, Tekin Fidan, Recep Fidan, Tarık Fidan, Binevş Fidan and Hasibe Fidan (Application no. 29888/02) used in their village bear their brother’s name. On 14 May 1994 security forces destroyed the applicants’ property. The applicants then moved to Diyarbakır, where they currently live. The security forces arrived to Ziyaret again and destroyed the remainder of the village on 23 January 1995 and 1 October 1995. On 9 September 2001 the District Gendarmes Headquarters in Lice sent a letter to the village mayors in Lice. According to that letter, access to Ziyaret would be possible only during summer for the inhabitants to work in their farms, and only during daytime. The villagers would not be allowed to spend the nights in their village. Moreover, the villagers would be required to apply to the gendarmes stations and request permission. On 11 September 2001 the 2nd Internal Security Brigade Commander in Lice sent a letter to the District Governor’s office in Lice informing him that the military operations against terrorism were to continue in the district. The commander requested the District Governor’s office to warn the inhabitants of these operations and notify them that the security forces would not be responsible for any casualties. On 25 December 2001 some of the applicants lodged a petition with the Ministry of the Interior requesting compensation for the pecuniary and non-pecuniary damages they suffered and asked for permission to return to their village. The applicants received no response to their petition. On the same day they filed a petition with the Public Prosecutor’s office in Diyarbakır for submission to the Public Prosecutor’s office in Lice, complaining about the burning down of their houses by the security forces on 14 May 1994, 23 January 1995 and 1 October 1995. On 17 January 2002 the Lice Public Prosecutor issued a decision of non-jurisdiction and sent the case file to the Military Prosecutor’s office in the 7th Diyarbakır Corps Command, in accordance with Article 9 of the Military Criminal Code (Law no. 1632). The applicants were residents in Tepecik, a village of the Kocaköy district in Diyarbakır, where they own property. On 22 December 1992 security forces and village guards entered Tepecik and destroyed some of the houses in the village. They came again on 4 November 1994, 30 October 1995 and 8 November 1995, destroyed the remainder of the village and evicted the inhabitants, who moved to Diyarbakır, where they currently live. On 12 February 2001 two other inhabitants of Tepecik, Mr Şerefettin Yaşa and Mr Kadri Yaşa, filed a petition with the Public Prosecutor’s office in Kocaköy complaining about the killing of eight people, the burning down of their house and the destruction of their trees and farms by security forces and village guards. On 8 October 2001 the Kocaköy Public Prosecutor decided to discontinue proceedings. Assessing the offence in question as theft, he decided that the statutory time-limit for the offence in question had expired. On 24 October 2001 the legal representative of Mr Şerefettin Yaşa and Mr Kadri Yaşa lodged an appeal with the Siverek Assize Court against the decision of the Kocaköy Public Prosecutor. On 22 November 2001 the Siverek Assize Court upheld the decision of the Kocaköy Public Prosecutor. The applicants considered themselves exempt from lodging further complaints concerning the burning down of their houses following the decision of the Siverek Assize Court. It is to be noted that the applicants did not submit any document to the Court attesting that they had filed petitions containing a request for permission to return to their villages. Until 1994 the applicants lived in Hedik, a village of the Lice district in Diyarbakır, where they own property. On 22 November 1994 security forces destroyed the applicants’ property. The applicants then moved to Diyarbakır, where they currently live. On 9 September 2001 the District Gendarmes Command in Lice sent a letter to the village mayors in Lice. According to that letter, access to Ziyaret would be possible only during summer for the inhabitants to work in their farms, and only during daytime. The villagers would not be allowed to spend the nights in their village. Moreover, they would be required to apply to gendarmes stations and request permission. On 11 September 2001 the 2nd Internal Security Brigade Commander in Lice sent a letter to the District Governor’s office in Lice informing him that the military operations against terrorism were to continue in the district. The commander requested the District Governor’s office to warn the inhabitants of these operations and notify them that security forces would not be responsible for any casualties. On 7 January 2002 some of the applicants lodged a petition with the Ministry of the Interior requesting compensation for the pecuniary and non-pecuniary damages they suffered and permission to return to their village. On the same day they filed a petition with the Public Prosecutor’s office in Diyarbakır to be referred to the Public Prosecutor’s office in Lice, complaining about the burning down of their houses by the security forces on 22 November 1994. On 16 January 2002 the Lice Public Prosecutor issued a decision of non-jurisdiction and sent the case file to the Military Prosecutor’s office in the 7th Diyarbakır Corps Command, in accordance with Article 9 of Law no. 1632 (Military Criminal Code). On 25 April 2002 the State of Emergency Regional Governor’s office in Diyarbakır rejected applicants’ claim for compensation. It is to be noted that the applicants did not submit any document attesting the response of this office. The investigation carried out by the authorities indicated that the applicants had left their villages of their own will. The security forces had not forced the applicants to leave their village. The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages. On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages. In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation. The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained. A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI). | 0 |
train | 001-79615 | ENG | TUR | ADMISSIBILITY | 2,007 | AKGUL v. TURKEY | 4 | Inadmissible | Nicolas Bratza | The applicant, Atiye Akgül, is a Turkish national who was born in 1941 and lives in Iskenderun. She is represented before the Court by Mr I. K. Yıldırım and Mr G. Nurtin, lawyers practising in Ankara. The facts of the case, as submitted by the parties, may be summarised as follows. On 15 June 1998 the General Directorate of National Roads and Highways expropriated a part of a plot of land (plot no. 147) belonging to the applicant in Belen. A committee of experts had assessed the value of the land and an amount of compensation was paid to the applicant at the time of the expropriation. On 21 December 1998 the applicant filed a case with the Iskenderun Civil Court of First Instance and requested additional compensation. On 26 October 1999 the Iskenderun Civil Court of First Instance awarded the applicant additional compensation of 32,632,776,000 Turkish liras (TRL) (approximately 64,361 euros (EUR)) plus interest at the statutory rate, running from 19 November 1998. On 9 May 2000 the Court of Cassation upheld the judgment of the firstinstance court. The applicant commenced enforcement proceedings. On 23 July 2001 the administration paid the applicant the amount of TRL 86,623,450,000 (approximately EUR 75,300) covering additional compensation and interest, as well as costs and expenses. The relevant domestic law and practice in force at the material time are outlined in the Gül and Others v. Turkey ((dec.), no. 44715/98, 18 March 2004). | 0 |
train | 001-109289 | ENG | LVA | CHAMBER | 2,012 | CASE OF MELNITIS v. LATVIA | 3 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award | Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria | 5. The applicant was born in 1969 and lives in Rencēni parish in Latvia. 6. On 19 May 2005 the applicant was placed in cell no. 26 in a remand wing of Valmiera Prison. 7. On 14 October 2005 the Valmiera District Court (Valmieras rajona tiesa) convicted the applicant of resistance to a public official and sentenced him to three years’ imprisonment but suspended the sentence. It appears that no appeal was lodged against this judgment. 8. On the same date, the court ordered the applicant’s release. 9. According to the applicant, the cell where he was placed together with other detainees had been very poorly lit and poorly ventilated. The toilets had not been separated from the living area and had emitted a foul smell that had lingered in the air. Detainees had thus been forced to eat their meals in close proximity to the toilets. The applicant also alleged that the cell had been overpopulated, each detainee having had less than the domestic standard of 2.5 sq. m of living space per male adult detainee. 10. The Government disagreed with the applicant’s version of facts. They noted that cell no. 26 had had artificial and natural light and a ventilation system and they submitted that the toilet area in the cell had been separated off with a screen. The Government submitted that cell no. 26 had measured 23.6 sq. m. and had accommodated no more than eight detainees at a time, including the applicant. 11. In addition, the applicant contended that he had not received any personal hygiene products, save for a quarter of a bar of laundry soap. He had not been provided with toilet soap, a toothbrush, toothpaste and toilet paper, in violation of domestic law (see paragraph 21 below). 12. The Government did not deny that the applicant had not been provided with these products. 13. On an unspecified date in October 2005 the applicant had received 200 g of laundry soap, one toothbrush, 50 g of toothpaste and one 30 m roll of toilet paper. 14. On 13 July 2005, upon the applicant’s complaint addressed to the prosecutor’s office, the Prisons Administration (Ieslodzījuma vietu pārvalde) informed him that the prison lacked the financial resources to provide him with the personal hygiene products as laid down in Cabinet Regulation no. 339 (2002). 15. On 8 August 2005 the Valmiera Prison administration confirmed that there were no financial resources to provide the relevant personal hygiene products, save for one 200 g bar of laundry soap per month. 16. On 22 July 2005 the National Human Rights Office replied to the applicant in general terms that they had found during their onsite visits that penal institutions did not comply with many legal requirements. They noted, among other things, that they had drawn the attention of the relevant domestic authorities in March 2005 to insufficient financial resources having been allocated to the purchase of personal hygiene products. Finally, the applicant was informed of his right to submit an individual petition to the Court. 17. Prior to 2011, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) had not visited Valmiera Prison, where the applicant was placed during his pre-trial detention. 18. However, during its ad hoc visit from 5 to 12 May 2004 to several police headquarters (in Daugavpils, Liepāja and Ventspils) and prisons (in Rīga and Daugavpils) it noted that detainees and prisoners were not provided with basic personal hygiene products and recommended that immediate steps be taken to ensure that all detainees and prisoners be provided with adequate quantities of essential personal hygiene products (see paragraphs 20 and 60 of the relevant report: CPT/Inf (2008) 15). The CPT also found that toilets were not adequately partitioned off in a number of cells. 19. In its response, the Latvian Government (see the relevant document: CPT/Inf (2008) 16) noted that due to a lack of funding it was not possible to fully comply with the CPT’s recommendations. The Government noted that prisoners could purchase the necessary products in a prison shop. At the same time, they noted that prison authorities used humanitarian aid to help prisoners who did not have sufficient financial means. 20. The European Prison Rules, adopted on 11 January 2006, are recommendations of the Committee of Ministers to member States of the Council of Europe as to the minimum standards to be applied in prisons. States are encouraged to be guided in legislation and policies by those rules and to ensure wide dissemination of the Rules to their judicial authorities as well as to prison staff and inmates. The relevant parts read as follows: “18.1 The accommodation provided for prisoners, and in particular all sleeping accommodation, shall respect human dignity and, as far as possible, privacy, and meet the requirements of health and hygiene, due regard being paid to climatic conditions and especially to floor space, cubic content of air, lighting, heating and ventilation. 18.2 In all buildings where prisoners are required to live, work or congregate: a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system; b. artificial light shall satisfy recognised technical standards; and c. there shall be an alarm system that enables prisoners to contact the staff without delay. 18.3 Specific minimum requirements in respect of the matters referred to in paragraphs 1 and 2 shall be set in national law. ... 19.5 Prisoners shall keep their persons, clothing and sleeping accommodation clean and tidy. 19.6 The prison authorities shall provide them with the means for doing so including toiletries and general cleaning implements and materials.” 21. Cabinet Regulation no. 339 (2002), in force at the material time and effective until 20 June 2008, laid down the standards governing the basic personal hygiene products to be provided to detainees. A healthy adult male detainee was to receive 200 g of laundry soap, 50 g of toothpaste and one 30 m roll of toilet paper every month and one toothbrush every six months. No toilet soap was to be provided. 22. Cabinet Regulation no. 211 (2003), in force at the material time and effective until 1 April 2006, laid down the standards governing detention conditions in remand wings of prisons. It contained no provision on the partitioning off of toilets in cells. 23. Subsequently, the requirement to separate the toilet from the rest of the cell was laid down, initially, in cabinet regulations and, later, in law. 24. The Law of Administrative Procedure (Administratīvā procesa likums) took effect on 1 February 2004. It provides for the right to challenge administrative acts (administratīvais akts) and actions of a public authority (faktiskā rīcība) before the administrative courts. 25. At the material time, section 89 of the Law of Administrative Procedure defined an action of a public authority as “an action within the sphere of public law which is not aimed at issuing an administrative act, provided that its results have or might infringe the rights or legal interests of an individual concerned”. An action of a public authority also included “an omission on the part of a public authority provided that such authority has an obligation under the law to take a specific action”. The 2006 amendments to the Law, which took effect on 1 December 2006, further clarified this definition. 26. Under section 92 of the Law of Administrative Procedure everyone has the right to receive appropriate compensation for pecuniary and non-pecuniary damage caused by an administrative act or action of a public authority. Under section 93 of the same Law, a claim for compensation can be submitted either together with an application to the administrative courts to have an administrative act or action of a public authority declared unlawful or to the public authority concerned following a judgment adopted in such proceedings. 27. In its annual report dedicated to human rights issues in Latvia for the year 2005, the National Human Rights Office (VCB), noted that prisoners most commonly complained about the conditions of their detention and, in particular, about the lack of separation of toilets from other cell areas. Although they had paid a visit to Valmiera Prison, the report did not describe the results of that visit in full. It was merely stated that: “The VCB has concluded that improvement in conditions of detention is connected to the lack of funding and that in many prisons, for example in ... Valmiera Prison, it will be impossible to ensure normal conditions of detention without construction works. Therefore, in spring 2005 the VCB sent a letter to the Prime Minister, pointing out the possible problems [that might occur] if detainees were to lodge applications under Article 3 of the Convention with the Court. Regrettably, the competent authorities did not always follow the VCB’s recommendations and the VCB [was left with no other possibility than to] advise detainees to lodge applications with the Court. [If] any improvements had been made, the VCB had not been informed of them”. 28. On 1 December 2006 the Supreme Court issued a compilation and analysis of the domestic case-law on definition and interpretation of the administrative law concept of an action of a public authority (Tiesu prakses apkopojums par faktiskās rīcības jēdzienu un interpretāciju). It was noted that only some 10% of cases before the administrative courts had concerned actions of a public authority. | 1 |
train | 001-23729 | ENG | FRA | ADMISSIBILITY | 2,003 | GEFFRE v. FRANCE [Extracts] | 1 | Inadmissible | null | The applicant [Mr C. Geffre] is a French national, who was born in 1932 and lives in La Rochelle (departement of Charente-Maritime). He was represented before the Court by Ms E. Rabesandratana, of the Rochefort Bar. The respondent Government were represented by their agent, Mr R. Abraham. The facts of the case, as submitted by the parties, may be summarised as follows. In 1974 the applicant acquired parcels of land subject to a prohibition on building in the administrative district (commune) of La-Flotte-en-Ré on the Île de Ré (Charente-Maritime). The applicant used the land for caravanning. By a ministerial order issued on 23 October 1979, the whole of the Île de Ré was included in the list of monuments and places of interest whose conservation or preservation was in the public interest from the artistic, historic, scientific, legendary or scenic point of view, in accordance with section 4 of the Law of 2 May 1930 on the conservation of natural monuments and places of interest, as amended. The order was published in two newspapers distributed in the administrative districts concerned: Le Phare de Ré (on 26 December 1979) and the daily Sud-Ouest (on 2 January 1980). It was republished in the 2 January 1980 edition of the former and the 9 January 1980 edition of the latter. The order was also displayed in La-Flotte-en-Ré town hall on 14 December 1979 and published in the Recueil des actes administratifs du département de la Charente-Maritime (Collection of Administrative Decisions of the département of Charente-Maritime) (no. 2 of 15 January 1980). One of the consequences of listing was to render Article R443-9 of the Town Planning Code applicable to the entire island. That provision made it illegal to camp or to park a caravan other than on authorised campsites or to create campsites on listed places of interest unless an exemption had been granted under sub-paragraph 2 of the Article. On 3 July 1996 the rural police officer of La-Flotte-en-Ré reported the applicant for illegally parking caravans. The applicant was summoned to answer the charges in the La Rochelle Criminal Court. He argued that the proceedings were unlawful, as he had not received individual notification of the listing order and the interference with his right of property was disproportionate. In a judgment of 7 August 1997, the Criminal Court rejected the applicant's submission that the proceedings were unlawful, holding that there was no requirement for individual notification under section 4 of the Law of 2 May 1930 and Articles 2 and 7 of the decree of 13 June 1969. It further found that the restriction placed on the applicant's use of the land arose from a public easement that had been created in the general interest and which accordingly did not contravene Article 1 of Protocol No. 1. It found the applicant guilty of parking two caravans on his land, contrary to Articles L443-1, L480-4, L480-5, L480-7, R443-2 and R443-9 of the Town Planning Code. The applicant was ordered to pay a fine of 3,000 French francs (FRF) and to reinstate the land within one month, an additional penalty of FRF 50 being imposed for each day's delay. The Criminal Court ordered publication of the judgment. The applicant appealed against that decision and the public prosecutor lodged a cross appeal. The applicant argued, firstly, that his prosecution was unlawful, as he had not received individual notification of the decision to designate the land, even though such notification was necessary before criminal proceedings could be brought according to an explanatory circular that had been issued on 19 November 1969. He added that there was no evidence in the case file that the notification procedure set out in the law of 1967 had been followed. As to the merits, he asked the Court of Appeal to rule on the lawfulness of the administrative decision. He further relied on Article 1 of Protocol No. 1, arguing that he could not have committed an offence, as he had not been awarded proper compensation for the adverse effect the public easement had had on his vested rights and the situation prior to designation. He complained, lastly, that the failure to give him individual notification of the listing order had deprived him of effective access to a court. In a judgment of 13 February 1998, the Poitiers Court of Appeal declared the applicant's preliminary objection that the listing order should have been declared unlawful inadmissible, as it had been made for the first time on appeal whereas it should have been made prior to any defence on the merits. It noted that the applicant had not denied being aware of the listing order's existence or seriously contended that the notification procedure had not been followed, since he could not properly rely on a non-legally binding circular in the face of the unequivocal wording of Article 2 of the decree of 13 June 1969. Accordingly, it dismissed his plea that he had not been notified of the order and held that the authorities had been entitled to proceed by general announcement. The Court of Appeal observed that creating a public easement in the public interest was not contrary to the Convention, but could entail a right to compensation which it was not for the criminal courts to quantify; the applicant had not been deprived of effective access to a court, since the applicant had been given proper notice of the order and could either have asked the authorities to reconsider their decision or appealed. It therefore upheld the impugned judgment in its entirety. The applicant appealed on points of law against the Court of Appeal's judgment. He complained among other matters that he should have been given individual notification of the listing order, as, although Article 2 of the decree of 13 June 1969 allowed notice to be given by general announcement rather than individually if more than a hundred landowners were affected by the listing of a place of interest, it also required listing orders that contained special directions to alter the state or use of the land to be notified to the property owner and accompanied by a formal notice. The applicant alleged that he had installed the caravans on the land before the designation decision – which made it illegal to park caravans on the Île de Ré – was issued and had not received any individual notification or formal notice. In his submission, therefore, by wrongly relying in its decision on the fact that he had not denied being personally aware of the designation order, the Court of Appeal had violated Article 1 of Protocol No. 1. The Court of Cassation (Criminal Division) dismissed the applicant's appeal on points of law in a judgment of 23 March 1999, inter alia, on the following grounds: “In finding the accused guilty of the offence, the Court of Appeal found that the order of 23 October 1979 did not constitute a designation decision within the meaning of the legislation introduced by the aforementioned Law, and in particular section 8 thereof, but merely an order under section 4 of that Law for the land to be included in the list of sites of natural beauty in the département. Accordingly, since – as the courts below found – the order affected more than a hundred landowners, the authorities were entitled to use – and it is common ground that they did use – the general announcement procedure instead of the individual notification procedure prescribed by that section. The Court of Appeal added that, since the Law of 2 May 1930 and its subsequent implementing legislation did not require a formal notice to be given, such notice only being required when a designation decision was contested by the landowners ..., 'the authorities were entitled to give notice of the order of 23 October 1979 by general publication'. ... in so holding, the Court of Appeal justified its decision.” Section 4 of the Law provided: “In each département there shall be drawn up a list of the natural monuments and places of interest whose conservation or preservation is in the public interest from the artistic, historic, scientific, legendary or scenic point of view. ... Listing shall be effected by means of an order made by the Minister for Cultural Affairs. The decree issued after consultation of the Conseil d'Etat shall lay down the procedure for notifying the listing to the property owners or for publishing it. Publication may replace notification only in cases in which the latter is made impossible by the large number of owners of one and the same place of interest or natural monument, or if it is impossible for the authorities to ascertain the identity or address of the owner. On the land within the boundaries laid down in the order, listing shall entail an obligation on those affected not to undertake any works other than those relating to day-to-day agricultural use as regards rural land and to normal upkeep as regards buildings without having given the authorities four months' notice of their intention.” The relevant provisions of the decree provided: “Listing orders shall be notified by the prefect to the owners of natural monuments or places of interest. However, when the number of owners affected by the listing of one and the same place of interest or natural monument is greater than a hundred, the procedure of individual notification may be replaced by a general public announcement as provided for in Article 3. Recourse shall likewise be had to public announcements where the authorities are unable to ascertain the identity or address of the owners.” “The public announcements provided for in Article 2 ... shall be made at the instance of the prefect, who shall have the listing order published in two newspapers, at least one of which shall be a daily newspaper that is distributed in the administrative districts concerned. This notice must be republished at the latest on the last day of the month following the initial publication. The listing order shall further be published in the relevant administrative districts, for a period of not less than one month, by being displayed at the town hall and in all other places customarily used for posting up public notices ...” “The designation decision shall be published in the Official Gazette.” “Where a designation decision contains special directions that would alter the state or change the use of a site, it must be notified to the property owner. This notification shall be accompanied by a formal notice to the effect that the site must be brought into conformity with the special directions in accordance with the provisions of section 8 (paragraph 3) of the Law of 2 May 1930.” The relevant provisions of the circular read as follows: “Another innovation introduced by the Law of 28 December 1967 and the decree of 13 June 1969 is general publication as a method of informing property owners that a place of interest has been listed. There are now two possible procedures: – either individual notification, in accordance with the arrangements currently in force in all cases; or – general publication (public display and publication in two newspapers), to which the prefect resorts when the number of owners concerned is greater than a hundred – as with places of interest covering a larger area – or when one or more property owners have not been identified. This general publication will simplify the formalities that were necessary hitherto for the listing of a place of interest to have its full effect, and this will be particularly appreciable in the case of very large areas. It will have the advantage of ensuring that the public are well informed before the listing order is implemented ...” The relevant provisions of the Code provide: “There shall be no right to compensation for easements created pursuant to this Code for public access, public health, aesthetic or other purposes and concerning matters such as the use of the land, the height of buildings, the proportion of developed and undeveloped land in each property, prohibitions on building in certain areas and along certain roads and the distribution of buildings between different areas. However, compensation shall be payable if such easements result in a violation of vested rights or a change in the previous condition of the land that causes direct, pecuniary and indisputable damage. In the absence of an amicable agreement, such compensation shall be assessed by the administrative court, which shall take into account the increase in value of a building produced by the implementation of a landuse plan that has been made public, or of an approved local town-development plan or equivalent document.” “It shall be illegal to camp or to park a caravan other than on an authorised campsite, or to create a camp or caravan site: (1) on the seashore; (2) on designated or listed places of interest, within the areas defined in paragraph 3 of section 1 of the Historical Monuments Act of 31 December 1913, in the area surrounding a historical monument that is designated, listed or in the process of being designated, in areas in which architectural or urban heritage is protected and in the protected areas established by section 17 of the Law on the protection of natural monuments and places of interest of 2 May 1930. With the exception of places of interest that have been designated or are in the process of being designated, the competent authority may grant exemption from the prohibition, after obtaining the opinion of the département's heritage protection officer and, if applicable, its Committee on Places of Interest. As regards designated places of interest, exemptions may be granted by the minister responsible for places of interest or, in the case of natural sites, by the minister responsible for the conservation of nature and the environment, after obtaining the opinion of the département's Committee on Places of Interest. ...” | 0 |
train | 001-95057 | ENG | UKR | CHAMBER | 2,009 | CASE OF POLISHCHUK v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial | Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva | 4. The applicant was born in 1959 and lives in the city of Kharkiv. A. Criminal proceedings instituted in 1997 5. On 24 December 1997 criminal proceedings were instituted against the applicant. He was charged with extortion of money from Mr Sh. and Mrs Shi. 6. On an unspecified date Mr Sh. and Mrs Shi. lodged their civil claims. They claimed payment of compensation for pecuniary and non-pecuniary damage caused by the applicant. 7. On 16 February 1998 the applicant gave a written undertaking not to abscond. 8. On 2 September 1998 the applicant was also charged with causing damage to official documents while studying his case file. 9. On 5 November 1998 the pre-trial investigation was completed and the case was transferred to the Kyivsky District Court of Kharkiv. 10. On 28 May 2001 the court convicted the applicant of extortion and damaging official documents and sentenced him to a suspended term of five years' imprisonment. By the same judgment the court partly allowed the civil claims. 11. On 21 January 2002 the Kharkiv Regional Court of Appeal quashed the part of the judgment concerning the applicant's conviction for damaging official documents and ruled that the proceedings in that respect should be terminated since there was insufficient evidence against the applicant. 12. By the same ruling the Court of Appeal quashed the remainder of the judgment and remitted it for fresh consideration to the firstinstance court on the ground that the latter had failed to examine all the 13. On 4 February 2003 the Kyivsky District Court of Kharkiv convicted the applicant of extortion and sentenced him to four years' imprisonment, suspended. By the same judgment the court partly allowed the civil claims lodged by Mr Sh. and Mrs Shi. 14. On 22 May 2003 the Kharkiv Regional Court of Appeal upheld that judgment. 15. On 2 December 2003 the Supreme Court dismissed an appeal in cassation by the applicant. 16. The hearings in the case were scheduled at intervals ranging between several days and two months. In the course of the proceedings two expert reports were obtained. This took about six months. On one occasion the applicant challenged a judge who was considering his case. B. Other proceedings 17. On 18 April 1997 the Krasnokutsky Court awarded the applicant 23,943 Ukrainian hryvnas (UAH) in compensation for pecuniary and non-pecuniary damage caused to the applicant due to Mr Sh.'s failure to repay a debt he owed to the applicant. On an unspecified date the judgment was quashed by a higher court. 18. In 2008 new criminal proceedings were instituted against the applicant. On 1 October 2008 he was arrested. He was remanded in custody. | 1 |
train | 001-88352 | ENG | ROU | CHAMBER | 2,008 | CASE OF PAUNOIU v. ROMANIA | 4 | Violation of Article 6 - Right to a fair trial | Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra | 4. The applicant was born in 1961 and lives in Oreovica (Serbia). 5. On 10 July 1995 the applicant was injured in a car accident caused by M.I. She claimed damages in criminal proceedings that were instituted against M.I. 6. In a final decision of 19 November 1998, the Piteşti Court of Appeal (“the Court of Appeal”) made awards in respect of pecuniary and non-pecuniary damage to both the applicant and her husband. It also ordered M.I. to pay a monthly amount to the applicant until her state of dependency ceased. On 7 July and 15 December 2000 the quantum of damages and the level of the monthly instalments to the applicant were brought up to date. 7. On 15 November 2002 an application by the Prosecutor General at the Supreme Court of Justice to have the judgments in the criminal proceedings quashed (recurs în anulare) was granted by the Supreme Court of Justice, which therefore set aside the award for damage in respect of the applicant’s husband. 8. On 21 September 1999 the applicant and her husband brought an action seeking the division of property that was jointly owned by M.I. and his wife. They alleged that the community of property between spouses had hindered the enforcement of the judgment in their favour, which concerned only M.I. 9. On 7 November 2000 the Piteşti Court of First Instance (“the Court of First Instance”) upheld their claims in part, severed the joint tenancy between M.I. and his wife, and allocated their apartment to M.I. 10. On 19 April 2001 the Argeş Regional Court (“the Regional Court”) struck out an appeal by M.I. and his wife because they had failed to pay the prescribed fee. 11. On 4 September 2001 the Court of Appeal by a final decision upheld an appeal by M.I. and his wife and quashed the judgment of the Regional Court, sending the case back for a fresh examination of their appeal. It found that M.I. and his wife had not been informed of the obligation to pay the fee or of the amount due. 12. After a retrial, on 29 April 2002 the Regional Court rejected the appeal of M.I. and her wife as groundless. 13. On 16 February 2004 the Court of Appeal by a final decision allowed a subsequent appeal by M.I.’s wife, on the ground that the courts had not examined her counterclaim, and quashed the judgment of the Regional Court. It retained the case for further consideration. On 22 November 2004 the same court decided that the case was within the competence of the Regional Court. 14. On 15 April 2005 the Regional Court upheld the appeal of M.I.’s wife and varied the judgment of 7 November 2000 as follows: it allowed the applicant’s claims but rejected her husband’s, it severed the joint tenancy between M.I. and his wife, and it allocated their apartment to M.I. to enable the applicant to recover her financial claims. The judgment was enforceable. 15. On 31 October 2005 the Court of Appeal upheld that judgment in a final decision. 16. Between 2001 and 2005 the applicant requested seven different bailiffs to enforce the judgment in her favour. The bailiffs took various steps, including requesting expert reports and putting M.I.’s apartment on sale by public auction. 17. On 12 June 2001 the Court of First Instance requested the Inspectorate of Police in Argeş to assign a police officer to accompany the bailiff to M.I.’s apartment. On 20 December 2002 it ordered M.I. to pay the judgment debt to the applicant, and stipulated that his apartment would be put on sale if he did not. 18. On 19 December 2005 the bailiff recorded that the applicant had received part of the amount due and had requested continued execution for the remainder. 19. On 29 December 2005 M.I. sold the apartment. The applicant and her husband lodged a civil action seeking a declaration that the sale contract was null and void on the ground that M.I. had attempted to become insolvent. On 19 October 2007 the Regional Court by a final decision dismissed the action as groundless. 20. On 10 November 2006 the applicant, through the bailiff, requested the court to validate a seizure of property. On 19 January 2007 the Court of First Instance rejected the application as being statute-barred. | 1 |
train | 001-69196 | ENG | TUR | CHAMBER | 2,005 | CASE OF AKDENIZ v. TURKEY | 3 | Violation of Art. 2 (presumed death);Violation of Art. 2 (failure to investigate);Violations of Art. 3;Violation of Art. 5;Not necessary to examine Art. 6;Violation of Art. 13;Not necessary to examine Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Feyyaz Gölcüklü;Nicolas Bratza | 9. The applicant, a Turkish citizen of Kurdish origin, was born in 1955 and lives in Diyarbakır. 10. The facts of the case, particularly concerning events which took place on 20 February 1994, are disputed by the parties. 11. The facts as presented by the applicant are set out in Section B below (paragraphs 12-18). The Government’s submissions concerning the facts are summarised in Section C below (paragraphs 19-21). Documentary evidence submitted by the parties is summarised in Section D (paragraphs 22-67). 12. At the time of the events giving rise to the present application the applicant and her family were living in the Sesveren hamlet of Karaorman village, located within the administrative jurisdiction of the town of Kulp, near Diyarbakır, south-east Turkey. 13. On 20 February 1994 approximately 200 soldiers from the Kulp District Gendarme Headquarters came to the applicant’s hamlet and forced the villagers out of their houses. The villagers were herded together into the village square and the soldiers began to burn the villagers’ houses. 14. One of the soldiers then read out a list of names of six male villagers: Halit Akdeniz (35 years old), İrfan Akdeniz (18 years old), Mehmet Şirin Allahverdi (35 years old), Ziya Çiçek (22 years old), Faik Akdeniz (35 years old), and finally the applicant’s son Mehdi Akdeniz (22 years old) (hereinafter “the six persons”). The six persons seemed to have been identified by a masked man who was with the gendarme officers. The soldiers then beat up the six persons; the applicant’s son was the subject of the worst treatment. The six persons were then taken away, out of sight of the villagers. 15. The soldiers stayed in the village for approximately two hours and then walked with the group of six persons to another hamlet, approximately 1.5 kilometres away, where they got into waiting vehicles and drove away. 16. Eye-witnesses, who were held in detention together with the applicant’s son, subsequently informed the applicant that Mehdi Akdeniz had been held at Kulp District Gendarme Headquarters for five days. He had been tortured whilst being detained and according to the eye-witnesses, he had received the worst treatment of the six persons. 17. Eye-witnesses confirmed that in Silvan, where he was held for one week before being taken to Diyarbakır, he was also in a very poor condition. 18. The applicant has heard nothing further about the whereabouts or fate of her son since that time. She has brought several applications, both orally and in writing, to the Chief Public Prosecutor at the Diyarbakır State Security Court (hereinafter “the Diyarbakır Court”) and tried, unsuccessfully, to obtain information about her son. 19. No operation was carried out in the Kulp-Sesveren area on 20 February 1994 and, according to the custody records, neither the applicant’s son nor any of the other five persons mentioned were taken into custody or detained. 20. Between 1992 and 1993 the Sesveren hamlet was attacked by members of the PKK and the inhabitants of the hamlet fled from their homes because of intimidation by the PKK. 21. On 11 May 1994 the applicant was informed by the Diyarbakır Court that, according to the custody records, Mehmet Şen (sic.) had not been taken into custody. 22. The following information appears from the documents submitted by the parties. 23. According to a record of arrest, drawn up on 28 February 1994 and signed by three gendarme officers and four gendarme soldiers from the Kulp gendarmerie, five of the six persons, namely, Halit Akdeniz, M. Şirin Allahverdi, Ziya Çiçek, Faik Akdeniz and İrfan Akdeniz were arrested in an operation carried out by the gendarmerie. The reason for the operation was the fact that the gendarmerie had been informed, by reliable sources, that these persons had been aiding and abetting the PKK. The report further states that the five men had various injuries on their bodies obtained as a result of their attempts at escape and also of the use of force. 24. On unspecified dates these five persons were questioned by a gendarme commander. All but Faik Akdeniz denied ever having been members of the PKK. Faik Akdeniz stated that he had been a member briefly. All five men stated that Karaorman village had often been visited by PKK members who forced the villagers to give them food. 25. On 8 March 1994 the five men were questioned by a judge at the Diyarbakır Court. The judge then ordered the release of four of them. Faik Akdeniz’s detention on remand was ordered by the judge. 26. The applicant, in a petition she submitted to the Chief Public Prosecutor at the Diyarbakır Court on 11 May 1994, informed the Prosecutor that her son had been detained by members of the security forces on 20 February 1994 in her hamlet of Sesveren. She further stated that she had not heard from him since that date and that she was concerned for his life. She asked to be informed about her son’s fate. 27. According to a handwritten note, written by the Chief Public Prosecutor at the Diyarbakır Court on the applicant’s above mentioned petition of 11 May 1994, the applicant’s son was not recorded in custody records. 28. On 29 December 1994 the Ministry of Justice’s International Law and Foreign Relations Directorate (hereinafter “the Directorate”) sent a letter to the Chief Public Prosecutor at the Diyarbakır Court and informed him about the application introduced with the Commission by the applicant. The Prosecutor was requested to question the applicant in relation to her complaints and to open an investigation into her allegations. 29. In his letter of 30 December 1994 the Chief Public Prosecutor at the Diyarbakır Court requested the Prosecutor in the town of Kulp to take the steps requested in the letter of the Directorate. 30. The commander of the Kulp District Gendarme Headquarters was requested on 6 January 1995 by the Kulp Prosecutor to summon the applicant, as well as the five persons who had allegedly been detained together with the applicant’s son (see paragraph 14 above), to the prosecutor’s office. The Prosecutor also asked for a certain Cevdet Yılmaz and one Reşat Pamuk, both of whom were apparently living in the applicant’s village, to be summoned. 31. According to a report, which was drawn up on 17 March 1995 by three gendarme soldiers from the Sivrice gendarme station – located near the applicant’s village of Karaorman – and which was submitted to the Kulp Prosecutor, the persons referred to in the Kulp Prosecutor’s letter of 6 January 1995 had left the village for an unknown destination because of terrorist incidents. This report was subsequently sent to the Prosecutor’s office at the Diyarbakır Court. 32. On 26 July 1995 the Kulp Prosecutor sent a letter, this time to the commander of the Kulp Gendarme Brigade, and asked for the applicant and the other seven persons mentioned above to be summoned to his office. 33. According to a report, drawn up on 27 August 1995 by two gendarme soldiers and sent to the Kulp Prosecutor, the persons referred to in the Kulp Prosecutor’s letter of 26 July 1995 had left the village for an unknown destination three years previously because of terrorist incidents. 34. Similar correspondence between the Prosecutors and the gendarmerie setting out the former’s unsuccessful attempts to find the applicant and the other seven persons continued until June 1996, when Halit Akdeniz, one of the six persons who was allegedly detained at the same time as the applicant’s son, was located. 35. In a statement taken by the Kulp Prosecutor on 13 June 1996, Halit Akdeniz stated that a large number of soldiers had come to the village in February 1994 and gathered the villagers outside the village. They then set fire to the houses in the village. He, his son İrfan, the applicant’s son Mehdi, and the other three persons had been singled out by the soldiers and ill-treated in the village. They had then been taken to the Sivrice gendarme station where they had stayed that evening. The following morning they had been taken to the Kulp Commando Brigade where they had been detained for four days during which they were blindfolded, beaten up and questioned. At the end of the four days they had been brought to the Kulp Central gendarme Station where the applicant’s son Mehdi had been separated from the rest of them and he had not been seen again. They had continued to be detained for another 15 days and at the end of their detention all but Faik Akdeniz had been released. 36. Also on 13 June 1996 the Kulp Prosecutor questioned İrfan Akdeniz who confirmed the version of events as set out by his father above. He also added that Mehdi Akdeniz had been beaten up more severely than the rest of them. 37. On 20 June 1996 the Kulp Prosecutor took a statement from Mehmet Şirin Allahverdi, another one of the six persons allegedly detained together with the applicant’s son. Mr Allahverdi, who gave a remarkably similar statement to that of Halit and İrfan Akdeniz, added that the applicant’s son Mehdi Akdeniz had been identified by the itirafçı who had came to the village with the soldiers in February 1994. 38. On 2 August 1996 Cevdet Yılmaz (see paragraph 30 above) was found in a prison in Elazığ. He refused to go to the Prosecutor’s office to make a statement on the ground that he was protesting against the Turkish courts. 39. The Kulp Prosecutor took a statement from the applicant on 15 August 1996. In her statement the applicant confirmed her account of events as set out above (see paragraphs 13 to 18 above). She finally asked the Prosecutor for information about her son’s fate. 40. On 19 August 1996 the statements taken by the Kulp Prosecutor from Halit Akdeniz, İrfan Akdeniz and Mehmet Şirin Allahverdi were forwarded to the Prosecutor’s office at the Diyarbakır Court. The Kulp Prosecutor further stated that his efforts to find Faik Akdeniz and Ziya Çiçek would continue. 41. Faik Akdeniz was questioned on 16 September 1996 by the Kulp Prosecutor. Mr Akdeniz also gave a remarkably similar statement to those made by Halit Akdeniz, İrfan Akdeniz, Mehmet Şirin Allahverdi and the applicant. 42. On 5 December 1996 the Kulp Prosecutor sent a letter to the Kulp District Gendarme Headquarters and asked whether an operation had been conducted in Karaorman village in February 1994. 43. On 27 December 1996 the deputy commander of the Kulp District Gendarme Headquarters replied to the Kulp Prosecutor in writing, stating that according to the records at the Headquarters, no operation had been conducted in Karaorman village or in Sesveren hamlet in February 1994. 44. Another statement was taken from the applicant on 12 May 1997 by the Kulp Prosecutor. The applicant confirmed, once more, her allegations and added that she had made an application to the Commission. 45. On 26 May 1997 the Kulp Prosecutor informed the Prosecutor at the Diyarbakır Court that he had taken another statement from the applicant and that she still had not heard from her son. He further informed him that his efforts to find Cevdet Yılmaz, Ziya Çiçek and Reşat Pamuk, who had allegedly seen Mehdi Akdeniz in the custody of gendarmes, would continue. 46. The applicant was questioned on 21 July 1997, this time by the Prosecutor in the town of Silvan. She confirmed her allegations. 47. On 15 December 1997 the applicant was questioned once more by the Kulp Prosecutor. She repeated her allegations and added that she had nothing to add to her previous statements. 48. On that same day the Kulp Prosecutor also took a statement from Ziya Çiçek, the fifth person who had allegedly been detained together with the applicant’s son. Mr Çiçek confirmed the version of events given by the other four persons who claimed to have been detained with the applicant’s son. 49. The Kulp Prosecutor informed the Prosecutor at the Diyarbakır Court on 16 December 1997 that he had taken yet another statement from the applicant and that he had found out from her that her son was still missing. 50. On 14 January 1998 the Kulp Prosecutor asked the Kulp and Silvan District Gendarme Headquarters, the Diyarbakır Provincial Gendarme Headquarters and also the Diyarbakır Police Headquarters to send to his office copies of custody records showing the names of persons who had been taken into custody between 20 February 1994 and 10 January 1995 at their respective Headquarters. 51. On 24 January 1998 the commander of the Kulp District Gendarme Headquarters forwarded to the Kulp Prosecutor’s office the names of those persons detained between 20 February 1994 and 10 January 1995. According to this letter, Halit Akdeniz, Ziya Çiçek, Mehmet Allahverdi, İrfan Akdeniz and Faik Akdeniz had been taken into custody on 28 February 1994 on suspicion of collaborating with the PKK. No information was provided in the column showing dates of release. 52. On 27 January 1998 the Directorate asked the Prosecutor at the Diyarbakır Court for information about the investigation into the disappearance of the applicant’s son. 53. The Prosecutor at the Diyarbakır Court was informed on 2 February 1998 by the Kulp Prosecutor that the statements taken from Halit Akdeniz, İrfan Akdeniz, Mehmet Şirin Allahverdi, Faik Akdeniz and Ziya Çiçek corroborated the allegations of the applicant. His efforts to obtain information from the gendarme as to whether the applicant’s son had indeed been detained by them were still continuing. The applicant’s son was still missing. 54. On 16 February 1998 the Kulp Prosecutor took a statement from Reşat Pamuk. Mr Pamuk stated that he used to live in the village of Yayık, near the town of Kulp. He and a number of his friends had been taken into detention by soldiers in the town of Silvan during the month of Ramadan in 1994. During his time in detention he had not seen Mehdi Akdeniz, the applicant’s son; in any event, he did not know who Mehdi Akdeniz was. 55. In a reply of 24 February 1998 to the Kulp Prosecutor’s letter of 14 January 1998, the chief of the Diyarbakır Police Headquarters stated that Mehdi Akdeniz had not been detained by the police. 56. Also on 24 February 1998 the Directorate asked the Prosecutor’s office at the Diyarbakır Court to verify the accuracy of the contents of the statements given by the persons who claimed to have been detained together with the applicant’s son. This letter was forwarded to the Kulp Prosecutor the same day. 57. On 25 February 1998 the Kulp Prosecutor drew the attention of the commander of the Kulp District Gendarme Headquarters to the fact that the release dates of the five persons detained on 28 February 1998 did not appear in the form he had received (see paragraph 51 above). The Prosecutor asked the commander to inform his office as to what action had been taken in relation to these persons. It appears that the gendarme commander subsequently complied with this request. According to the custody records of the Kulp Central Gendarme Station, Halit Akdeniz, Ziya Çiçek, Mehmet Allahverdi, İrfan Akdeniz and Faik Akdeniz had been detained there from 8 p.m. on 28 February 1994 until 9 a.m. on 5 March 1994 when they had been transferred to the Diyarbakır Court. 58. According to a set of custody records, showing the names of those detained at the Diyarbakır Provincial Gendarme Headquarters between 24 February 1994 and 21 March 1994, the five men had been detained there on 5 March 1994 until their release was ordered by the Diyarbakır Court on 8 March 1994. 59. On 16 March 1998 the Prosecutor at the Diyarbakır Court forwarded to the Directorate a number of documents concerning the criminal proceedings which had been brought against İrfan Akdeniz, Mehmet Allahverdi and Faik Akdeniz following their detention in February 1994 (see paragraph 23 above). According to these documents, the three persons had been tried and acquitted of the offence of aiding and abetting a terrorist organisation. 60. On 25 March 1998 the Kulp Prosecutor once again asked the Kulp District Gendarme Headquarters for the names of those detained in Karaorman village since 20 February 1994. 61. On 11 April 1998 the commander of the Sivrice Gendarme Station stated in a report that no operation had been conducted in Karaorman village on 20 February 1994 by soldiers from his station. 62. Mehmet Nuri Sansar, the headman (muhtar) of the Karaorman village at the time of the alleged events, was questioned by the Kulp Prosecutor on 15 April 1998. Mr Sansar stated that on 20 February 1994 he had been in the Karaorman village mosque praying, when two soldiers had come in and asked those present to leave the mosque. Mr Sansar and the villagers in the mosque had complied with this order and left the mosque. Mr Sansar had then seen that the village had been surrounded by soldiers and that the villagers had been gathered outside the village. The commander of the soldiers had called Mr Sansar over and told him that food supplies had been brought to the Karaorman village by vehicles and that, from the village, they had been taken by mules to the PKK in the mountains. The commander asked Mr Sansar for the identity of the villagers who had carried the foodstuff to the PKK. When Mr Sansar replied that he did not know, the soldiers had taken him away and beaten him. Among the soldiers there had also been an itirafçı, whose face was covered. The itirafçı had not spoken a word but pointed to the six persons. All six persons had been taken away and all but Mehdi Akdeniz had been released some time later. 63. Cevdet Yılmaz (see paragraphs 30 and 38 above) was questioned by a Prosecutor on 29 April 1998. Mr Yılmaz stated that he used to live in Yayık village, near Sesveren hamlet where Mehdi Akdeniz used to live. He further stated that in February 1994 he had been arrested and taken to a detention centre in Silvan where he had seen Mehdi Akdeniz. However, unlike all other detainees, Mehdi had not subsequently been brought before the judge at the Diyarbakır Court. 64. On 22 May 1998 the Kulp Prosecutor asked his opposite number in the town of Silvan to enquire with the Gendarme Headquarters in the latter’s town to verify whether, as alleged by a number of eye-witnesses, Mehdi Akdeniz had ever been detained there. 65. On 22 May 1998 the Kulp Prosecutor also asked the Diyarbakır Provincial Gendarme Headquarters whether an operation had been carried out in Karaorman village where, according to the allegations, Mehdi Akdeniz was arrested by soldiers. 66. On 13 June 1998 the commander of the Silvan District Gendarme Headquarters informed the Silvan Prosecutor that, according to the custody records, Mehdi Akdeniz had not been detained at the Headquarters in February 1994. 67. On 29 June 1998 the deputy commander of the Diyarbakır Provincial Gendarme Headquarters replied to the Kulp Prosecutor’s letter of 22 May 1998 and stated that no operation had been carried out in the region of Karaorman village in February 1994. 68. A description of the relevant law may be found in İpek v. Turkey, no. 25760/94, §§ 92-106, ECHR 2004-... (extracts). | 1 |
train | 001-118750 | ENG | RUS | ADMISSIBILITY | 2,013 | YARTSEV v. RUSSIA | 4 | Inadmissible | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković | 1. The applicant, Mr Yevgeniy Borisovich Yartsev, is a Russian national, who was born in 1979 and lived in Irkutsk until his arrest. He was represented before the Court by Mr I. Trunov and Ms L. Ayvar, lawyers practising in Moscow. 2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. Between 30 August 2008 and 15 November 2010 and subsequently between 17 April 2011 and 29 May 2012 the applicant was held in remand prison IZ-38/1 in Irkutsk. According to him, the conditions of his detention were inadequate; the Government disputed that. 5. By the Irkutsk Regional Court’s judgment of 2 March 2010 following a jury trial, the applicant was convicted of forming and leading a criminal syndicate, murder, unlawful possession of weapons and ammunition and armed robbery, and sentenced to nineteen years’ imprisonment in a high-security institution. On 22 September 2010 the Supreme Court of the Russian Federation upheld the judgment on appeal. 6. On 3 March 2010 the web-sites of the Prosecutor General’s Office and the Irkutsk Regional Prosecutor’s Office and the Regions.Ru news portal published information about the conviction of the applicant and his co-defendants. On 12 August 2010 the applicant lodged a defamation claim against the prosecutors’ offices and the news site, alleging in particular a breach of his presumption of innocence. He sought leave to appear in person before the court but his request was rejected. On 21 December 2010 the Tverskoy District Court of Moscow dismissed his claim, finding that the prosecutors had accurately reported the findings contained in the Regional Court’s judgment of 2 March 2010 and that the news items concerned a matter of public interest. The case file does not contain a copy of a statement of appeal or of an appeal judgment. 7. On 9 March 2010 the applicant sent a letter to the Court, containing an outline of his complaints. It was registered under application no. 19987/10 and the applicant was invited to return the completed application form no later than 9 June 2010. As no further correspondence had been received from the applicant for more than six months, his complaints were taken to have been withdrawn and the file opened in respect of the application was destroyed. 8. On 25 February 2011 the applicant’s representative Mr Trunov sent a letter to the Court, indicating that the applicant wished to lodge a complaint under Article 3 of the Convention about the conditions of his detention in the Irkutsk remand prison and the conditions of his transport to the Irkutsk Regional Court, a complaint under Article 5 of the Convention concerning his pre-trial detention and a complaint under Article 6 about alleged irregularities in the criminal proceedings against him and in the subsequent defamation proceedings. This application was given number 13776/11. 9. By letter of 2 March 2011, the Court acknowledged receipt of the letter to the applicant’s representative and informed him as follows (translated from Russian): “You should return by post the completed application form not later than eight weeks from the date of the present letter. In other words, the date on which you send back the completed application form must not be later than 27 April 2011. Failure to comply with this time-limit will mean that it is the date of the submission of the completed application form rather than that of your first communication which will be taken as the date of the introduction of the application. Your attention is drawn to the fact that it is the date of introduction that is decisive for compliance with the time-limit set out in Article 35 § 1 of the Convention (see para. 18 in the enclosed Notes for Guidance to applicants).” 10. On 7 June 2011 the Court received the completed application form. It was signed by Mr Trunov and Ms Ayvar, the applicant’s representatives, and dated “1 July 2011”. 11. On 12 July 2011 the Court received a letter from the applicant which was dated 22 June 2011. In that letter, the applicant stated his intention to lodge a complaint under Articles 3 and 13 of the Convention about the conditions of his detention in the Irkutsk remand prison in the period after 17 April 2011. On 4 October 2011 the Court received a letter which was identical in its contents but it was dated 13 September 2011 and signed by Ms Pushkareva, the applicant’s representative. 12. By letter of 10 October 2011, the Court informed the applicant that another application in his name had already been registered on the basis of Mr Trunov’s letter of 25 February 2011. The applicant was requested to clarify whether he would like to introduce a new application or to have his communication joined to the existing file. The Court did not receive any reply from the applicant. 13. On 15 September 2011 the Court received an undated letter from Mr Trunov, which referred to application no. 19987/10. He requested in particular priority treatment of the applicant’s case, alleging that his life and health were in danger. On 12 October 2011 the President of the First Section rejected the request. 14. By another undated letter received at the Court on 27 January 2012, Mr Trunov petitioned the Court for a joinder of applications no. 19987/10 and 13776/11 and reiterated his request for priority treatment. On 10 February 2012 the Court advised him that the file opened in respect of application no. 19987/10 had been destroyed and that his renewed request for priority did not contain any new factual information. | 0 |
train | 001-106542 | ENG | POL | ADMISSIBILITY | 2,011 | TRZEPALKO v. POLAND | 4 | Inadmissible | Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva | 1. The applicant, Mr Andrzej Trzepałko, is a Polish national who was born in 1950 and lives in Pruszków. He was represented before the Court by Ms M. Krasnodębska and Ms M. Gąsiorowska, lawyers practising in Warsaw. 2. On 11 March 2007 the applicant’s thirty-year-old daughter went into labour after a normal pregnancy. At 3.40 a.m. she was admitted to the maternity ward of the Bródnowski Hospital in Warsaw and, following an episiotomy, gave birth to a healthy baby boy at 7.30 a.m. 3. Following the delivery, she repeatedly complained to her parents and the hospital staff about intense pain in the perineum. She was unable to care for the baby. It appears that she behaved unusually as she lost interest in the baby and attempted to leave the hospital. 4. According to the applicant, twenty-four hours following the delivery the level of his daughter’s white blood cells considerably decreased and she suffered from low blood pressure, low temperature, intense pain, incoherent speech and temporary loss of consciousness. The applicant submits that the hospital staff did not react to those symptoms and did not administer any treatment. 5. On 13 March 2007 the applicant’s daughter was transferred to the intensive care unit. On the following day the hospital contacted her parents to inform them that her condition was very serious. On 15 March 2007 she died. 6. On 16 March 2007 the applicant filed a criminal complaint with the Warsaw-Praga Północ District Prosecutor. The prosecutor instituted an investigation into the case of unintentional homicide of the applicant’s daughter (Article 155 of the Criminal Code). 7. On 22 March 2007 an autopsy was carried out. It established the presence of streptococcus A bacteria in the body of the applicant’s daughter. No such bacteria had been found at the hospital following the examination of the medical personnel and the hospital premises. 8. Upon the applicant’s request, the District Sanitary Inspectorate carried out a control of the hospital on 16, 19 and 20 March 2007. It established that the bacteria at issue had not been found in any of the patients who had shared the room with the applicant’s daughter, or in any of the hospital staff who assisted at the delivery, nor on the hospital premises. The inspectors identified a number of shortcomings at the hospital, such as overcrowding of the maternity ward, but concluded that none of these shortcomings could have led to the applicant’s daughter being infected with the bacteria. 9. On 28 September 2007 the District Prosecutor ordered that an expert in hospital infections prepare a report for the purposes of the investigation. The report, which took into account the medical notes of the applicant’s daughter, the results of the control carried out by the Sanitary Inspectorate and the records of witnesses’ interviews, was submitted on 8 August 2008. 10. The expert found that the death had almost certainly resulted from sepsis and the related Multiple organ dysfunction syndrome (MODS) caused by a streptococcus A. That bacterium, which had been identified in the body of the applicant’s daughter on 13 March 2007, created very dangerous toxins which led to sepsis carrying a particular risk of fatality. The infection most likely originated from the perineum and the bacteria had already been present there before the delivery. The probability that the bacteria was transmitted from the hospital environment had been lower that 10%. All factors pointed to the probability that the applicant’s daughter had been infected prior to her admission to the hospital. In particular, no other patients had been infected and the bacteria had not been present in the hospital environment. The expert excluded the possibility that the infection had resulted from medical negligence of the hospital staff. 11. As regards the medical treatment, the expert established that the actions of the doctors had been adequate with respect to the condition of the patient and compatible with medical science. They could be reproached for their lack of reaction during the first twenty-four hours; however the sepsis had developed in a particular manner, namely without any accompanying fever. There were no other symptoms suggesting a developing infection and the applicant’s daughter had complained about pain in the perineum, which was typical following a delivery. Furthermore, the applicant’s daughter took – without consulting the doctors – excessive doses of paracetamol which could have disguised the infection and caused paracetamol toxicity. Following the diagnosis of infection, the medical treatment administered was comprehensive and adequate and the hospital staff had acted with the requisite diligence. 12. In the course of the investigation the prosecutor also heard members of the medical personnel, fellow patients and friends who had visited the applicant’s daughter. 13. On 11 September 2008 the Warsaw-Praga Północ District Prosecutor discontinued the investigation, finding that the offence of unintentional homicide had not been committed. Having regard to all the evidence and, in particular, the expert report, the prosecutor found that the death of the applicant’s daughter had not resulted from medical negligence. The hospital staff had administered adequate and appropriate treatment for her condition and had not, in any degree, contributed to her death. 14. On 25 September 2008 the applicant’s lawyer appealed. She pointed out that two important witnesses, namely the head of the obstetrics department and the doctor who had supervised the applicant’s daughter, had not been heard. The prosecutor failed to establish whether other women had been infected with the same bacteria in the hospital despite the fact that the applicant had provided him with details of a woman who had been so infected. The applicant’s lawyer also contested the findings of the expert. In particular, she averred that the response of the medical personnel to the deteriorating condition of the applicant’s daughter within the first fortyeight hours had been inadequate and limited to administering pain killers. Furthermore, the expert had not addressed the fact that not all of the doctors, midwives and nurses working at the obstetrics department had been tested for the bacteria. The expert had wrongly assessed the evidence and had erred in concluding that there had been no medical error on the part of the hospital staff. Consequently, the prosecutor’s decision that the death of the applicant’s daughter had not resulted from the actions of the medical personnel had been erroneous and needed to be revisited. The applicant filed his own appeal. 15. On 27 November 2008 the Warsaw Praga-Północ District Court upheld the District Prosecutor’s decision of 11 September 2008. It held that the prosecutor had obtained sufficient and relevant evidence and had assessed it correctly. Similarly, there were no grounds to contest the prosecutor’s factual findings or his legal assessment of the case. 16. The court found that the appeals had not put forward any arguments which could have resulted in the quashing of the decision. More specifically, it held that the allegations of the prosecutor’’s decision was based on the ample evidence obtained from the hospital staff (doctors and nurses) and the fellow patients, and, in particular, on the results of the autopsy and the expert report. The expert concluded, with the probability nearing on certainty, that the death had resulted from sepsis and the related MODS caused by a streptococcus A bacteria. The infection had not originated from the hospital environment and had not been caused by medical negligence. As regards the treatment administered to the applicant’s daughter both during and following her labour, the expert considered it adequate and appropriate. The court, despite the applicant’s misgivings, found no grounds to contest the reliability of the expert report. Furthermore, it considered that the alleged prosecutor’s failures to obtain additional evidence proposed by the applicant would not in any event change the conclusion of the investigation. 17. Article 155 of the Criminal Code of 1997 provides that a person who unintentionally causes the death of a human being shall be sentenced to a term of imprisonment between three months and five years. | 0 |
train | 001-81728 | ENG | HUN | CHAMBER | 2,007 | CASE OF BUKTA AND OTHERS v. HUNGARY | 1 | Violation of Art. 11;No separate issue under Art. 10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings | András Baka;Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky | 5. The applicants are Hungarian nationals who were born in 1943, 1945 and 1951 respectively and live in Budapest. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 1 December 2002 the Romanian Prime Minister made an official visit to Budapest and gave a reception on the occasion of Romania’s national day, which commemorates the 1918 Gyulafehérvár National Assembly when the transfer of hitherto Hungarian Transylvania to Romania was declared. 8. The Hungarian Prime Minister decided to attend the reception and made that intention public the day before the event. 9. The applicants were of the opinion that the Hungarian Prime Minister should refrain from attending the reception, given the Gyulafehérvár National Assembly’s negative significance in Hungarian history. Therefore, they decided to organise a demonstration in front of the Hotel Kempinski in Budapest where the reception was to be held. They did not inform the police of their intentions. 10. In the afternoon of 1 December 2002, approximately 150 people, including the applicants, assembled in front of the hotel. The police were also present. There was a loud noise, whereupon the police decided to disband the assembly, considering that it constituted a risk to the security of the reception. The police forced the demonstrators back to a park next to the hotel where, after a while, they dispersed. 11. On 16 December 2002 the applicants sought judicial review of the action of the police and requested the Pest Central District Court to declare it unlawful. They asserted that the demonstration had been totally peaceful and its only aim had been to express their opinion. Moreover, the applicants pointed out that it had obviously been impossible to inform the police about the assembly three days in advance, as required by Law no. III of 1989 on the right of assembly (the “Assembly Act”), because the Prime Minister had only announced his intention to attend the reception the day before. 12. On 6 February 2003 the District Court dismissed the applicants’ action. Concerning the circumstances of the event, it noted that the demonstration had been disbanded after a minor detonation was heard. 13. The District Court also noted that the three-day time-limit for informing the police of a planned assembly could not possibly be observed if the demonstration had its roots in an event that had occurred less than three days beforehand. In the court’s view, the possible shortcomings of the Assembly Act could not be remedied by the courts. Therefore, the duty to inform the police about such meetings applied to every type of demonstration, including spontaneous ones. The court also noted that there might be a need for more precise and sophisticated regulations in respect of such events but said that this was a task for the legislator, not the courts. 14. The court also found that the duty to inform the police in advance about assemblies held in public served to protect the public interest and the rights of others, namely, the free flow of traffic and the right to freedom of movement. It observed that the organisers of the demonstration had not even attempted to notify the police. The District Court went on to say: “... under the relevant provisions of the domestic law in force, the fact that an assembly is peaceful is not by itself enough to dispense with the duty to inform the police. ... The court has not dealt with the issue whether or not the assembly was peaceful, since the lack of notification made it illegal per se and, therefore, the defendant dissolved it lawfully, pursuant to section 14(1) of the Assembly Act.” 15. The applicants appealed. On 16 October 2003 the Budapest Regional Court upheld the first-instance decision. It amended part of the District Court’s reasoning, omitting the remarks concerning the possible shortcomings of the relevant domestic law. Moreover, the Regional Court found, referring, inter alia, to the case-law of the Court and decision no. 55/2001. (XI. 29.) of the Constitutional Court: “... in the application of the relevant domestic law, the approach is obviously authoritative in that there is no exemption from the duty of notification and, therefore, no difference between ‘notified’ assemblies and ‘spontaneous’ ones – the latter are unlawful owing to the failure to respect the above-mentioned duty of notification.” 16. In sum, the Regional Court found that the restrictions imposed on the applicants were necessary and proportionate. 17. The applicants lodged a petition for review which the Supreme Court dismissed on 24 February 2004, without examining its merits, since it was incompatible ratione materiae with the relevant provisions of the Code of Civil Procedure. 18. Article 62 of the Constitution guarantees the right to freedom of peaceful assembly and secures its free exercise. 19. Section 6 of the Assembly Act requires the police to be informed of an assembly at least three days before the date of the event. 20. Section 14(1) of the Assembly Act requires the police to disband (feloszlatja) any assemblies held without prior notification. 21. Section 14(3) of the Assembly Act provides that if an assembly is dissolved its participants may seek judicial review within fifteen days. | 1 |
train | 001-82102 | ENG | SWE | ADMISSIBILITY | 2,007 | GRIGORIAN AND OTHERS v. SWEDEN | 4 | Inadmissible | Corneliu Bîrsan;David Thór Björgvinsson | The first applicant, Mr Albert Grigorian, is an Armenian national born in 1979. The second applicant, Ms Irade Babajeva, is an Azerbaijani national born in 1979. The third applicant, Ms Viktoria Grigorian, their daughter, was born in 2004. They were represented before the Court by Ms Noémi Lindgren, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Mr C.H. Ehrenkrona, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The second applicant arrived in Sweden and applied for asylum on 28 May 2002. The first applicant arrived in Sweden and applied for asylum on 23 August 2002. The couple met there and moved in with each other on 18 March 2003. On 3 December 2004 their daughter was born. On 21 December 2004 the Migration Board (Migrationsverket) rejected their applications and ordered that they be deported to their respective native countries. The Board noted that the first applicant had not submitted any proof of identity. With respect to the first and second applicants’ reasons for seeking asylum, the Board found that, under the provisions of the Aliens Act (Utlänningslagen, 1989:529), they were neither to be regarded as refugees or otherwise in need of protection nor entitled to residence permits on humanitarian grounds. As regards the second applicant, who had claimed to risk persecution not only in her native country but also in Armenia, the Board considered that her submissions with regard to the latter country were unfounded. In this connection, it noted that her mother is of Armenian origin. The Board further held that, as the first and second applicants were not married, their daughter should be considered as having the same nationality as her mother and follow her to Azerbaijan. In view of the daughter’s young age and the limited time she had spent in Sweden, the move to Azerbaijan could not be against her best interests. Moreover, the deportation would not be contrary to the principle of family unity under the UN Convention on the Rights of the Child, as the first and second applicants could reunite in the country of their choice after deportation. By a decision of 5 December 2005, the Aliens Appeals Board (Utlänningsnämnden) rejected the applicants’ appeal, agreeing with the reasoning given by the Migration Board. It added that the applicants’ deportation would not violate their right to respect for their family life under Article 8 of the Convention, as they would be able to unite in either of their native countries. Issues of a formal or practical nature that might arise were to be handled by the responsible authority, in the first place the Migration Board. The Appeals Board concluded that the second and third applicants could be deported to both Azerbaijan and Armenia. On 5 April 2006 the Migration Board reviewed the applicants’ situation under chapter 2, section 5 b of the Aliens Act, a new temporary provision aimed at extending the right to residence permits for certain groups, including families with children, who had, inter alia, resided in Sweden for long periods of time. The applicants submitted that the second applicant was pregnant with a second child and was expected to give birth in October 2006. The Board found, however, that they were not entitled to residence permits under the temporary legislation. According to the applicants, they were later informed that the Migration Board planned to enforce the deportation orders by sending them to different countries, the first applicant to Armenia and the second and third applicants to Azerbaijan. On 10 May 2006, following the Court’s indication under Rule 39 of the Rules of Court, the Migration Board decided to stay the enforcement of the applicants’ deportation until further notice. On 31 August 2006 the applicants lodged a new application with the Migration Board, claiming that there were permanent impediments to their deportation and that they should be given residence permits. In substance, they argued that their deportation to different countries involved a violation of Article 8 of the Convention. Subsequently, the applicants submitted a medical opinion on the daughter’s mental health, given by a certified psychologist and a child psychiatrist on 12 January 2007. They noted that the second applicant suffered from depressions and that the overall situation was dominated by stress caused by the family’s insecure future. The daughter showed a serious resignation syndrome, which required qualified, immediate and long-term treatment. On 17 November 2006 the second applicant gave birth to a second daughter. An application for a residence permit for her was submitted to the Migration Board. On 16 March 2007 the Migration Board rejected the applicants’ new application, stating that the possible deportation to different countries was not a new circumstance and could not therefore be considered. In regard to the mental health of the third applicant, the eldest daughter, as well as the second applicant’s depression, the Board concluded that they did not constitute medical impediments to the deportation. No appeal lay against this decision. The application concerning the youngest daughter has not yet been determined. | 0 |
train | 001-108532 | ENG | UKR | CHAMBER | 2,012 | CASE OF TRYMBACH v. UKRAINE | 3 | Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6-1 - Fair hearing);No violation of Article 6 - Right to a fair trial (Article 6-3-c - Defence through legal assistance) | André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy | 4. The applicant was born in 1954 and lives in Krivyy Rig. 5. In the early morning of 23 May 2000 the applicant noticed three people trying to dismantle an electricity sub-station not far from his farm. According to the applicant, he approached them with a gun and warned them, but they threatened him and fired at him, forcing him to use his shotgun against them in self-defence. As a result, all three of them died. 6. The same day criminal proceedings were instituted and the applicant was questioned by the police. 7. According to the applicant, the investigator told him that it would take a lot of time to fetch a lawyer and he therefore agreed to be without a lawyer since he wanted to help the investigation. 8. On 24 May 2000 the applicant was arrested on suspicion of murder. 9. According to the applicant, on 24 May 2000 the Prosecutor of Kherson Region gave an interview to a TV channel and informed the public that the applicant was guilty of murdering three people and that he would be punished with up to fifteen years’ imprisonment. In the proceedings before the Court, the Government could not confirm or deny this. 10. On the same day several people , said that two or four years previously he had seen an object which resembled a rifle in the possession of Mr K., one of the victims. However, he could not describe it and did not know whether anyone in the village had seen a small-bore rifle recently. 11. On 27 May 2000 the applicant was questioned by an investigator. Before being questioned he was given a paper explaining his right to be represented and not to incriminate himself, with an explanation of the pertinent legal provisions of the Constitution and the Code of Criminal Procedure. He signed this paper and wrote that he would defend himself. According to the applicant, he wrote this at the request of the investigator. 12. On 6 June 2000 the lawyer chosen by the applicant entered the proceedings. 13. The same day the Hryvnia newspaper published an article entitled ‘Volnaya Ukraina is bleeding’ (‘Bольная Украина истекает кровью’) about the incident of 23 May 2000 and about problems with power cuts caused by the theft of electric power cables for scrap metal. The article described the applicant’s version of events, in which he stated that the victims had been trying to steal metal parts from an electricity transformer and he had warned them and then fired at their motorcycle with his shotgun. They had fired back with a rifle and he had fired two shots in their direction. The article continued as follows: “The investigation is not able to confirm that there was an EXCHANGE OF FIRE near the sub-station. The Prosecutor of Golopristansky District, Sergey Mikhalkov, stresses: ‘Despite the efforts made, we did not find any spent cases from the sawn-off small-bore rifle. On the other hand, there were two unused cartridges. Searches in the houses of those killed produced no results either: neither ammunition packaging nor spare parts for the weapon have been found. The fingerprints did not stay on the rifle – it was raining, and the barrel was oiled. Incidentally, none of the acquaintances of the deceased ever saw the sawn-off rifle in their possession. Therefore, the criminal proceedings against Victor Trymbach were initiated not on account of his exceeding the limits of self-defence, but under Article 93 ‘d’ of the C[riminal] C[ode]. Under this Article the sentence can be up to life imprisonment. In previous years a person could even risk execution (by shooting).’” 14. On 13 July 2000 the applicant was questioned in the presence of his lawyer and confirmed his version of events, which had been stated when he had previously been questioned. 15. On 9 September 2000 the applicant’s lawyer lodged an application in which, among other things, he requested that a witness, K., be examined, and this request was granted. 16. According to the applicant, as the police were unable to prove his guilt they threatened to turn him into a drug addict. During the night of 3031 October 2000 his cellmates, who were criminals collaborating with the police, tortured him physically and psychologically to extract a confession from him. They persuaded him to write a note to his friend and even assisted him in drafting it. The note read: “Hello B.! I met P. and he told me that you were interested in my problems. Thank you for your man’s attention. I will immediately answer your questions. I am sharing a cell with normal pals, the relations are normal. I know P. and trust him. As to what I said to the lawyer, it is my business. You should understand that I am accused under Article 93 and it is not a joke. Therefore I have to talk about prison pressure, but really everything is OK. P. advised me that before the court I should deny my testimony and say that they were killing (torturing) me here. That’s it, thank you for your concern. Yours, Viktor.” 17. On 2 November 2000 the applicant was transferred to a different cell. 18. On 3 November 2000 the applicant’s lawyer complained to the prosecutor that the applicant had been ill-treated by his cellmates, who were forcing him to confess. 19. According to the report prepared by the prosecutor from the Kherson Regional Prosecutor’s Office on 20 November 2000, on 3 November he proposed that the applicant undergo a medical examination in order to establish any signs of physical violence. The applicant refused and made a written statement in the presence of his lawyer that he had not been subjected to any physical violence. 20. On 22 November 2000 the Deputy Prosecutor of the Kherson Region informed the applicant’s lawyer that his complaint that the applicant had been ill-treated had been checked and the account could not be confirmed. 21. On 27 November 2000 the Kherson Regional Prosecutor’s Office charged the applicant with three murders and unlawful possession of weapons (additional proceedings concerning the latter offence were instituted on 20 November 2000). The indictment mentioned that relatives and friends of the victims, including those who had seen them just before they left to dismantle the sub-station, did not see and were not told about any weapon in the possession of the victims. Searches of the victims’ homes produced no result either. The indictment also mentioned three anonymous witnesses questioned by the prosecution under assumed names: Mr Ivanov, Mr Petrov and Mr Sergeyev, who were detained in the same cell as the applicant and to whom he had apparently confessed that on 23 May 2000 he had intentionally killed three people as they were trying to steal electric cables from the local electricity sub-station which supplied electricity to his farm. The applicant alleged that he had acted in self-defence and that he was responding to gunshots fired at him. The investigation revealed no evidence to corroborate the applicant’s allegations. 22. On 4 December 2000 Kherson Regional Court opened judicial proceedings. 23. On 15 February 2001 the applicant’s lawyer lodged an application for the examination of the anonymous witnesses. This application was granted and during the proceedings the three anonymous witnesses were examined in the presence of the applicant’s lawyer, while the applicant himself was removed from the courtroom. Later, one of the witnesses agreed to disclose his identity; he participated in the proceedings under his real name and was questioned in the presence of the applicant. 24. On 30 May 2001 Kherson Regional Court remitted the case for further investigation, to check the applicant’s allegations that his cellmates had forced him to write a note and even assisted him in drafting it and to conduct a handwriting analysis of a correction on the draft note which had allegedly been made by Mr N. On 17 July 2001 the Supreme Court overruled the above decision, considering that the handwriting analysis could be conducted within the judicial proceedings and therefore that there was no need to return the case for investigation. 25. The above-mentioned analysis could not establish who had written the corrections on the draft note, whether it was Mr N., the applicant or someone else. 26. On 21 March 2002 the Kherson Regional Court of Appeal sentenced the applicant to fifteen years’ imprisonment for multiple murder and unlawful possession of a weapon. The Court of Appeal based the applicant’s conviction on the following: the rifle found near one of the deceased was not loaded, there were only two full cartridges near it and no empty cases; the police officer who arrived first at the scene of the crime testified that the rifle was clean, although everything around, including the hands of the deceased, was covered in oil; statements by the applicant’s cellmates Mr N. and Mr Y,. who maintained that the applicant had told them that the rifle had been taken to the scene of the crime after the shooting; the statements of Mr and Mrs Shch., the applicant’s neighbours, who stated that they had heard four shots, the forensic examination which concluded that the applicant had fired at the victims four times; all three victims were hit in the vital organs from a distance of ten to fifteen metres (the first two shots) and four metres (the last two shots) and not from the place indicated by the applicant, which was thirty-one metres away from the bodies; the fact that the applicant had cartridges loaded with salt but actually used cartridges loaded with lead shot; and the testimony of two witnesses about previous aggressive behaviour by the applicant. 27. The applicant appealed in cassation. He complained, inter alia, that the authorities had not made enough effort to bring to the court Mr R., who was outside the territory of Ukraine, and that witnesses who could have given positive character references for him had not been summoned to the court. He also complained that due to his lack of knowledge and experience the investigation had left him without a lawyer until 6 June 2000. 28. On 25 June 2002 the Supreme Court rejected the applicant’s appeal against the judgment of 21 March 2002, finding no infringements of procedural or substantive law in the examination of the case. It noted in particular that Mr and Mrs Shch had only heard shots from a shotgun and not shots from a small-bore rifle, and they had confirmed this during the on-site reconstitution. The Supreme Court also observed that there had been no serious procedural violations that would require quashing of the judgment. It decided, however, to reduce the applicant’s sentence to ten years’ imprisonment, given that the victims had also been acting unlawfully. 29. On 31 August 2005 the President of Ukraine issued a decree granting amnesty to a number of convicted persons, including the applicant, whose sentence was reduced to eight years’ imprisonment. 30. Under Article 93 of the Code, the murder of several people was punishable by imprisonment for eight to fifteen years or by a life sentence. 31. Article 46 of the CCP, as worded at the time of the initial stage of the investigation, provided that a suspect, accused or defendant was entitled to waive his or her right to defence counsel. Such a waiver was permissible only on the initiative of the suspect, accused or defendant himself or herself. A waiver was not permitted, inter alia, if the possible penalty was a life sentence. 32. According to paragraph 1 of Article 370, as worded at the time of the trial, substantial violations of the requirements of the criminal procedural legislation are considered to be those which have impeded or could have impeded the court in the complete and thorough examination of a case and in issuing a lawful, reasoned and just verdict. Paragraph 2 of this Article lists a violation of the right of an accused to defence among the substantial violations of the requirements of the criminal procedural legislation which warrant the quashing of a verdict in any event (that is, regardless of whether the requirements of paragraph 1 have been met). | 0 |
train | 001-77283 | ENG | MKD | ADMISSIBILITY | 2,006 | MARTINOVSKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 4 | Inadmissible | Peer Lorenzen | The applicant, Ms Zaneta Martinovska, is a citizen of the former Yugoslav Republic of Macedonia who was born in 1956 and lives in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska-Gerovska. The facts of the case, as submitted by the parties, may be summarised as follows. On an unspecified date in 1994 the applicant, together with two other individuals, instituted civil proceedings against her employer, a company called G. (“the employer”) for payment of salary and other related allowances for the period of May 1993 to November 1994. On 28 April 1998 the Skopje Court of First Instance II granted her claim (and of the other claimants) together with interest. On 11 November 1998 the Court of Appeal upheld the lower court’s judgment. As stated by the applicant, the judgment was served on her seven months later, on an unspecified date. On an unspecified date, the applicant requested the Skopje Court of First Instance I to enforce the judgment (предлог за извршување). On 10 September 1999 it granted her request and ordered the Public Payment Bureau (“the Bureau”) (Завод за платен промет) to transfer from the employer’s account the amount due to her. On 7 October 1999 the applicant completed her application as requested by the court. However, the order was not enforced as there were no funds in the account. On 22 December 1999 the applicant requested the Skopje I Court of First Instance to enforce her claim proposing another means of enforcement: an inventory, valuation and public sale of an employer’s property (the same property which was the subject-matter of the second set of proceedings). She requested the court to complete the enforcement by the proposed means only if her claim could not have been discharged by transferring the amount due to her from the employer’s account. On 7 December 2000 the Skopje I Court of First Instance forwarded the case-file to the Skopje II Court of First Instance, as court competent ratione loci. In April 2006 the court requested the applicant to submit a certificate of title concerning the employer’s property. It appears that in May 2006 she obtained a certificate of title and submitted it to the court. On an unspecified date in 1998 the applicant brought against the employer a compensation claim for payment of salary and other related allowances for the period of 1994 to 1997, after she had successfully challenged the lawfulness of her dismissal. On 4 November 1998 the Skopje II Court of First Instance partially granted her claim. On 6 October 1999 the Skopje Court of Appeal dismissed the employer’s appeal and upheld the lower court’s judgment. On 7 October 1999 the applicant requested the Skopje I Court of First Instance to enforce the judgment by transferring the amount due to her from the employer’s account into her account. On 24 November 1999 the applicant completed her application submitting a copy of the judgment, as requested by the court. On 28 February 2000 the Skopje I Court of First Instance granted the applicant’s request and ordered the Bureau to transfer the amount due to her from the employer’s account. On 7 May 2001 the applicant proposed another means of enforcement, namely an inventory, valuation and public sale of an employer’s property. It was sent to the Skopje I Court of First Instance with a request for forwarding the file to the Skopje II Court of First Instance as court competent ratione loci. On 25 June 2001 the applicant submitted an addendum to the request. On 13 July 2001 Skopje II Court of First Instance refused the applicant’s request for a charging order over the employer’s property, as it had been the subject of other enforcement proceedings and sold to a third person on 3 June 1999. On 10 November 1999 the creditor in those proceedings had taken possession of the property (this decision became final on 4 December 1999). On 13 September 2001 the applicant appealed against the judgment before the Skopje Court of Appeal (Апелационен Суд Скопје). On 10 October 2001 the Skopje Court of Appeal dismissed the applicant’s appeal and upheld the lower court’s judgment. The applicant did not request the court to enforce her claim against other assets nor did she propose other means of enforcement as specified by law. The applicant’s cases concerning both sets of proceedings were set to archive in September, November and December 2003, respectively. On 15 November 2000 the applicant requested the Skopje II Court of First Instance to join the two sets of enforcement proceedings and to proceed only in respect to the employer’s property, as its account reportedly had no funds. On 27 March 2001 the applicant repeated her request for joining the two sets of enforcement proceedings. She also requested to have her enforcement proceedings joined with the proceedings of another creditor, Mrs N.M., instituted against the employer. On 28 March 2001 the applicant submitted a corrected version of her request. On 12 June 2001 the applicant repeated her request. On 3 and 15 October 2001, respectively, the applicant and Mrs N.M. requested the president of the Skopje II Court of First Instance and the Court of Appeal to join their proceedings. On 16 October 2001 the Skopje II Court of First Instance informed the applicant and Mrs N.M. that on 12 July 2001 the presiding judge had decided not to join the proceedings. Section 2 of the Enforcement Proceedings Act (“the Act”) (Закон за извршната постпка) provides that enforcement and security proceedings are launched on creditor’s request. Section 27 of the Act provides the following means for enforcing judgment debts: (i) sale of movable property, (ii) sale of immovable property, (iii) transfer of a pecuniary claim, (iv) encashment of other proprietary rights, and (v) transfer of funds from an account managed by the Public Payment Bureau, in accordance with the regulations. In accordance with section 29 of the Act, the courts are required to enforce judgment debts by the means and against the assets specified in the request for execution. Section 35 provides that a request for execution should specify: the creditor and debtor; the final order; the debtor’s duty; the means and assets for enforcement and other information necessary for completion of the enforcement. In accordance with section 39 § 1, the enforcement order is served on the creditor and the debtor. The dismissal of the request for execution is served only on the creditor. Section 141 of the Act provides that enforcement over immovable property is effected by recording the order in the register, obtaining a valuation of the property, selling it and settling the creditors’ claims from the proceeds of sale. Section 142 paragraph 1 of the Act provides, inter alia, that in support of a request for a charging order over immovable property, the creditor should submit an extract from the public records, as evidence that the property is owned by the debtor. Section 198 of the Act states that the court will not stay enforcement proceedings if there are no funds in the debtor’s account managed by the Public Payment Bureau. Instead, the Payment Bureau is required to keep a record of the order and to make the transfer when there are funds in the account. | 0 |
train | 001-105336 | ENG | CHE | CHAMBER | 2,011 | CASE OF ADAMOV v. SWITZERLAND | 3 | No violation of Art. 5-1;Remainder inadmissible | András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque | 7. The applicant was born in 1939 and lives in Moscow. 8. In 2004 criminal proceedings were brought against him in the United States of America. They concerned his alleged misappropriation of funds provided to Russia by the USA during his term as Russian Minister for Energy. 9. On 11 February 2005 he obtained a four-month Swiss visa issued by the Swiss Embassy in Moscow, valid until 10 June 2005. On the visa application form he had indicated, without being more specific, that the main purpose of his journey to Switzerland was to visit his daughter, who was living in Bern. 10. On 21 February 2002 criminal proceedings were opened against the applicant’s daughter, by the competent investigating judge for the Canton of Bern, on a charge of money laundering. The suspicions notably concerned sums of money she had allegedly received from her father. 11. On 5 April 2005, when consulting the case file concerning the criminal proceedings against the applicant’s daughter, her former lawyer informed the investigating judge that the applicant visited Switzerland from time to time and that he agreed to be questioned in connection with the case in question. The applicant then indicated to his daughter’s lawyer that he was prepared to come to Switzerland to be questioned by the investigating judge. He explained that it would suit him if the questioning took place between 20 April and 6 May 2005. 12. On 15 April 2005 the investigating judge thus suggested two possible dates to the new lawyer representing the applicant’s daughter, namely 1 and 2 May 2005. 13. After arriving in Switzerland on 20 April 2005 the applicant expressed, through his daughter’s lawyer, his preference for 2 May 2005 at 2 p.m. He asked the investigating judge to confirm that date. 14. On the same day the judge duly issued a summons using the appropriate form in accordance with practice in the Canton of Bern. The hearing was scheduled for 2 May 2005 and the summons indicated that any delay in appearance or unjustified absence from the hearing would entail a penalty, with the possibility of using force in the event of non-appearance. The summons, which was addressed to the applicant, was served at his daughter’s private address in Bern. A copy was also sent to her lawyer for information purposes. 15. On 28 April 2005 the investigating judge contacted a public prosecutor in Pennsylvania, USA, to find out any information that might be useful in the proceedings against the applicant’s daughter. During the conversation, the judge mentioned that he would be questioning the applicant on 2 May 2005 at 2 p.m. 16. On 29 April 2005 the US Department of Justice sent the Swiss Federal Office of Justice a request for the applicant’s provisional arrest in accordance with the extradition treaty of 14 November 1990 between Switzerland and the USA. 17. On the same day the Federal Office of Justice (mutual legal assistance division) issued an “urgent” order for the applicant’s arrest that was sent to the investigating judge for the Canton of Bern. 18. On 2 May 2005 at 2 p.m. the applicant appeared before the investigating judge for the Canton of Bern to give evidence in the proceedings against his daughter. When asked why he was in Switzerland he replied that he was visiting for private reasons but also for business. 19. After the interview, which lasted about four hours, the investigating judge notified the applicant that he was under arrest. Two police officers of the Canton of Bern, who had been waiting in a neighbouring room for the interview to finish, immediately took him to the regional prison of Bern. 20. On 3 May 2005 the Federal Office of Justice issued an order for the applicant’s provisional detention pending extradition and it was served on the applicant the next day. 21. On 17 May 2005 Russia also applied for his extradition. 22. On the same day, the applicant lodged an appeal with the Appellate Division of the Federal Criminal Court. 23. During his detention the applicant wrote an article, which was published on 6 June 2005 in the Moscow daily newspaper Izwestija. He explained that his trip was connected to two projects on which he was working at the time, concerning the export of energy by Russia and technological cooperation, in particular with an energy supplier based in Switzerland. 24. On 9 June 2005 the Federal Criminal Court upheld the applicant’s appeal and set aside the extradition arrest order against him. The court took the view that the applicant had been in Switzerland for questioning in the context of criminal proceedings against his daughter, that the summons for the interview of 2 May 2005 should have been served on him through mutual assistance channels and that the protection afforded by the safe-conduct clause, deriving from the requirement of good faith, was also valid for a person examined as a witness who had not been summoned through mutual assistance channels but who had appeared “spontaneously” in Switzerland to give evidence. 25. On 17 June 2005 the Federal Office of Justice appealed before the Federal Court against the Federal Criminal Court’s decision. 26. On 24 and 27 June 2005 the US authorities filed a formal request, dated 2 June 2005, for the applicant’s extradition to the USA. 27. On 14 July 2005 the First Public Law Division of the Federal Court upheld the appeal of the Federal Office of Justice. 28. The Federal Court basically took the view that the applicant had been visiting Switzerland for private purposes – to see his daughter – and for business. In its view, the Federal Criminal Court had clearly made an erroneous and incomplete assessment of the facts in finding that the applicant had come to Switzerland in order to give evidence as a witness in criminal proceedings. It was not therefore appropriate to apply Article 12 of the European Convention on Mutual Assistance in Criminal matters of 20 April 1959 or Article 73 of the Federal Law on International Mutual Assistance in Criminal Matters (see paragraphs 31-32 below). The case was referred back to the Federal Criminal Court for examination of the applicant’s other arguments (breach of the Russian Government’s immunity under international law, and the allegedly political nature of the criminal proceedings against him in the USA). 29. The applicant was held in custody until 30 December 2005 and then extradited to the Russian Federation pursuant to an administrative decision of the Federal Court of 22 December 2005. That court, unlike the administrative authority, the Federal Office of Justice, found that priority had to be given to the Russian extradition request, as the applicant was a Russian national and stood accused of committing criminal acts mainly in that country. 30. In a decision of 6 December 2007 the Federal Criminal Court dismissed, at last instance, a request by the applicant for compensation in respect of his detention pending extradition. The court found that his detention had not been unlawful. 31. Article 12 of the European Convention on Mutual Assistance in Criminal matters of 20 April 1959, to which both Switzerland and the Russian Federation are parties, contains a safe-conduct clause. That Article reads as follows: “1. A witness or expert, whatever his nationality, appearing on a summons before the judicial authorities of the requesting Party shall not be prosecuted or detained or subjected to any other restriction of his personal liberty in the territory of that Party in respect of acts or convictions anterior to his departure from the territory of the requested Party. 2. A person, whatever his nationality, summoned before the judicial authorities of the requesting Party to answer for acts forming the subject of proceedings against him, shall not be prosecuted or detained or subjected to any other restriction of his personal liberty for acts or convictions anterior to his departure from the territory of the requested Party and not specified in the summons. 3. The immunity provided for in this article shall cease when the witness or expert or prosecuted person, having had for a period of fifteen consecutive days from the date when his presence is no longer required by the judicial authorities an opportunity of leaving, has nevertheless remained in the territory, or having left it, has returned.” 32. Section 73 of the Federal Law on international mutual assistance in criminal matters of 20 March 1981 contains a provision on safe conduct in Switzerland: “1. A person habitually resident abroad and who appears in Switzerland in a criminal case pursuant to a summons may neither be prosecuted nor restricted in his personal freedom on the basis of reasons that pre-date his entry into Switzerland. 2. A person being prosecuted shall enjoy no safe conduct in respect of the offences specified in the summons. 3. The safe conduct provided for in paragraph 1 shall cease when the person leaves Switzerland and at the latest three days after he is permitted to leave by the summoning authorities.” 33. The object and purpose of the safe-conduct clause were explained as follows by a Federal Court judgment of 26 April 1978 (ATF 104 Ia 448): ...” 34. In an unpublished judgment of 17 May 1995 (1P.289/1995), the Federal Court had occasion to develop its case-law on safe-conduct clauses as follows: ...” | 0 |
train | 001-57816 | ENG | IRL | CHAMBER | 1,993 | CASE OF PINE VALLEY DEVELOPMENTS LTD AND OTHERS v. IRELAND (ARTICLE 50) | 2 | Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings | C. Russo;R. Pekkanen | 1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") and by the Government of Ireland ("the Government") on 11 July and 11 September 1990, respectively. It originated in an application (no. 12742/87) against Ireland lodged with the Commission in 1987 by two companies registered in that State, Pine Valley Developments Ltd ("Pine Valley") and Healy Holdings Ltd ("Healy Holdings"), and an Irish national, Mr Daniel Healy. 2. By judgment of 29 November 1991 ("the principal judgment"), the Court held, inter alia, that Healy Holdings and Mr Healy (hereinafter together referred to as "the applicants") had been victims of discrimination contrary to Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1 (art. 14+P1-1), in that section 6 of the Local Government (Planning and Development) Act 1982 ("the 1982 Act") had retrospectively validated all planning permissions in the relevant category other than theirs (Series A no. 222, paragraphs 61-64 of the reasons and point 6 of the operative provisions, pp. 26-27 and 29). The only outstanding matter to be settled is the question of the application of Article 50 (art. 50). As regards the facts, reference should be made to paragraphs 8-34 of the principal judgment (ibid., pp. 8-17). 3. At the Court’s hearing on 21 May 1991, counsel for the Government and the Delegate of the Commission both reserved their position on the claims for just satisfaction advanced by the applicants. In the principal judgment, the Court therefore reserved the whole of this question and invited the Government and the applicants to submit, within the next three months, their written comments thereon and, in particular, to notify the Court of any agreement reached between them (paragraphs 67-68 of the reasons and point 8 of the operative provisions, pp. 28-29). 4. Following the failure of settlement negotiations and in accordance with the foregoing invitation and the President’s directions, submissions and observations relating to the claims under Article 50 (art. 50) were filed by the applicants on 28 February, 19 March, 20 and 22 April and 30 June 1992, by the Government on 27 March, 10 April and 15 June 1992 and by the Delegate of the Commission on 10 April 1992. The materials furnished to the Court included valuations by chartered surveyors of the land owned by Healy Holdings, to which outline planning permission had initially been attached ("the Clondalkin site"). 5. On 23 September 1992 the Court decided that there was no need to hold a hearing. 6. At the deliberations on 1 February 1993 Mr R. Ryssdal and Mr J. Pinheiro Farinha, who had sat to consider the merits of the case but were unable to be present on that date, were replaced by Mrs D. Bindschedler-Robert, who sat as President of the Chamber, and Mr S.K. Martens, substitute judge, respectively; Mrs Bindschedler-Robert in her turn was replaced by Mr R. Pekkanen, also a substitute judge (Rules 21 para. 5, 22 para. 1, 24 para. 1 and 54 para. 2). | 0 |
train | 001-113601 | ENG | ARM | ADMISSIBILITY | 2,012 | NIKOGHOSYAN v. ARMENIA | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria | 1. The applicant, Mr Gilvent Nikoghosyan, is an Armenian national, who was born in 1940 and lives in Yerevan. He is represented before the Court by Mr A. Grigoryan, a lawyer practising in Yerevan. 2. The Armenian Government (“the Government”) are represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In 1974 the applicant bought a house together with the underlying plot of land which was formally 10 m wide and 40 m long. 5. By a letter of 19 February 2002 the Head of Kanaker-Zeytun District Council, apparently in reply to an inquiry made by a private law firm, informed the person concerned that, following an on-site examination, it had been established that, according to the relevant plan, the applicant’s plot of land measured 400 sq. m, but in reality it measured only 395.3 sq. m, not including the walls, and 397.7 sq. m, if including the walls. The width of the plot at the front was 10 m, while the middle part, about 14 m along, was only 9.67 m wide. It was also established that the owners of the neighbouring houses had seized part of the applicant’s plot of land: 4.8 sq. m, not including the walls, and 2.3 sq. m, if including the walls. 6. On an unspecified date the applicant instituted proceedings before the Arabkir and Kanaker-Zeytun District Court of Yerevan against his neighbours, claiming that they had built certain constructions encroaching on his plot of land, and seeking to recover his property. 7. During the court examination of the claim it was established that the constructions in question were the neighbours’ houses which were owned by them. 8. On 21 March 2002 the Arabkir and Kanaker-Zeytun District Court of Yerevan partially granted his claim. 9. On 11 September 2002 the Civil Court of Appeal dismissed his claim in full. 10. On 25 October 2002 the Court of Cassation quashed this judgment and remitted the case. 11. On 2 December 2002 the Civil Court of Appeal, having re-examined the claim, decided to grant it. The court found that, according to the relevant property certificate and the plot’s plan, the applicant’s plot of land measured 10 x 40 m. However, as stated in the District Council’s letter of 19 February 2002, his neighbours had unlawfully seized part of that plot measuring 4.8 sq. m, not including the walls, and 2.3 sq. m, if including the walls. The court thus obliged the defendants to remove the unauthorised constructions and to return the unlawfully seized part of the plot of land according to the dimensions indicated in the letter of 19 February 2002. 12. No appeal was lodged against this judgment and it became final. A corresponding writ of execution was issued to the applicant on 19 December 2002. 13. On 14 March 2003 the applicant requested the Yerevan Division of the Department for the Enforcement of Judicial Acts (“the DEJA”) to institute enforcement proceedings. 14. On 19 March 2003 the bailiff decided to institute the relevant enforcement proceedings. On the same date the bailiff ordered the applicant’s neighbours to demolish the unauthorised constructions and to return the seized part of the plot of land to the applicant by 1 p.m. on 2 April 2003. 15. On 5 May 2003 the bailiff decided to impose on the neighbours a fine of 150,000 Armenian drams (approx. EUR 225) due to their failure to comply with the judgment. 16. On 16 May 2003 the bailiff instituted court proceedings, seeking to have this fine levied. 17. On 10 July 2003 the Arabkir and Kanaker-Zeytun District Court of Yerevan left the bailiff’s application unexamined due to his failure to appear. 18. On 16 July 2003 the bailiff decided to apply to the Civil Court of Appeal with a request to clarify the execution writ, stating that on 10 July 2003 the defendants had produced ownership certificates and argued that the constructions subject to demolition were not unauthorised. The bailiff decided to stay the enforcement proceedings until clarification was provided. 19. On 24 July 2003 the Court of Appeal dismissed this request, finding that the judgment of 2 December 2002 had clearly stated that, according to the District Council’s letter of 19 February 2002, the neighbours had unlawfully seized part of the applicant’s plot of land measuring 4.8 sq. m, not including the walls, and 2.3 sq. m, if including the walls, on which they had built unauthorised constructions which were to be removed. 20. On 27 October 2003 the bailiff decided to resume the enforcement proceedings. 21. On 19 December 2003 the head bailiff applied to the Kanaker-Zeytun District Council, requesting that the unauthorised constructions built by the defendants be pointed out on the spot. 22. By a letter of 24 December 2003 the Kanaker-Zeytun District Council informed the head bailiff that, in accordance with additional measurements taken by the employees of the District Council with the participation of the bailiff, no unauthorised constructions built by the neighbours were disclosed on the applicant’s plot of land. As to the letter of 19 February 2002, it referred to a land seizure of 2.30 sq. m at the rear of the plot of land which was separated by an uncemented fence that could have been removed. 23. On 25 December 2003 the bailiff decided to discontinue the enforcement proceedings on the ground that, as a result of additional measuring, no unauthorised constructions and land seizure had been disclosed in the disputed area and that the unauthorised constructions referred to in the execution writ were the neighbours’ flats. 24. On an unspecified date the applicant complained about the bailiff’s decision to the courts claiming that the judgment of 2 December 2002 had not been complied with and seeking to annul the bailiff’s decision and to resume the enforcement proceedings. 25. On 1 July 2004 the Ajapnyak and Davtashen District Court of Yerevan granted the complaint, quashed the bailiff’s decision as being in contradiction to Section 41 of the Law on the Enforcement of Judicial Acts (“the Enforcement Law”) and ordered the reopening of the enforcement proceedings. 26. On 26 July 2004 the bailiff reopened the enforcement proceedings. 27. On 29 September 2004 the head bailiff applied to the Real Estate Registry, asking for additional measurements to be taken, with participation of specialists and bailiffs, in order to clarify the existence of unauthorised constructions built by the defendants and the dimensions of the seized land on the spot. 28. By a letter of 13 January 2005 the Head of the Arabkir District Division of the Real Estate Registry informed the bailiff that there were no unauthorised constructions and no unlawful land seizure on the applicant’s plot of land by his neighbours. 29. On 20 January 2005 the bailiff decided, based on the above letter, to discontinue the enforcement proceedings on the ground that there were no unauthorised constructions and no unlawful land seizure at the address in question. 30. On an unspecified date the applicant contested this decision before the courts. On 15 March 2005 the Ajapnyak and Davtashen District Court of Yerevan quashed the bailiff’s decision on the ground that the bailiff had failed to enforce in substance the judgment of 2 December 2002 and that his actions were in violation of Section 41 of the Enforcement Law. 31. On an unspecified date the bailiff lodged an appeal. 32. On 8 July 2005 the Civil Court of Appeal upheld the judgment of the District Court. 33. On 21 March 2006 the bailiff, based on the judgment of the Civil Court of Appeal, reopened the enforcement proceedings. 34. On 3 July 2006 the Head of the Kanaker-Zeytun District Council, upon a request lodged by the bailiff on 22 June 2006, informed the latter that, in accordance with the examination carried out by the Council’s officials, the actual size of the houses built by the applicant’s neighbours on their plots of land corresponded to that indicated in their ownership certificates. 35. On 12 July 2006 the Arabkir and Kanaker-Zeytun District Division of the Real Estate Registry, upon a request lodged by the bailiff on 22 June 2006, informed the latter that its officials had taken measurements of the applicant’s house and plot of land, as a result of which it was found that the actual position and size of the applicant’s house and the plot of land corresponded to the plan as indicated in the ownership certificate. 36. On 16 August 2006 the bailiff again requested the Civil Court of Appeal to provide clarification of the execution writ. 37. On 18 August 2006 the bailiff decided to stay the enforcement proceedings on this ground. 38. On 22 August 2006 the bailiff applied to the Civil Court of Appeal, seeking to clarify whether the enforcement proceedings were to be discontinued or terminated. 39. On 6 February 2007 the Court of Appeal dismissed this application. 40. On 29 March 2007 the bailiff decided to reopen the enforcement proceedings and to terminate them, finding that the uncemented construction (fence) built by the defendants without authorisation at the rear of the plot had been removed. 41. On an unspecified date the applicant contested before the courts the bailiff’s decision of 29 March 2007, claiming that it was in violation of Section 42 § 1 (1) of the Enforcement Law since the final judgment of 2 December 2002 had not actually been enforced. 42. On 18 May 2007 the Ajapnyak and Davtashen District Court of Yerevan dismissed the applicant’s complaint. The applicant lodged an appeal. 43. On 13 August 2007 the Civil Court of Appeal dismissed the applicant’s appeal. In doing so, the Court of Appeal made a reference to the District Council’s letter of 25 December 2003, according to which the land seizure concerned the uncemented fence which was no longer found to be present during a new on-site examination on 24 December 2003. Hence, the judgment of 2 December 2002 had in fact been enforced by that date. The bailiff’s decision to discontinue the enforcement proceedings was quashed on formal grounds, in particular, because the bailiff had not applied the correct legal provision for the termination of the enforcement proceedings, and not because the judgment had not been enforced. It would have been more correct to terminate the proceedings rather than to discontinue them. On 17 December 2007 the applicant lodged an appeal on points of law against the judgment of 13 August 2007. 44. The applicant did not submit any further information concerning the case. 1. The Law on the Enforcement of Judicial Acts 45. According to Section 3 § 1, the enforcement of judicial acts in Armenia is ensured by the Department for the Enforcement of Judicial Acts operating under the Ministry of Justice of Armenia. 46. According to Section 4, an execution writ issued according to a procedure prescribed by this Law shall provide grounds for taking enforcement measures. 47. According to Section 5 (as amended on 16 December 2005), enforcement measures include, inter alia, imposition of a fine for failure to comply with the bailiff’s decisions. 48. According to Section 34 §§ 1 and 2, the enforcement measures shall be executed within two months. This time-limit can be extended by two months by the Supreme Bailiff of Armenia. 49. According to Section 35 § 1, if the requirements contained in the execution writ are unclear the bailiff can apply to obtain clarification from the court which issued the writ. 50. According to Section 38 § 1, the bailiff has the right to stay the enforcement proceedings if he has applied to obtain clarification from the court which issued the execution writ. 51. According to Section 41, the bailiff shall discontinue the enforcement proceedings if (1) the judgment beneficiary requests that the execution writ be withdrawn; (2) it is impossible to locate the debtor or his property while all permissible measures taken by the bailiff and/or the beneficiary have proved vain; (3) the debtor has no property or sources of income which might be confiscated while all the permissible measures undertaken by the bailiff and/or the beneficiary and directed at discovering the debtor’s property have proved vain; and (4) the debtor’s property is not sufficient to meet the demands of the beneficiary; and (5) the enforcement activities, as required by the execution writ, have been concluded (this subparagraph was abolished on 16 December 2005). 52. According to Section 42 § 1, the bailiff shall terminate the enforcement proceedings if the execution writ has in fact been executed. 53. According to Section 62 (as in force at the material time), following the institution of enforcement proceedings the bailiff shall set a time-limit for the execution by the debtor of the execution writ obliging him to take certain actions. If no actions are taken within that time-limit, the bailiff shall impose on the debtor a fine and take other measures envisaged under Section 72 and ensure the enforcement of the execution writ by levying on the debtor three times the enforcement costs. 54. According to Section 72 § 1 and 72.1 § 1 (as amended on 6 October 2001), the deliberate non-compliance with the bailiff’s decision entails liability prescribed by law. Fines imposed by the bailiff shall be levied by a court judgment. 55. According to Article 206.5 (as amended on 11 September 2001), the deliberate non-compliance with the bailiff’s decision shall lead to the imposition of a fine between one hundred and two hundred times the fixed minimum wage. | 0 |
train | 001-100832 | ENG | SVK | ADMISSIBILITY | 2,010 | LOSKA v. SLOVAKIA | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | The applicant, Mr Pavol Lóška, is a Slovakian national who was born in 1937 and lives in Michalovce. The respondent Government were represented by their Agent, Ms A. Poláčková, who was succeeded in that function by Ms M. Pirošíková. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant receives an old-age pension. At the same time, he is still economically active as a self-employed entrepreneur. He has an ongoing dispute with the Social Security Administration (SSA) concerning the contributions he is required to make to the social security funds in his capacity as a pensioner who is self-employed. On 10 February 1999 the SSA quashed two decisions of 26 November 1998 and took four separate new decisions ordering the applicant to pay contributions for 1998 and 1999 and financial penalties for late payment of contributions for those years. The applicant's appeal was unsuccessful and the decisions were upheld by the SSA appellate body on 8 April 1999. Although the applicant could have challenged the decisions of 10 February 1999 by way of an administrative-law appeal to the courts, he did not do so. He nevertheless lodged an unsuccessful request, which had no suspensive effect, for a review by the public prosecution service, which was at the latter's discretion. The decisions of 10 February 1999 thus became final and binding. The SSA subsequently commissioned a judicial enforcement officer (súdny exekútor) to enforce the amounts due. The enforcement was authorised by the Michalovce District Court (Okresný súd) on 14 March 2000. The enforcement was to be carried out in the form of deductions from the applicant's old-age pension. On 18 April 2000 the applicant challenged the enforcement by way of an appeal (námietka). He contended mainly that the decisions of 10 February 1999 had been flawed by numerous mistakes in calculation and formal irregularities. On 2 January 2001 the SSA quashed the decisions of 10 February 1999 upon an extraordinary review outside the framework of the appellate procedure in so far as they concerned the contributions and penalty for the year 1998. The SSA informed the judicial enforcement officer accordingly and advised him that all that remained to be enforced were the decisions concerning the contributions and penalty for 1999. On 26 November 2002 the District Court dismissed the applicant's enforcement appeal, observing that it was aimed at substantive elements of the enforced decisions while the review of such elements fell within the framework of the appellate procedure and outside the scope of the enforcement procedure. No mention was made of the decision of 2 January 2001 to quash the decisions of 10 February 1999 concerning the year 1998. The written version of the decision of 26 November 2002, which was not subject to appeal, was mislaid and only came to the attention of the judicial enforcement officer on 27 August 2004. Meanwhile, on 7 May 2003, the Constitutional Court (Ústavný súd) had declared the applicant's complaint under Article 127 of the Constitution that the decision of 26 November 2002 was arbitrary, unfair and wrong and that the procedure leading to it was unfair, inadmissible on account of the lack of legal representation, which was mandatory. The Constitutional Court took that decision having previously dismissed the applicant's request for legal aid on the ground that his complaint had no prospect of success. By 3 August 2004 the applicant had paid the entire amount due under all the decisions of 10 February 1999. The amount corresponding to the decisions concerning the year 1998 was later returned to him. Consequently, the enforcement proceedings were discontinued on 7 September 2004. | 0 |
train | 001-57807 | ENG | FRA | CHAMBER | 1,993 | CASE OF DOBBERTIN v. FRANCE | 3 | Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings;Costs and expenses partial award - domestic proceedings | Feyyaz Gölcüklü;John Freeland;N. Valticos;R. Pekkanen | 8. At the time of his arrest Mr Rolf Dobbertin was a national of the German Democratic Republic. He was a plasma physicist and was working in Paris as a research assistant under contract to the French National Scientific Research Centre (CNRS). 9. On 19 January 1979 he was arrested at his home by the police and held in police custody until 25 January 1979, when he appeared before the investigating judge at the National Security Court (Cour de sûreté de l’Etat), who charged him with being in communication with agents of a foreign power, namely the German Democratic Republic, remanded him in custody and issued a letter of request (commission rogatoire). 10. Between 25 January 1979 and 20 March 1980 the investigating judge questioned the applicant on nineteen occasions. Between 21 March 1980 and 18 June 1981 he issued several requests for evidence to be taken on commission by the French Intelligence Service (DST) and made orders for on-the-spot judicial inspections. He also further questioned the applicant by way of recapitulation. On 22 May 1981 he forwarded the file to the principal public prosecutor. 11. On 18 June the Prime Minister issued a decree indicting Mr Dobbertin. Shortly afterwards, however, the proceedings were transferred to the Paris Court of Appeal pursuant to Law no. 81-737 of 4 August 1981 abolishing the National Security Court, section 6 of which provided: "... Cases pending before the National Security Court shall be transferred on the date of commencement of the present Law [15 August 1981] to the appropriate ordinary courts ... ..." On 28 August 1981 the principal public prosecutor at the Court of Cassation requested that court to commit the applicant for trial by the Paris Military Court. On 19 September 1981 the Criminal Division so decided on the basis of section 1 of the aforementioned Law, which provided: "... ... where the offences being prosecuted amount to the crime (crime) of treason or espionage or to some other breach of national security and there is a risk of a defence secret being divulged, the Principal Public Prosecutor at the Court of Cassation shall ... ask the Criminal Division to remove the case from the investigating judicial authority or court of trial and transfer it to the military judicial authority of the same kind and level which has territorial jurisdiction and which shall proceed in the manner, and according to the procedure, laid down in the Code of Military Justice ..." 12. On 14 January 1982 the accused received a summons to appear on 25 January 1982. The hearing was postponed, however, and in an order of 2 February, made on an application by the Government Commissioner, the President of the Military Court directed that further inquiries into the facts should be made. The investigating judge in charge of the case issued several letters of request and corresponded with various civil and military authorities in order to determine the importance and scientific value of the documents that Mr Dobbertin had passed on to the East German secret service. The further inquiries into the facts were completed on 25 November 1982. 13. The file, however, was automatically forwarded to the office of the principal public prosecutor at the Paris Court of Appeal, because on 1 January 1983 there came into force Law no. 82-621 of 21 July 1982 on the judicial investigation and trial of military offences and those involving national security; section 1, first sub-paragraph, of that Law abolished the military courts in peacetime and provided that offences coming within their jurisdiction would henceforth be dealt with by the ordinary courts. The object was to enable the Indictment Division of the Paris Court of Appeal, once it had ruled on the lawfulness of the proceedings and determined the legal classification of the offences charged (Article 215 of the Code of Criminal Procedure), to commit the applicant for trial at the Paris special Assize Court, composed of seven judges, one of whom presides (Articles 697 and 698-6). 14. On 3 March 1983 the Principal Public Prosecutor at the Paris Court of Appeal brought the case before the Indictment Division. 15. In a judgment of 23 March 1983 the Indictment Division ordered the applicant’s release under judicial supervision and on bail of 150,000 French francs (FRF). Mr Dobbertin was unable to pay this until 9 May 1983, when he regained his freedom. 16. On 11 March 1983 his counsel had filed pleadings. They relied on Articles 5 and 6 (art. 5, art. 6) of the Convention and complained in particular of the unlawfulness of: (a) the proceedings in the National Security Court, because of the length of the police custody and the status of the investigating judge; (b) the proceedings in the Paris Military Court, on account of its lack of independence and impartiality; and (c) the pre-trial detention, in view of its length. In a second judgment on 23 March 1983 the Indictment Division held that it had no jurisdiction to commit Mr Dobbertin for trial at the Assize Court as the indictment had been in existence since 18 June 1981, when the Prime Minister had issued a decree concerning the applicant (see paragraph 11 above), and it did not have to be renewed since the legislature had expressly validated process and decisions dating from before the entry into force of the Laws of 4 August 1981 and 21 July 1982. It reached the same conclusion in respect of the pleas of nullity based on the Convention. 17. On 14 June 1983 the Criminal Division of the Court of Cassation, allowing an appeal on points of law by the principal public prosecutor at the Paris Court of Appeal, set aside that judgment for the following reason: "While section 6 of the Law of 4 August 1981 and section 14 of the Law of 21 July 1982 lay down that all process, formalities and decisions dating from before the entry into force of the relevant Law shall remain valid, these transitional provisions in no way alter the rules applicable in the courts to which jurisdiction has been transferred." On the other hand, it held that the appeal on points of law brought by the applicant was inadmissible. Mr Dobbertin had filed pleadings reproducing the complaints set out in the Indictment Division but had not lodged them through counsel, and legal representation was compulsory in the Court of Cassation except for applicants convicted under the criminal law. It remitted the case to a differently constituted bench of the Indictment Division of the Paris Court of Appeal. 18. Mr Dobbertin again sought to have the proceedings declared null and void, but without success. In a judgment of 9 December 1983 the Indictment Division committed him for trial at the Paris special Assize Court and rejected the plea based on Article 5 para. 3 (art. 5-3) of the Convention. 19. On 6 March 1984 the Court of Cassation upheld that decision on the point in issue but set it aside for failure to comply with Article 157 of the Code of Criminal Procedure, an essential provision that was mandatory as a matter of public policy; the Indictment Division had omitted to declare null and void an order made by the investigating judge on 20 May 1979 in which he had appointed translators without giving reasons for choosing ones who were not on a list of official experts. 20. The case having been remitted to it, the Indictment Division on 20 July 1984 reached the same decision as it had on 9 December 1983. It held, notwithstanding the prosecution’s submissions to the contrary, that translations made by qualified people were not expert opinions, despite the terms used by the investigating judge, and that accordingly the failure to comply with the rules on expert opinions did not give rise to a nullity. It again committed the applicant for trial at the Paris special Assize Court. 21. On a further application by Mr Dobbertin, the Court of Cassation, sitting as a full court, gave judgment on 19 October 1984. It set aside the Paris Court of Appeal’s judgment and remitted the case to the Versailles Court of Appeal. 22. On 14 May 1985 the Versailles Court of Appeal quashed the order of 20 May 1979 commissioning experts (Article 206 of the Code of Criminal Procedure) and various procedural steps and ordered that a number of documents should be withdrawn from the file. It sent the case to one of the investigating judges at the Versailles tribunal de grande instance with instructions that he should continue the investigation. 23. On a further appeal on points of law by the applicant, the Criminal Division of the Court of Cassation gave judgment on 29 October 1985. It set aside the judgment of the Versailles Court of Appeal and remitted the case to the Indictment Division of the Amiens Court of Appeal, stating that if the latter found there was sufficient evidence against the accused, it should commit him for trial at the Paris special Assize Court. The judgment was served on Mr Dobbertin on 16 December 1985. 24. On 20 January 1986 the principal public prosecutor at the Amiens Court of Appeal asked the Indictment Division to declare null and void certain procedural documents (notably records of the interviews at which the applicant was questioned, letters of request and the documents relating to their execution, various reports and applications and, more especially, nearly all the translations of the documents in German that were communicated on 3 April 1979 by officers from the Intelligence Service); to order that they should be withdrawn from the file; and to appoint an investigating judge from the judicial district of the Amiens Court of Appeal to continue the investigation. On 20 February 1986 Mr Dobbertin lodged pleadings in which he sought to have the proceedings quashed on the grounds that they had contravened Articles 10, 6 and 5 (art. 10, art. 6, art. 5) of the Convention, and asking for a declaration that the evidence admitted did not correspond to the crime of being in communication with a foreign agent, which was a punishable offence under Article 80 para. 3 of the Criminal Code. 25. In a judgment of 15 April 1986 the Indictment Division quashed most of the proceedings that had taken place after the order of 20 May 1979 commissioning experts and decided to forward the file to the first investigating judge at the Amiens tribunal de grande instance. It refused the request made in the applicant’s pleadings that it should consider the legal classification of the offences and the question of what evidence there was, on the ground that only the judicial investigation could enable an assessment to be made of these. The complaints based on the Convention were dismissed. The question whether there had been a violation of Article 10 (art. 10) depended on the outcome of the investigation; Article 6 (art. 6) did not apply to proceedings before an indictment division; and the Court of Cassation had already dismissed the complaint under Article 5 para. 3 (art. 5-3), on 6 March 1984. 26. Mr Dobbertin appealed on points of law and asked the Court of Cassation to hear the appeal immediately. In an order of 31 July 1986 the President of the Criminal Division refused that request, holding that neither public policy nor the proper administration of justice required the hearing to be expedited; he also considered that there was no ground for allowing the appeal as matters stood. 27. On 22 December 1986 the case file was therefore sent to the first investigating judge at Amiens. On 13 February, 27 March and 30 November 1987 he gave an expert at the Amiens Court of Appeal a total of 146 documents to translate. On 5 March and 28 August 1987 he gave an expert at the Besançon Court of Appeal 641 other documents to translate, together with a number of handwritten reports. The applicant was questioned by him on 1 February, 22 March and 18 April 1988, and on 11 May the judge issued a letter of request to the Intelligence Service. 28. On 24 April 1988 Mr Dobbertin asked the Indictment Division to take certain investigative measures, to limit the scope of the further inquiries into the facts and to quash a letter of request of 14 April 1982 and the record of the interview for questioning held on 1 February 1988. On 6 September 1988 the Indictment Division declared the application inadmissible, since it considered that as matters stood it was impossible to reach a judicial decision on any of the requests in it. 29. On 9 May 1989 the Indictment Division recorded that the case file had been lodged with the registry after completion of the further inquiries into the facts, and on 19 September 1989 it committed the applicant for trial at the Paris special Assize Court (see paragraph 23 above). Mr Dobbertin appealed on points of law against both these judgments, but the Court of Cassation dismissed the appeals on 4 January 1990. 30. Mr Dobbertin appeared before the Assize Court on 13, 14 and 15 June 1990, and on the last-mentioned date he was convicted and sentenced to twelve years’ imprisonment. 31. On 27 December 1990 the Indictment Division of the Paris Court of Appeal decided to release him under judicial supervision. 32. On an application by Mr Dobbertin, the Criminal Division of the Court of Cassation, giving judgment on 6 March 1991, set aside the Assize Court’s judgment of 15 June 1990. It remitted the case to a differently constituted bench of the Paris special Assize Court, which on 29 November 1991 acquitted the applicant. The prosecution did not appeal within the five-day period laid down in Article 568 of the Code of Criminal Procedure. | 1 |
train | 001-81654 | ENG | RUS | CHAMBER | 2,007 | CASE OF TELYATYEVA v. RUSSIA | 4 | Violation of Art. 6;Violation of P1-1 | Christos Rozakis | 4. The applicant was born in 1967 and lives in Arkhangelsk. 5. On 20 January 2004 the Kotlas Town Court upheld the applicant's action against the Kotlas Town Council and ordered that the Council should: “...provide Ms Yuryevna Telyatyeva Svetlana, whose family comprises one member, with separate well-equipped living premises that meet sanitary and technical requirements, situated in the town of Kotlas, having a living surface of no less than 12 square metres”. The judgment was not appealed against and became final. 6. On 6 February 2004 enforcement proceedings were instituted. On 28 July 2005 the bailiffs' office informed the applicant that the judgment of 20 January 2004 remained unenforced because the administration had no available housing or financial resources to purchase a flat. 7. The judgment of 20 January 2004 was enforced on 12 January 2006 when the applicant was provided with a flat measuring 15 square metres. | 1 |
train | 001-4619 | ENG | SWE | ADMISSIBILITY | 1,999 | TORUNLAR v. SWEDEN | 4 | Inadmissible | Gaukur Jörundsson;Josep Casadevall | The applicant is a Turkish national, born in 1961 and presently residing in Eskişehir, Turkey. The applicant lived in Sweden between December 1991 and March 1998. On 17 June 1992 he was granted a residence permit based on the fact that he had married a Swedish woman, A.T. They have a daughter, born in 1992, and a son, born in 1993. On 15 June 1994 the applicant was granted a permanent residence permit. On 5 December 1995 the applicant was sentenced to two months in prison for having threatened A.T. (olaga hot) and obstructed the course of justice (övergrepp i rättssak) in May 1995. On 29 January 1996 he was convicted of nine counts of threatening behaviour and three counts of obstruction of justice committed in June - August 1995. The threats were directed against A.T. and members of her family. The applicant received a ten months’ prison sentence. He was released on probation on 28 July 1996. On an unspecified date the applicant and A.T. divorced. It appears that A.T. has custody of the children. After his release from prison the applicant had contacts with the children every Saturday or Sunday at A.T.’s home. By a judgment of 23 July 1997 the District Court (tingsrätten) of Helsingborg sentenced the applicant to ten months’ imprisonment, ordered his expulsion from Sweden and prohibited him from returning before 23 July 2002. The court found that, on 20 June 1997, the applicant had turned up at A.T.’s home and had assaulted and threatened A.T. and guests she had invited to a party. As a result of the assault, A.T. had facial injuries and a broken nose. The applicant was found guilty also of criminal damage (skadegörelse). As regards the applicant’s expulsion, the District Court made the following conclusions: (Translation) “The crimes in question are such that it is possible to expel the applicant under Chapter 4, Section 7, second sentence, first paragraph of the Aliens Act [Utlänningslagen]. However, Chapter 4, Section 10 of the Aliens Act requires that there be special reasons for the expulsion as, at the time of the indictment, he had been living in Sweden for more than five years. [The applicant] has not established himself in the Swedish labour market. For the third time in two years, he has committed crimes against the persons representing his only connection to Sweden. Further, his crimes seem to have become more serious. Also his children have been indirectly affected by his criminal acts. It appears that the contacts with the children will be very limited in the foreseeable future even if [the applicant] remains in Sweden. In weighing the circumstances in favour of and against expulsion, the District Court finds that there are special reasons for expelling [the applicant] from Sweden. ...” On 17 September 1997 the Court of Appeal (hovrätten) of Skåne and Blekinge upheld the District Court’s judgment. On 20 October 1997 the Supreme Court (Högsta domstolen) refused the applicant leave to appeal. Later the applicant requested the Government to exercise its power under Chapter 7, Section 16 of the Aliens Act to annul the expulsion order. By a decision of 12 February 1998 the Government rejected the request. On 4 March 1998 the applicant was released on probation and expelled to Turkey. | 0 |
train | 001-22415 | ENG | GBR | ADMISSIBILITY | 2,002 | SPATH HOLME LTD v. THE UNITED KINGDOM | 4 | Inadmissible | Nicolas Bratza | The applicant is a corporate body registered in England and Wales. It is represented by before the Court by Willan Bootland White solicitors of Manchester. The applicant is the freehold owner of a purpose-built block of flats, which it constructed in 1963 in Manchester. Twelve of the flats are regulated by the Rent Act 1977 (see below). The current system of rent control in the United Kingdom dates back to 1915. Early provisions intended to protect tenants from high rents had the effect of reducing the amount of accommodation available for private letting, with the result that a series of Rent Acts, culminating in the Rent Act 1977 (“the 1977 Act”) were passed in an attempt to revitalise the market by way of a system of “fair rents” calculated in accordance with statutory criteria. In default of agreement of a “fair rent” by the parties to a regulated tenancy agreement, a rent assessment is carried out, in the first instance, by rent officers, who do not need to give reasons for their decisions. An appeal lies first to rent assessment committees, who give written reasons upon request, and thereafter on a point of law to the High Court. Once a “fair rent” has been assessed by a rent officer or rent assessment committee, it will be registered and constitutes the maximum recoverable rent for the regulated tenancy concerned. No application for registration of a different rent may be made for a further two years. However, the absence of an open market in private letting following the 1977 A ct, combined with a period of high inflation, had the effect that “fair rents” as set by rent officers and rent assessment committees lost pace with inflation, to the disadvantage of landlords. The Housing Act 1988 (“the 1988 Act”) sought to stimulate the market by creating assured and assured-shorthold tenancies, at rents to be negotiated between individual landlords and their tenants. Regulated tenancies under the 1977 Act continued to exist, but no new regulated tenancies were to come into existence. The number of such tenancies steady fell from around fifty-nine per cent of private tenancies in the United Kingdom in 1988 to approximately ten per cent in 1998/9. The creation of an open market provided rent officers and rent assessment committees with a new comparator on which to rely when calculating “fair rents” under the 1977 Act. However, regional variations arose in the weight given to open market rents when calculating “fair rents”, with the result that in some areas, including Manchester, the gap between registered “fair rents” and open market rents increased to the point where the former were at a level of about half the latter. This led landlords in those areas to challenge the “fair rent” assessments concerned and, in 1995 (in the case of Spath Holme Ltd v. The Greater Manchester & Lancashire Rent Assessment Committee [1995] 28 HLR 107) and again in 1997 (in the case of Curtis v. London Rent Assessment Committee [1999] QB 92), the Court of Appeal held that market rents should be awarded greater weight when calculating “fair rent” in those areas. A consequence of these decisions was that tenants whose rents had previously been registered at levels well below the open market level suffered very sharp and unexpected rent increases. The Government issued a consultation paper entitled “Limiting Fair Rent Increases” in May 1998 setting out various options as to how to address this new problem. Following public consultation in which a number of landlords’ organisations, as well as individual landlords, made representations, the Government adopted the option most favourable to tenants, namely the making of an order (the Rent Acts (Maximum Fair Rent) Order 1999 (“the Order”)) applying a maximum index-linked limit to most increases in “fair rents” registered under the 1977 Act (the exception applying in cases where rental value had increased significantly due to works carried out by the landlord). The effect of the Order was to cap increases in “fair rents” at a level between 5 and 7.5 per cent above inflation. The Order was made under section 31 of the Landlord and Tenant Act 1985 (“the 1985 Act”), sub-section (1) of which states: “The Secretary of State may by order provide for- (a) restricting or preventing increases of rent for dwellings which would otherwise take place, or (b) restricting the amount of rent which would otherwise be payable on new lettings of dwellings; and may so provide either generally or in relation to any specified description of dwelling.” The applicant sought judicial review of the Order on grounds, inter alia, that it was ultra vires as (i) being beyond the purposes for which the enabling power under the 1985 Act had been intended; (ii) having failed to take account of all relevant considerations; and (iii) being unreasonable and disproportionate. The Court of Appeal granted judicial review on the first ground only and thus declared the Order ultra vires (R v. Secretary of State for the Environment, Transport and the Regions ex parte Spath Holme Ltd [2000] 3 WLR 141). The Secretary of State’s appeal was allowed by the House of Lords, which found the Order to have been made in proper exercise of the powers conferred by the 1985 Act ([2001] 2 WLR 15). Lord Bingham of Cornhill, delivering the leading judgment in the House of Lords, stated: “I do not find, studying the language of section 31, that it is in any way ambiguous or obscure, or such as to lead to absurdity if given its full apparent effect. But Mr Bonney [counsel for the applicant] is correct in his submission that the language is, on its face, very broad. It applies to lettings of dwellings of every kind, no matter who is the landlord or what the nature of the tenancy ... ; it places no limit on the restrictions which the minister may impose on rental payments; it provides only for annulment on negative resolution; and it gives no indication of the circumstances in which Parliament contemplated that the order-making power should be exercisable. One learns only, from the sidenote and the reference in section 32(3), that this is a reserve power, which indicates that it is not a power to be exercised very readily or routinely. ... I have no doubt that clear and unambiguous words should be used if the citizen is to be deprived of his property without compensation and any reasonable doubt should be resolved in his favour. But a power to restrict or prevent increases of rent which would otherwise take place or restrict the amount of rent which would otherwise be payable on a new letting must of necessity deprive the landlord of rent which he would, but for the minister’s order, receive. The words used are capable of no other construction. ... Any measure restricting rents, or prices or charges of any kind, must have the effect of depriving the recipient of what he would otherwise receive, but the European Court of Human Rights has respected the need for national authorities to strike a balance between the rights of individuals and the general interest of the community. This would appear to be such an instance. ... Landlords did indeed have strongly arguable grounds for resisting the government’s proposal, but it cannot be said that their interests were ignored. In the annex to the consultation paper the object of the proposed measure was said to be “to slow down the rate at which fair rents are increasing for tenants but nevertheless to ensure that there is no disproportionate impact on landlords”. Under the heading “Issues for equity or fairness”, the question was posed “is it fair to landlords to change the fair rent system which was left intact when the Housing Act 1988 was introduced and which they would not have expected to be changed subsequently”. Having posed the question it cannot be thought that ministers ignored the landlords’ answer, disappointed though landlords may be that it was not given greater weight. Some of the ministerial statements on this subject could have been more felicitously expressed. But the problem of sharp and unexpected rent increases had indeed arisen despite the fair rent regime, since that regime had been in force throughout and the increases would not have occurred had it been faithfully implemented in all areas from the beginning. Ministers did not suggest that the Court of Appeal decisions which had brought the reluctant rent officers and rent assessment committees into line had not given true effect to the fair rent legislation, nor that the general law should be changed. But it was the case that what ministers considered a serious social problem had arisen, even if it should not have arisen, and their observations are readily understandable in that context. I see nothing to suggest that the ministers had misconceived the source of the problem. ... It is an enduring and intractable problem of social policy that those who need relief cannot always be helped without giving relief to those that do not need it. Housing benefit is means-tested, and the allocation of public resources is a matter for ministers, not courts. The hardship which the order imposed on landlords was a very relevant consideration, but it was for ministers to judge where the balance between the competing interests of landlords and tenants should be struck. It was not unreasonable to provide that the maximum recoverable rents should be the rents registered. The timing and scope of the Order were matters on which the ministers had to form a judgment, and their judgment cannot be stigmatised as perverse. There was no breach of the European Convention: the European Court of Human Rights has recognised the need for a wide measure of discretion in the implementation of policy in this field, as shown by Mellacher v. Austria (1989) ... . Any actions the ministers took, or any failure by the ministers to take action, were bound to be bitterly resented by those who were disadvantaged as a result. That does not mean that the action which the ministers did take in making the Order was unreasonable, unfair or disproportionate, disadvantageous to landlords though it certainly was.” | 0 |
train | 001-57946 | ENG | ESP | CHAMBER | 1,995 | CASE OF VAN DER TANG v. SPAIN | 3 | Preliminary objection rejected (ex delicto non oritur actio);No violation of Art. 5-3 | null | 7. Mr Antonius Adrianus van der Tang was born in 1959 and lives in Haarlem in the Netherlands. At the material time he worked as a lorry driver. 8. In the early morning of 26 May 1989 Mr van der Tang was arrested by the police (Guardia Civil) in Bayona, Galicia, on the north-west coast of Spain. He was found driving a lorry which contained 1,300 kg of hashish. The lorry belonged to the applicant. He was also found in possession of a pistol with its serial number chiselled off and of a radio pre-tuned to a station which coincided with that of another set found later in the possession of Luciano Núñez, who was also arrested (see paragraph 32 below). At least eight more people were subsequently detained for allegedly being involved in a three-stage operation to deliver about 7,000 kg of hashish. 9. According to the applicant's statement to the police, made with the assistance of a lawyer and an interpreter on 26 May 1989, an unknown person had approached him sometime in March and again in May 1989 and offered him 20,000 Netherlands guilders to transport 1,300 kg of "dope" (droga) from Bayona to the Netherlands. After some hesitation Mr van der Tang had finally accepted. Late in the evening of 25 May 1989, following the unknown person's instructions, he had taken his truck to Bayona, where another man had loaded the drugs and then gone away. The applicant had only been driving for about ten minutes when he was arrested. This statement was confirmed by the applicant on 27 May 1989 before the relevant judicial authority (see paragraph 34 below), Vigo investigating judge no. 1, who then ordered Mr van der Tang's detention pending trial (auto de prisión). Basing his decision on sections 503 and 504 of the Code of Criminal Procedure (Ley de Enjuiciamiento Criminal, "LECrim" - see paragraphs 42 and 43 below), the judge held that there was sufficient reason to believe that the applicant was criminally responsible for the commission of a public-health offence. According to the applicant, the other persons detained, all Spanish nationals, were unconditionally released. On 12 June 1989 Mr van der Tang made a written statement to Vigo investigating judge no. 1 in which he explained that, contrary to his previous statements, he had not known that he was transporting drugs at the time of his arrest. He had thought the consignment was tobacco but had said drugs because of the pressure put on him and language difficulties. 10. In an order of 18 November 1989 (auto de procesamiento) investigating judge no. 1 decided that the available evidence was sufficient to charge the applicant with an offence against public health (sections 344 and 344 bis (a) of the Criminal Code - see paragraphs 37 and 38 below) and unlawful possession of a firearm (section 254 of the Criminal Code - see paragraph 39 below). The applicant's detention was confirmed. An appeal by the applicant against this order appears to have been dismissed. 11. On 25 September and 22 November 1989 Mr van der Tang lodged with investigating judge no. 1 his first applications for provisional release. Arguing that he had throughout been unaware of the real nature of the consignment, he insisted that he was not involved with any drug-trafficking organisation. He further complained that during his four-month detention he had only been questioned twice by the judge - in May and June 1989 - and was the only person still held in custody despite the relatively minor character of his offence. Mr van der Tang also undertook to comply with any conditions attached to his release. These applications were rejected on 9 October and 25 November 1989 respectively by means of orders not containing reasons. 12. A similar application for provisional release followed on 22 December 1989 and was rejected on 27 December 1989 by an auto (reasoned decision). The ground for the decision was the seriousness of the offences - illegal possession of a firearm and drug trafficking in large quantities; the second offence in itself attracting a prison sentence of "prisión menor en su grado medio" (that is, from two years, four months and one day to four years and two months). 13. By an order of 19 April 1990 (auto de conclusión del sumario) the applicant was committed for trial. 14. Further applications for provisional release were addressed to the Audiencia Provincial in Pontevedra (see paragraph 34 below) on 20 April, 28 May, 19 July and 5 September 1990. On 21 September 1990 the Pontevedra public prosecutor (Ministerio Fiscal) stated that he would not oppose the applicant's release provided that he paid security of 500,000 pesetas, handed in his passport and reported daily to the police. However, on 26 September 1990 the Audiencia Provincial refused the applications for release, briefly stating: "The original circumstances on which the detention pending trial was decided remain unchanged" (see paragraph 45 below). The applicant then requested the Audiencia Provincial to reconsider its decision, complaining, inter alia, that several co-detainees in respect of whom the prosecution was seeking sentences of up to ten years' imprisonment had obtained conditional release upon payment of only 200,000 pesetas. In the applicant's submission, only the fact of his being a foreigner seemed to account for his long period of detention. On 9 October 1990 the Audiencia Provincial declined to reconsider its decision. 15. In the course of 1989 the Spanish authorities had launched a nationwide operation (Operación Nécora) to combat a large-scale drug-trafficking organisation which operated mainly in Galicia. Central investigating judge no. 5 in the Audiencia Nacional, Madrid (see paragraph 35 below), was put in charge of the overall investigation. The applicant's case was considered to be closely linked with other files relating to Nécora and was therefore transferred to Madrid on 29 October 1990. The Audiencia Provincial had heard the parties beforehand; the applicant's lawyer did not make any submissions (see paragraph 36 below). 16. On 8 January 1991 central investigating judge no. 5 issued an order (auto de procesamiento) whereby new charges were added against the applicant without any alteration to the established facts. He was now charged not only with an offence against public health and unlawful possession of a firearm of foreign origin (see paragraph 10 above) but also with smuggling and criminal association (sections 173 and 174 of the Criminal Code). An appeal by the applicant against these orders which included a request for release was eventually rejected on 8 July 1991 by the Third Criminal Division of the Audiencia Nacional. The grounds for the decision not to release the applicant were the seriousness of the alleged offences, considerations of public order and the high risk of absconding on account of the applicant's foreign nationality. 17. On 19 November 1990 the applicant had lodged a fresh application for release with investigating judge no. 5 in which he repeated arguments adduced earlier and additionally submitted that the transfer of his case to Madrid would inevitably mean that his trial would be further delayed. The public prosecutor opposed the applicant's release, and on 30 November 1990 central investigating judge no. 5 decided to continue the applicant's detention in view of the available evidence, the nature of the offence and its seriousness, the prison sentence that it would attract, the extent of the applicant's involvement and the likelihood of his absconding. Mr van der Tang challenged this in the Third Criminal Division of the Audiencia Nacional. In his appeal the applicant submitted, inter alia, that as his alleged offence was wholly unconnected with the charges relating to drug trafficking, he could easily have been tried only thirty days after his arrest. He further submitted that, in any case, even if he were to be found guilty of the offences with which he was charged, he would already have served his sentence in detention pending trial (over two years). On 30 April 1991 the Audiencia Nacional dismissed the appeal, thereby confirming the investigating judge's decision. The applicant's subsequent constitutional complaint (recurso de amparo) was declared inadmissible by the Constitutional Court on 11 September 1991 on the ground that none of the issues raised by the applicant were of a constitutional nature. 18. In the meantime, in a telegram of 30 January 1991 addressed to central investigating judge no. 5, the applicant had renewed his application for release. The public prosecutor attached to the Audiencia Nacional requested that the applicant's detention be prolonged to the statutory maximum of four years (see paragraph 43 below). Mr van der Tang responded by offering to make a formal undertaking that he would reside in Vigo should his release be granted. On 6 March 1991 central investigating judge no. 5 decided to continue the applicant's detention and to adjourn any decision on the public prosecutor's request for its extension. 19. As Mr van der Tang's period of detention approached two years, the central investigating judge no. 5 decided on 22 May 1991, in accordance with section 504 (4) of the Code of Criminal Procedure (see paragraph 44 below) and after hearing the parties, that the maximum duration of the detention should be extended by two years. He based this decision on the seriousness of the charges and the sentence which could be imposed in the event of conviction. 20. On 19 February 1992 the central investigating judge no. 5 concluded the preliminary investigation. The case was sent to the Third Criminal Division of the Audiencia Nacional for trial. 21. On 29 April 1992 the applicant lodged a new application for release, this time with the Audiencia Nacional, which on 11 June 1992 allowed it subject to the following conditions: (a) the applicant was to pay in cash a security of 8 million pesetas; (b) he was to give an address and inform the court of any subsequent change; (c) he was to report daily to the police in Vigo; and (d) he was not to leave Spanish territory. The Audiencia Nacional gave the following reasons for its decision: "There is prima-facie evidence that ... the accused did not play a major role in any of the organisations concerned, as he merely transported the illegal substance in question, the nature of which also has to be taken into account by the court. The time that has elapsed since Van der Tang was placed in custody - over three years (he has been in detention far longer than any of the other defendants in this case) - means that it is possible to rule out his being able to conceal or suppress evidence. The period of time that has elapsed clearly - why not be frank about it? - owes much to ill fortune and the vicissitudes of the proceedings. He could have been tried in Galicia several months ago, when the Pontevedra public prosecutor did not oppose his provisional release. The same lapse of time, viewed in the context of the brief provisional summary of the facts, argues in favour of varying the order placing him in detention pending trial, relaxing the conditions of detention by making it possible to avoid it altogether, provided that the measures referred to in the operative provisions below are taken so as to ensure that he appears for trial. The court did not consider that the accused's foreign nationality constituted an insurmountable obstacle to reaching this conclusion, because other foreign defendants in the case are in fact not being held in detention. The court simply took the view that it was just another factor which, combined with the accused's lack of close ties with Spain, could lend support to the idea that he might be likely to seek to evade trial; but that cannot be presumed without additional evidence. Furthermore, this type of fear, which is always relative, cannot in such circumstances have the effect of inexorably making the accused serve in advance the sentence which may be imposed on him. This is particularly so as the accused has shown, at least to some extent, that he is able to remain on Spanish territory and obtain a contract of employment there which would enable him to engage in a lawful activity for the duration of the contract." 22. On 2 July 1992, in response to a request by the applicant for a reduction in the amount of the security, the Audiencia Nacional set it at 4 million pesetas either to be paid in cash or to be guaranteed by a bank. On 24 July 1992 the security was deposited by the applicant's wife, whereupon Mr van der Tang was released. 23. During his stay in Vigo prison, Mr van der Tang was of good behaviour and participated in several prison activities. He also worked as a clerk in the prison bursar's office. 24. On 9 October 1992, on an application by Mr van der Tang, the Audiencia Nacional gave him leave to report to the police only once a week and returned certain documents to him, including his driving licence. 25. On 12 November 1992 the applicant sought permission to travel to the Netherlands in order to spend Christmas with his family. This request was refused by the Audiencia Nacional on 24 November 1992 in view of the obvious risk of absconding. 26. On 23 December 1992 the applicant travelled by car from Spain to the Netherlands. 27. By letter of 5 January 1993 the applicant's Netherlands lawyer informed his Spanish lawyers that their client had left Spain and returned to the Netherlands, as he had no means of subsistence. The Netherlands lawyer requested them to secure a variation of the conditions on which release had been granted, in particular the obligation to stay in Spain. 28. In a letter of 7 April 1993 to the Spanish embassy in The Hague, the Netherlands lawyer proposed that Mr van der Tang should report weekly to the embassy. He further stated that his client intended to return to Spain in order to stand trial. The embassy answered by advising the applicant to contact the Audiencia Nacional. Neither the applicant nor his representatives appear to have contacted the Audiencia Nacional at this stage, nor do they seem to have informed that court of his new address. 29. Meanwhile, on 3 July 1992, the Audiencia Nacional had confirmed the investigating judge's decision to conclude the investigation (see paragraph 20 above), thereby ordering the opening of the trial (juicio oral). By that time the case file ran to more than 22,000 pages. On 15 July 1992 the public prosecutor made provisional indictment submissions (conclusiones provisionales) containing charges against fifty-two people. In respect of the applicant, the public prosecutor demanded a total prison sentence of fourteen years and a fine of 60 million pesetas in respect of an offence against public health (see paragraphs 37 and 38 below) and of unlawful possession of a firearm of foreign origin (see paragraphs 39 and 40 below). 30. In a summons of 10 June 1993 the applicant was ordered to appear before the trial court. However, the summons could not be served on him, as he no longer lived at the address he had originally given the Spanish authorities. On 9 July 1993 the police informed the court that the applicant's whereabouts were unknown. Thereupon the Audiencia Nacional ordered the applicant and his surety - his wife - to appear before it on 23 July 1993 at a hearing concerning the forfeiture of the bail. The applicant's Spanish lawyer filed an objection against this order, submitting, inter alia, that the applicant had had to leave Spain for a compelling reason, namely the terminal illness of his father, but that he had no intention of evading Spanish justice and would appear for trial. On 31 July 1993 the Audiencia Nacional, noting that the applicant had failed to comply with the conditions attached to his release, dismissed the objection and ordered his arrest. On 16 September 1993 the Audiencia Nacional declared that the applicant had failed to appear (rebeldía) and his security was forfeited. 31. The trial took place in Madrid from 20 September 1993 to 24 May 1994. Mr van der Tang did not attend it and could therefore not be tried pursuant to section 841 of the Code of Criminal Procedure. 32. On 27 September 1994 the Audiencia Nacional delivered a 529-page-long judgment. Luciano Núñez (see paragraph 8 above) was held to have played a leading role in importing very large quantities of hashish. He was accordingly sentenced to a total of thirteen years' imprisonment and a fine of 100 million pesetas. It does not appear from the facts set out in this judgment that the applicant was involved in drug-trafficking activities beyond the transporting of 1,300 kg of hashish for which he was arrested (see paragraph 8 above). 33. The Spanish authorities have not requested Mr van der Tang's extradition. 34. In ordinary cases the investigation of all types of offence falls to the investigating judge (juez de instrucción) in whose district the offence has been committed (section 14.II LECrim). Upon completion of the investigation, the investigating judge may, by means of an order (auto de conclusión del sumario y apertura del juicio oral - section 622 (1) LECrim) commit the accused for trial at the Audiencia Provincial in whose province the offence in question has been committed (section 14.IV LECrim). 35. Offences concerning drug trafficking that have been committed by "organised gangs or groups and affect various provinces" and any other connected offences come within the jurisdiction of the Audiencia Nacional in Madrid (section 65 (1) (e) and in fine of the Judicature Act - Ley Orgánica del Poder Judicial, "LOPJ"). In such cases investigation falls to the relevant central investigating judge (juez de instrucción central) attached to the Audiencia Nacional, likewise in Madrid (section 88 LOPJ). 36. Where the same facts are being examined by two courts, the one which considers that it has jurisdiction must ask the other to transfer the file to it (inhibitoria). In such cases the decision to transfer the file can only be taken after the parties have been heard (section 45 LOPJ) and is always final, no appeal being possible (section 49). 37. Under section 344 of the Criminal Code, "anyone who cultivates, manufactures or traffics in toxic or stupefying drugs or psychotropic substances or in any other way promotes, encourages or facilitates the unlawful consumption of them, or possesses them for such purposes", shall be liable to a term of imprisonment ranging from four months and one day to four years and four months (de arresto mayor en su grado máximo a prisión menor en su grado medio) and to a fine of 500,000 to 50 million pesetas, provided that the damage to health caused by the substances or products involved is not serious. Hashish is regarded as such a substance, as opposed to "hard drugs". 38. However, under section 344 bis (a) of the Criminal Code, the relevant term of imprisonment is substantially increased, ranging from four years, two months and one day to ten years, where: "3. ... the quantity of toxic or stupefying drugs or psychotropic substances ... is particularly large. ... 6. ... the offender belongs to an organisation, even a provisional one, that could have the aim of spreading such substances or products even on an occasional basis." 39. Under section 254 of the Criminal Code, the unlawful possession of a firearm, without the required licence, is punishable with imprisonment ranging from two years, four months and one day to four years and two months. 40. The term of imprisonment ranges from six years and one month to ten years where the firearms are of foreign origin and have been brought into Spanish territory illegally (section 255 (2) of the Criminal Code). 41. Article 17 of the Constitution secures the right to liberty and security of person and sets out the conditions under which a person's liberty may be restricted. By paragraph 4 of this provision, a habeas corpus procedure shall be provided for by law, which shall also determine the maximum duration of detention pending trial. 42. Under section 503 LECrim: "The following conditions must be satisfied for pre-trial detention to be ordered: 1. The commission of an act which may constitute an offence (delito) must have been established. 2. The offence must be punishable by more than six years' imprisonment (prisión menor) or, if the term of imprisonment is shorter, the judge must consider it necessary to remand the accused in custody in the light of his criminal record, the circumstances of the offence, the disturbance of public order it has caused or the frequency with which similar acts have been committed ... 3. There must be sufficient reasons to consider the person to be remanded in custody criminally responsible for the offence." 43. According to section 504 LECrim, detention pending trial shall not exceed one year where an offence is punishable with a term of imprisonment ranging from six months and one day to six years (prisión menor) and shall not exceed two years if the applicable sentence is more severe. 44. If, however, owing to certain circumstances the case cannot be tried within that period and there is a risk that the accused may evade justice, section 504 LECrim provides that detention pending trial may be prolonged up to two and four years respectively. A reasoned decision (auto) to this effect shall only be issued after the competent court has heard the accused and the public prosecutor. 45. Under section 528 (1) LECrim detention pending trial may last only as long as the original reasons remain valid. | 0 |
train | 001-58100 | ENG | CHE | CHAMBER | 1,997 | CASE OF R.M.D. v. SWITZERLAND | 3 | Preliminary objection joined to merits (non-exhaustion of domestic remedies);Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | N. Valticos | 6. Mr R.M.D., a Swiss national born in 1965, currently lives at Benglen in the Canton of Zürich, Switzerland. 7. On 13 January 1992, at the request of the Willisau district authority (Amtsstatthalteramt) in the Canton of Lucerne, the Zürich cantonal police arrested the applicant on a warrant issued by the district prosecutor’s office (Bezirksanwaltschaft) of Uster (Canton of Zürich) and held him in custody at Uster on suspicion of having committed several thefts and other offences in the cantons of Zürich, Lucerne, Berne and Aargau. 8. On 15 January 1992 his counsel applied to the Uster district prosecutor’s office for the applicant’s immediate release. In an order issued on the same day the district prosecutor’s office refused the application and sent it for review by the President of the Uster District Court (Bezirksgericht). On 17 January the investigating judge (Haftrichter) at that court declared that the application had become devoid of purpose as Mr R.M.D. had that day been transferred to the Canton of Lucerne and that there was accordingly no need to rule on the merits. 9. On 17 January 1992 the applicant was indeed transferred to Willisau. On the same day, the Willisau district authority ordered that the applicant be detained pending trial. 10. On 20 January 1992 the applicant’s counsel applied by telephone to the Willisau Prefect (Amtsstatthalter) to be appointed as the applicant’s lawyer and to be allowed to visit the applicant on 21 January. The Prefect replied that on 21 January Mr R.M.D. was to be transferred to Aarwangen in the Canton of Berne, at the request of the investigating judge in that canton. 11. On 21 January 1992 the applicant was transferred to Aarwangen to be interviewed by the investigating judge. His counsel was informed of this in writing by the Willisau Prefect on the same day. 12. The applicant’s counsel sought to challenge the decision to keep his client in detention at Aarwangen. However, the Aarwangen investigating judge informed him by telephone that he himself had not made any order for Mr R.M.D.’s continued detention pending trial as the order issued by the Willisau district authority on 17 January 1992 (see paragraph 9 above) was still valid. 13. On 24 January 1992 the applicant was transferred to the town of Glarus, in order to be interviewed by an investigating judge in connection with a burglary committed in the canton of Glarus. On the same day, the investigating judge ordered that the applicant remain in detention pending trial. 14. On 3 February 1992 the applicant was transferred to the town of St Gall. 15. On 21 February 1992 Mr R.M.D. was transferred to the town of Schwyz. 16. On the same day his counsel applied to the investigating judge in the Canton of Schwyz for his release, but the application was refused on 24 February. 17. On 25 February 1992 the applicant was transferred back to Uster. 18. On 26 February 1992 the Uster district prosecutor’s office ordered that he remain in detention. 19. On the same day, the applicant’s counsel applied to the Uster District Court for his release. That application was refused on 28 February. 20. On 3 March 1992 Mr R.M.D. was transferred to the town of Aarau. 21. On 4 March 1992 the Aarau prosecutor’s office ordered that he remain in detention. 22. On 13 March 1992 the applicant was once again transferred to Uster. 23. His counsel at once made a further application for his release, and he was released that same day. 24. On 23 January 1992 Mr R.M.D.’s counsel appealed to the Lucerne Court of Appeal (Obergericht) against the detention order issued on 17 January (see paragraph 9 above) and applied for his client’s immediate release. 25. On 27 January 1992 the Lucerne Court of Appeal struck out the appeal on the ground that it had become devoid of purpose because, as the applicant had been transferred on 21 January to Aarwangen and on 24 January to Glarus, the detention order made on 17 January had lapsed (dahingefallen). 26. On 31 January 1992 Mr R.M.D.’s counsel lodged a public-law appeal with the Swiss Federal Court against the judgment of the Lucerne Court of Appeal. He asked the Federal Court to quash the judgment of the Court of Appeal and to direct that court to rule on the merits and order his client’s immediate release. In his submission, the Court of Appeal’s refusal to consider the merits of the case had infringed the provisions of the Canton of Lucerne Code of Criminal Procedure, the Swiss Constitution and the Convention guaranteeing the applicant’s right to be given a fair trial, to have the lawfulness of his detention reviewed by a court and to be assisted by a lawyer. 27. On 12 February 1992 the Federal Court dismissed the applicant’s public-law appeal. It said, firstly, that the fact that the Court of Appeal had not considered the merits of the case had not entailed an infringement of the provisions of the Canton of Lucerne Code of Criminal Procedure: “The view can reasonably be maintained that the Court of Appeal no longer needs to consider the merits of an appeal against a detention order if the detention in the Canton of Lucerne ends during the appeal proceedings, either because the accused has been released or because he is detained in another canton and the detention in the Canton of Lucerne accordingly lapses. The Federal Court has proceeded in a similar manner: leaving aside exceptional cases, it will regard an appeal against detention as having become devoid of purpose and strike it out of its list if the applicant has been released during the Federal Court proceedings ... The justification it gives for this case-law is that in such a case there is no longer a live practical interest in securing a decision on the appeal against detention, even in respect of any claims for compensation and satisfaction ... These considerations are applicable also in relation to cantonal appeal proceedings. The applicant can still maintain in any subsequent compensation proceedings that he was unlawfully arrested in the Canton of Lucerne.” With regard to the procedure for “amalgamation” (Sammelverfahren) of the judicial investigations in respect of Mr R.M.D. that had been launched in various cantons, the Federal Court held that, in order to avoid any uncertainty about who had jurisdiction to order a person’s detention at the beginning of an investigation, it was important to establish clearly whether and when detention in a given canton came to an end so as to enable the person detained to apply to the relevant cantonal court. For that reason it would have been preferable for the Willisau Prefect to have indicated in writing that the applicant’s detention in the Canton of Lucerne had come to an end and that Mr R.M.D. was thereafter subject to the jurisdiction of the authorities in the Canton of Glarus. However, that did not alter the fact that the Lucerne Court of Appeal had not in its judgment infringed either the provisions of the Constitution relating to personal freedom or Article 5 § 4 of the Convention, seeing that when the applicant had lodged his appeal he was no longer in detention in the Canton of Lucerne. Lastly, the Federal Court declared the applicant’s complaint under Article 6 § 3 (c) of the Convention inadmissible because the question whether a lawyer had officially been assigned to represent him had not been raised in the Court of Appeal. 28. The first and second sub-paragraphs of Article 64 bis of the Federal Constitution of the Swiss Confederation provide: “The Confederation shall have the right to legislate on criminal law. The organisation of the judiciary, court procedure and the administration of justice shall be matters for the cantons ...” 29. Each canton consequently applies its own code of criminal procedure. 30. The relevant provisions of the Swiss Criminal Code read as follows: “1. Where an accused is prosecuted for several offences committed in different places, the authority of the place where the offence carrying the heaviest penalty has been committed shall also have jurisdiction to prosecute and try the other offences. If the different offences carry the same penalty, jurisdiction shall vest in the authority of the place where the first investigation was begun. 2. Where an accused, contrary to the rules governing multiple offences (Article 68), has been sentenced by several courts to several terms of imprisonment, the court which has sentenced him to the heaviest penalty shall, on an application by the convicted person, fix a consolidated sentence.” “If there is a dispute over jurisdiction between the authorities of several cantons, the Federal Court shall determine which canton has the right and obligation to prosecute and try the accused.” 31. The relevant provisions of the Canton of Lucerne Code of Criminal Procedure (Luzerner Strafprozeßordnung) read as follows: “1. ... 2. Where an order has been issued by the Prefect, the prosecutor or a lower court or its president for the detention of an accused pending trial, the accused may appeal against the order to the Court of Appeal. He must be informed of this right. 3. The Court of Appeal shall rule on the appeal within three days.” “1. An order for detention pending trial shall lapse after fifteen days. If the reason for keeping the accused in detention continues to apply, the authority dealing with the case must order that he remain in detention. Such detention may not exceed thirty days ... 2. A person detained may at any time apply to the authority dealing with his case for release. The authority must rule on the application within three days. 3. If the Prefect, the prosecutor or a lower court or its president orders that the accused remain in detention or refuses an application for his release, the accused may appeal to the Court of Appeal, which shall rule on the appeal within seven days.” | 1 |
train | 001-57475 | ENG | DEU | CHAMBER | 1,983 | CASE OF ECKLE v. GERMANY (ARTICLE 50) | 2 | Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | null | 1. The Eckle case was referred to the Court on 18 May 1981 by the European Commission of Human Rights ("the Commission"). The case originated in an application (no. 8130/78) against the Federal Republic of Germany lodged with the Commission on 27 September 1977 by two German nationals, Mr. Hans Eckle and his wife Marianne. 2. By a judgment of 15 July 1982, the Court found a breach of Article 6 § 1 (art. 6-1) of the Convention in that the applicants had not received a hearing within a reasonable time (Series A no. 51, point 2 of the operative provisions and paragraphs 71-95 of the reasons, pp. 32-40). The only outstanding matter to be settled is the question of the application of Article 50 (art. 50) in the present case. Accordingly, as regards the facts the Court will confine itself here to giving the pertinent details; for further particulars, reference should be made to paragraphs 9 to 60 of the above-mentioned judgment (ibid., pp. 8-28). 3. At the hearings on 22 March 1982, counsel for the applicants stated that, should the Court find a violation of the Convention, his clients would be claiming just satisfaction under Article 50 (art. 50) for the prejudice suffered as a result of the unreasonable length of the proceedings and possibly for legal costs; he did not, however, quantify their claims. The Government of the Federal Republic of Germany ("the Government") did not take a stand on the matter. In its judgment of 15 July 1982, the Court reserved the whole of this question. The Commission was invited to submit to the Court, within the coming two months, its written observations and, in particular, to notify the Court of any friendly settlement at which the Government and the applicants might have arrived (see point 3 of the operative provisions and paragraph 96 of the reasons, ibid., p. 40). 4. After one extension of the above-mentioned time-limit by the President of the Chamber and in accordance with his Orders and directions, the registry received: - on 15 October 1982, 19 November 1982 and 17 January 1983, through the Secretary to the Commission, the Delegate’s and the applicants’ respective observations; - on 28 October 1982, 14 December 1982 and 14 February 1983, the Government’s comments. These documents revealed that no friendly settlement had been reached. 5. By letter dated 6 October 1982, which was received at the registry six days later, the lawyer for Mr. and Mrs. Eckle informed the Registrar that he was no longer representing them; on 12 October, they instructed Mr. von Stackelberg as their lawyer. 6. Mr. L. Liesch, substitute judge, took the place of Mr. D. Evrigenis, who was prevented from taking further part in the consideration of the case (Rules 22 § 1 and 24 § 1 of the Rules of Court). 7. After consulting, through the Deputy Registrar, the Agent of the Government and the Delegate of the Commission, the Court decided on 25 May 1983 that there was no call to hold hearings. | 0 |
train | 001-60015 | ENG | AUT | CHAMBER | 2,002 | CASE OF JOSEF FISCHER v. AUSTRIA | 3 | 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 | Christos Rozakis | 9. On 12 May 1995 the Vienna Regional Court for Criminal Matters (Landesgericht für Strafsachen) convicted the applicant, inter alia, under Section 164 of the Penal Code (Strafgesetzbuch), on numerous counts of handling stolen goods (Hehlerei) and sentenced him to three years’ imprisonment. The Regional Court found that the applicant, who dealt with antiques, had bought, between 1986 and 1988, antiques which had been stolen in the north of Italy. 10. On 14 September 1995 the applicant filed a plea of nullity and an appeal against sentence with the Supreme Court (Oberster Gerichtshof). 11. On 12 October 1995 the Procurator General (Generalprokurator) submitted the following comments on the applicant’s plea of nullity: "In the view of the Procurator General, the plea of nullity of the accused Josef Fischer can be dealt with under Section 285d of the Code of Criminal Procedure. The transmission of a decision is requested." 12. On 21 November 1995 the Supreme Court dismissed the applicant’s plea of nullity and, as regards the appeal against sentence, referred the case to the Vienna Court of Appeal (Oberlandesgericht). On 23 January 1996 the Court of Appeal dismissed the applicant’s appeal. 13. Under Section 285 (d) § 1 of the Code of Criminal Procedure (Strafprozessordnung), a plea of nullity may be rejected by the Supreme Court after deliberations in private if the Supreme Court unanimously finds that the complaint should be dismissed as manifestly ill-founded without any need for further deliberation. 14. Section 35 § 2 of the Code of Criminal Procedure, as in force at the relevant time, reads as follows: "If the public prosecutor at an appellate court submits observations on an appeal on grounds of nullity ..., the appellate court shall communicate those observations to the accused (person concerned), advising him that he may submit comments on them within a reasonable period of time that it shall determine. Such communication may be dispensed with if the prosecutor confines himself to opposing the appeal without adducing any argument, if he merely supports the accused or if the accused’s appeal is upheld." 15. Since the 1996 Criminal Law Amendment Act (Strafrechtsänderungsgesetz) the last sentence of Section 35 § 2 reads as follows: “Such communication may be dispensed with if the prosecutor merely supports the accused or if the accused’s appeal is upheld." | 1 |
train | 001-93614 | ENG | MKD | CHAMBER | 2,009 | CASE OF GORGIEVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 3 | No violation of Art. 6-1+6-3-d | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva | 5. The applicant was born in 1962 and lives in Kriva Palanka. 6. He worked as a sanitary inspector at a border post near the city of Delčevo. His tasks included sending samples of imported products to laboratories for further examination. The examination fees were paid directly to the laboratories by the importers. 7. On 22 July 1999 a company from Vinica (“the company”), which imported goods on a regular basis, presented a shipment for inspection at the border post. Mr A., the owner and manager of the company, allegedly agreed with the applicant to meet on 26 July 1999. 8. According to Mr A., they met on 27 July 1999, when the applicant told him that he could pay the examination fees directly to the applicant, who would then send fewer samples for inspection. As he suspected that the applicant was actually demanding a bribe, Mr A. reported the matter to the police. The police then suggested that he should offer the applicant a sum of money in banknotes which they had marked in order to keep track of them. 9. On 29 July 1999 Mr A. and his business partner and relative, Mr P., who was aware of the alleged conversation, came to the border post to look for the applicant. The applicant and Mr A. met in a restaurant near the applicant’s office. Mr A. gave 400 German marks (DEM) to the applicant and left. The applicant was subsequently arrested in front of his car. 10. On 29 July 1999 the investigating judge of the Delčevo Court of First Instance (“the trial court”) started an investigation on the grounds of reasonable suspicion that the applicant had accepted a bribe of DEM 400. The applicant was remanded in custody for 30 days as it was feared that he might obstruct the investigation by interfering with witnesses if released. A warrant to search his home was also obtained and the search was conducted on the same day. 11. According to the depositions taken in the course of these proceedings, the applicant stated, inter alia: “... Mr A. objected to the fact that I had taken too many samples for examination. I told him that I could not avoid sending samples for examination and that I had taken as many samples as necessary. Then he promised me that he would reward me if I showed restraint and avoided sending samples for examination. It was just a general proposition, without any exact figures as to the amount. I refused. Today, he came to the border post and asked me to meet him. We went to the restaurant and he repeated his offer. I refused again. He then put something in my pocket and left the restaurant. I was surprised at first and saw that it was DEM 400. I put it in my trouser pocket and went out to look for him. As he had gone, I was afraid and did not know whether I should go to the police. That’s why I went to my car. There I was approached by several policemen who searched me and asked where the money had come from. As I was afraid, I told them that I had obtained it in Kočani... I would just like to add that there was nobody but the waiter in the restaurant during my meeting with Mr A...” 12. On 4 August 1999 the investigating judge examined Mr A. and Mr P. The former stated, inter alia: “... On Tuesday [date not specified], I arrived at the applicant’s office and we both went to the restaurant. Then, he told me that ‘he had examined [samples for] me for two years’ ... he therefore told me that we should agree not to send any samples of imported products for examination... He also said that I should not pay [the examination fees] directly to [the name of the examination institutions], but should give the money to him. He said that the tariff per vehicle was DEM 200 or DEM 400 and that I should decide how much I would give... After I had left for Vinica, I considered the consequences of giving the money to the inspector [referring to the applicant] ... and decided to inform the chief inspector of Kočani about the case again... The chief inspector took [the two banknotes of DEM 200] from me and returned them on Thursday, 29 July 1999. At about 1 p.m. the same day, Mr P. and I arrived at the border post. I entered [the applicant’s] office, but he was not there. Then he saw me... Then we went to the restaurant. We sat at a table, and Mr P. sat at a nearby table. There was nobody else in the restaurant... Since he knew that I would give him money, he asked me ‘Do you have the money?’. I didn’t reply, but took DEM 400 (2x DEM 200) out of my shirt pocket, [the applicant] took it with his right hand and put it in his shirt pocket. I told him that it was DEM 400 and asked if it was enough. He took the money out of his shirt pocket, looked at it and put in his trouser pocket. We stayed in the restaurant for about five minutes. The money changed hands at the beginning... I wish to add that on 29 July 1999 I noticed two persons in plain clothes, a man and woman, sitting in the restaurant... I assume they were policemen...” 13. Mr P. stated, inter alia: “... I consider that the applicant treated us badly as he did not take the usual quantities of samples for examination... We complained of his behaviour to the Customs Office, but they told us that nothing could be done... Five or six days before the day in question, Mr A. told me that the applicant had arranged a meeting with him, as the latter was no longer satisfied with the quantities of samples he had taken, but that he had asked for money to let our trucks through without difficulty. We informed the police, who told us that we must provide proof. On 29 July 1999 I went with Mr A. to the border post and I was in the restaurant when the money was given to the applicant. I was sitting at a nearby table when I heard the applicant saying that he wouldn’t work for the State anymore, but for himself. Then I heard the applicant asking about the amount of money... I would like to add that when the applicant asked for the money, Mr A. put banknotes into his hand. He counted the money, saying that it was not enough. At that time, there were two people, a man and woman, in the restaurant, but I don’t know who they were...” 14. On 5 August 1999 the investigating judge took a statement from Mr D., a market inspector who shared the office with the applicant, who stated, inter alia: “... On 29 July 1999 ... Mr A. came into my office asking where my colleague [the applicant] was. I told him that he had left. We talked for about an hour about various business issues. On his way out, he asked me to join him at the restaurant for a drink. I didn’t answer. After half an hour, [the applicant] arrived... I told him that Mr A. was looking for him and had invited us for a drink at the restaurant. [The applicant] then left, but I don’t know where he went. After five minutes, [the applicant] returned to the office looking distressed. He asked what I was doing and left the office without saying anything. After five minutes, I had to leave the office and saw the applicant surrounded by four men and a woman. One of them asked me where I was from and called me to act as a witness while the applicant was searched. They informed me that they were policemen. The applicant took DEM 400 out of his pocket ... and we all went to the police station, where I made my statement ...” 15. On 10 August 1999 the applicant was released from detention. 16. On 13 September 1999 the public prosecutor lodged an indictment charging the applicant that he had accepted a bribe in order not to take and send samples of imported products to laboratories for examination. The indictment was based on the events as described by Mr A. (see paragraphs 7-9 above). 17. On 11 February 2000 the trial court held a public hearing. It heard oral evidence from the applicant, Mr A. and Mr P. and admitted some documentary evidence. The applicant stated, inter alia, that he had been “set up” by Mr A. and intended to report him to the police, but that he had been prevented from doing so by the police officers who had arrested him before he got into his car. He also said that he might have wrongly stated in the pre-trial proceedings that he had not obtained the money from Mr A., as he had been under stress. 18. Mr A. stated, inter alia: “... I informed the police officers and after being told that I would not face any charges, I decided to offer him the money. I didn’t arrange anything with them [the police] before I went to Delčevo on 29 July 1999... [After the money had changed hands] I left and I don’t know what happened afterwards. At that time, besides us, there was a man and woman sitting at another table and two other persons. I can’t recall whether Mr P. was present when I gave the money to [the applicant]...” 19. Mr P. stated, inter alia: “... It was I who insisted that Mr A. report [the applicant] to the police... I don’t know whether the police had any plan... During the meeting on 29 July 1999 there were other people in the restaurant who I didn’t know. It was me who left the restaurant first...” 20. The court also heard evidence from two witnesses called by the applicant concerning the events in the restaurant. 21. Mr T., a waiter at the restaurant, stated: “As far as I can recall, Mr A. and the accused were sitting in the restaurant and stayed for about 5-6 minutes.” 22. Ms S., a cook at the restaurant, stated: “As far as I can recall on the date in question, Mr A. and the accused were sitting in the restaurant... There was nobody else besides Mr T... I cannot say what they discussed or how they behaved. I think that they stayed for about fifteen minutes.” 23. On the same day, the trial court gave its judgment. It found the applicant guilty of accepting a bribe and sentenced him to three months’ imprisonment. It established that after the discussion of 27 July 1999 between the applicant and Mr A., the latter had notified the police and they had instructed him to give the applicant money and to inform them if he accepted it. It further established that after Mr A. had put the money in the applicant’s shirt pocket, the applicant had left the restaurant and gone into his office. After he left his office, the police, who had been informed about the event in advance, searched him and found the money. 24. The court rejected the applicant’s arguments and noted that his conduct immediately after he accepted the bribe did not suggest an intention to report the matter to the police. Referring to the statements made by the witnesses at the trial, the court concluded that the applicant had not taken any steps to return the money to Mr A. or to inform anyone. In support of its findings, it referred to the statement made by Mr. D., to whom the applicant had also failed to report the bribe. The court also found that the police had waited to see whether the applicant would report the bribe and had acted when there had been no reaction on his part. The penalty was determined on the basis of, inter alia, the applicant’s behaviour at the trial, the fact that he had previously performed his duties in accordance with the regulations and his lack of a criminal record. 25. The applicant appealed, arguing that the whole incident had been planned in advance and that he had been incited to commit the offence by the police and Mr A., and, accordingly, had been the victim of entrapment. He complained that the trial court had not taken into consideration the statements of the two witnesses who worked at the restaurant, who denied that anyone other than the applicant and Mr A. had been present when the money had changed hands. The testimony of Mr P., who in addition to being Mr A.’s business partner was also a relative, was therefore false. He also submitted a written statement made by Mr T. on 9 April 2000, which read, inter alia: “... I saw Mr A. reach towards the pocket of [the applicant’s] shirt. I cannot say whether he put something in or took something out, but I remember that Mr A. left the restaurant immediately afterwards. At that moment, they did not speak to each other. After a couple of seconds [the applicant] quickly left the restaurant...” 26. The applicant further argued that the trial court had misinterpreted Mr D.’s statement concerning his behaviour after he left the restaurant. In that connection, he requested that another person, Mr O., be heard as a witness on the issue whether he had gone directly to his car or to his office after leaving the restaurant. He submitted a written statement of 9 April 2000 by Mr O. saying that he had seen the applicant go to his car after leaving the restaurant. He requested the Court of Appeal to hold a hearing. 27. At a hearing on 27 September 2000, the Štip Court of Appeal dismissed the applicant’s appeal and upheld the trial court’s verdict. It found that the trial court had correctly established the facts and applied the law. It had given sufficient reasons for its findings and these had been substantiated by the relevant evidence it had taken into consideration. The Court of Appeal rejected the applicant’s allegations that he had been entrapped by an agent provocateur (Mr A.) and that he had not intended to keep the money, but to report the matter to the police. It noted that the applicant had told Mr A. that he was changing his working methods and that instead of paying the examination fees to the laboratory, he could pay them directly to the applicant. It also held: “... if the applicant had had no intention of taking and keeping the money, he should have reacted immediately. On the contrary, in Mr A.’s presence, he put the money in his pocket and said that it ‘covered’ only the current shipment and that they would agree upon further shipments. After Mr A. had left the restaurant, the applicant did not report the matter to the police or to anyone else. Indeed, he returned to his office and failed to inform Mr D., his colleague, about the gift received from Mr A. After several minutes, he left the office and was arrested by the police. If his intention was not to keep the money, he could have made that clear by reacting in the restaurant, especially as there were restaurant employees present. Instead, he went to his office and failed to inform Mr D. about the money...” 28. With regard to the alleged presence of Mr P. in the restaurant when the money was given to the applicant, the Court of Appeal held: “... Whether Mr P. was in the restaurant during the conversation between the applicant and Mr A. is irrelevant, as he had known about the earlier discussion between them and about the applicant’s statement that they would find a new way of dealing with matters concerning the imports and samples. Mr P.’s presence in the restaurant at the material time is irrelevant...” 29. With regard to the written statements of the witnesses and the applicant’s request for a further witness, Mr O., to be examined, the Court of Appeal held that the written statements had been examined by the trial court and were irrelevant to the final conclusion. 30. The applicant and his lawyer submitted separate requests for an extraordinary review of the final judgment (барање за вонредно преиспитување на правосилна пресуда – “the extraordinary request”) before the Supreme Court. These requests were sent by registered mail and according to the delivery receipt, they were received by the trial court on 27 February and 19 March 2001, respectively. In the requests, the applicant complained, inter alia, that the lower courts had based their decisions on evidence which should not have been taken into consideration, as it had been obtained as a result of the police incitement to commit the offence and Mr A.’s role as an agent provocateur. 31. In a letter which was also sent by registered mail and received by the trial court on 12 June 2001, the applicant supplemented his extraordinary request, arguing that the facts as established by the Court of Appeal contradicted the findings of the trial court, and that its finding that Mr O. had already been examined by the trial court was erroneous. He also alleged that the Court of Appeal had not examined his appeal in full, in particular concerning the role of Mr A. as an agent provocateur and the role of the police. 32. On 21 March 2001 the public prosecutor rejected the applicant’s application to lodge a request for the protection of legality (барање за заштита на законитоста) with the Supreme Court. 33. On 18 September 2001 the Supreme Court dismissed the extraordinary request lodged by the applicant’s lawyer, which it found had been submitted within the statutory time-limit, and upheld the lower courts’ decisions. It held, inter alia, that the applicant’s conviction had not been based on inadmissible evidence, but on a range of written and oral evidence adduced during the proceedings. It did not comment on the applicant’s extraordinary request and supplementary submission. 34. On 17 October 2001 the State President replaced the applicant’s sentence with a suspended term of two years’ imprisonment. 35. Section 142 of the 1997 Act provided that, where there was a suspicion that an offence had been committed, the Ministry of the Interior (“the Ministry”) was authorised to take measures in order, inter alia, to find the perpetrator or to prevent him or her from fleeing or going into hiding. In order to execute its tasks, the Ministry could, in addition to the measures and actions listed in the second paragraph of that section, take such other measures and actions as might be necessary. 36. Section 142-b of the new Act provides that, with a view to securing information and evidence which cannot be otherwise secured, or the gathering of which would entail difficulties, special investigating techniques may be ordered where there are reasonable grounds for suspicion that certain criminal offences have been committed by, inter alia, an organised group. A simulated offer and acceptance of a bribe is among the permitted special investigating techniques (section 142-b § 1 (4)). Special investigating techniques must not be used to incite the commission of an offence. Persons using the special investigating techniques in order to secure information and evidence necessary for a successful investigation are not liable to prosecution. 37. Section 142-c provides that information, documents and objects obtained through a special investigating measure may be used as evidence in criminal proceedings. 38. Section 142-d §§ 1, 2 and 3 provide that, at the pre-trial stage, special investigating techniques may be ordered by the public prosecutor or an investigating judge. After an investigation has been commenced, the use of such techniques may be ordered only by an investigating judge. At the pre-trial stage, the use of special investigating techniques may be ordered by an investigating judge in a reasoned written decision following a reasoned written request by the public prosecutor, or by the public prosecutor in a reasoned written decision, but only in respect of a person whose identity is unknown. 39. Under section 142-e §§ 3 and 4, special investigating techniques may be used for four months at most. Evidence obtained through special investigating techniques cannot be used at trial if the techniques were applied without an order by an investigating judge or the public prosecutor or were contrary to the Act. 40. Section 32 (1) provides that an importer pays the examination fees concerning the sanitary validity of food and products for general use. 41. Section 3 of these Rules provides that the importer pays in the State budget the fees for taking and sending samples to laboratories. The importer pays to laboratories the fees for examination of samples, according to an invoice that the laboratory would deliver to him or her. | 0 |
train | 001-61944 | ENG | FRA | CHAMBER | 2,004 | CASE OF SLIMANI v. FRANCE [Extracts] | 1 | Preliminary objection allowed (non-exhaustion of domestic remedies);No violation of Art. 13;Violation of Art. 2 concerning the effectiveness of the investigation;Not necessary to examine Art. 3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | null | 6. The applicant was born in 1969 and lives in Marseilles. Her late partner, Mr Sliti, born in 1958, was a Tunisian national. 7. Mr Sliti had been committed to a psychiatric hospital several times both in Tunisia and in France. 8. Mr Sliti had been sentenced to four years’ imprisonment and permanently excluded from French territory by a judgment of the Marseilles Criminal Court of 2 October 1990. The order permanently excluding him from French territory was not enforced immediately after he had served his prison sentence. 9. In 1998 Mr Sliti set fire to the applicant’s house and threatened to throw himself out of the window with their eighteen-month-old son. He was sentenced to one year’s imprisonment for this by a judgment of the Marseilles Criminal Court of 21 September 1998. After being compulsorily detained in Edouard Toulouse Hospital in Marseilles (Centre Hospitalier Edouard Toulouse – “the CHET”) between 29 July and 25 August 1998 (psychiatric department), Mr Sliti had later been transferred to Beaumettes Prison to serve the above-mentioned sentence. 10. A psychiatrist’s report ordered by the President of the Marseilles tribunal de grande instance, dated 1 September 1998 and prepared by Dr Goujon of the CHET, concluded, among other things, that Mr Sliti should undergo “long-term psychiatric treatment, or even [hospitalisation] in a psychiatric ward”. There was also a letter (dated 4 May 1999) from Dr Chabannes, a psychiatrist at the CHET, saying that Mr Sliti’s “depressive and anxious” condition had made it necessary to keep him in hospital for some twenty days in September 1998, his “suicide threats suggest[ing] that he might harm himself”. A medical certificate dated 9 February 1999 and issued by the same doctor contained the following observations: “ ... [Mr Sliti], whose condition is currently stable ... is being treated with a combination of anti-depressants, tranquillizers and neuroleptics. It is in [his] best interests to continue receiving psychiatric care once he is released especially [as he] has himself requested psychiatric support. One of the practitioners at Edouard Toulouse Hospital will continue to act as his responsible medical officer”. The medical treatment prescribed to Mr Sliti before his placement in administrative detention was composed of the following anti-depressants, neuroleptics and tranquillizers: Lysanxia - 40 mg (two tablets every 24 hours), Deroxat - 20 mg (one tablet every 24 hours), Phenergan (four tablets every 24 hours) and Risperdal - 2 mg (two tablets every 24 hours). 11. On 22 May 1999 the Bouches-du-Rhône Prefect decided to enforce the order that had been made on 2 October 1990 permanently excluding Mr Sliti from France and ordered him to be deported to Tunisia. To that end he ordered Mr Sliti to be held in Marseilles-Arenc Administrative Detention Centre until 24 May 1999. Mr Sliti was still receiving medical treatment, as evidenced by a prescription made out by Dr Chabannes on 21 May 1999. At Marseilles-Arenc Detention Centre the police took responsibility for fetching the medicine prescribed to Mr Sliti and giving it to him. 12. In an order of 24 May 1999 the President of the Marseilles tribunal de grande instance extended the detention order in Arenc to 10 p.m. on 26 May 1999 pending issue of a cross-border pass. An appeal lodged on 25 May 1999 was dismissed on 26 May 1999 by an order of the President of the Court of Appeal on the grounds that the procedure had been lawful and that “Mr Sliti [had] been removed that day [so that] the administrative detention measure had been lifted and the appeal therefore [had to be] declared devoid of purpose”. 13. In the morning of 26 May 1999 Mr Sliti twice refused to take his medicine. He was not examined by a doctor despite – according to the Government’s memorial – having been in a state of extreme agitation. At about 10.30 a.m. he was taken ill and collapsed. After being alerted by other detainees, police officers on duty at Arenc quickly arrived on the premises and turned him onto his side in the recovery position before alerting the Navy firefighters (marins-pompiers). At about 10.45 a.m. the Navy firefighters doctor gave him first aid. He observed that he had fallen into a coma and administered medical treatment on the premises. A 12.15 p.m. Mr Sliti was taken to Conception Hospital in Marseilles where he was admitted to the intensive care unit at approximately 12.50 p.m. He died there at 2.50 p.m. 14. On 26 May 1999 an inquest was commenced in accordance with Article 74 of the Code of Criminal Procedure (CCP) “to determine the causes of the death” of Mr Sliti. On 27 May 1999 the investigating judge sent instructions to Marseilles Central Police Station to pursue the inquiry and, to that end “take evidence from any relevant witnesses capable of providing information, make all necessary findings, investigations, lawful searches wherever necessary, and seize any items necessary for establishing the truth” and “send ... any necessary requests to any public authorities or private bodies, any civil servants and public or ministerial officers, and more generally any persons capable of providing information or documents that will assist in establishing the truth”. An autopsy was carried out on 27 May 1999. The autopsy report, of the same date, made the following conclusions: “The examination and autopsy of Mr Moshen Sliti’s body show: – signs of resuscitation. The mark observed in the left abdominal region may have been left by cardiopuncture. This needs to be confirmed by an anatomicopathological examination of the heart and an examination of the medical file. – no suspicious signs suggesting violence. – diffused polyvisceral hyperaemia. – the presence of abundant spume in the trachea and bronchi and of macroscopic heart transformations that may indicate acute cardiorespiratory failure, subject to confirmation by expert anatomicopathological and toxicological opinion”. On 27 May 1999, on the basis of the above-mentioned instructions, a senior police officer heard evidence from two police officers who had been on duty at Arenc during the morning of 26 May 1999. On 28 May 1999 he heard evidence from the deceased’s uncle and on 3 June 1999 the Navy firefighters doctor who had treated Mr Sliti after he had been taken ill. On 31 May 1999 another police officer heard evidence from two persons who had been detained at Arenc at the time of the events (Mr T.S. Smain and Mr E. Louis) and were eyewitnesses to them. The records of these interviews show that about ten people had been in the vicinity of the place where Mr Sliti had been taken ill and had been present during the events. They also show that Mr Sliti had already been in a state of agitation the day before the events in question occurred. Further medical samples were taken from the victim’s body on 15 June 1999. 15. An anatomicopathological examination of swabs taken from Mr Sliti’s body was carried out on 15 October 1999 by Dr H.P. Bonneau, who had been appointed for the purpose by the investigating judge. He made the following conclusions in his report: “Anatomicopathological examination of the autopsy swabs (treated with formalin) showing an acute pulmonary oedema, the cause of Mr Sliti’s death. The aetiology of this acute pulmonary oedema must be compared with the facts in the expert toxicological report. The other organs are histologically normal.” The investigating judge ordered a toxicologist’s report (orders of 31 May and 15 June 1999) and appointed Dr M. Fornaris to prepare it. She carried out her examination on 20 June 2000 and made the following conclusions in her report, dated 19 July 2000: “... the toxics found all result from medication; they are present in various pathologies (anxiety, pain, convulsions...). They do not appear likely, either inherently or by their association or level in the blood (at the time of death, or even when the first disorders were felt) to have been the direct cause of the death or to have contributed to its occurrence.” 16. The applicant unsuccessfully requested access to the autopsy and toxicology reports. She was never interviewed by the investigating judge and was excluded from the investigation. On 22 April 2000 she asked the investigating judge to send the investigation file to the public prosecutor for a supplementary application to be made extending the investigation to include a count of manslaughter. As the investigating judge did not reply within one month, on 24 May 2000 she addressed her request to the President of the Indictment Division of the Aix-en-Provence Court of Appeal under Article 81 of the CCP. Her request was declared inadmissible by an order of 29 May 2000 on the ground, inter alia, that “in the proceedings to investigate the causes of death, Ms Slimani does not have standing to request investigative measures”. 17. In orders of 6 and 20 November 2000 the investigating judge appointed Doctor Boudouresques and Doctor Romano to carry out the following instructions: “Consult Mr Sliti’s medical file at Conception Hospital and the attached copies of the procedural documents. (i) Determine the cause of Sliti Moshen’s death and establish, inter alia, whether the treatment administered was in conformity with current medical knowledge. (ii) Describe the medical infrastructure of the Marseilles Arenc Centre and state whether it complies with the laws and regulations in force. In the event that you find deficiencies or anomalies, give details of these in your report and indicate the persons or persons who may be deemed responsible from a medical point of view. You may question anyone whose evidence you consider helpful and request from any public or private establishment any documents that you consider it necessary to consult. You are asked to make any observations that may assist in establishing the truth.” The report, dated 2 May 2001, described the medical infrastructure of the Arenc Centre as it was on 17 March 2001. It stated that “prior to September 2000, no medical structure existed[;] medicines were distributed to detainees by police officers”. Regarding the cause of death, it made the following observations among others: “ ... The various evidence suggests that the treatment given to Mr Sliti was administered between 15 and 20 minutes after he was taken ill. The description of the clinical disorders presented by Mr Sliti corresponds to generalised and recurring epileptic fits, thus an epileptic condition. This epileptic condition can be regarded as inaugural in so far as Mr Sliti had no known epileptic history. It is possible that the refusal to take his medicine (we are thinking in particular of the Benzodiazepines: 80 mg of Lysanxia) contributed to the onset of this epileptic condition. Regarding the results of the toxicological analysis, no toxic substance other than a medicinal one has been found. Moreover, according to the toxicology report these medicinal substances do not appear, inherently, by their association or level in the blood, to have caused the death or to have contributed to its occurrence. The treatment administered by the Navy firefighters doctor at Arenc Centre is that habitually given in cases of epilepsy. The treatment included the prescription of anticonvulsive drugs and then, when these proved ineffective, barbiturates. A tube was inserted into the trachea. The patient was given medical treatment at Arenc Centre for one and a half hours before being taken to Conception Hospital in Marseilles at approximately 12.15 p.m. After being treated with barbiturates he stopped having convulsions, whereupon it was possible to transfer him. According to Dr F. Topin, there was no sign of heart failure. The treatment administered first by the Navy firefighters doctor and then in the multi-purpose intensive care unit at Conception Hospital is that habitually proposed in this type of medical emergency. Despite being resuscitated very quickly and efficiently by means of intubation, artificial respiration, drip, external heart massage, with alkalinisation, Mr Sliti suffered a cardiac arrest resulting in his death at approximately 2.50 p.m. The treatment administered at Arenc Detention Centre on 26 May 1999 and the immediate intervention of the officers at approximately 10.30 a.m., the rapid intervention of the SAMU [Mobile Emergency Medical Service] owing to the efficiency of the police officers present on the premises[,] at approximately 10.45 a.m. the provision of emergency medical treatment (full clinical examination, an electrocardiogram, insertion of a catheter, with the use of medication appropriate to an epileptic condition, insertion of tube in trachea), the conditions of transfer to Conception Hospital in Marseilles, the treatment administered by the intensive care unit at Conception Hospital were in conformity with current medical knowledge. The analysis of the toxicologist’s report made by Mrs M. Fornaris on 20 July 2000 does not allow identification of any toxic substance that might have caused the death. The autopsy of Mr Mohsen (sic) Sliti’s body showed both signs of resuscitation, and in particular cardiopuncture, and the presence of large quantities of spume in the trachea of the bronchi and macroscopic heart transformations suggestive of acute cardiorespiratory failure. Lastly, the anatomicopathological examination performed by Dr H.P. Bonneau on 15 October 1999 showed an acute pulmonary oedema as the cause of Mr Sliti’s death. Conclusion: The cause of Mr Sliti Mohsen’s (sic) death was a cardiac arrest following an acute pulmonary oedema (acute failure of left auricle) after an inaugural epileptic condition (possibly induced by Mr Sliti’s refusal to take his usual treatment). The treatment administered was done so in accordance with current medical knowledge (at Arenc Detention Centre by the SAMU and then at Conception Hospital)”. 18. On 26 June 2001 the public prosecutor discontinued the proceedings “in the light of the conclusions of the medical experts” and “the lack of any evidence of a crime or major offence as the cause of death”. 19. On 21 February 2003 the applicant, acting on behalf of herself and her children, applied to the Minister of the Interior for compensation. She based her claim on the documents produced by the Government in the proceedings before the Court, stating that she had not previously had access to them. In her submission, they showed that “the death of Mr Sliti [was] the consequence of a serious breakdown in the operation of the service at Arenc Detention Centre”. She complained, in particular, of insufficient medical facilities and staff at the material time. 20. Article 74 of the CCP provides: “On discovery of a dead body, regardless of whether the deceased suffered a violent death, but wherever the cause of death is unknown or suspicious, the senior police officer who is advised thereof shall immediately notify the public prosecutor, promptly visit the place of discovery and make initial observations. The public prosecutor shall visit the place if he deems it necessary and shall call on the assistance of persons qualified to assess the circumstances in which death occurred. He may, however, delegate those tasks to a senior police officer of his choice. Except where their names appear in one of the lists provided for in Article 157, persons appointed in this way shall take a written oath to assist the courts on their honour and according to their conscience. The public prosecutor may also call for an inquest to determine the causes of death.” Article 80-4 CCP, which was added to the Code of Criminal Procedure by Law no. 2002-1138 of 9 September 2002 (Official Journal of 10 September 2002), is worded as follows: “... The members of the family or the close relatives of the deceased or missing person may apply to join the criminal proceedings as a civil party seeking damages. However, if the missing person is found, the latter’s address and other matters that would lead to the direct or indirect disclosure of this address may not be revealed to the civil party without the consent of the party concerned if he is an adult or with the consent of the investigating judge in the case of minors or of adults under a guardianship order.” 21. Article 85 of the CCP provides: “Anyone who claims to have suffered damage as a result of a serious crime or serious offence may, by lodging a criminal complaint, join the criminal proceedings as a civil party on application to the relevant investigating judge.” 22. Part of the report is devoted to “administrative detention centres for foreign nationals”. Paragraph 202 is worded as follows: (Unofficial translation) “..., the holding conditions at Marseilles-Arenc Administrative Detention Centre left a lot to be desired. The material conditions were mediocre and the foreign nationals were given no opportunity to take any walks outside throughout the entire duration of their stay. Furthermore, there was no provision for any specific medical attention or nursing cover. In addition to the difficulties in seeing a doctor, the situation inevitably gave rise to unacceptable consequences from a medical-ethics standpoint. Lastly, the delegation found that the detainees were insufficiently informed about their rights and obligations and that the procedure for placing detainees in isolation needed to be clarified. The delegation expressed its serious concerns about Marseilles-Arenc Administrative Detention Centre at the end-of-visit interview. Subsequently, the French authorities informed the CPT of a series of measures designed to improve health and safety at Marseilles-Arenc Administrative Detention Centre and the medical care of detainees; measures were also taken with regard to informing detainees about their rights and the applicable procedure in the event of placing a detainee in isolation. That being said, the French authorities indicated that it was undeniable that the building was ill-adapted to the needs of the centre. The CPT expressed its satisfaction with the speed at which the authorities reacted to the delegation’s observations. The Committee pointed out, however, that it was unacceptable for detainees to be deprived of any opportunity to take exercise outside during prolonged periods and that a day nurse should be present inside the centre. It accordingly recommended that the French authorities take appropriate measures immediately in those two respects. More generally, the CPT asked the French authorities to reconsider setting up a new detention centre in Marseilles”. 23. The relevant paragraphs of this report are the following: (Unofficial translation) “59. With the exception of the Marseilles-Arenc Administrative Detention Centre, access to a doctor and medical care in the places visited in May 2000 could be deemed satisfactory. In particular, in all these establishments access to a doctor and medicines was free of charge for the foreign nationals concerned. ... 60. As in 1996, the situation at Marseilles-Arenc was still unacceptable, however, from the medical-ethics and – it has to be added – human standpoint. In July 1998 the organisation Médecins du Monde terminated the Mutual Assistance Agreement for the Medical Care of Detainees. The organisation SOS Médecins, for its part, agreed to visit the Centre only in exceptional circumstances. The delegation heard widespread complaints from detainees who, on asking to see a doctor, were told by police officers that they had to be able to pay. Some also complained that their medicine supplies (for example, maintenance or medicine for asthma sufferers) were about to run out. In addition, since the ad hoc agreement has still not been signed, no nurse was present. Nor did the centre have a single first-aid kit (not even dressings) and medicines, kept in a cardboard box, were distributed by surveillance staff in accordance with the needs expressed by the detainees. In response to the delegation’s immediate observation, the French authorities have informed the CPT that an agreement on the provision of health services was signed on 14 June 2000 between the Bouches-du-Rhône Prefect and the Marseilles public hospitals authority. From 1 September 2000 there will be nursing cover at the centre seven days a week and a doctor in attendance half time. The CPT wishes to express its satisfaction with the measures taken.” | 1 |
train | 001-103117 | ENG | BGR | CHAMBER | 2,011 | CASE OF DIMITROVA AND OTHERS v. BULGARIA | 4 | Violation of Art. 2;No violation of Art. 14 | Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva | 5. The first and second applicants were born in 1956 and 1975 respectively. 6. The applicants are of Roma origin. The first applicant is the mother, the second applicant the wife, and the third and fourth applicants the brothers of Mr Georgi Gerasimov, also of Roma origin, born in 1976. 7. In the afternoon of 30 May 2003 Mr Gerasimov and three other persons of Roma origin, Mr V.V., Mr I.I. and Mr M.G., were digging out coal in an abandoned opencast coal mine in Pernik. The area was open, with little vegetation, and accessible by a dirt road. 8. At one point another man, Mr B.I., to whom Mr M.G. apparently owed money, passed by on horseback. He asked Mr M.G. when he would pay back the debt and the two of them entered into a short argument. Mr Gerasimov intervened in defence of Mr M.G. After that Mr B.I. left. 9. Some time later Mr Gerasimov and his companions finished digging out the coal and were getting ready to leave. At this moment Mr B.I. returned, accompanied by three friends of his, Mr Z.E., Mr P.K. and Mr N.S., in two cars. A fight flared up between the two groups. The parties disagree as to who started it. Some time later Mr V.V., Mr I.I. and Mr M.G. went to a nearby petrol station, where they asked the staff to call the police, explaining that a friend of theirs had been beaten up. When the police officers reached the scene of the fight they found only Mr Gerasimov, lying on the ground. As he was seriously injured, he was taken to hospital. 10. Later that day the police initiated a search for Mr B.I. and Mr Z.E., suspecting that they had beaten up Mr Gerasimov, but could not find them. 11. Mr Gerasimov was admitted to the hospital in a coma, with a severe cerebral contusion and four wounds to the head. He died in hospital on 4 June 2003. 12. A criminal investigation was opened on 30 May 2003 by the Pernik regional public prosecutor's office. 13. An inspection of the scene of the fight was carried out on 30 May 2003. The record of the inspection stated that the site had not been preserved. The police officers found the van which had been used by the Mr Gerasimov and his companions abandoned at the site. The windscreen was cracked, the side rear-view mirrors were broken and one of the doors had marks of blows from a hard object. Traces of blood were found near the van. Subsequent analysis showed that the blood might have been Mr Gerasimov's. Traces of blood were also found inside the van. Subsequent analysis showed that it might have been Mr B.I.'s. 14. The police also inspected the cars Mr B.I. and his companions had been travelling in. Traces of blood were found in one of them. Subsequent analysis showed that the blood might have been Mr B.I.'s. 15. On 31 May 2003 the police inspected Mr N.S.'s car (not one of those which had been used the day before) and seized two bats and a knife. 16. On 2 June 2003 Mr B.I., Mr Z.E., Mr P.K. and Mr N.S. were examined by a doctor, who found that Mr B.I. had a small knife wound on the lower part of the back and several bruises on the face and body. The other men also had bruises. 17. The clothes worn by Mr B.I. on 30 May 2003 were also examined by an expert, who found matching cuts in his T-shirt and jacket, most likely caused by a knife. 18. A post-mortem examination of Mr Gerasimov's body, carried out on 5 June 2003, concluded that the death had been caused by a severe cerebral trauma. It found a multi-fragment fracture of the parietal bone, with fragments of the bone depressed to 0.5 centimetres in depth on an area measuring 6 x 3 centimetres. It also found five wounds to the head, a wound on the right arm and two parallel stripe-like bruises on the back, measuring 15 x 2 centimetres. There were other bruises on the face and body. The examination concluded that the injuries had been caused by blunt objects and could have been caused in connection with a beating. The two bruises on the back had been caused by long narrow objects. 19. Mr Gerasimov's companions were questioned by an investigator on 31 May 2003. They were once again questioned before a judge on 3 June 2003. 20. Mr V.V. stated that the four of them had gone in his van to dig coal. They had had a pick but not a knife. At the time when Mr B.I. had arrived with his friends, they had been getting ready to leave. Mr Gerasimov had been sitting in the back part of the van, on the sacks of coal. As soon as he had got to the site Mr Z.E. had started hitting Mr Gerasimov's legs with a bat. At the same time Mr B.I. had been shouting “Where do you think you are going, you, where will you run, you damn gypsies, who is going to pay?” Mr Gerasimov had attempted to stop Mr Z.E.'s attack. While the two of them were wrestling, Mr B.I. approached Mr Gerasimov from behind and hit him on the back of the head with another bat. Mr Gerasimov fell to the ground. Thus freed, Mr Z.E. turned to Mr V.V. and hit him with his bat, aiming for the head but missing it. Mr V.V. then ran away. 21. Mr I.I. also stated that when Mr B.I. and Mr Z.E. had arrived they had been carrying wooden bats. Mr Z.E. had attacked Mr Gerasimov and while the two of them had been wrestling, Mr B.I. had approached and hit Mr Gerasimov's head, holding the bat with two hands. Mr I.I. had not seen other blows because he had run away, but before doing so he had seen Mr P.K. and Mr N.S. also approaching Mr Gerasimov. He and his companions had not been carrying knives and had not provoked the others' attack. 22. Mr M.G. stated that he had run away immediately after the other men had arrived, because he had known that they were going to beat them. 23. Two employees of the petrol station where Mr V.V., Mr I.I. and Mr M.G. had pulled into after the attack were questioned on 9 and 10 July 2003. They confirmed that the men had been acting nervously and had said that someone had been beaten up. 24. Mr B.I. was questioned on 31 May 2003. He explained that when he had first seen Mr Gerasimov, Mr V.V., Mr I.I. and Mr M.G. they had threatened and sworn at him. Later, he and his friends had gone out to look for a horse, owned by Mr N.S., which had got lost. When they arrived at the place where the Roma had been, the latter had attacked them. Mr Gerasimov had had a knife and a pick and had stabbed him in the back. He had fallen to his knees. Someone had hit him with the wooden handle of a tool. He had managed to grab the handle and hit Mr Gerasimov back. 25. Mr B.I. was again questioned on 2 and 3 June 2003. This time he denied hitting Mr Gerasimov and said that he had seen someone else hit him in the scuffle. 26. Mr Z.E., Mr P.K. and Mr N.S. were questioned by the investigator on 31 May and 2 June 2003. On 3 June 2003 they were questioned before a judge. 27. Mr Z.E. stated that he and his friends had indeed gone to look for Mr N.S.'s horse. He had been in one of the cars with Mr B.I. He did not know why Mr B.I. had approached the Roma men, but supposed that he had intended to ask them if they had seen the horse. Immediately after he and Mr B.I. got out of the car the Roma men attacked them. Mr P.K. and Mr N.S., who had been following close behind them in the other car, came to their aid, but ran away after the Roma men attacked them too. He and his friends had got into their cars and driven away. In the car he realised that Mr B.I. had been stabbed. He did not know how Mr Gerasimov had ended up fatally injured. 28. Mr P.K. said that on 30 May 2003 he had been in Mr B.I.'s house when Mr N.S. had come and said that his horse had got lost. The three men, together with Mr Z.E., had taken two cars and gone looking for the horse. At one point they had approached the Roma men. Mr Z.E. and Mr B.I. had stopped and got out of their car and had immediately been attacked by the Roma. He and Mr N.S. got out of their car as well. He saw someone stab Mr B.I. and was himself attacked by one of the Roma men, who had a bat and a knife. Then he and Mr N.S. got back into their car and drove away, while all Roma men had gathered around Mr B.I. and Mr Z.E. Mr P.K. did not know why the others had attacked them. He stated that none of his friends had been carrying knives or bats. 29. Mr N.S. also stated that he and his companions had been looking for his horse. At one point he and Mr P.K. had seen the other men beating Mr B.I. and Mr Z.E. and had went to separate them. He admitted that they had been carrying wooden bats in the cars in case they were attacked. 30. Mr N.S.'s brother was questioned on 31 May 2003 and confirmed that on the previous day the family's horse had got lost. In the course of the interview the investigator asked him: “Were you there when the gypsies stabbed [Mr B.I.] and do you know what they stabbed him with?” Mr N.S.'s brother responded that he had not seen the attack. Examined again on 20 June 2003, he confirmed that there had been wooden bats in the family's car, but he did not know who had put them there. 31. Mr K.G., who worked in the area, was interviewed on 20 June 2003. He stated that he had seen the fight from the road, while driving to a nearby shop to buy food. He had not stopped the car but had slowed down to watch. He estimated that the distance between him and the fighting men had been between eighty and a hundred metres. He had recognised Mr B.I., whom he knew, and had seen him grappling with someone else, who had then struck him with a knife. Then all the others gathered together and someone had a wooden bat or tool. Mr K.G. did not see anything in Mr B.I.'s hands. 32. Mr B.I. was arrested on an unspecified date. 33. On 2 June 2003 an investigator from the Pernik Regional Investigation Service ordered the arrests of Mr Z.E., Mr P.K. and Mr N.S., finding that there existed reasonable grounds for suspicion that they had acted as accessories in the attempted murder of Mr Gerasimov and noting that they had attempted to abscond. It appears that on the same day the three of them were briefly arrested. However, they were never charged or investigated any further. 34. On 3 June 2003 Mr B.I. was charged with attempted murder committed in an especially cruel manner and with extreme ferocity (Article 116 of the Criminal Code, see paragraph 48 below). 35. On 5 June 2003 the Pernik Regional Court remanded him in pre-trial custody. Referring to the testimony of Mr Gerasimov's companions (see paragraphs 20-22 above), and also taking into account the fact that the charges against Mr B.I. were serious and he had previous convictions, it found that there existed grounds for reasonable suspicion against him and a danger that he might abscond or reoffend. 36. On 11 June 2003 this decision was upheld by the Sofia Court of Appeal. 37. Mr B.I. was released on bail on 25 July 2003. 38. On 10 December 2003 Mr B.I. was charged under Article 119 of the Criminal Code (see paragraph 49 below) with causing Mr Gerasimov's death by a disproportionate reaction to an attack. On the same day he was questioned again. He stated that during the fight on 30 May 2003 one of the Roma men had “almost” stabbed him, the knife only cutting through his clothes, and that, in the general scuffle when he had tried to defend himself, he might have hit Mr Gerasimov. He had not however meant to injure him badly. 39. In a decision of 25 May 2004 a prosecutor from the Pernik regional public prosecutor's office partially discontinued the criminal proceedings against Mr B.I., dropping the initial charge under Article 116 of the Criminal Code of attempted murder committed in an especially cruel manner and with extreme ferocity, brought on 3 June 2003 (see paragraph 34 above) and retaining the charge under Article 119 of the Criminal Code of causing death by a disproportionate reaction to an attack. 40. In that decision, the prosecutor noted that there were two conflicting versions of the events – the first one maintained by Mr Gerasimov's companions, namely that they had been attacked without provocation, and the second one maintained by Mr B.I. and his companions, namely that the Roma men had attacked them with shovels and knives immediately after their arrival at the scene. Taking into account other evidence, namely the reports of the medical examinations of Mr B.I. and his companions, which showed that they had all sustained injuries (see paragraph 16 above), the report of the examination of Mr B.I.'s T-shirt and jacket, showing matching knife cuts (see paragraph 17 above), and the medical reports establishing that some of the blood found at the scene of the fight might have been Mr B.I.'s (see paragraphs 13-14 above), he concluded that the version presented by Mr B.I. and his companions was tenable and the other one not. He also relied on the testimony of Mr K.G., who had stated that he had seen nothing in Mr B.I.'s hands and had seen someone stab him (see paragraph 31 above). On the basis of this evidence, the prosecutor concluded that there had been a fight, in the course of which Mr B.I. had been injured and, acting in self-defence, had hit Mr Gerasimov's head only once, with a wooden bat. 41. The parties disagreed as to whether this decision of the Pernik regional public prosecutor's office had been served on the applicants. The applicants alleged that they had never been formally notified of it. The Government contested this assertion. They presented a list of the documents contained in the investigation file, drawn up by the Pernik regional public prosecutor's office and mentioning a receipt signed by the second applicant when the decision was served. However, the Government said that they could not submit the receipt itself, which had been lost. They also presented a request by the prosecuting authorities, addressed to the Pernik municipality, to be informed of the names and addresses of Mr Gerasimov's lawful heirs, with a view to serving documents on them, and the certificate containing that information, issued by the municipality. 42. The applicants submitted that they had on numerous occasions visited the investigator in charge of the case to inquire about the investigation's progress, but had not been provided with any meaningful information. 43. On an unspecified date Mr B.I. entered into a plea bargain with the prosecution. He confessed to killing Mr Gerasimov in a disproportionate reaction to an attack (Article 119 of the Criminal Code) and accepted a suspended sentence of three years' imprisonment. On 22 June 2004 the Pernik Regional Court approved the agreement, finding that it “did not run counter to the law and public morals”, and discontinued the criminal proceedings. 44. Apparently, the applicants became aware of the Pernik Regional Court decision of 22 June 2004 in August 2004, from publications in the local media. 45. On 20 June 2005 the first applicant requested the Chief Public Prosecutor's Office to apply for the criminal proceedings to be reopened. On 6 July 2005 she was informed that this was not possible, as the one-year time-limit for the prosecuting authorities to make such an application had expired on 22 June 2005, and that her request of 20 June 2005 had not been submitted far enough in advance to allow it to be duly examined and an application for reopening prepared. 46. In a letter dated 24 February 2010 the applicants' initial representative before the Court, Mr Georgiev, informed the Court that in October 2009 his car had been damaged by unknown persons, which had posed a risk to his life when he had later travelled in it. On 17 February 2010 the premises of the non-governmental organisation he heads had been entered by order of the Pernik municipality and numerous documents, including some connected with the present application, had been seized. 47. Article 116 § 1 (6) of the Criminal Code of 1968 provides that anyone committing murder in an especially cruel manner and with extreme ferocity is liable to fifteen to twenty years' imprisonment or life imprisonment with or without a right to parole. 48. Under Article 119 of the Criminal Code, causing death by a disproportionate reaction to an attack is punishable by up to five years' imprisonment. 49. The provisions of the Criminal Code relating to racially motivated offences have been summarised in the Court's judgment in the case of Angelova and Iliev v. Bulgaria (no. 55523/00, §§ 60-63, ECHR 2007IX). 50. By Article 237 § 1 of the Code of Criminal Procedure of 1974, in force at the material time, the prosecuting authorities could in certain circumstances discontinue criminal proceedings. Pursuant to Article 237 § 3, victims of crimes had to be notified of any decision to discontinue the proceedings and could appeal against the decision to the competent district or regional court. 51. Article 237 § 6 of the Code, as worded between May 2003 and April 2006, provided that the prosecuting authorities were not to adopt any formal decision to discontinue partially criminal proceedings in cases where the charges against the same person and in respect of the same facts were only being amended. That provision was in line with an earlier interpretative decision of the General Assembly of the Criminal Chambers of Supreme Court of Cassation (Interpretative decision no. 2 of 7 October 2002, Тълкувателно решение № 2 от 7 октомври 2002 г. на ВКС по т. н. д. № 2/2002 г., ОСНК), which said: “A charge brought at the stage of the investigation is intended to define a general, initial, “working” objective of the proceedings. It can be adjusted depending on the evidence gathered and examined in the course of the investigation. In that sense the charge ... is unstable, varying in accordance with the operative developments. The different wording of the charge in respect of the same act and the adjustment of its legal qualification prior to indictment follow the dynamics of the investigation process and any changes in the circumstances resulting from the evidence gathered.” The General Assembly of the Criminal Chambers of Supreme Court of Cassation went on to conclude that “[w]here, in the course of the pre-trial proceedings, the factual basis of the charges changes substantially and new charges are brought against the accused, requiring a more severe, the same or a more lenient punishment ..., the prosecutor is to amend the charges and does not have to adopt a decision discontinuing the criminal proceedings in respect of the initial charges.” 52. Until May 2003 Article 60 § 1 of the Code of Criminal Procedure entitled victims of crime to participate in all stages of the criminal proceedings as civil parties. Civil parties were entitled to exercise their procedural rights to the extent necessary for the substantiation of their civil claim. 53. Following an amendment to the Code of 30 May 2003, the participation of victims as civil parties was restricted to the trial stage of the criminal proceedings. That provision remained in force until April 2006. 54. Plea bargaining was provided for in Articles 414ж-414и of the Code of Criminal Procedure. The procedure was applicable in respect of certain categories of offences. 55. The prosecution and the defence could enter into a plea agreement after the investigation had been concluded. The parties had to agree, inter alia, whether an offence had been committed and on the type and severity of the punishment. The prosecutor would then submit the agreement to the competent district or regional court which would examine it in the presence of the prosecutor, the accused and the latter's counsel. If satisfied that the agreement did not run counter to law or morality, the court would adopt a decision approving the agreement and discontinuing the criminal proceedings. No appeal lay against this decision. A plea agreement approved by a competent court had the same binding force as a final conviction and sentence. 56. Prior to May 2003 the participation of victims in plea bargaining was obligatory and they had to consent to the plea agreement. Following amendments to the Code in May 2003, in cases where the agreement had been made at the pre-trial stage of the proceedings victims' participation and consent were no longer obligatory; however, the court examining the agreement could on its own initiative decide to hear their representations. 57. On the contrary, if a plea agreement had been reached at the trial stage of the proceedings, all parties had to consent to it, including the victims, if they had joined the proceedings as civil parties or private prosecutors. 58. Article 192 of the Code provided that criminal proceedings concerning publicly prosecutable offences could only be initiated by a prosecutor or an investigator. The offences referred to in paragraphs 48-50 above are publicly prosecutable ones. | 1 |
train | 001-107548 | ENG | MLT | CHAMBER | 2,011 | CASE OF CURMI v. MALTA | 3 | Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible;Pecuniary damage - reserved;Non-pecuniary damage - reserved | David Scicluna;George Nicolaou;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva | 6. The applicant was born in 1922 and lives on the Isle of Man. 7. The applicant owned an area of land in Marsaxlokk, Malta, measuring approximately 13,557 sq. m. 8. On 18 March 1988, by means of a President’s declaration made by virtue of Article 3 of the Land Acquisition (Public Purposes) Ordinance, it was declared that the land was required for a public purpose and was thereby being expropriated. According to the Government the site was to be protected as a nature reserve. 9. Following the issue of the relevant permit dated 10 August 1998, in 1999 the boundary of the plot was fenced with a chain-link fence, but no other use has ever been made of the property to date. According to an architect’s report submitted by the applicant the site had been abandoned and allowed to deteriorate. It was completely neglected and not looked after in any way. In consequence the land had been vandalised and the watercourses on the land contaminated by leakages from a nearby pig farm. According to the applicant the land had become a dumping site. The Government contested the veracity of this allegation. 10. The said fencing incorporated an area of land which was effectively larger than that covered by the declaration. In consequence, in relation to this additional land (hereinafter Land B for ease of reference) measuring 362.5 sq. m the applicant claimed that there had been a de facto expropriation which was not in accordance with the law. 11. The entirety of the land was part of the Marsaxlokk Bay Local Plan 1995, which recognised the site as a salt marsh of ecological importance. Nevertheless, the Malta Environment and Planning Authority’s policies authorise development in the area subject to specific conditions. 12. The applicant contended that although the site was declared a Special Conservation Zone in 2005, in 1998 when it was taken there existed no public purpose. In the meantime she was prevented from developing the land in accordance with the relevant policies, since any permit requests she made were refused on the basis of the supposed expropriation. 13. To date, the Commissioner of Lands had not issued a “notice to treat” and the applicant had not received any compensation for the taking of her land. 14. The applicant’s judicial protest of 11 January 2005 requesting the Government to dispossess itself of certain adjoining lands (including Land B) which she claimed had been expropriated illegally, and to pay compensation, was unsuccessful. 15. In 2005 the applicant instituted proceedings before the Civil Court (First Hall) in its constitutional jurisdiction, complaining of a breach of her rights as guaranteed by Article 1 of Protocol No. 1 to the Convention and Article 6. She claimed that no use had been made of the expropriated land, that the taking could not be considered proportionate and that she had not obtained any compensation. Moreover, the delay in initiating compensation proceedings denied her the right of access to court. She further noted that certain adjoining lands were also her property and that notwithstanding her judicial protest of 11 January 2005, which she attached to her application (Rikors promotorju), the State had not taken the desired action. 16. On 4 February 2009 the Civil Court rejected the applicant’s claims. It held that there was no doubt that the land in question was saline marshland that had great ecological importance in Malta. Therefore, its taking for the preservation of a natural reserve had been legitimate and in the public interest. As to Article 6 it held that the applicant could have instituted ordinary proceedings to oblige the Commissioner of Lands to institute proceedings before the Land Arbitration Board (“LAB”) or could have made a request for the relevant Government department to appoint a lawyer to establish the origin of the land. However, she had not taken up any of these procedures. 17. The applicant appealed on the grounds that the public interest upheld by the court was an objective one. However, the Government had failed in the circumstances of the present case to demonstrate how and whether the protection of the said reserve would occur. Moreover, the public interest had to be established at the time of the taking and must persist. However, in the present case the site was declared a Special Conservation Zone only in 2005, seventeen years after the taking and it surely did not persist in view of the state of the land to date. Furthermore, as was clear from the testimony before the first-instance court, the fencing had taken over more land than was covered by the President’s declaration. Thus, as had been argued in the applicant’s submissions, the court should have ordered its release and upheld a violation in the terms explained in her original application (“rikors promotur”). 18. On 26 June 2009, the Constitutional Court found that the applicant’s property rights had not been violated but that there had been a breach of Article 6 in so far as the failure of the Commissioner of Lands to issue a “notice to treat” amounted to a lack of access to court. It awarded the applicant 2,000 euros (EUR) in respect of non-pecuniary damage. 19. The Constitutional Court reiterated that the public interest should persist from the moment of taking the land to the moment when the Government obtained ownership of the land on conclusion of the expropriation procedure. It considered the evidence produced, in particular the witness testimony of the Commissioner of Lands, stating that the Environment Protection Department had requested that such land be expropriated; Departmental correspondence related to the use of the land evidencing that because fencing had been built the property should not be released, whereas it would have been otherwise had nothing been done on site; photographs of the state of the land when it was being taken care of by the applicant’s ancestors; and the witness testimony of an employee at the MEPA who classified the land as saline marshland (Mediterranean sea meadows) hosting rare and healthy flora and fauna communities. He further stated that the land was in a good state although the man in the street might deem otherwise due to the appearance of salt marshes and that the department had added certain species to the site in order to avoid erosion and had carried out engineering works to improve the state of the pools therein. In this light, and having considered subsequent structural plans and assessments confirming the necessity of protecting the biodiverse site, the court held that the taking of the land had been in the public interest, which persisted, notwithstanding that no construction had taken place. It was in fact the aim of the taking of the land to leave the site in its original state, a state which could not have been guaranteed if it had been left in the hands of private individuals. 20. In respect of Land B of the land, while noting that the Commissioner of Lands did not contest the allegation and was willing to give the relevant portion back to the applicant, the court found that the applicant had not made any request in this respect in her application (“rikors”) to the court. It noted that the court had to decide on the case as presented in the application which fixed the parameters of a case at issue. Indeed in the present case no request for rectification of the application had been made in order to include this complaint. The court therefore rejected this ground of appeal. 21. Under Article 6 it held that the applicant, who became aware of the expropriation in 1999, had not solicited the action of the authorities. Nevertheless, it was unacceptable that the Commissioner of Lands, who had the duty to take action, had, in twenty years, failed to pay compensation, or at least to make an offer of such. In consequence this amounted to a violation of Article 6 for lack of access to court. 22. The Land Acquisition (Public Purposes) Ordinance (Chapter 88 of the Laws of Malta) in so far as relevant read as follows: Section 3 “The President of Malta may by declaration signed by him declare any land to be required for a public purpose.” Section 7 “The competent authority may deal with and dispose of land acquired by it in such manner and subject to such conditions as it considers expedient having regard to the public interest or utility.” 23. Articles 2 and 3 of subsidiary legislation 12.09 regarding court practice and procedure and good order rules, read as follows: Article 2 “Proceedings before the Civil Court, First Hall, under article 46 (1) of the Constitution of Malta and under article 4 (1) of the European Convention Act and proceedings before the Constitutional Court in cases referred to in article 95 (2) of the Constitution of Malta shall be instituted by application.” Article 3 “(1) An application before the Civil Court, First Hall, shall state concisely and clearly the facts out of which the complaint arises and shall indicate the provision or provisions of the Constitution of Malta or of the European Convention for the Protection of Human Rights and Fundamental Freedoms alleged to have been, to be or likely to be contravened. (2) The application shall also specify the redress sought by the applicant: Provided that it shall be lawful for the court, if the application is allowed, to give any other redress within its jurisdiction which it may consider to be more appropriate. (3) In cases referred to in article 95 (2) (a) of the Constitution of Malta, the application before the Constitutional Court shall state clearly and concisely the circumstances out of which the question arises, the demand and the provision or provisions of the Constitution or of any other law on which the applicant relies. (4) In cases referred to in article 95 (2) (c), (d), (e) and (f) of the Constitution of Malta, the application shall state clearly and concisely the circumstances out of which the appeal arises, the reasons of appeal and the prayer for the reversal or a specific variation of the decision appealed from. (5) Default of compliance in the application with the requirements of sub-rules (1), (2), (3) and (4) shall not render the application null; but the court may, in any such case, order the applicant to file, within such time as the court shall fix, a note containing the particulars required and the costs of such order shall be borne by the applicant.” 24. Article 1078 of the Civil Code (Chapter 16 of the Laws of Malta), in so far as relevant, read as follows: “Where the time for the performance of the obligation has been left to the will of the debtor, or where it has been agreed that the debtor shall discharge the obligation when it will be possible for him to do so, or when he will have the means for so doing, the following rules shall be observed: (a) if the subject-matter of the obligation is the payment of a sum of money, such obligation shall be performed within two years, if the sum is due without interest, or, within six years if the sum is due with interest; (b) if the subject-matter of the obligation is other than the payment of a sum of money, the time within which the obligation is to be performed shall be fixed by the court according to circumstances.” | 1 |
train | 001-58824 | ENG | NLD | CHAMBER | 2,000 | CASE OF CAMP AND BOURIMI v. THE NETHERLANDS | 1 | Violation of Art. 14+8;No violation of Art. 8;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Elisabeth Palm | 8. On 24 September 1992 Ms Camp's partner, Mr Abbie Bourimi, died without having recognised (erkenning) the child she was carrying at that time and without leaving a will. Ms Camp and Mr A. Bourimi had been living together in a house owned by the latter. They had been intending to marry, but a wedding scheduled for April 1992 had been postponed due to the death of Ms Camp's mother. 9. The parents of Mr A. Bourimi believed neither that the child Ms Camp was carrying had been fathered by their son nor that their son had intended to marry Ms Camp. Consequently, they considered themselves and their other children to be their son's heirs. On 22 October 1992, contrary to the wishes of Ms Camp, Mr A. Bourimi's parents, together with five other relatives, moved into the house which had belonged to their son. Thereupon, Ms Camp moved out of the house. 10. On 2 November 1992 Ms Camp requested the President of the Roermond Regional Court (Arrondissementsrechtbank) in summary proceedings (kort geding) to grant an injunction ordering the parents to vacate the house pending the winding up of Mr A. Bourimi's estate. Furthermore, on 3 November 1992, she requested the Queen to grant letters of legitimation (brieven van wettiging – see paragraphs 16-18 below) in respect of the child she was carrying. 11. The President of the Regional Court refused to grant the injunction on 19 November 1992 but this decision was quashed by the 'sHertogenbosch Court of Appeal (Gerechtshof) on 2 June 1993. The Court of Appeal considered that Ms Camp had adduced sufficient evidence to corroborate her claim that she had been living with Mr A. Bourimi in his house for a considerable time, that they had intended to get married and that Mr A. Bourimi was Sofian's father. In view of the fact that it therefore seemed likely that letters of legitimation would be granted and Sofian would thus emerge as Mr A. Bourimi's sole heir, the Court of Appeal found that it was Ms Camp's right and in her interest in her capacity of mother and guardian to be given possession of the house. The Court of Appeal accordingly ordered the parents of Mr A. Bourimi to vacate the house. The parents subsequently filed an appeal on points of law (beroep in cassatie) to the Supreme Court (Hoge Raad). 12. Meanwhile, on 20 November 1992, Sofian Bourimi was born. Since he was illegitimate and had not been recognised by his father, he was initially given the family name of his mother. On 21 October 1994 the Supreme Court issued advice in favour of the granting of letters of legitimation. Such letters were granted on 4 November 1994 and Sofian took on the family name of his father. 13. On 24 February 1995 the Supreme Court quashed the decision of the Court of Appeal of 2 June 1993. It considered that the letters of legitimation did not have retroactive force from the time of Mr A. Bourimi's death and that therefore Sofian could not inherit from him. As regards Ms Camp's argument that this outcome was contrary to Article 8 of the Convention and Article 14 taken in conjunction with Article 8, the Supreme Court held that the establishment of the consequences of an incompatibility of Netherlands law with these provisions of the Convention went beyond the task of the judiciary. 14. The Supreme Court referred the case back to the Court of Appeal, which was to examine whether other circumstances existed justifying a judicial order to the effect that Mr A. Bourimi's parents vacate the house – such as the fact that Ms Camp had been living in the house for a considerable time. On 4 June 1996 the Court of Appeal struck the case out in view of the fact that the parties to the proceedings had reached an agreement to the effect that Ms Camp and Sofian would vacate the house. 15. The estate of Mr A. Bourimi was distributed amongst the heirs (that is, his parents and siblings) on 9 February 2000 by a notary (notaris). 16. Legally recognised family ties (familierechtelijke betrekkingen) between a father, his relatives and a child exist where a child is born to married parents or if it is born within 307 days following the dissolution of the marriage (Article 1:197 of the Civil Code (Burgerlijk Wetboek – “CC”)). An illegitimate child will have a legally recognised family relationship with its father (who does not have to be the biological father) and the latter's relatives if it has been recognised (erkenning) by the father, either before or after its birth (Article 1:222 CC). At the relevant time, moreover, a legally recognised family relationship would also be created by the granting of letters of legitimation (Article 1:215 CC). 17. Paragraph 2 of Article 1:215 provided as follows: “The request for letters of legitimation may also be made if the man, who, aware of her pregnancy, and intending to marry the mother, died before the birth of the child without having recognised it.” 18. It appears from the explanatory memorandum (Memorie van Toelichting) to this provision that the intention to marry the mother, which, if carried out, would have resulted in the birth of a legitimate child, replaced the recognition required by Article 1:222 CC for the establishment of a legally recognised family relationship. A request for letters of legitimation could be made by the child's mother or, after her death, by the child itself. No time-limit was attached to a request for such letters. According to Article 1:219 § 1 CC, legitimation pursuant to Article 1:215 took effect from the day on which letters of legitimation were granted. 19. On 1 April 1998 the Civil Code was amended. The option of letters of legitimation was replaced by a judicial declaration of paternity (gerechtelijke vaststelling van vaderschap, Article 1:207 CC). A declaration of paternity has retroactive force from the time of the child's birth but it does not affect adversely any rights acquired in good faith by third parties. 20. According to Article 4:879 § 1 CC only those persons who have a legally recognised family relationship with a person who has died intestate may inherit from this person. Furthermore, the heir must have existed at the time of death. (Article 4:883 CC). However, according to Article 1:2 CC, a child who has been conceived but has not yet been born is considered as having already been born when his or her interests so require. 21. According to the rules of intestacy, if a deceased does not leave any children with whom he has a legally recognised family relationship or a spouse, his parents and siblings will inherit from him (Article 4:901 CC). If there are such children or a spouse, the parents and siblings are excluded from the inheritance (Articles 4:899 and 4:899a CC). 22. The applicants applied to the Commission on 18 August 1995. They complained that, contrary to Article 8 of the Convention and Article 14 taken in conjunction with Article 8, the letters of legitimation did not have retroactive force from the time of Mr A. Bourimi's death. 23. On 8 September 1997 the Commission declared the application admissible. 24. In its report of 23 April 1999 (former Article 31 of the Convention) [Note by the Registry. The report is obtainable from the Registry.], the Commission expressed the unanimous opinion that there had been no violation of Article 8 either in respect of the family life between the two applicants or in respect of Ms Camp's family life with the relatives of Mr A. Bourimi, that it was not necessary to examine under Article 8 of the Convention the complaint relating to Sofian's family life with the relatives of his father, and that there had been a violation of Article 14 of the Convention taken in conjunction with Article 8 in respect of Sofian. | 1 |
train | 001-118575 | ENG | BGR | CHAMBER | 2,013 | CASE OF VELEV v. BULGARIA | 3 | Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award | David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva | 5. The applicant was born in 1979 and lives in Sofia. 6. On 21 March 2005 the applicant and another person, Mr E.Y., were detained by the police and brought to a police station, on suspicion of having committed a robbery. 7. The applicant remained in detention until 24 March 2005. He alleged that he had been beaten by police officers during two interrogations on 21 and 22 March 2005, with the aim to make him confess to having committed the robbery. 8. The facts concerning the applicant’s detention and allegations of illtreatment, as well as the findings of the medical examinations he underwent, are summarised in the Sofia Administrative Court’s judgment of 6 June 2011, quoted in paragraphs 29-31 below. 9. The criminal proceedings for robbery against the applicant and Mr E.Y. were discontinued on 6 March 2006. 10. On 28 August 2006 the applicant lodged a complaint with the Sofia Military Prosecutor’s Office, stating that on 21 and 22 March 2005, during his detention, he had been beaten by police officers, in order to force him to confess to an offence. He further stated that he did not know the names of the officers but would be able to identify them. 11. On 26 January 2007 the prosecutor instituted criminal proceedings against Mr G.H., one of the police officers who had interviewed the applicant. The prosecutor stated that on 21 March 2005, in the performance of his duties, Mr G.H. had punched the applicant in the face, chest and back. The prosecutor qualified the criminal conduct as minor bodily injury without detriment to the applicant’s health, an offence under Article 131 § 1 (2) taken together with Article 130 § 2 of the Criminal Code. 12. The applicant was interviewed on 10 January, 31 January and 26 March 2007. On each of these occasions he gave descriptions of the officers who had assaulted him and of others who had witnessed the attacks. 13. On 20 March 2007 the prosecutor conducted a procedure in which the applicant was confronted with the suspect Mr G.H.; the applicant stated that Mr G.H. was not one of the officers who had assaulted him. 14. On 11 May 2007 the prosecutor terminated the criminal proceedings on the ground that no offence had been committed. He found that the applicant’s complaints were unsubstantiated because his statements were vague and could not be fully verified; he had stated clearly that Mr G.H. had not beaten him; his description of the offenders was very general; Mr E.Y., who had witnessed the alleged physical assault, could not be traced; and no other witnesses to the applicant’s condition before or after the arrest had been identified. In addition, it was unclear why the applicant had lodged his complaint with the prosecutor more than a year after the alleged beating. 15. The applicant appealed, and by a decision of 6 July 2007 the Sofia Military Court quashed the prosecutor’s order. It stated that, with the exception of Mr G.H., the prosecutor had failed to interview the police officers who had been on duty on the night of the events. The prosecutor had also failed to interview witnesses on behalf of the applicant who could have testified about his condition before and after his arrest, and to conduct an identification parade. 16. Subsequently, the applicant was once again interviewed on 6 August 2007. His mother was interviewed on the same day. She stated that after his release the applicant had had bruises all over his body, had been in pain and had said that he had been beaten by police officers. 17. On 20 August 2007 the prosecutor suspended the criminal proceedings on the ground that the whereabouts of Mr E.Y. were unknown. 18. On an appeal by the applicant, on 7 November 2007 a prosecutor at the Sofia Appellate Military Prosecutor’s Office quashed that order, finding that the testimony of Mr E.Y. was not indispensable for the investigation and that the prosecutor had failed to follow all the instructions given by the Military Court on 6 July 2007. 19. On 20 November 2007 the prosecution authorities conducted a confrontation between the applicant and Mr D.V., one of the officers who had interviewed him on 22 March 2005. The applicant stated that it had not been Mr D.V. but another person who had hit him on that day. 20. By an order of 17 December 2007, the prosecutor terminated the criminal proceedings against Mr G.H. and sent the case back to the investigator with instructions to find the perpetrators. 21. On 19 February 2008 the applicant participated in a photographbased identity parade. On the basis of several photographs of different individuals presented to him, the applicant identified two of them as the police officers who had beaten him on 21 March 2005 but was unable to identify the officer who had beaten him on 22 March 2005. 22. On 25 and 29 February 2008 the applicant was confronted with D.D. and S.S., but stated that he did not recognise them. It appears that these were not the officers recognised by the applicant at the earlier photograph-based identity parade. 23. On 11 March 2008 the prosecutor terminated the criminal proceedings. He found that there was no evidence to support the alleged illtreatment except for the applicant’s statements, which were vague and very general; the only eyewitness, Mr E.Y., could not be traced and thus it was impossible to question him; the applicant had admitted to having seen the alleged offenders after the incident, which, in the prosecutor’s view, had corrupted the photograph-based identity parade procedure; and the initial medical reports of 22 and 23 March 2005 did not record any injuries, while the report of 26 March 2005 was unclear on whether the injuries had been caused on 21 or 22 March 2005. 24. On an appeal by the applicant, in a decision of 2 April 2008 the Sofia Military Court quashed the prosecutor’s order and returned the case for further investigation. As to the investigation conducted so far, the court found in particular the following: “During the preliminary investigation the witness Velev was interviewed and indicated that on the day following his detention he was brought to the upper floor of the police directorate, where there was a woman and three men. Velev describes in detail the police officer who punched him in the area of the ear and the body – about 160 cm in height, with black hair. Velev describes also the officer who hit him on 21 March 2005 – about 25-30 years old, 175-180 cm in height, with short black hair, a padlock-shaped beard. The only possible conclusion concerning the identifications in the case is that they were not conducted in accordance with the requirements of the [Code of Criminal Procedure], because they were all conducted through photographs. The photographs cannot show the persons’ height [...]. These identifications are useless, given the witness’ statements. On the other hand, as seen from the [albums attached], the witness was shown persons of a different age, not the one described by him. Moreover, it is not clear why the identification parade had to be conducted through the showing of photographs, from which the persons’ height and hair colour are not visible. In this connection, it is necessary to interview the head of the police directorate, as well as the officials responsible for criminal investigations, [so as to establish] which of their subordinates had a padlock-shaped beard at the time and met the description given by the victim. The court considers that the investigation was not comprehensive and objective, because important witnesses have not been interviewed by the military investigator and, if necessary, confrontations had to be organised. Moreover, it was necessary to collect evidence as to which officers worked on the case on the date at issue; this had to be done though an interview with their direct superiors. It was necessary to conduct identification parades, and not photograph identifications, [so as to perceive] the features such as hair and beard.” 25. Upon an appeal by the prosecutor, in a decision of 22 April 2008 the Sofia Military Court of Appeal reversed the above decision and terminated the criminal proceedings. It found, this time, that given the expiry of more than three years since the dates of the events, the investigation had become time-barred (see paragraph 36 below). 26. The Court has not been informed of disciplinary or any other measures or an internal inquiry, undertaken in relation to the applicant’s complaints. 27. On 10 March 2010 the applicant brought an action against the Sofia Police Directorate under the State and Municipalities Responsibility for Damage Act (“the SMRDA”), seeking damages for being beaten by police officers on 21 and 22 March 2005. The action was allowed by a judgment of the Sofia Administrative Court (“the SAC”) of 6 June 2011. 28. The Sofia Police Directorate did not take part in the proceedings and did not comment on the applicant’s claims. A prosecutor from the Sofia city prosecutor’s office, who took part pursuant to a requirement of the law, considered the claim well-founded, but also considered that the amount in damages was exaggerated. 29. As to the facts of the case, the SAC found, in particular, the following: “The plaintiff Anton Velinov Velev was detained [...] on 21 March 2005, at 21.50 p.m. As seen from the decision of the prosecutor [of 24 March 2006] discontinuing the criminal proceedings, a preliminary investigation was opened against [Mr E.Y.] and Anton Velinov Velev on suspicion that on 21 March 2005, in [Sofia], acting in complicity, the two of them had taken away an item belonging to another – a purse, containing personal chattels and money – from [Ms P.]. On the same date [Ms P.] and [Ms V.] had been attacked by two unknown persons, who had knocked down [Ms P.], had taken her purse and had run away. The two victims immediately called [the police] and described in general terms the attackers. [Mr E.Y.] and Velev were detained nearby and brought to the witnesses. [Ms V.] stated that they had not been the attackers. By the same decision [of 24 March 2006] the investigation against [Mr E.Y.] and Velev was discontinued for lack of evidence. The plaintiff attached to his statement of claim a [medical report by an in-house doctor], following a medical examination of Anton Velinov Velev of 23 March 2005. The document reported a “light bruise on the left side of the chest and back”. As seen from a medical report of 26 March 2005, a [coroner] examined the plaintiff [following his release]. During the examination the doctor established: 1) a 3.5 cm by 2 cm haematoma to his left ear; 2) a 4 cm by 3 cm blue-yellow coloured haematoma above the left breast area; 3) a 2 cm by 0.7 cm red-blue coloured haematoma with yellow edges on the left side of the chest near the abdomen; 4) yellow-blue coloured haematomas measuring 1 cm by 1 cm and 2 cm by 1 cm on the left side of the back; 5) a group of yellow-blue coloured haematomas measuring 2 cm by 1 cm and 6 cm by 2.5 cm on the left side of the waist; 6) a 4 cm by 2 cm yellow-blue coloured haematoma in the centre of the waist; 7) a group of blue-yellow coloured haematomas overlapping each other, measuring 3 cm by 1 cm and 5 cm by 4.5 cm and reaching from the right side of the chest down to the waist; and 8) a 10 cm by 4 cm yellow-blue coloured haematoma with red patches on the left side of the waist towards the pelvis. The doctor was of the opinion that the injuries had been caused by blunt objects and were consistent with the plaintiff’s account of the events. The injury to the left ear could have been inflicted on 22 March 2005, while the rest of the injuries dated from 21 March 2005. By a decision of 26 January 2007 of a prosecutor from the Sofia Military Prosecutor’s Office, criminal proceedings were opened against [Mr G.H.] on suspicion that on 21 March 2005, at about 10 p.m., at the building of the First police directorate in Sofia, acting as a State official and in the performance of his duties, had punched and hit with his palm Anton Velinov Velev in the face, chest and back, as a result of which the latter had received haematomas in the areas of the left ear, the left part of the chest, the two sides of the back and the left part of the waist, which amounts to minor bodily injury causing pain to the victim – an offence under Article 131 § 1 (2) taken in conjunction with Article 130 § 2 of the Criminal Code. On 17 May 2011 the plaintiff submitted records from his examinations as a witness in the criminal proceedings [concerning his beating] on 10 January 2007, 31 January 2007 and 26 March 2007. In them, the plaintiff describes the events of 21 March 2005, his detention and transfer to the [police directorate] together with [Mr E.Y.], his beating by police officers the same evening, his stay in the corridor, handcuffed to a grill, the next beating by an officer on 22 March 2005, again during an examination in connection with [the robbery]. In the afternoon of 22 March 2005 he participated in an identity parade, and later in the afternoon the two were brought to the Ministry of the Interior’s hospital, but Velev was not examined. After that they were brought to the Sofia Investigation Service, where they were examined by a doctor who filled in some documents. He was released on 24 March 2005, at about 5 p.m. On the next day he went to the [hospital] but the family doctor told him that she could not issue a medical certificate. On 26 March 2005 he was examined by a coroner.” 30. On the basis of the facts, as established above, the SAC reached the following conclusions: “By Article 7 of the Constitution of the Republic of Bulgaria, the State is liable for damage caused through the unlawful actions and omissions of its bodies and officials. The provision is of a general character and its implementation is to be regulated by statute. The tort liability of the State and the municipalities is thus regulated in the States and Municipalities Responsibility for Damage Act (SMRDA), which is the applicable special statute [...] The State’s liability is strict, the victim receives damages directly from the juridical person to which the respective body or official belongs. The liability is objective as it is not necessary to show that the damage was caused through the fault of anyone. [...] By section 1 (1) SMRDA, the State and the municipalities are liable for any damage caused to individuals and legal persons from the unlawful acts, actions or omissions of their bodies and officials, in the course of or in connection with an administrative activity. By section 7 of the SMRDA, the action is to be directed against the [bodies] whose unlawful acts, actions or omissions led to the damage caused. By section 4, the compensation is to cover any pecuniary and non-pecuniary damage, which is a direct and proximate result of the harm done. For the liability to be engaged, the following preconditions have to be met: 1) there has to be pecuniary or non-pecuniary damage – actual damage or lost profit; 2) it must have been caused by an unlawful act, action or omission of a body or an official of the State or the municipalities; 3) it has to be in the performance of an administrative activity, namely the damage has been caused by the unlawful act, action or omission of the body or official, in the course of or in connection with an administrative activity; and 4) direct and proximate causal link between the unlawful act, action or omission and the damage caused. [...] The analysis of all written evidence in the present case leads to the unconditional conclusion that on 21 and 22 March 2005 officials of the First police directorate in Sofia caused to the plaintiff minor bodily injury. As early as 23 March 2005 the [doctor at the Sofia Investigative Service] noted a “light bruise on the left side of the chest and the back”. During the plaintiff’s examination on 26 March 2005 [the coroner] noted eight different injuries in the areas of the left ear, left part of the chest, left side of the back, left and central parts of the waist, right side of the chest down to the waist and left side of the waist towards the pelvis. Part of these injuries correspond to the one established by [the in-house doctor], at the same time the coroner himself is explicit in his conclusion that the injuries could have been caused in the way and at the time indicated by the plaintiff. The plaintiff’s description of the events of 21 and 22 March 2005 at the [police directorate’s building] is consistent, as seen from the records of his [examinations during the criminal proceedings]. During these examinations the plaintiff was interviewed as a witness, after having been notified of the criminal sanctions in the event of perjury. [...] The combined assessment of [these records] together with the remainder of the evidence shows that they all establish identical factual circumstances. In that regard, objective data are also contained in the two court decisions given in the framework of the criminal proceedings [concerning appeals of the applicant against decisions of the prosecution to discontinue the proceedings], which are obviously based on evidence collected during the investigation. It has not been disputed that the [criminal proceedings in question] were opened following a complaint by the plaintiff against unknown officers of the First police directorate in Sofia that on 21 and 22 March 2005 they had caused him a minor bodily injury, an offence under Article 131 § 1 (2) taken in conjunction with Article 130 § 2 of the Criminal Code. As seen from [the decision] of the Sofia Military Court of 2 April 2008, in the course of the criminal proceedings a medical expert report was commissioned, which established that Velev’s injuries had caused him pain and suffering. [...] On the basis of all the evidence indicated above, the court concludes that on 21 and 22 March 2005 the plaintiff Anton Velinov Velev was beaten by officers of the First police directorate in Sofia where he had been detained. A full description of the injuries is contained in the [coroner’s] medical report of 26 March 2005. The testimony of the witness V. [the plaintiff’s mother] establishes that prior to his detention on 21 March 2005 the plaintiff Velev was completely healthy. The court accepts this testimony as objectively given, despite the witness’ close relation with the plaintiff, as it is logical and consistent. The testimony of [Ms V.] corresponds to the remaining evidence as well. For example, at the time of the arrest the plaintiff was searched, but nothing irregular was noted on his body or in his behaviour. Also at the time of his detention on 21 March 2005 the plaintiff filled in a declaration, where he indicated that he did not have health problems. The witness [V.] explains that on 21 March 2005 her son left for work in a good state of health, but in the evening did not come back. He came back in the evening of 24 March 2004, about 10 p.m., in a deplorable state – his left eye was swollen, he had a yellow-blue bruise on the chest. They sent him immediately to see a doctor, for which there are medical documents. [...] The court has appointed medical experts who submitted a report, which the court accepts as competently prepared. It has not been challenged by the parties. It establishes that the injuries described in the medical documentation in the case [were such] as to cause pain and suffering. The legal definition of the offence of minor bodily injury contained in Article 130 §§ 1 and 2 of the Criminal Code covers cases of injuries to health causing pain and suffering. For the considerations above the court finds that the preconditions for the liability of the State under section 1 of the SMRDA were met. It was shown in an unconditional manner that during his detention at the First police directorate’s building, on 21 and 22 March 2005 the plaintiff received a number of injuries, amounting to minor bodily injury within the meaning of Article 130 § 1 of the Criminal Code. Those injuries were caused by officials [of the directorate], in the course of and in connection with their activity in relation to the plaintiff’s [detention]. The fact that the [detention order] has not been quashed is irrelevant, because the plaintiff’’s beating]) that the use of force was justified, within the meaning of [the provisions of the Ministry of the Interior Act]. That is why it follows that in the course of the performance of their official activity in [detaining the applicant] officials of the First police directorate performed unlawful actions, namely caused a minor bodily injury to the plaintiff [...] The medical documentation in the case establishes a direct and proximate link between the officers’ behaviour and the damage caused to the applicant, namely injuries to his body. The considerations above show that all four preconditions for the State’s liability under section 1 of the SMRDA have been met.” 31. As to the amount of damages to be awarded, the SAC took into account the nature of the injuries caused to the applicant, as well as the particular circumstances, namely the fact that the injuries were caused by police officers, in a situation where the applicant had been particularly vulnerable as he had been deprived of his liberty. It referred once again to the testimony of the applicant’s mother, who had stated that after his release the applicant had been in “a deplorable state” and that the events “had destroyed the family”. The SAC took note, furthermore, of the amounts awarded by the domestic courts in other similar cases. Lastly, it dismissed the applicant’s argument that the compensation should be comparable to the amount awarded in the Court’s case of Ivan Vasilev v. Bulgaria, no. 48130/99, 12 April 2007 (where the Court awarded EUR 12,000 in nonpecuniary damage). It noted that the circumstances in that case had been much graver and that, in addition, unlike in Ivan Vasilev, the case before it did not concern the ineffective investigation into the applicant’s beating by the police. 32. On the basis of the above, the domestic court awarded the applicant 7,000 Bulgarian levs (BGN), the equivalent of approximately 3,570 euros (EUR), in respect of non-pecuniary damage. The applicant had initially claimed BGN 10,000. 33. The above-mentioned judgment does not appear to have been appealed against, and took effect on an unspecified date. At the beginning of 2012 the Sofia Police Directorate paid the applicant the sum awarded. 34. Article 130 § 2 of the Criminal Code of 1968 makes it an offence to cause minor bodily injury to another. Under Article 131 § 1 (2), where the injury was caused by police officers in the course of or in connection with the performance of their duties, the offence is considered aggravated. The offence is publicly prosecutable (Article 161 of the Code) and, if the injury was without detriment to the victim’s health (“без разстройство на здравето”), is punishable by up to one year’s imprisonment or probation. 35. Under Article 287 of the Criminal Code, forcing an accused to confess or provide information through coercion or other unlawful means is an offence punishable by three to ten years’ imprisonment where the perpetrator was a person in whom official powers were vested. 36. The limitation period for prosecuting offences under Article 131 § 1 (2) taken in conjunction with Article 130 § 2 of the Criminal Code is two years (Article 80 § 1 (4) of the Code), and the limitation period for prosecuting offences under Article 287 of the Code is ten years (Article 80 § 1 (3)). Each act of criminal prosecution carried out by the competent authorities in relation to the alleged offender interrupts the limitation period and restarts the running of time (Article 81 § 2). Such interruptions notwithstanding, the alleged offender can no longer be prosecuted if the limitation period has been exceeded by one half (Article 81 § 3), which means that an offence under Article 131 § 1 (2) taken in conjunction with Article 130 § 2 of the Code cannot be prosecuted if more than three years have elapsed since its alleged commission. | 1 |
train | 001-83369 | ENG | SRB | CHAMBER | 2,007 | CASE OF FILIPOVIC v. SERBIA | 3 | Violation of Art. 10;Not necessary to examine Art. 6;Just satisfaction dismissed (out of time) | null | 5. The applicant was born in 1960 and currently lives in Babušnica, Serbia. At the relevant time, he was employed as a tax inspector and has, as of 2000, been the Vice President of the local branch of the Demo-Christian Party of Serbia (Demohrišćanska stranka Srbije). 6. On 21 October 2002 the Municipal Court (Opštinski sud) in Babušnica convicted the applicant of criminal defamation (kleveta) and ordered him to pay a fine in the amount of 6,000 Yugoslav Dinars (“YUD”) plus an additional YUD 25,000 in costs. 7. In the operative part of this judgment the court established: (i) that on 8 March 2001 the applicant had taken part in a “public gathering” (javni skup) in the Babušnica Municipal Hall; (ii) that this “gathering” was attended by the Deputy Prime Minister of the Republic of Serbia, the Deputy Minister for Justice and Local Self-Government, as well as more than 80 municipal councillors and other leading local figures; and (iii) that on this occasion the applicant had publicly stated that Mr P.J., at that time the Mayor of Babušnica, “was not the right person for this job”, given that he had already “embezzled 500,000 German Marks” (jer je proneverio 500 000 DM). The court then concluded that this statement was “untrue” and, as such, capable of “damaging the reputation and honour” of Mr P.J., a well-known and respected local businessman and public servant (društveno-politički radnik), and proceeded to find the applicant guilty as charged. 8. In its reasoning, inter alia, the Municipal Court relied on two witnesses who, “though members of different political parties”, had heard the applicant state that the Mayor had “embezzled” 500,000 German Marks” in 1996, as director of a major State-owned company, but dismissed, as unconvincing, the testimony of at least four others who had stated that the applicant had said that the Mayor had “deprived” (oštetio) the State of the same amount in revenue. The court further held that the official minutes of the meeting in question, containing language to the same effect, were of “no greater probative value” because they were composed by a person who was himself merely a “witness”, and, finally, that a criminal complaint filed against the Mayor for tax evasion in 1996 had not ultimately resulted in his conviction (see paragraphs 16 and 17 below). 9. On 31 December 2003 the District Court (Okružni sud) in Pirot rejected the applicant's appeal and, on the same facts, found him guilty of the crime of insult (uvreda), rather than criminal defamation (kleveta), holding that the meeting at issue could not be deemed a “public gathering” within the meaning of the Serbian Criminal Code. The sentence imposed by the Municipal Court, however, was upheld in its entirety and thereby became final. 10. On an unspecified date in 2004, the Mayor filed a separate civil compensation claim with the Municipal Court in Babušnica, seeking 300,000 Serbian Dinars (“RSD”) for the mental anguish suffered due to the applicant's statement referred to above. 11. On 23 September 2004 the Municipal Court ruled partly in favour of the Mayor, without having heard him in person, and, in so doing, ordered the applicant to pay RSD 120,000 in compensation, together with default interest, plus costs in the amount of RSD 33,400. At that time, this was equivalent to approximately 2,077 Euros (“EUR”), or, in more concrete terms, the applicant's total net salary for the previous six months. 12. In its reasoning, the court relied on the applicant's criminal conviction, as well as the findings of the criminal courts, and held that the Mayor's reputation had indeed been harmed, causing him serious and continuing mental anguish. The court noted that the plaintiff in this case was both a Mayor and a leading local businessman and concluded that adequate financial compensation was called for. 13. On 20 December 2004 the District Court in Pirot rejected the applicant's appeal and, in so doing, fully accepted the reasoning of the Municipal Court, whose judgment thereby became final. The applicant received a written copy of the District Court's decision on 24 January 2005. 14. On 9 March 2005 the applicant paid a total of RSD 153,400 in respect of the compensation awarded against him, the interest accrued and the costs of the civil proceedings. 15. According to the official minutes of the meeting held in the Babušnica Municipal Hall on 8 March 2001, the Deputy Prime Minister stated that the purpose of this meeting was to “asses the functioning of the municipality” as a whole. He invited the participants to openly share their “critical views” in this respect and explained that, if needed, the Government would consider imposing specific measures aimed at tackling any serious issues. 16. The minutes, thereafter, reflected that the applicant had accused the Mayor of not being “the right person for the job” and that “this ... country deserved someone better”. He then added that in 1996, in his capacity as a tax inspector, he had found “numerous irregularities” with respect to “Lisca”, a major State-run company headed by the Mayor, and that he had thus filed a criminal complaint, alleging that the Mayor had “deprived the State of 500,000 German Marks” in revenue. 17. The applicant provided the Court with the said criminal complaint, dated 24 June 1996, as well as three separate decisions issued by the Public Revenue Directorate (Republička uprava javnih prihoda): two of 22 August 1996 and 2 September 1996, respectively, ordering “Lisca” to pay its overdue taxes, and the third, of 25 December 1996, fining the company for its failure to do so. 18. Article 154 defines different grounds for claiming civil compensation. 19. Article 172 § 1 provides that a legal entity, which includes the State, is liable for any damage caused by one of “its bodies”. 20. Articles 199 and 200, inter alia, state that anyone who has suffered mental anguish as a consequence of a breach of his or her honour or reputation may, depending on its duration and intensity, sue for financial compensation before the civil courts and, in addition, request other forms of redress “which may be capable” of affording adequate non-pecuniary satisfaction. 21. Articles 191 and 205 provide, inter alia, that a domestic court may decide to reduce the compensation award taking into account, ex officio, the specific financial circumstances of the respondent. 22. Article 12 § 3 provided that a civil court was bound by a final decision of a criminal court in respect of whether or not a crime had been committed, as well as the criminal responsibility of the defendant. 23. A civil court dealing with a compensation claim shall be bound by the criminal court's assessment of the defendant's criminal responsibility. It “shall not [however] be bound” by any of its other findings (Rev. 1089/90) and shall be entitled to “assess independently” the defendant's civil liability (Gž. 1316/67). 24. Articles 3 § 3, 413, 415, 417 and 418 provide that the Public Prosecutor shall, ex officio or in response to a party's specific proposal, within a period of three months, have the right to lodge a Request for the Protection of Legality against a final civil court decision, if it transpires that the decision in question was “based on the parties' unlawful dispositions” (nedozvoljeno raspolaganje stranaka), i.e. those undertaken in breach of the “binding provisions of domestic law, public order or the rules of morality” (prinudni propisi, javni poredak i pravila morala). Should the Public Prosecutor refuse to lodge a request of this sort within the prescribed deadline, the party who had urged him to do so shall, within thirty days, have the right to file its own Request for the Protection of Legality with the Supreme Court. 25. The Civil Procedure Act 2004 entered into force on 23 February 2005, thereby repealing the Civil Procedure Act 1977. Article 491 §§ 1 and 5 of the 2004 Act, however, provides that the 1977 Act shall remain in force, inter alia, in respect of all proceedings where the first instance judgment was rendered prior to 23 February 2005 and, further, that any pending Requests for the Protection of Legality shall be dealt with on the basis of the 1977 Act. 26. Article 25 of the Serbian Constitution (Ustav Republike Srbije) published in the Official Gazette of the Socialist Republic of Serbia - OG SRS - no. 1/90 provided as follows: “Everyone shall be entitled to compensation for any pecuniary and non-pecuniary damages suffered due to the unlawful or improper conduct of a State official, a State body or a public authority, in accordance with the law. Such damages shall be covered by the Republic of Serbia or the public authority [in question].” 27. This Constitution was repealed on 8 November 2006, which is when the new Constitution, published in OG RS no. 98/06, entered into force. 28. The substance of Article 35 § 2 of the “new” Constitution corresponds, in its relevant part, to the above-cited text of the previous Article 25. 29. The relevant provisions concerning the succession of the State Union of Serbia and Montenegro are set out in the Matijašević v. Serbia judgment (no. 23037/04, §§ 22-25, 19 September 2006). | 1 |
train | 001-127611 | ENG | ALB | CHAMBER | 2,013 | CASE OF IZET HAXHIA v. ALBANIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) | Altina Xhoxhaj;David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Ledi Bianku;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva | 6. The applicant was born in 1966. He used to be the bodyguard of the then Albanian President, Mr Sali Berisha. At the time of the introduction of the application, he was detained in Turkey pending the outcome of his extradition to Albania. 7. On 12 September 1998 at about 9.15 p.m. Mr Azem Hajdari, a Member of Parliament (“MP”), and his bodyguards B.C and Z.N were shot as they came out of the Democratic Party (“DP”) headquarters in Tirana. Mr Hajdari and B.C died the same day in hospital. The second bodyguard Z.N was seriously injured. Mr Hajdari was a leading member of the DP which was one of the two main political parties in Albania and, at the material time, in opposition. A criminal investigation was opened into the murder. 8. On 13 January 2001 the prosecutor’s office issued an arrest warrant in respect of the applicant, on suspicion of involvement in the assassination of the MP and of one of his bodyguards as well as in the attempted murder of the other bodyguard. The arrest of four other people in connection with the murder was also ordered by the prosecutor. 9. On 31 January 2001 the Tirana District Court (“District Court”) ordered the applicant’s arrest. He was represented by a court-appointed lawyer. 10. On 3 March 2001 the District Court declared the applicant a fugitive after unsuccessful attempts to locate him. The decision stated that the applicant’s family did not know of his whereabouts. His neighbours had also mentioned that no one had lived in the applicant’s residence for two years. 11. On 13 March 2001 the prosecutor lodged a bill of indictment with the District Court. The applicant and four other co-accused were indicted on charges of having participated in, or organised, the assassination of the MP, his bodyguard and the attempted murder of civilians. 12. The trial proceedings against the applicant were conducted in absentia. He was represented by a lawyer appointed by his family in accordance with Article 48 § 3 of the Code of Criminal Procedure (“CCP”). 13. On 29 April 2001 the District Court convicted the applicant in absentia. He was sentenced to twenty-five years’ imprisonment. 14. The applicant’s family-appointed lawyer as well as the co-accused appealed against the conviction to the Court of Appeal and the Supreme Court. 15. On 9 July 2002 and 14 February 2003 the Court of Appeal and the Supreme Court, respectively, upheld the District Court’s decision. The applicant was represented by the family-appointed lawyer. 16. The applicant’s family-appointed lawyer did not lodge a constitutional appeal, owing to the lack of a power of attorney to do so. The constitutional appeals of two of the co-accused, concerning the overall unfairness of the proceedings, were declared inadmissible by the Constitutional Court on 9 July 2003 on the ground that the appeals did not disclose a breach of the right to a fair trial. 17. A detailed account of the facts, the criminal investigation and the domestic courts’ decisions has been described in Haxhia v. Albania, no. 29861/03, 8 October 2013, not yet final and Mulosmani v. Albania, no. 29861/03, 8 October 2013, not yet final. 18. On 3 June 2006 the applicant was arrested by the Turkish authorities, apparently on the basis of an arrest warrant issued by the Albanian authorities. It would appear that the Albanian authorities requested the applicant’s extradition. A copy of the extradition request has not been submitted to this Court. No further information has been provided by the parties as to the outcome of the extradition proceedings in Turkey. 19. The relevant provisions of the CCP as regards the appointment of and representation by a counsel read as follows: Article 48 – Counsel appointed by the accused “1. The accused has the right to appoint no more than two lawyers. 2. The appointment is made by means of a statement before the proceeding authority or by a document given or sent by registered mail to the counsel. 3. The appointment of a counsel for a person detained, arrested or sentenced to imprisonment, unless he has appointed a counsel of his own choosing, may be carried out by his relatives in accordance with the procedure stipulated in paragraph 2 above”. Article 410 – The defendant’s appeal “2. The defence counsel may lodge an appeal against a conviction in absentia in so far as he has been provided with a power of attorney issued in accordance with the law”. 20. The relevant provisions of the CCP as regards an application for leave to appeal out of time read as follows: “Article 147 – Leave to appeal out of time “1. The prosecutor, the accused, the private parties and the defence counsel may request the reopening of the time-limit if they establish that they had no possibility to comply with the time-limit owing to unforeseen events or force majeure. 2. In the event of conviction in absentia, the accused may request the reopening of the time allowed for appealing against the decision if he can establish that he has not been notified of the decision. 3. An application for the reopening of the time allowed for appeal must be lodged within ten days of the date ... on which the defendant effectively acquires knowledge of the decision. Leave to appeal out of time cannot be granted more than once in respect of each party and of each stage of the proceeding”. 4. The application is examined by the court seized at the time of its introduction (për kërkesën vendos organi që procedon në kohën e paraqitjes së saj). 5. The decision on the reopening of the time allowed for appeal [against a judgment] may be appealed against in conjunction with the decision on the merits of the case. 6. An appeal may be lodged with the court of appeal against the decision refusing an application for leave to appeal out of time”. Article 148 – The effects of leave to appeal out of time “1. The court which grants leave to appeal out of time, upon request of the party and in so far as it is possible, orders that those actions in which the party was entitled to participate be carried out again.” 21. Articles 449–461 of the CCP govern the application for review of a final judgment. Article 450 – Cases for review An application for review may be lodged: a) when the facts of the grounds of the decision do not comply with those of another final decision; (b) when the decision has relied on a civil court decision which has subsequently been quashed; (c) when, subsequent to the decision, new evidence has emerged or has been found which independently or along with previous evidence proves that the decision is wrong; and (d) when it is proved that the decision was given as a result of the falsification of judicial acts or another fact prescribed by law as a criminal offence”. 22. An application for review should be lodged with the Supreme Court. 23. Section 51 § 4 of the Jurisdictional Relations in Criminal Matters Act states that “a final criminal decision against an extradited person, which was delivered in his absence, can be reviewed at that person’s request, provided that the Minister of Justice gave such an assurance to the requesting State. The application for review should be submitted within 30 days of the applicant’s arrival in the territory of Albania and its examination is subject to the provisions of the Code of Criminal Procedure”. 24. The relevant provisions of the Constitutional Court Act read as follows: Section 30 “1. The lodging of an appeal before the Constitutional Court shall be subject to the time-limits set out in this law. 2. An individual’s appeal for a violation of his constitutional rights may be submitted no later than two years from the occurrence of such violation. If the law provides a remedy, the individual may lodge an appeal with the Constitutional Court after having exhausted all legal remedies for the protection of his rights. In such cases, the time-limit for the lodging of the appeal is two years from the notification of the last instance body’s decision”. 25. On 3 May 2007 and 10 October 2007 the Gjirokastra District Court granted two accused’s applications for leave to appeal out of time against their conviction in absentia. The accused made their applications following their extradition to Albania. In the meantime, they have lodged two separate applications with this Court (Hysi v. Albania, no. 72361/11 and Malo v. Albania, no. 72359/11) about the fairness of the re-trial. Those applications are pending on the date of the adoption of the present judgment. 26. On 2 November 2010 the Shkodra District Court granted an accused’s application for leave to appeal out of time against his conviction in absentia. The accused made that application following his extradition to Albania (see the Supreme Court’s decision no. 37/2011 for more information). 27. In its unifying decision no. 2 of 14 October 2002, the Supreme Court Joint Benches ruled that, having regard to its strictly personal character, an application for leave to appeal out of time should be lodged only by the accused or by a lawyer appointed by him, within ten days of the date on which the accused was effectively informed of the decision given in absentia (decision no. 2/2002). This right could not be exercised by the accused’s family members if the accused was not realistically aware of the decision in absentia. The application for leave to appeal out of time shall be examined by the District Court, sitting in a three-judge formation. The District Court’s decision can be appealed to the Court of Appeal and, thereafter, to the Supreme Court. However, the last finding was rectified by the Constitutional Court’s decision no. 31/2012 (see paragraph 36 below). 28. In its unifying decision no. 1 of 20 January 2011, the Supreme Court Joint Benches examined three issues concerning an application for leave to appeal out of time (decision no. 1/2011). The appellant had been convicted in absentia. His family-appointed lawyer was first granted leave to appeal out of time against the conviction in absentia to the Court of Appeal. The lawyer’s subsequent appeals on the merits of the case were rejected by the Court of Appeal and the Supreme Court. Following his extradition to Albania, the appellant was granted leave to appeal out of time against the Court of Appeal’s judgment to the Supreme Court. He was represented by a lawyer of his own choosing in the proceedings before the Supreme Court Joint Benches. 29. In the first place, the Supreme Court Joint Benches ruled that, when an appeal had been previously examined and rejected by a Supreme Court’s bench, in proceedings in absentia in which the accused was represented by a family-appointed lawyer in accordance with Articles 48 § 3 and 410 § 2 of the CCP, neither the accused nor his lawyer could (re)lodge an application for leave to appeal out of time against a Court of Appeal’s decision on the grounds that the accused had not been informed of the decision in absentia (me pretendimin se i pandehuri nuk është vënë në dijeni të vendimit) as this would run counter to the principle of res judicata. The same reasoning would apply to an application for leave to appeal out of time against a District Court’s decision. 30. Secondly, the Supreme Court Joint Benches held that only when a higher court dismissed an appeal as having been time-barred, without examining the merits or the lawfulness of the complaints raised in the grounds of appeal, would the accused have a right to lodge an application for leave to appeal out of time in accordance with Article 147 § 1 of the CCP. 31. The third finding concerned the effect of an appeal lodged by an accused, in the absence of a co-accused’s appeal, on the latter’s application for leave to appeal out of time. The Supreme Court Joint Benches held that, as a rule, “in criminal proceedings against several co-accused, the court should not grant an accused’s application for leave to appeal out of time, if it is proved that the [merits of the] case were examined upon the appeal lodged by a co-accused”. However, “only when a[n] [co-accused’s] appeal has been declared inadmissible on the strength of Article 420 of the CCP [non-compliance with formal requirements] and, only when the court solely examined [the merits of] that co-accused’s appeal, can the accused, who did not lodge an appeal, seek leave to appeal out of time against a court’s decision given in absentia”. 32. On 5 October 2011, following two accused’s applications for leave to appeal out of time, the Supreme Court, relying on its unifying decision no. 1/2011, rejected those applications (decisions nos. 121/2011 and 122/2011). The Supreme Court held that the accused’s lawyers, who had been appointed by family members in accordance with Articles 48 § 3 and 410 § 2 of the CCP, had previously and unsuccessfully appealed against the accused’s conviction in absentia to both the Court of Appeal and the Supreme Court. Consequently, their conviction in absentia “had acquired the force of res judicata” which barred any re-trial. 33. Following extradition from Italy, an accused lodged an application for leave to appeal out of time. On 12 October 2011 the Supreme Court, relying on its unifying decision no. 1/2011, rejected that application on the ground that the accused’s family-appointed lawyer had previously and unsuccessfully appealed against the accused’s conviction in absentia to both the Court of Appeal and the Supreme Court (decision no. 130/2011). 34. On 5 September 2012 the Supreme Court, relying on its unifying decision no. 1/2011, held, inter alia, that the lower court had erred in granting the accused leave to appeal out of time, since the accused’s family-appointed lawyer had previously and unsuccessfully appealed against his conviction in absentia (decision no. 218/2012). 35. In response to a referral request by the Supreme Court on the constitutionality of Articles 48 § 3 and 410 § 2 of the CCP, the Constitutional Court decided, by decision no. 30 of 17 June 2010 (decision no. 30/2010), that the appointment of a lawyer or counsel by a family member should be accepted by the domestic courts in so far as it could be established that this constituted an explicit manifestation of the accused’s intention not to attend the proceedings. The same reasoning applied to an application for leave to appeal out of time made by counsel appointed by the accused’s family. The authorities should establish that the accused did not have effective knowledge of his conviction in absentia and that the accused had effective knowledge of the appointment of counsel by his family. 36. In response to a referral request by the Supreme Court on the constitutionality of Article 147 §§ 4 and 6 of the CCP, the Constitutional Court, by decision no. 31 of 17 May 2012 (decision no. 31/2012), clarified that the term “the court seized” provided for in Article 147 § 4 referred to the court against which decision the accused is seeking leave to appeal out of time. If the accused sought leave to appeal against an appellate court decision, the application for leave to appeal out of time should be [lodged with and] examined by the appellate court instead of the District Court. What confused the interpretation of the above term was the use of the words “with the court of appeal” in Article 147 § 6 of the CCP. The Constitutional Court decided that those words were unconstitutional and that they could be replaced by the words “with a higher court”. Since Article 147 of the CCP did not provide for the parties’ [direct] right to appeal against a decision granting leave to appeal out of time (Article 147 § 5 of the CCP) as opposed to the parties’ right to appeal against a decision refusing leave to appeal out of time (Article 147 § 6 of the CPP), the Constitutional Court further held that the legislature should separately provide for the parties’ right to appeal against the granting of the application for leave to appeal out of time prior to the examination of the merits of the appeal. The law as it stood meant that, in the examination of the merits, the Supreme Court would also have to examine the lawfulness and substantiation of the application for leave to appeal out of time, which was not compatible with the nature of proceedings before that instance. 37. On 17 September 2010 the Supreme Court held that an extradited person could make an application for review of the final conviction in absentia under Article 450 of the CCP, provided that the Minister of Justice had given an assurance to the requested State that the extradited person would be re-tried following extradition (decision no. 812/2010). In its reasoning, the Supreme Court relied on Article 3 of the Second Additional Protocol to the European Convention on Extradition which was ratified by Albania and, consequently, took precedence over national law in accordance with the Constitution as well as on section 51 § 4 of the Jurisdictional Relations in Criminal Matters Act (see paragraphs 23 above and 42 below). In that case, the appellant was extradited from Spain on the strength of the Minister of Justice’s assurance that he would be given a re-trial. The Supreme Court accepted his application for review of the conviction in absentia under Article 450 of the CCP, in spite of the exhaustive grounds of review listed in Article 450. 38. On 19 January 2011 the Supreme Court, relying on its decision no. 812/2010, accepted an appellant’s application for review of his conviction in absentia under Article 450 of the CCP (decision no. 9/2011). The appellant was extradited from the United Kingdom on the strength of the Minister of Justice’s assurance that he would be given a re-trial. 39. On 16 February 2011 the Supreme Court accepted an appellant’s application for review of his conviction in absentia under Article 450 of the CCP (decision no. 33/2011). The appellant was extradited from Germany on the strength of the Minister of Justice’s assurance that he would be given a re-trial. 40. In decision no. 30 of 26 November 2009 the Constitutional Court accepted an appellant’s constitutional complaint against his trial in absentia, following his extradition to Albania. The appellant had been convicted by a final decision of the Supreme Court on 24 March 2000 in absentia, and was extradited to Albania on 4 June 2008. The Constitutional Court found a breach of the appellant’s right of defence on account of the domestic courts’ failure to appoint a lawyer to represent him. 41. In decision nos. 83 of 5 July 2013 and 118 of 30 October 2012, the Constitutional Court found that the appellants had failed to lodge a constitutional complaint against their conviction in absentia within the two-year statutory time-limit, which had started to run on the date they were extradited to Albania. In both cases, the appellants were separately convicted in absentia by Supreme Court decisions of 2001 and 2004. They were extradited on an unspecified date in 2007, one from the United Kingdom and the other from Germany. Upon extradition, they lodged separate applications for leave to appeal out of time, but these were rejected by the Supreme Court on 6 May 2011 and 19 January 2012 respectively. The Constitutional Court held that, having regard to the Supreme Court Joint Benches’ unifying decision no. 1/2011 (see paragraph 28 above), it was not open to the appellants to lodge an application for leave to appeal out of time, as their family-appointed lawyer had previously and unsuccessfully appealed against their conviction in absentia. The appellants should have lodged their constitutional complaints within the two-year statutory time-limit, which had started to run on the date of their extradition to Albania, when they had been notified of the decisions given in absentia. Instead, they had lodged them upon the conclusion of the proceedings concerning their application for leave to appeal out of time, after the expiry of the two-year statutory time-limit. 42. The European Convention on Extradition was ratified by Albania on 19 May 1998 and it entered into force on 17 August 1998. Article 3 of its Second Additional Protocol states as follows: “Article 3 – Judgments in absentia 1. When a Contracting Party requests from another Contracting Party the extradition of a person for the purpose of carrying out a sentence or detention order imposed by a decision rendered against him in absentia, the requested Party may refuse to extradite for this purpose if, in its opinion, the proceedings leading to the judgment did not satisfy the minimum rights of defence recognised as due to everyone charged with criminal offence. However, extradition shall be granted if the requesting Party gives an assurance considered sufficient to guarantee to the person claimed the right to a retrial which safeguards the rights of defence. This decision will authorise the requesting Party either to enforce the judgment in question if the convicted person does not make an opposition or, if he does, to take proceedings against the person extradited. 2. When the requested Party informs the person whose extradition has been requested of the judgment rendered against him in absentia, the requesting Party shall not regard this communication as a formal notification for the purposes of the criminal procedure in that State”. | 1 |
train | 001-100920 | ENG | CYP | ADMISSIBILITY | 2,010 | PANAYI v. CYPRUS | 4 | Inadmissible | Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | The applicant, Mr Panayiotis Panayi, is a Cypriot national who was born in 1954 and lives in Limassol. The applicant has brought the present application in his capacity as administrator of his deceased father's estate. On 16 March 1990 a civil action was brought before the District Court of Paphos by, inter alia, the applicant, in his capacity as administrator of his deceased father's estate, against four members of his family and the Attorney-General of the Republic concerning the transfer and registration of certain plots of land. On 10 March 1999 the action was settled by way of friendly settlement. On 28 January 2000 the applicant, in his capacity as administrator of his deceased father's estate, brought another civil action before the District Court of Paphos against four members of his family and the Attorney-General (“the defendants”) seeking the transfer and registration of a plot of land in his name. On 18 July 2006 the District Court upheld the applicant's claim in part. It issued an order for the annulment of the registration of the plot in the names of defendants nos. 1–4 and further, an order for the restoration/reinstatement/re-registration of the property in the applicant's grandfather's name. On 28 August 2006 the applicant lodged an appeal with the Supreme Court, claiming that the District Court should have ordered the transfer and registration of the plot in his name and also that he should have been awarded general, special and exemplary damages (appeal no. 353/06). The defendants also appealed against the first-instance judgment (appeal no. 261/2006). On 11 February 2009 the Supreme Court dismissed the applicant's appeal but upheld the respondents' appeal. It set aside the District Court's judgment and annulled the orders that had been issued. Article 30 § 2 of the Constitution safeguards the right to a fair trial. It provides as follows, in so far as relevant: “In the determination of his civil rights and obligations or of any criminal charge against him, every person is entitled to a fair and public hearing within a reasonable time by an independent, impartial and competent court established by law. ...”. In order to ensure the effective protection/application at domestic level of the principle of the right to a trial within a “reasonable time” and to provide effective domestic remedies in relation to breaches of that right, Parliament passed the Law Providing For Effective Remedies for Exceeding the Reasonable Time Requirement for the Determination of Civil Rights and Obligations, Law 2(I)/2010. This Law entered into force on 5 February 2010 and applies to complaints concerning the length of proceedings in all civil and administrative cases. The relevant parts of Law 2(I)/2010 provide as follows: “Whereas Article 6.1 of the European Convention on Human Rights and Article 30.2 of the Constitution of the Republic of Cyprus safeguard the right to determination of civil rights and obligations within a reasonable time, And whereas in a number of individual recourses against Cyprus the European Court of Human Rights found violations of Article 6.1 of the Convention in that the civil rights and obligations of the applicants in civil cases and recourses had not been determined by the Cyprus Courts within a reasonable time as required by the above-mentioned Article and also found a violation of Article 13 in that there were no effective remedies in the Republic as required by Article 13 regarding the applicants' allegations of violation of the requirement of Article 6.1, And whereas the Republic's obligation under Article 46 of the Convention to abide by the said Judgments of the European Court of Human Rights is being supervised by the Committee of Ministers of the Council of Europe and entails the adoption of measures preventing future violations as those found by the Court in the above-mentioned individual applications, And whereas a number of individual recourses against the Republic are pending before the European Court of Human Rights for violation of Articles 6.1 and 13 of the Convention regarding determination of the applicants' civil rights and obligations in civil cases and recourses, And whereas the Republic is bound by Article 1 of the Convention to secure the rights of the Convention including the right to effective domestic remedies for violation of the right to determination of civil rights and obligations within a reasonable time.” “(1) This Law applies with regard to the violation of the right of persons to determination of their civil rights or obligations within a reasonable time in District Court or Supreme Court cases, whether they are pending at any stage at first instance or on appeal or have been concluded. (2) A person who alleges that in a case to which this law applies his right to determination of his civil rights or obligations within a reasonable time has been violated has a right to have recourse to the legal proceedings provided for in the present Law for obtaining the remedies provided by it. (3) Violation, in a court case to which this Law applies, of the right of a person to determination of his civil rights or obligations within a reasonable time and the granting of the remedies provided for in this Law for the violation, is determined by courts vested with competence under this Law.” “The right to determination of civil rights and obligations within a reasonable time in a case to which this Law applies is actionable, and the person who alleges that he or she is a victim of a violation of the right may have recourse to the court with jurisdiction by way of action against the Republic by virtue of this Law, claiming the remedies for the violation provided for in this Law.” “(1) An action under section 4 may be instituted for violation of the right in a case which has been concluded with a final court judgment concerning violation of the right at any stage of the case, i (2) An action under section 4 may also be instituted for violation of the right in a case concluded with a judicial decision before the date of entry into force of the present Law, or in which execution of a judgment given before the date of entry into force is pending, provided that the action is instituted within one year of the date of entry into force or the date of the ed within the above time-limit.” “(1) Irrespective of the provisions of any other law, the court which is granted jurisdiction by this Law to examine and determine an action under sections 4 and 5 for a violation of the right to determination of civil rights or obligations within a reasonable time in cases which were concluded with the issuance of a final judicial decision are: (a) in relation to district court cases, the administrative President of any District Court who, in a case in which, according to the action, the plaintiff's right to determination of his civil rights or obligations within a reasonable time has been violated, did not exercise duties at the court in which the case was pending and did not participate at any stage of its examination, or in the event there is no administrative president who did not exercise duties at the court in which the case was pending and did not participate at any stage of its examination, the next senior president of the district court or another judge who fulfils the above, as the Supreme Court may in the event designate. (b) in relation to Supreme Court cases, three judges of the Supreme Court, as the Supreme Court may in the event designate. (2) The judgment of the court with jurisdiction under sub-section (b) of paragraph (1)is final and is not subject to appeal.” “(1) Without prejudice to the right to institute an action under sections 4 and 5, a person who is a party in a pending case to which this law applies has the right at any stage of the proceedings whilst the case is pending to have recourse to the legal remedies provided for in sub-paragraph (2) in relation to the allegation that in the case his right to determination of civil rights or obligations within a reasonable time has been violated. (2) For the purposes of sub-section (1) a party who alleges that there has been a violation of his right to determination of his civil rights or obligations within a reasonable time in a pending district court or Supreme Court case may at any stage of those proceedings have recourse by instituting an originating application against the Republic to the court with jurisdiction as provided by section 8 for the examination of the allegation and the granting of remedies for the violation provided for by this Law and for the issuance of a decision on these matters. (3) the provisions of paragraphs (1) and (2) are applied also in relation to cases which were pending at any stage at the date of entry into force of the present Law. (4) There is no suspension or adjournment of any procedure in a pending case by reason of an application made under this section or pending the conclusion of its examination. ...” “(1) Irrespective of the provisions of any other law, the court which is hereby granted jurisdiction to examine and determine an allegation and to grant remedies in an originating application under section 7 is: (a) in relation to a district court case which is pending at that stage before a district court, the administrative President of any District Court who does not exercise duties at the court in which the case is pending and who did not participate in any stage of its examination, or in the event there is no administrative president who did not exercise duties at the court in question and did not participate in any stage of its examination, the next senior president of the district court or another judge who fulfils the above, as the Supreme Court may in the event designate. (b) in relation to a district court case which is pending at that stage before the Supreme Court or to a Supreme Court case which is pending before the court in question at any stage, three judges of the Supreme Court, as the Supreme Court may in the event designate. Provided that by virtue of this paragraph under this section judges of the Supreme Court who did not participate at any stage of the case will be designated. (2) The judgment of the court with jurisdiction, under sub-section (b) of paragraph (1), is final and is not subject to appeal.” “In an action under sections 4 and 5 and in an originating application under sections 7 and 8, the court with jurisdiction gives judgment at the conclusion of the examination of the action or the application, as the case may be, or, in the event it reserves its judgment, it is to deliver it without delay.” “Actions and originating applications against the Republic under this Law are instituted against the Attorney-General of the Republic as defendant or respondent, depending on the case and the provisions of section 57 of the Courts of Justice Laws apply.” “The court, in order to determine whether there has been a violation of the right of the plaintiff or the applicant to determination within a reasonable time of his civil rights or obligations in an action under sections 4 and 5 and in an application under sections 7 and 8, takes into account – (a) the total period during which the determination of the rights or obligations in the case is pending or has lasted, taking into account the date on which the case was lodged with the court, and also where relevant any preceding period, (b) the nature of the case in which, according to the allegation of the plaintiff or the applicant, his right has been violated, (c) the possible complexity of the case, (d) the conduct of the plaintiff or the applicant in the proceedings of the case, (e) the conduct of the judicial authorities at the various stages and processes of the case, including, where relevant, the execution procedures, and the prosecution of the case in the said stages and procedures, (f) the conduct of other authorities of the Republic, where relevant, at the stage and procedures of execution, as well as at any relevant stage and procedures prior to the date the case was lodged with the court, (g) any other factors taken into account by the European Court of Human Rights as relevant to the matter in issue as these arise from its relevant case-law on the subject.” “Where in an action under sections 4 and 5 or in an application under sections 7 and 8 the court considers that the right of the plaintiff or applicant to determination of his civil rights or obligations within a reasonable time has been violated, the plaintiff/applicant is entitled: (a) to compensation for any pecuniary damage, loss, costs, and expenses proved to have been sustained on account of the violation; (b) to compensation for non-pecuniary damage or injury suffered on account of the violation; (c) to legal costs proved to have been incurred on account of the violation. (2) For ascertaining the damage sustained on account of the violation as provided in sub-section (1) and assessing and awarding the compensation provided for under sub-section (1), the court takes into account the criteria and factors taken into account for this purpose by the European Court of Human Rights as they can be determined from its case-law in analogous cases of violation of Article 6.1 of the Convention, and the amounts of compensation awarded by the said Court in such analogous cases.” “In examining an application made under sections 7 and 8 concerning the issue as to whether the applicant's right to determination of his civil rights or obligations within a reasonable time has been violated, the court exercises its judgment in relation to factors referred to in paragraphs (a)-(g) of section 11 after hearing the applicant and the Attorney-General of the Republic, by reference to the records of the proceedings and the contents of the file or files at first instance, or of any appeal of the case in which the applicant alleges that there has been a violation of his said right.” “(1) Where in an application under sections 7 and 8 the court decides under the present Law that there has been a violation in a pending case of the applicant's right to determination within a reasonable time of civil rights or obligations, the said court transmits its judgment immediately to the Supreme Court. (2) If the case concerning which the competent court issued its judgment and transmitted it to the Supreme Court under sub-section (1) is still pending, the Supreme Court issues such directions as under the circumstances it considers necessary to accelerate the procedure in the pending case, so as to prevent any continuance of the delay or any new delays, and avoid the possibility of continuation of the violation or new violations of the rights of any party in the pending case: Provided that a judge or judges of the Supreme Court who had participated in any stage of the examination of the pending case shall not participate in the issuing of directions. (3) Directions under sub-section (1) may include amongst other things- (a) that the pending case be set down immediately for directions before the court, or for trial (b) that pleadings which may not yet have been filed be so filed within deadlines specified in the directions, (c) that the record of the proceedings be prepared; (d) that costs which may have been awarded be subject to taxation (e) that priority be given to the conduct of the hearing of the case or the hearing of any interim applications; (f) that priority be given to the completion of any interim application procedures, or of other interim procedures, (g) that priority be given to the delivery of a judgment reserved in the case or in an interim application, (h) that priority be given to the completion by the judicial authorities of the execution procedures of a judgment given in the case to the extent that such authorities are involved. (4) Directions under sub-section (3) for accelerating the procedure in a pending case are issued irrespective of the fact that the relevant judgment which has been transmitted may have been given in accordance with paragraph (a) of sub-section (1) of section 8, and/or has been appealed against by the Attorney General.” | 0 |
train | 001-96599 | ENG | BGR | CHAMBER | 2,010 | CASE OF PARVANOV AND OTHERS v. BULGARIA | 4 | Violation of P1-1 | Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Pavlina Panova;Peer Lorenzen;Rait Maruste;Renate Jaeger | 5. The applicants were born in 1963, 1940 and 1962 respectively and live in Sofia. 6. The applicants are heirs of Mr Parvan Vasilev Parvanov, Mr Vasil Parvanov Parvanov and Mrs Tsvetanka Parvanova Koleva who owned a house in Sofia with a yard with a total surface area of 581.2 square metres. 7. By a mayor’s order of 8 April 1987, based on section 98 of the Territorial and Urban Planning Act (“the TUPA”), the house and the yard were expropriated “for embassy needs”, but with a view to realising two separate public works’ projects: (a) the construction of a block of flats and shops (Project A); and (b) the construction of an embassy (Project B). The area designated for Project A (Plot A) was 328.2 square metres and the area designated for Project B (Plot B) was 253 square metres. The applicants’ ancestors’ house remained in Plot A. The value of the entire expropriated property was assessed at 25,118.06 old Bulgarian levs (BGL). 8. The mayor’s order of 8 April 1987 also provided that for the expropriation of the property “for embassy needs” each of the applicants’ antecedents would be compensated with an apartment, situated in a building to be constructed by the Bureau for Servicing the Diplomatic Corps (“the BSDC”). 9. By three supplementary orders of 15 April 1988, based on section 100 of the TUPA, the mayor determined the exact location, area and other details in respect of the future apartments offered as compensation. The three apartments had a total value of BGL 59,155. 10. A two-room apartment of 64 square metres was designated for Mr Parvan Vasilev Parvanov, who had passed away on an unspecified date in 1987. By virtue of his will, the property was to be received by his grandson, the first applicant. 11. Mr Vasil Parvanov Parvanov, whose heirs were the first and second applicants, his son and wife, was to receive a three-room apartment with an area of 94 square metres. 12. And lastly, Mrs Tsvetanka Parvanova Koleva was entitled to a threeroom apartment of 98 square metres, which was to be received by her daughter, the third applicant. 13. The value of the expropriated property (BGL 25,118.06) was directly credited against the value of the apartments offered as compensation. As the latter sum was higher, on unspecified dates the applicants and their ancestors paid the difference, BGL 34,036.94, to the State. 14. By orders of 4 and 27 April 1988 Mr Vasil Parvanov Parvanov and the first applicant were provided with temporary housing in two flats owned by the BSDC. It appears that after Mr Vasil Parvanov Parvanov’s death the second applicant continued to use the apartment provided for him. 15. Construction of the block of flats in which the apartments offered as compensation were to be located was never commenced. 16. On 13 April 1992, following the entry into force of the 1992 Restitution Law (see paragraph 29 below), the applicants made a request to the mayor of Sofia for the restitution of the entire property, because neither of the public works projects had commenced and the expropriated house was still standing. No response was received and on an unspecified date in May or June 1992 the applicants appealed against the tacit refusal. 17. On an unspecified date, most likely in August 1992, the expropriated house was pulled down and the BSDC commenced the realisation of Project B (see paragraph 7 above), the construction of a Polish embassy complex. 18. Upon the applicants’ appeal against the mayor’s tacit refusal, on 7 October 1994 the Sofia City Court found partly in their favour. It noted that their property had been expropriated for two distinct public works projects – Project A, to be realised on Plot A, and Project B, to be realised on Plot B. In so far as the realisation of Project B had commenced on Plot B, this part of the property, namely 253 square metres of the site, could not be restored. However, as Project A had not commenced, the restitution of Plot A, amounting to 328.2 square metres, was possible. 19. The Sofia City Court further noted that under the original expropriation and compensation orders (see paragraphs 7-9 above) the applicants and their antecedents had been provided with apartments as compensation in respect of the property expropriated “for embassy needs” (Plot B) and that the value of Plot A had been credited against the value of the apartments. On this basis, the domestic court held that the restitution of Plot A would be effective upon reimbursement of its value. On the basis of the original expropriation and compensation orders of 1987-88, it calculated that amount to be BGL 22,697.81. Apparently, the value of Plot A was much higher than the value of Plot B (which remained BGL 2,420.27) as this was where the applicants’ ancestors’ house had been standing. 20. None of the parties appealed against this judgment and it entered into force. In order to effect the restitution, on 4 September 1995 the applicants paid the State BGL 22,697.81 which, owing to inflation and the depreciation of the Bulgarian currency, equalled approximately USD 330. 21. In 1996 the Sofia municipality petitioned the Sofia City Court to interpret its judgment of 7 October 1994 in respect of whether it still owed the applicants three apartments as compensation. 22. On 27 January 1997 the Sofia City Court refused to provide the interpretation sought, pointing out that its judgment was quite clear as regards the dispute examined, namely about the claimants’ right to restitution of the property. 23. By a letter of 2 December 1997 the BSDC informed the applicants that following the judgment of the Sofia City Court of 7 October 1994 the apartments offered as compensation for the expropriation of the property were no longer due. 24. On 16 July 1998 the mayor of Sofia revoked the three orders of 15 April 1988 (see paragraph 9 above). The applicants appealed against this decision. 25. By a judgment of 21 November 1999 the Sofia City Court dismissed the appeal. The applicants appealed again. 26. In a final judgment of 29 December 2000 the Supreme Administrative Court (“the SAC”) quashed the lower court’s judgment and the decision of the mayor of Sofia of 16 July 1998. However, it based its conclusions on the finding that it had not been necessary for the mayor to formally revoke the three orders of 15 April 1988; they had been automatically revoked by virtue of the judgment of 7 October 1994 (see paragraphs 18-20 above). In particular, the Supreme Administrative Court held: “The revocation of the expropriation, even concerning only part of the [original] property, in respect of which the requirements of [the 1992 Restitution Law] were met, resulted, by virtue of the [judgment of the Sofia City Court of 7 October 1994], in the revocation of the orders under sections 98 and 100 [of the TUPA], as it is to be considered that no expropriation ever took place. That is why the [Sofia] mayor did not have to expressly revoke the orders under section 100 [of the TUPA].” 27. The SAC did not explain why it considered that the partial restitution of the applicants’ property by virtue of the judgment of 7 October 1994 had removed their entitlement to any compensation at all. 28. No apartments or other compensation have thereafter been provided to the applicants. Neither did the authorities ever reimburse the applicants for any of the payments they had made to the State in respect of (1) the difference in the value of the apartments offered as compensation and the expropriated property (BGL 34,036.94), which the applicants and their ancestors had paid to the State in the 1980s (see paragraph 13 above); or (2) the value of Plot A (BGL 22,697.81), which had been credited against the value of the apartments promised as compensation and which the applicants had paid to the State in order to effectuate the partial restitution (see paragraph 20 above). 29. On an unspecified date after June 2002 the first applicant was evicted from the flat provided for him as temporary housing (see paragraph 14 above). 30. The relevant law and practice regarding the expropriation of private property for public use has been summarised in the judgment of Kirilova and Others v. Bulgaria (nos. 42908/98, 44038/98, 44816/98 and 7319/02, §§ 72-79, 9 June 2005). 31. In 1992 the Bulgarian Parliament adopted the Law on the Restitution of Property Expropriated under Building Planning Legislation (Закон за възстановяване на собствеността върху някои отчуждени имоти по ЗТСУ, ЗПИНМ, ЗБНМ, ЗДИ и ЗС, “the 1992 Restitution Law”) which provided for the restitution of expropriated property where specific conditions were met. 32. Section 5 § 1 of the 1992 Restitution Law provides that upon the revocation of an expropriation, any property received in compensation by the claimant shall pass to the municipality by virtue of the ruling or judgment ordering the revocation. Any amounts paid by an owner who had received restitution, to cover the difference between the value of an expropriated property and any property received as compensation, are to be reimbursed by the authorities within two months of the date of the ruling or judgment granting the restitution (section 6 § 2). 33. The domestic courts have examined numerous actions under the 1992 Restitution Law. In a case concerning formerly co-owned property, and where the restitution had been sought by only some of the co-owners, the courts ordered partial restitution, in accordance with the co-owners’ respective shares, and partial return of the compensation received (judgement no. 2357 of 10 February 1994 of the Supreme Court, case no. 2643/93). 34. The domestic courts also consider that in cases where the expropriated property has lost some of its value because, for instance, any buildings on it have been demolished, the former owners, if they decide to initiate restitution proceedings, still owe the State the entire compensation they have received (judgment no. 1471 of 21 November 1994 of the Supreme Court, case no. 4778/93; judgment no. 2013 of 7 December 1995 of the Supreme Court, case no. 1903/94). | 0 |
train | 001-107241 | ENG | SVK | ADMISSIBILITY | 2,011 | RINGIER AXEL SPRINGER SLOVAKIA, A.S. v. SLOVAKIA | 4 | Inadmissible | Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria | 1. The applicant, Ringier Axel Springer Slovakia, a. s. (“the applicant company”), is a joint-stock company established under the laws of Slovakia with its head office in Bratislava. At the time of the introduction of the application, the applicant company was called RINGIER SLOVAKIA a.s. The applicant company was represented by Mr J. Havlát, a lawyer practising in Bratislava. 2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant company was established in 1990 and has its seat in Bratislava. It is a multimedia publishing house. 4. The applicant company’s legal predecessor in respect of the events giving rise to the present application was a limited-liability company established under the laws of Slovakia in 1994 and had its seat in Bratislava. It was the publisher of a popular national daily newspaper. 5. In the course of the proceedings described below, in 2004, the applicant company’s legal predecessor was merged with the applicant company. Hereinafter “the applicant company” includes the applicant company’s legal predecessor. 6. On 22 November 1999 criminal charges of conspiracy and illegal possession of firearms within the meaning of Articles 9 § 2 and 185 §§ 2 (b) and 4 (b) of the Criminal Code (Law no. 140/1961 Coll., as in force at that time) were brought against an individual, A., on the basis of a suspicion that he had assembled a booby trap by connecting a fuse, an alarm clock and cables. 7. By the same document, charges were brought against another individual, B., on the basis of a suspicion that he had arranged for the booby trap to be planted by the house of a judicial enforcement officer. 8. A. was arrested on the charges against him and his house and the premises of his employer were searched by the police. 9. On 5 February 2001 the proceedings against A. were terminated on the ground that the actions of which A. stood accused had not taken place and he had not been involved in the plan in question. The decision followed a finding that key witness evidence against A. was false. 10. The case file contains no information in respect of the further course and outcome (if any) of the proceedings against the other accused or the plot as such. 11. The applicant company learned of the above-mentioned alleged incident from the law-enforcement authorities. However, it did not have access either to the document containing the charges or to the case file. 12. On 24 November 1999 the daily published by the applicant company printed an article about the suspected incident. The article was entitled: “[They] wanted to plant an explosive by the office of a judicial enforcement officer” and contained the following passage: “Members of the Organised Crime Division of the Police Corps Headquarters have uncovered a plan to commit a serious criminal offence. [B.] and [A.] manufactured, and contracted a man to plant, a seven-kilogram booby trap of [explosive] and [explosive] by the office of a judicial enforcement officer in a family house in [town]. Both men have been charged by an investigator in [city] with general endangerment and illegal possession of firearms, and face a penalty of imprisonment of 12 to 15 years, or an exceptional penalty. In a search of residential premises, the police found not only components for the manufacturing of a booby trap, but also several cartridges, a machine gun ammunition strip and an illegally held handgun. In the vicinity of the judicial enforcement officer’s office, there is a company involved in the exchange and sale of propane-butane and, in the event of blowing up the enforcement officer’s office, a number of adjacent houses could have been severely damaged. It is a singular attempt to evade enforcement proceedings.” 13. In the article, both A. and B. were identified with reference to their profession, first name, the initial of their surnames and their age. The name of the town B. was from was also mentioned. 14. On 29 November 1999 the daily published a follow-up piece to the article of 24 November 1999. It was entitled “A bomb and an error”. 15. The alleged incident was also reported in another paper and a weekly magazine. 16. Following the publication of the article of 24 November 1999 and in response to it, A. sued the applicant company for libel. He claimed an apology and the equivalent of some 24,000 euros (EUR) in compensation for non-pecuniary damage. 17. A. submitted that the article was factually false in that he had had nothing to do with the incident, that the article contained information enabling him to be identified and that, without justification, it had labelled him a perpetrator as opposed to a suspect. 18. A. claimed that he had been made aware of the article by colleagues who had identified him easily, as had several other residents of the town. The article had interfered with his personal integrity, his reputation in the municipal public sphere and his position in his private and family life. 19. A. also contended that the article had thwarted his political ambitions in an important national association, of which he had been one of the founding members, from which he eventually had to withdraw in 2002. 20. In the course of a hearing of the action on 8 April 2002, A. reduced the amount of his claim for damages to the equivalent of some EUR 12,000. 21. On 12 March 2003 the applicant company offered to settle the case by publishing an apology. A. rejected the offer as it contained no financial compensation. 22. On 11 December 2003 the Poprad District Court (Okresný súd) found for the claimant. 23. The District Court had examined the article (see paragraph 12 above), the investigation file against A. and oral evidence from twenty witnesses, including A.’s family members, colleagues and employer. 24. The District Court observed that the article contained personal information about A., such as his profession, age, first name, the initial of his family name and the place of his residence. The District Court concluded that the article perfectly allowed for A.’s identification. Moreover, the article referred to A. as a person guilty of an offence, as opposed to a detainee or a suspect. In conclusion, it held that the article interfered with A.’s right to be presumed innocent. 25. The District Court acknowledged that the impugned article, as well as the follow-up piece (see paragraph 14 above), fell within the realm of reporting, the purpose of which was to inform the public on matters of public interest. However, in view of the course and outcome of the investigation against A., the reporting in the present case could not be considered “socially desirable”. 26. Observing that the article “had been published relatively widely”, the District Court held that, by definition, the dignity and public image of A., who was known beyond his municipality mainly on account of his involvement in the association, had been diminished to an extent that called for monetary compensation. 27. The interference with A.’s personal integrity had been serious and gave rise to negative and still persisting consequences, in particular in his personal life and in relation to his public reputation. It was also established that the article had had negative consequences on A.’s private life, at work and in the area of his political ambitions. In reaching these conclusions the District Court relied on “the statements of witnesses who [had] confirmed that the article provoked negative reactions in relation to the above-specified areas of [A.’s] life”. 28. The applicant company was accordingly ordered to publish an apology and A. was awarded the equivalent of some EUR 7,300 in compensation for non-pecuniary damage and the reimbursement of his legal costs. 29. On 10 February 2004 the applicant company lodged an appeal (odvolanie). It contended that the District Court had failed to make clear what had constituted the interference with the rights of A., the article in question or other articles about the same events which had been published in other papers (see paragraph 15 above). As for the impugned article, it had only reported the information available to the law-enforcement authorities at the given time and, from the language and context, it was plain that A. was merely a suspect and that the proceedings were at the investigation stage only. 30. Moreover, it was not true that the article contained full details of A.’s identity. In particular, only the profession, but not the employer, of A. had been mentioned and, contrary to the District Court’s observation, there had been no mention of where A. was from. 31. In sum, the published information had to be considered accurate, and had been published in an appropriate manner. This ruled out the alleged lack of justification in respect of the interference with the rights of A. 32. On 7 June 2004, through the intermediary of a new lawyer, the applicant company made an additional submission in support of its appeal, arguing that the District Court had misconceived the notion of the right to be presumed innocent, and that it in any event that right had not been interfered with. The applicant company had relied on the accuracy of information that it had obtained from an official source, namely, the law enforcement authorities. The publication of the article had not been unlawful but had been consonant with the applicant company’s freedom of expression and the latter was consequently not liable for any damage suffered by A. The identification of A. had been a result of his arrest and searches of his house and the premises of his employer – factors which were outside the control of the applicant company and for which it accordingly bore no responsibility - rather than a result of the article and the information contained therein. Furthermore, in its judgment, the first-instance court had also referred to the follow-up article (see paragraphs 14 and 25 above) and had probably taken that article into account in making its decision, even though the follow-up piece had not been contested by the claimant. The ruling concerning damages and their amount was not supported by adequate and sufficient reasons and the amount of damages awarded was excessive. Moreover, in determining the amount of damages, no consideration had been given to the attenuating circumstance that the applicant company had taken precautions against the identification of A. 33. On 9 June 2004 the Prešov Regional Court (Krajský súd) upheld the judgment in so far as the essence of the orders for an apology and payment of damages was concerned (see paragraph 28 above). 34. Nevertheless, the Regional Court corrected typographical errors in the apology to be published pursuant to the operative part of the judgment, which consisted of an incorrect figure concerning the age of A. and the fact that, contrary to the facts, the quotation of the relevant part of the article in the operative part of the District Court’s judgment erroneously included a mention of the town A. was from (see paragraph 24 above). The Regional Court also shortened the text of the apology. 35. The Regional Court observed that the applicant company’s submission of 7 June 2004 (see paragraph 32 above), which contained further grounds for its appeal, had been filed after the expiry of the statutory period for appealing (see paragraphs 63 and 64 in the “Relevant domestic law and practice” below) and that, therefore, it could not be taken into account. 36. The Regional Court acknowledged that the article fell within the purview of a “news-reporting licence” and that, as such, it could be published without the consent of those concerned. The Regional Court also acknowledged that the press was not only entitled to report on illicit activities, it was in fact also obliged to do so. If such reporting was based on official information from the law-enforcement authorities, and if that information was reported accurately, the media could not be required to verify the veracity of such information independently. 37. The applicant company had therefore been entitled to report on everything contained in the charge sheet against A. However, the article suggested more. 38. In particular, the article suggested that A. had been involved in arranging for the booby trap to be planted by the house of a judicial enforcement officer while the charge sheet had only accused him of having assembled a component constituting such a device. Similarly, the charge sheet contained no mention that any arms had been found in A.’s illegal possession. The description of the actions imputed to A. was therefore distorted. 39. As for the personal details about A. contained in the article, in correlation with those contained therein about B., they did enable A. to be identified unequivocally and had therefore interfered with A.’s constitutional right to the protection of his name. 40. The combination of the elements mentioned in the preceding two paragraphs also constituted a violation of A.’s right to the preservation of his human dignity, personal honour and good reputation. 41. In addition to the negative repercussions that the article had had on A.’s life, as established by the first-instance court, the Court of Appeal also observed that, as a consequence of the article, A. had been prevented from carrying out his job for some time. 42. The loss that A. had suffered by being prevented from carrying out his job and in the area of his political ambitions was not sufficiently compensated by an apology and called for financial compensation, the amount of which, as reduced by the first-instance court in relation to the claim, reflected the fact that these consequences were due not only to the article in question but also to other articles on the same topic in other media (see paragraph 15 above). 43. The Regional Court made no express pronouncement in respect of the right of A. to be presumed innocent. 44. On 9 October 2004 the applicant company lodged an appeal on points of law (dovolanie), relying on Articles 237 (f), 238 § 1 and 241 § 2 of the Code of Civil Procedure (“the CCP”) (see paragraphs 65 to 68 in the “Relevant domestic law and practice” below). 45. The applicant company objected mainly that the Court of Appeal had unilaterally corrected the operative part of the first instance judgment without the claimant having requested it, while that correction had benefited the claimant. 46. The applicant company also argued that the Court of Appeal had substantially changed the legal reasoning of the first-instance court, that the defendant had only learned of the change from the Court of Appeal’s judgment and that it had accordingly had no possibility to contest the new reasoning. In particular, the central reason behind the first-instance court’s judgment had been the alleged interference with A.’s right to be presumed innocent, a conclusion that had not been endorsed by the Court of Appeal. The latter on its part had considered it decisive that the article had been factually inaccurate in part. 47. The applicant company contended specifically that the above mentioned objections were not merely formalistic but had direct implications for the evidence taking and assessment in respect of the causal link between the alleged unlawful interference and the occurrence and extent of the alleged non pecuniary damage. In other words, as it transpired from the oral evidence taken, what was crucial for the witnesses’ perception of A. was the very fact that he had been charged with a criminal offence and not the offence itself and its details. The question of the relevance of the inaccuracy of the reported information to the occurrence and extent of the non-pecuniary damage had not been examined at all. 48. On 20 January 2005, in a private session (bez pojednávania), the Supreme Court (Najvyšší súd) rejected the appeal on points of law without examining the merits of the case. 49. In the decision, the Supreme Court noted that “[t]he claimant [had] requested that the defendant’s appeal on points of law be dismissed”. 50. The Supreme Court observed that although the Court of Appeal had not endorsed the conclusion of the first-instance court concerning the violation of A.’s right to be presumed innocent (see paragraph 24 above), it had not rejected it either. The Court of Appeal’s conclusion concerning the distortion of facts by the applicant company did not amount to a new and different legal assessment of the case but rather was a clarification and precision as to the nature, form and circumstances of the interference with A.’s personal integrity. The applicant company had thus not been prevented from acting before the courts within the meaning of Article 237 (f) of the CCP and its appeal was not admissible on the ground envisaged by that provision. 51. Furthermore, the Court of Appeal’s correction of typographical errors in the first-instance judgment did not amount to a “modification” of that judgment within the meaning of Article 238 § 1 of the CCP, which was why the appeal was not admissible under that Article either. 52. In sum, the appeal was not admissible on any of the statutory admissibility grounds. 53. On 7 April 2005 the applicant company challenged the decisions of 4 June 2004 and 20 January 2005 in the Constitutional Court (Ústavný súd) by way of a complaint under Article 127 of the Constitution (see paragraph 59 in the “Relevant domestic law and practice” below). 54. In substance, it relied on its rights to a fair trial and to freedom of expression (to impart information), repeating its previous arguments and disputing the courts’ conclusions. 55. In addition, on page 6 of the complaint, the applicant company argued that, in violation of the equality-of-arms principle, the Supreme Court had obtained and taken into account the observations of the claimant in reply to its cassation appeal (see paragraph 49 above) without giving the applicant company an opportunity to acquaint itself with those observations and to comment on them. 56. On 10 October 2006 the Constitutional Court declared the complaint inadmissible, having found no constitutionally relevant unlawfulness or arbitrariness imputable to the Supreme Court. Moreover, the decision of the Regional Court could not be reviewed by the Constitutional Court as it had been taken outside the statutory two month time-limit for bringing a constitutional complaint. In reaching these conclusions, the Constitutional Court took no notice of, and gave no response to, the applicant company’s argument concerning the claimant’s observations in reply to its appeal on points of law (see paragraphs 49 and 55 above). The decision was served on the applicant company’s lawyer on 8 August 2007. 57. Everyone has the right to the preservation of his or her human dignity, personal honour, good reputation and the protection of his or her name (Article 19 § 1). 58. The freedom of expression is guaranteed (Article 26 § 1). It may be restricted by an act of parliament if such a measure is necessary in a democratic society to protect the rights and freedoms of others, national security, public order, or protection of public health and morality (Article 26 § 4). 59. Article 127 provides: “1. The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash such decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order such authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation. 3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to the person whose rights under paragraph 1 have been violated.” 60. The protection of personal integrity is governed by the provisions of Articles 11 et seq. In so far as relevant, these provide: “Article 11 Every natural person shall have the right to protection of his or her personal integrity, in particular his or her ... civil honour and human dignity, as well as privacy, name ... ... Article 13 1. Every natural person shall have the right, inter alia, to request an order restraining any unjustified interference with his or her personal integrity, an order cancelling out the effects of such interference and an award of appropriate compensation. 2. If the satisfaction afforded under paragraph 1 of this Article is insufficient, in particular because the injured party’s dignity or social standing has been considerably diminished, the injured party shall also be entitled to financial compensation for non pecuniary damage. 3. When determining the amount of compensation payable under paragraph 2 of this Article, the court shall take into account the seriousness of the harm suffered by the injured party and the circumstances in which the violation of his or her rights occurred.” 61. In a judgment of 28 April 1998 in unrelated case no. 1 Cdo 89/97 the Supreme Court held that “if the non-pecuniary damage to the personal integrity of an individual can be outbalanced by some of the forms of moral satisfaction, the moral satisfaction shall be favoured. Only in those cases where an individual’s dignity or social standing have been diminished to a considerable degree (v značnej miere) and where the extent of this interference is too great to be adequately repaired by other legal tools can financial compensation be considered justified. An award of financial compensation by a court under Article 13 § 2 of the Civil Code presupposes the fulfilment of two statutory requirements, that is to say (a) if moral satisfaction appears insufficient in a given case, and (b) the unlawful interference has resulted in diminishing an individual’s dignity or social standing to a considerable degree. In determining the amount of financial compensation, the following two specifically and exhaustively defined criteria emanating from Article 13 § 3 of the Civil Code must be applied by the court: (a) the seriousness of the non-pecuniary damage suffered, and (b) the circumstances in which the unlawful interference with personal integrity occurred. In this context, the seriousness of the non-pecuniary damage is to be judged in particular with regard to its extent, scope, repercussions and duration. The fact that Article 13 § 3 of the Civil Code imposes expressly upon a court the duty to take into account the circumstances in which the violation of a person’s personal integrity has taken place leads to the conclusion that the seriousness of the non-pecuniary damage alone is not the only and exclusive factor for determining the final amount of financial compensation. [...] From the point of view of Article 13 §§ 2 and 3 of the Civil Code non pecuniary damage shall only be considered legally relevant if its occurrence is in causal connection with an unlawful interference that has significantly diminished an individual’s dignity and social standing.” 62. In another unrelated case, no. 4 Cdo 15/03, the Supreme Court held that: “As to determining the degree to which interference has diminished an individual’s dignity or social standing, the starting point must be the subsequent reaction that the interference provoked in the family, work or other environment of that individual. This degree is to be determined by taking and assessing evidence and it is to be judged on the basis of a sound knowledge and assessment of that reaction. Only in those cases where it has been sufficiently established that there has been a reaction that shows that an individual’s dignity or social standing has been diminished to a considerable degree may the individual exceptionally, and as a subsidiary measure, be awarded financial compensation in respect of non-pecuniary damage. Although the determination of the amount of financial compensation in respect of non pecuniary damage is subject to judicial discretion, this does not imply non-reviewable arbitrariness. The court must always rely on duly established facts and base its decision on absolutely concrete and reviewable considerations and relevant evidence that demonstrates how ... the defamatory information [...] impacted on the dignity or social standing of the claimant and with what negative consequences.” 63. An appeal must be lodged within fifteen days of the service of the challenged decision (Article 204 § 1). 64. The scope of and the reasons for the appeal can be extended as long as the time-limit for appealing has not expired (Article 205 § 3). 65. Under Article 236 an appeal on points of law lies against final and binding decisions of appellate courts if certain statutory admissibility criteria are met. 66. The general admissibility criteria, that is, those applicable to both judgments (rozsudok) and resolutions (uznesenie), are set out in Article 237. Under its letter (f), an appeal on points of law is available in situations where the courts prevented a party to the proceedings from acting before them. Further grounds for appealing on points of law under this Article are summarised in Tomková v. Slovakia (no. 51646/99, § 37, 13 July 2004), Indra v. Slovakia (no. 46845/99, § 33, 1 February 2005) and Ringier Axel Springer Slovakia, a. s. v. Slovakia (no. 41262/05, § 62, 26 July 2011, not final, subject to Article 44 § 2 of the Convention). 67. In addition to the above-mentioned general admissibility criteria, special admissibility criteria apply if the Court of Appeal decided in the form of a judgment. These are defined in Article 238. Under paragraph 1 of that Article, an appeal on points of law is admissible where the appellate court overturned the judgment of a first-instance court. Further grounds for appealing on points of law under this Article are summarised in Tomková (cited above, § 38) Stavebná spoločnosť TATRY Poprad, s.r.o. v. Slovakia (no. 7261/06, § 24 and 25, 3 May 2011) and Axel Springer Slovakia, a. s. (cited above, §§ 63-67). 68. As to the merits, an appeal on points of law can only be based on the grounds defined in Article 241 § 2, that is to say, that the proceedings have been vitiated by an error envisaged in Article 237 (letter (a)), that the proceedings have been vitiated by another error that resulted in an incorrect decision on the merits (letter (b)) and that the decision rests on an error of law (letter (c)). 69. At the relevant time indemnification of the victims of violent crime was governed by Law no. 255/1998 Coll., as amended. 70. Under its sections 4(4) and 5, the maximum amount of indemnification under the Act was indexed to the minimum wage under the Minimum Wage Act (Law no. 90/1996 Coll., as amended) and was defined as its multiple by fifty. 71. On 24 November 1999, when the article was published (see paragraph 12 above), the minimum wage was the equivalent of some EUR 85. Consequently, the maximum amount of indemnification at that time amounted to the equivalent of some EUR 4,250. | 0 |
train | 001-108478 | ENG | RUS | CHAMBER | 2,012 | CASE OF VLADIMIR VASILYEV v. RUSSIA | 3 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award | Anatoly Kovler;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen | 7. The applicant was born in 1953 and is serving a prison sentence in a correctional colony in the town of Solikamsk, Perm Region (Russia). 8. The applicant was arrested on 8 February 1996 in the town of Ukhta, Komi Republic. On 25 December 1997 the Supreme Court of the Komi Republic convicted him of, inter alia, attempted rape and several counts of murder, and sentenced him to death. On 22 December 1998 the Supreme Court of Russia upheld the trial judgment in substance. 9. In 1999 the President of Russia issued an act of clemency in respect of the applicant, replacing the death penalty with life imprisonment. Thereafter, the applicant unsuccessfully sought a supervisory review of the conviction. 10. Between February 1996 and January 2000 the applicant was detained for various periods of time in Sosnogorsk remand centre no. 11/2 in the Komi Republic and other detention facilities. After his arrest the applicant was admitted to hospital because he had frostbite on his feet. He underwent a surgical operation resulting in the amputation of the fifth toe on his right foot and the distal part of his left foot. In 1996 he was diagnosed with diabetes. In December 1999 the applicant was examined in a hospital. A group of experts concluded that he was able to work, except if it required physical exertion; no disability status was attributed. 11. In 2001 the applicant was transferred to Solikamsk colony no. 2 in the Perm Region (“the colony”). Between 2002 and 2004 he was treated for tuberculosis. It was indicated that he would shortly be examined to determine whether he needed dental and ophthalmological treatment and orthopaedic footwear. In late 2004 the applicant was treated for his diabetes, diabetic angiopathy (the generic term for a disease of the blood vessels) and other diseases. The doctors recommended oral medication to lower blood glucose and a diet. The applicant received medication by Maninil, an oral blood-glucose-lowering drug. It does not transpire from the available medical record that any blood or urine tests were carried out between late 2004 and late 2005 (see paragraph 13 below). 12. The applicant lodged complaints in relation to the allegedly inadequate treatment of his diabetes, unavailability of books on diabetes, insufficient nutrition and some other matters relating to medical care. On 3 May 2005 the Solikamsk Penitentiary Office stated that it was not incumbent on this office or another public authority to supply books to individual detainees; that all relevant counselling on diabetes could be obtained from the detainee’s doctor, and that the applicant had been examined by a therapist on a number of occasions and received the necessary medication, including oral medication by Maninil. Another complaint was examined on 31 October 2005 by the Perm Region Penitentiary Department. It rejected the applicant’s complaints, indicating that no special or high-vitamin diet was required for prisoners suffering from diabetes; that they were to be fed according to the standard set by the Ministry of Justice (see paragraph 37 below); that the applicant was given appropriate medication; and that in December 2005 he would be able to have a medical consultation concerning his requests for dental treatment, orthopaedic footwear and an eyesight check-up. 13. In October 2005 blood and urine tests were carried out; the applicant also had an X-ray, which showed no anomalies. From 28 November to 8 December 2005 he was admitted to prison hospital no. 9 to receive dental treatment. The applicant was diagnosed with a partial maxillary and full mandibular adentia (loss of teeth) connected to his then sub-compensated diabetes status. The applicant also had various blood and urine tests (glucose, bilirubin, lipoproteid, cholesterol, alanine and aspartate aminotransferase). He was examined by specialist doctors (a surgeon, a neuropathologist and an ophthalmologist) who recommended regular medical check-ups. The ophthalmologist diagnosed slight myopia in both eyes and angiopathy. The applicant also had chronic pancreatitis but was in a stable condition. The applicant was given a dental prosthesis and instructions on how to use it. The final recommendations in the discharge certificate included provision of enzymes when needed, a low carbohydrate diet, monthly blood and urine tests, as well as exclusion of medication by Maninil. 14. In May 2006 the applicant complained about chest pain and was given medication. In June 2006 he had a check-up by a physician, an ophthalmologist, a dentist and a surgeon. No specific prescriptions were made. The dentist indicated that the applicant’s oral cavity “had been sanitised”. On an unspecified date the applicant handed over his allegedly defective dental prosthesis to his lawyer, apparently, to have this prosthesis adjusted. Subsequently he was examined by a radiologist and a tuberculosis specialist. On a number of occasions he was given medication for his headaches, hypertension and insomnia. The applicant had several check-ups and X-rays in 2007, 2008 and 2009. 15. As follows from the applicant’s medical record compiled in colony no. 2, various blood tests were carried out twice in 2006 (25 January and 7 August 2006); five times in 2007 (10 April, 20 June, 3 and 9 October, 10 December); eight times in 2008 (15 January, 5 and 19 March, 9 and 16 April, 11 June, 24 October, 3 December); four times in 2009 (6 March, 24 June, 9 July and 16 December) and at least once in 2010 (February). Urine tests were carried out in January and July 2006, October 2007, April 2008, June and December 2009, and February 2010. 16. The applicant wrote to the Perm Region Ombudsman, requesting his re-admission to prison hospital no. 9. This letter was forwarded to the Perm Region Penitentiary Department. On 24 October 2007 the Penitentiary Department rejected the applicant’s request as follows: “The complaint has been examined by the medical unit of the Penitentiary Department. Since 2001 [the applicant’s] state of health has been monitored in the colony...In November 2005 he was examined and received treatment inter alia from a dentist in prison hospital no. 9. He was discharged from this hospital in a satisfactory condition and was given recommendations to be followed within the regime of an out-patient observation. At present, his state of health is satisfactory; the most recent laboratory tests were carried out in October 2007. For the time being, a consultation with a dentist was not possible because [the applicant] did not have his dental prosthesis (which he had handed over to his lawyer). In-patient treatment in the prison hospital is not necessary.” 17. The applicant was examined again in August 2009 by a medical panel composed of the governor of the prison hospital and the head officers of the gastroenteritis and neurology units in this hospital. The applicant’s condition was classified as satisfactory. The medical panel confirmed the diabetes (Type 2) diagnosis and symptoms of encephalopathy. The panel concluded that the applicant did not require in-patient treatment in the prison hospital and made the following recommendations: “to carry out a glycemic profiling (thirty minutes before eating and at 2 p.m.); to follow a low fat and carbohydrate diet (which has been followed by the patient on his own)...and to continue intake of Glidiab (each morning), and treatment by vasoactive and nootropic substances.” 18. The management of Ukhta colony no. 24 in the Komi Region affirmed in a certificate dated 14 August 2009, produced by the Government, that they could not provide the applicant with orthopaedic footwear because it could only be manufactured in another town and there was a long waiting list. Apparently, the applicant had been detained in this colony in 2000 or 2001. The management of Ukhta medical facility no. 18 stated in a certificate dated 14 August 2009, produced by the Government, that the applicant needed orthopaedic footwear; however, the relevant regulations on supplies to convicted detainees did not require that it be provided by the State. The applicant had been detained in this medical facility in 1996. 19. A certificate dated 17 August 2009 and issued by Solikamsk colony no. 2 (in the Perm Region) states that during the entire period of his detention in that detention facility the applicant was provided with adequate medication, including glucose-related medicines and five meals per day. The management of the colony also stated in a certificate dated 29 July 2010, produced by the Government, as follows: “[The applicant] was not given a prescription for any special diet and receives a ration in compliance with the standards adopted for convicted detainees.” 20. In August 2010 the Perm Region Penitentiary Department issued a report in relation to the applicant’s grievances previously raised before various national authorities and the European Court. The report reads as follows: “In 2001 the applicant was transferred to colony no. 2, where on numerous occasions he underwent out-patient examinations and treatment in relation to various diseases. He was also admitted to prison hospital no. 9, from which he was discharged in a satisfactory condition, provided that recovery had been obtained for acute illnesses and that amelioration had been observed for chronic diseases... The medical unit of the colony has the requisite licences for providing health care (medication, out-patient treatment, therapy and assessment of disability). The colony has the requisite medical staff (head of the unit, two therapists and two medical assistants) with the necessary qualifications... For providing consultations on diagnoses and hospitalisation the above staff is assisted by external specialists from hospital no. 9 or municipal or State medical institutions...Certain types of health care (dental treatment, X-ray imaging, laboratory testing) are carried out in the medical unit of prison no. 1. In 2005 [the applicant] received dental treatment and prosthesis in prison hospital no. 9 and was discharged from it in a satisfactory condition. The final recommendations included a low carbohydrate diet. In 2007 he handed over the prosthesis to advocate V., as can be seen from [the applicant’s] written statement. After 2005 he did not request a replacement of prosthesis from the medical unit of prison no. 2. Food is supplied [to the applicant] in the colony in compliance with the standards set in Decree no. 125 of 2 August 2005 by the Ministry of Justice...Since 2001 he has been receiving five meals per day in order to impede undesired changes in the blood glucose levels. The recommendations for a low carbohydrate diet and low glucose have been followed [by the applicant] under monitoring by the medical personnel in the colony. [The applicant] has no disability status. No recommendation for orthopaedic footwear was issued. The regime for detainees on life sentences does not require any substantial movement, except for outdoor exercise... [The applicant] was and continues to be provided with medical care in compliance with Decree no. 640/190 issued by the Ministry of Justice and the Ministry of Health. Such medical care is provided within the framework of the State programme concerning provision of free medical assistance to Russian nationals. During his detention [the applicant] was given all requisite medical monitoring and treatment...” 21. The management of Solikamsk colony no. 2 in the Perm Region affirmed in a document dated 27 July 2011 and produced by the Government that they had no document which indicated that the applicant had asked them for special footwear or that it had been recommended (see also paragraph 18 above). The Government also submitted written statement made in August 2011 by a medical assistant in colony no. 2, who affirmed that the applicant could walk independently without any assistance and, in the absence of disability status, did not need special footwear. 22. According to the applicant, he was not provided with orthopaedic footwear, which was necessary on account of the injuries to his feet. In the absence of such footwear, he suffered pain in his feet and could hardly keep his balance, for instance during long routine line-ups organised by the prison staff or when cleaning cells; his standard footwear did not fit him properly and wore out quickly. For many years, the applicant was kept in a cell on the ground floor of the detention facility and had difficulty, in the absence of special footwear, to walk up and down the stairs to/from the first and second floors where the medical unit and the offices of the prison staff were located. 23. The applicant brought civil proceedings before the Ukhtinskiy District Court of the Komi Republic (“the District Court”) against the Ukhta Department of the Interior, the Federal Ministry of Finance, the Prosecutor’s Office of the Komi Republic and three detention facilities. The applicant alleged, inter alia, that he had not been provided with the requisite medical assistance in 1996; as a result of medical negligence, parts of his feet had had to be amputated; and he had not been given a special diet adapted to his diabetes in the late 1990s. His claim was dismissed on procedural grounds on several occasions. 24. In 2003 the applicant resubmitted his above claims to the District Court. The court opened a file and sought the applicant’s observations on the need for an expert report to be commissioned. In September and November 2003 the applicant wrote to the District Court giving his consent for an expert report to be commissioned and suggested that some questions be put to the expert (see also paragraph 28 below). 25. The applicant also wrote to the District Court asking that he be brought to court hearings in his civil case. The court dispatched summons to the applicant in prison. However, it issued no order for his transfer for any hearings. On 17 and 25 December 2003 the District Court held hearings and heard the prosecutor, the defendants and witnesses. The applicant was neither present nor represented at these hearings. 26. In December 2003 the presiding judge asked to see the applicant’s medical record from prison hospital VK-240/1-2 in Solikamsk. 27. In April 2004 a Mr Sh. applied to Ukhta Civil Hospital on behalf of the applicant, asking for the applicant’s medical file, in particular in relation to the year 1996. He was informed that the applicant’s medical record had been destroyed because the building in which the hospital had filed it had been flooded in June 1999. 28. An expert report was commissioned and carried out on the basis of the available material. The expert concluded that the surgical operation in 1996 had been justified; the applicant’s diabetes was hereditary and its treatment had been appropriate, including Maninil; and that an adequate diet had been given to the applicant. It was noted in this connection that type 2 diabetes required diet no.9, which consisted in five or six servings of food per day excluding or replacing sugar and reducing carbohydrates. A copy of the expert report was sent to the applicant in January 2005. According to the applicant, he never saw the documents which served as a basis for the expert report. 29. Hearings in February and March 2005 were adjourned in the absence of any proof that the applicant had been properly notified. On 31 March 2005 the court received a letter from the applicant in which he commented on the expert report and also sought his own participation in the hearing and access to the medical documents submitted by the defendants. 30. On 19 May 2005 the District Court held a hearing at which the applicant was neither present nor represented. By a judgment of 19 May 2005, the District Court rejected his claims. The applicant appealed. The defendants submitted their observations in reply. On 28 July 2005 the applicant was provided with a copy of the verbatim record of the trial. In August 2005 he was served with a copy of the defendants’ observations. 31. By a letter of 29 August 2005 the applicant was informed that an appeal hearing was listed for 29 September 2005 and that “his absence would not halt the proceedings”. 32. On 29 September 2005 the Supreme Court of the Komi Republic heard the representative of the Regional Prosecutor’s Office. The applicant was neither present nor represented at the appeal hearing. At the closure of this hearing the Supreme Court upheld the first-instance judgment. In October 2005 the applicant received a copy of the appeal decision. 33. Russian law gives detailed guidelines for the provision of medical assistance to detained individuals. These guidelines, found in joint Decree no. 640/190 of the Ministry of Health and Social Development and the Ministry of Justice, on Organisation of Medical Assistance to Individuals Serving Sentences or Detained (“the Regulation”), enacted on 17 October 2005, are applicable to all detainees without exception. In particular, section III of the Regulation sets out the procedure for initial steps to be taken by medical personnel of a detention facility on admission of a detainee. On arrival at a temporary detention facility all detainees must be subjected to preliminary medical examination before they are placed in cells shared by other inmates. The examination is performed with the aim of identifying individuals suffering from contagious diseases or in need of urgent medical assistance. No later than three days after the detainee’s arrival at the detention facility, he should receive a medical examination, including fluorography. During the in-depth examination a prison doctor should record the detainee’s complaints, study his medical and personal history, record injuries if present, and recent tattoos, and schedule additional medical procedures if necessary. A prison doctor should also authorise laboratory analyses to identify sexually transmitted diseases, HIV, tuberculosis and other illnesses. 34. Subsequent medical examinations of detainees are performed at least twice a year or at detainees’ request. If a detainee’s state of health has deteriorated, medical examinations and assistance should be provided by medical personnel of the detention facility. In such cases a medical examination should include a general medical check-up and additional methods of testing, if necessary, with the participation of particular medical specialists. The results of the examinations should be recorded in the detainee’s medical history. The detainee should be fully informed of the results of the medical examinations. 35. Section III of the Regulation also sets the procedure for cases of refusals by detainees to undergo medical examination or treatment. In each case of refusal, a corresponding entry should be made in the detainees’ medical record. A prison doctor should fully explain to the detainee the consequences of his refusal to undergo the medical procedure. 36. Detainees take prescribed medicines in the presence of a doctor. In a limited number of cases the head of the medical department of the detention facility may authorise his medical personnel to hand over a daily dose of medicines to the detainee for unobserved intake. 37. Until 2 August 2005 food supplies for detainees were regulated by Decree no. 136 of 4 May 2001 of the Federal Ministry of Justice. Since 2 August 2005 they have been regulated by Decree no. 125. Neither decree has provided for any specific diet for detainees suffering from diabetes. 38. On 11 December 2007 the Federal Ministry of Health issued a standard protocol for out-patient treatment of persons suffering from non-insulin-dependent diabetes. The protocol recommends, inter alia, a yearly provision of thirty-six glucose (laboratory) tests and/or for one hundred and eighty glucose meter tests. 39. The Code of Civil Procedure of the Russian Federation (“the CCP”) provides that individuals may appear before a court in person or act through a representative (Article 48 § 1). A court may appoint a lawyer to represent a defendant whose place of residence is not known (Article 50). The Advocates Act (Law no. 63-FZ of 31 May 2002) provides that free legal assistance may be provided to indigent plaintiffs in court proceedings in civil disputes concerning alimony or pension payments or claims for compensation for employment-related health damage (section 26 § 1). In 2005 the Russian Government launched a test project in a number of regions concerning provision of free legal assistance in civil law matters (Decree no. 534 of 22 August 2005). 40. Articles 57 and 149 of the CCP provide that parties may seek a court’s assistance in obtaining evidence. The relevant party should indicate the circumstances impeding access to such evidence and its relevance to the case, as well as the location from where such evidence should be collected. An unjustified failure to comply with the court order could lead to the person or official in possession of the relevant evidence being fined. 41. In a given civil case a civil court could ask a court in another location to carry out specific actions in relation to the evidence situated in that location (Article 62 of the CCP). This request is mandatory and has to be carried out within one month from its receipt. 42. Under Articles 58 and 184 of the CCP, a court may hold a session outside the court-house if, for instance, it is necessary to examine evidence which cannot be brought to the court-house. 43. As follows from Ruling no. 2 of 10 February 2009 by the Plenary Supreme Court of Russia, complaints brought by detainees in relation to the inappropriate conditions of detention (for instance, a lack of adequate medical assistance) should be examined by a court under the procedure prescribed by Chapter 25 of the CCP. The latter provides that a person may bring court proceedings if an action or omission by a public authority or official violated this person’s rights or freedoms, impeded their exercise or unlawfully imposed an obligation or liability (Articles 254 and 255 of the CCP). Such court action should be lodged within three months of the date when the person learnt about the violation of his or her rights or freedoms (Article 256). If a court considers that the complaint is justified, the court orders the respondent authority or official to remedy the violation (Article 258). 44. The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses, victims or suspects in connection with certain investigative measures (Article 77.1). A convicted person may consult his or her lawyer (Articles 12 and 89). 45. On several occasions the Constitutional Court examined complaints by convicted persons whose requests for leave to appear in civil proceedings had been refused by courts. It has consistently declared the complaints inadmissible, finding that the contested provisions of the Code of Civil Procedure and the Penitentiary Code did not, as such, restrict the convicted person’s access to court. It has emphasised, nonetheless, that the convicted person should be able to make submissions to the civil court, either through a representative or in any other way provided by law. If necessary, the hearing may be held at the location where the convicted person is serving the sentence, or the court in which the case is being heard may instruct the court having territorial jurisdiction over the correctional colony to obtain the applicant’s submissions or take any other procedural action (decisions no. 478-O of 16 October 2003, no. 335-O of 14 October 2004 and no. 94-O of 21 February 2008). 46. The Code of Civil Procedure, as interpreted by the Constitutional Court in its ruling no. 4-П of 26 February 2010, allows for a reopening of the domestic civil proceedings on the basis of a European Court judgment. | 1 |
train | 001-69794 | ENG | DNK | CHAMBER | 2,005 | CASE OF ROHDE v. DENMARK | 3 | No violation of Art. 3 | Christos Rozakis | 8. On 25 October 1994 a warehouseman found 5.684 kg of cocaine hidden in a consignment of green papaya fruits from Brazil, ordered by the applicant. The discovery was reported to the police, who on the same day interviewed the applicant. He denied having any knowledge of the cocaine and explained that he had ordered the fruits because he contemplated developing a health product made from the seeds. 9. On 13 December 1994 at Copenhagen Airport when the applicant was about to emigrate to England he was arrested and charged with drug trafficking. 10. On 14 December 1994 the City Court in Copenhagen (Københavns Byret) decided with reference to section 762, subsection 1 (iii) and section 770a of the Administration of Justice Act (Retsplejeloven) that the applicant be detained on remand and in solitary confinement. The time limit was fixed at 28 December 1994 with regard to the solitary confinement and at 10 January 1995 as concerns the pre-trial detention. The City Court referred notably to the facts that a person, PL, whom the applicant had known as one of his acquaintances for just under six months had been arrested in the same case, that PL had picked up a load of papaya fruits shortly after the applicant's consignment of papaya fruits had been delivered to him, that cooffenders were assumed still to be at large, that further investigation was required in the case, and that the applicant had taken up residence in London after the commencement of the case. 11. On appeal to the High Court of Eastern Denmark, the decision was upheld on 17 December 1994 on the grounds stated by the City Court. 12. During a police interview on 21 December 1994 the applicant stated that in October 1994 he had been contacted by a Brazilian papaya fruit farmer, called RS, in search of a business partner in Denmark. RS had found the applicant via a friend, RB, whom the applicant knew from the USA. Accordingly, the applicant had contacted PL in order to obtain his assistance with the importation. 13. On 28 December 1994 the City Court extended the solitary confinement until 10 January 1995. It appears from the court record that the applicant's counsel had confirmed in writing that the applicant had consented to this extension without appearing in court. 14. The detention on remand in solitary confinement was prolonged by the City Court on 10 January 1995, upheld on appeal on 16 January 1995 by the High Court, which found among other things that no reasonable explanation of the applicant's importation of papaya fruits had been brought to light, and that the applicant's importation of the fruits seemed to constitute the link between PL and the cocaine. 15. The applicant's pre-trial detention in solitary confinement was prolonged anew by the City Court on 7 February and 7 March 1995. The applicant appealed against the latter decision to the High Court, and submitted in this connection his diary, which contained notes as to RS and RB on the dates 11 and 14 October 1994. The applicant explained that RS and RB had been supposed to come to Denmark on 14 October 1994, but that they had never showed up. On 24 March 1995 the High Court confirmed the City Court's decision of 7 March 1995 on the following grounds: “...Despite the new information in [the applicant's] diary book notes, his importation of papaya fruits is still found to constitute the link between [PL], also charged, and the discovery of the cocaine. This is supported by the telephone call made by [the applicant] on 24 October 1994 [to PL]. Therefore, the reasons for continued detention on remand under Section 762, Subsection 1 (i) and (iii), and for continued solitary confinement are still justified as stated in the City Court order of 7 March 1995.” 16. The pre-trial detention in solitary confinement was further extended as follows; by the City Court on 4 April 1995, upheld on appeal by the High Court on 20 April 1995; by the City Court on 25 April 1995, upheld on appeal by the High Court on 11 May 1995; by the City Court on 30 May 1995; on 27 June; 7 July; 25 July; 22 August; 19 September 1995. 17. PL admitted to cocaine smuggling on 12 September 1995. In addition, he stated that the applicant had participated, but under the belief that the smuggling concerned diamonds. Having been confronted with this statement, during an interview with the police on 26 September 1995 the applicant explained that he and PL had actually planned to smuggle diamonds in the papaya fruits. After the papaya fruits had been delivered on 24 October 1994, PL had informed the applicant that the diamonds had arrived safely and that PL had sold them for a profit amounting to 500,000 Danish kroner (DKK). When the applicant had been confronted by the police and the press with the discovery of the cocaine, he had panicked and decided to emigrate to England. The applicant admitted that his previous explanation about RS and RB, and the notes in his diary had been fabricated, and made up by him and PL before their arrest as a “cover story”. 18. On 3 October and 17 October 1995, the City Court upheld the applicant's pretrial detention in solitary confinement on the basis of submitted letters containing the applicant's and his counsel's consent. At a court hearing before the City Court on 31 October 1995, the applicant and counsel were present and objected to the continued confinement. The City Court decided as follows: “...the court finds it necessary under section 770 a of the Administration Act to maintain the solitary confinement in view of the prosecutor's information on the divergences between particular [the applicant's] and the detained PL's statements as to whether the two persons had had discussions in relation to the smuggling of cocaine in connection with the agreement between them on smuggling from Brazil. Despite the duration of the pretrial detention, the court finds that the solitary confinement must be maintained at least until the examination in court has been carried out, and it should be noted that the examination has been fixed for 24 and 28 November 1995.” On appeal, on 2 November 1995 the decision was upheld by the High Court 19. At the court hearing before the City Court on 28 November 1995 the applicant confirmed the explanation he had given on 26 September 1995 and the City Court lifted the solitary confinement. Nevertheless, the applicant remained voluntarily in solitary confinement until 12 December 1995. 20. During the period when the applicant was detained in solitary confinement he was placed in the Western Prison (Vestre Fængsel). The cells there have an area of about eight square metres. They are furnished with a bed, a table, a chair, a lamp, a bookcase, a cupboard, a radio, a television set, a refrigerator/freezing compartment, a duvet, a pillow, a mirror, a sink, bed linen, a tea-towel and a towel. There is a window in each cell placed in a high of approximately 3 meters above the floor. The flooring in the cell is terrazzo/cement. 21. Being detained on remand in solitary confinement in the Western Prison, the applicant was totally excluded from association with other inmates. He followed the daily routine in the so-called segregation wing and could use the fitness room, borrow various games, occupy himself with various hobby activities such as painting and borrow books once a week, buy goods in the shop, including newspapers, and receive tuition, including school tuition. He was allowed to two daily exercise periods (morning and afternoon), each lasting half an hour, but it was up to him to decide whether to make use of the outdoor exercise option. 22. Visits from the applicant's family and friends were only allowed under supervision. The applicant's mother visited the applicant twice in the period from 14 December 1994 until 10 January 1995. Thereafter, during a shorter period, the applicant refused to receive visitors. From 7 March 1995 she visited him every week for approximately one hour. It appears that in the beginning friends came along with her, up to five persons at a time, but that the police limited the visits to two persons at a time in order to be able to check that the conversations did not concern the charge against the applicant. Since February 1995, the applicant's father along with a cousin visited the applicant every two weeks. 23. The applicant's counsel came to visit the applicant approximately once a week. It appears from the case-file that counsel sent herbal medicine to the applicant a couple of times. Also, it appears that on one occasion the prison staff asked the prison management to consider limiting the visits from counsel because these seemed to be more frequent and last a lot longer than usual counsel visits. The prison management discussed the matter with counsel, but no restrictions were imposed. 24. Moreover, during the segregation period, the applicant was questioned by police officers investigating the case, notably by one named JL. Also, on several occasions the applicant was brought before the court in connection with extensions of the time limits for the pre-trial detention and solitary confinement and court hearings. On these occasions, he had contact with police officers as well as his counsel, the judge and the public prosecutor. 25. The applicant had contact with the prison staff on numerous occasions every day, including when food was dispensed, when food boxes were collected afterwards, when he opted for outdoor exercise, when he bathed and when he chose to use the fitness room. 26. In the period from March until December 1995, the applicant received roughly fifty lessons in English and French from one of the prison teachers, thus once a week and for approximately 1 hour and 15 minutes. 27. In addition, the applicant visited the prison chaplain once a week for about one hour in the latter's office. 28. Furthermore, during the period from 14 December 1994 until 28 November 1995, the applicant had contact twelve times with a welfare worker, it appears for the last time, on 11 December 1995, when the applicant stated that being in solitary confinement (voluntarily since 28 November 1995) was getting him down so much that he would probably choose to leave it. Furthermore, he stated that he had no immediate problems with which the social worker or the Prison and Probation service (Kriminalforsorgen) could assist him. Instead, he talked about the problems that the case had caused him, including the fact that he felt betrayed by people whom he thought were good friends. 29. In the same period, the applicant was treated by a dentist a couple of times and by a physiotherapist thirty-two times. 30. During the applicant's detention on remand in solitary confinement from 13 December 1994 until 28 November 1995 medical inspections were carried out twenty-seven times by a doctor. 31. From the prison medical journals submitted it appeared, among other things, that the applicant from 13 December 1994, the day of his arrest, at 8 p.m. until 14 December 1994 12.30 p.m. was placed in an observation cell, as he had stated that he suffered from claustrophobia and had said that he was contemplating suicide. During this period he was observed thirty-six times by the prison staff and twice by nurses. He was given a sleeping pill for that night (and for the following nights during a week). 32. On 11 January 1995 a doctor attended the applicant and refused to prolong the prescription for sleeping pills. The doctor established that the applicant had no complaints of claustrophobia and advised him to do “physical exercise” to achieve natural fatigue instead of chemical, tablet-induced sleep. 33. At the beginning of/mid January 1995 the applicant went on a hunger strike, although he drank fruit juices. In this connection the applicant was monitored every day on 16, 17 and 18 January 1995 by nurses and doctors. 34. On 17 January 1995 the applicant told a doctor that he was determined to starve himself to death. The prison doctor informed him of the relevant Danish regulation, which prescribes respect for the desires of mentally competent persons, even the desire to die. The doctor found the applicant mentally capable and not abnormal for the purposes of taking this decision. The doctor received and accepted the applicant's refusal of medical intervention (artificial feeding at any future potentially fatal weakening of the applicant's health). The doctor furthermore found the applicant physically normal and without any acetone smell (usual occurrence at fasts). The doctor prescribed him a sleeping pill for that night. According to the prison rules, the doctor also requested a psychiatric assessment of the applicant – a requirement when inmates go on hunger strike even if no signs of mental disorder are found. 35. The following day, on 18 January 1995 the applicant informed a doctor that he was drinking but that he expected to be dead within three weeks. The doctor found the applicant normal and without any signs of dehydration. As to the applicant's mental health, the doctor waited for the psychiatric examination, which was scheduled to take place on the same day. The latter concluded: “Visit to a thirty-year-old male, charged with Article 191[of the Penal Code (straffeloven)], of which, according to him, he is innocent. He is now carrying out a hunger strike, as a protest against his perception that the press and others have convicted him in advance, and he is fully aware of the consequences of such an act and is at present writing farewell letters, his will, etc. Diagnosis: situational reaction.” 36. Due to the applicant's decision to continue his hunger strike, the prison doctor ordered that twice a week he be checked by a doctor, be weighed and have his urine checked for ketonic substances which may occur during fasting. The applicant decided to start eating again at the end of January. 37. Once, in March 1995 an EEG scanning was carried out, notably to check the applicant for epilepsy. 38. On 1 May 1995 a doctor attended the applicant because he complained of continuous pain in his lower back. The doctor ordered that he be given an extra mattress and referred him to a physiotherapist. 39. On 12 December 1995 the applicant decided to leave the solitary confinement he had volunteered for since 28 November 1995. Moreover, having volunteered for kitchen duty, he was attended to by a doctor, as the chief consultant of the Copenhagen Prisons had stated that inmates with indications of for instance mental disorders or significantly deviating conduct were not accepted for kitchen duty. 40. During the applicant's detention on remand in solitary confinement from 13 December 1994 until 28 November 1995 medical inspections were carried out forty-three times by a nurse. 41. After the solitary confinement had been lifted on 28 November 1995, the applicant's detention on remand was prolonged several times by the courts until 14 May 1996, when the High Court sitting with a jury acquitted the applicant of the drug offences. However, on the basis of the applicant's confession he was convicted of aggravated tax fraud and sentenced to 8 months' imprisonment and an additional fine of DKK 875,000 (or in the alternative 60 days' imprisonment). 42. By a City Court judgment of 21 June 1996, a co-accused, MP, who in the meantime had been extradited from the USA, and PL were convicted of the cocaine smuggling. 43. On 12 July 1996, the applicant claimed compensation for pecuniary and non-pecuniary damage pursuant to Section 1018a of the Administration of Justice Act for having been detained from 14 December 1994 until 14 May 1996. The total claim for compensation amounted to more than DKK 19 million, thereof DKK 10 million for injury to his feelings and reputation. In support of the latter counsel referred to the unusually long, unjustified pre-trial detention, the massive press attention given to the case, to the fact that the applicant was a well-known person and that the case therefore had been unusually and extraordinarily insulting to him. The prosecution first considered the claim, and then in June 1997 it was brought before the City Court. 44. In a letter of 10 July 1997 counsel stated that she also wished to invoke Article 3 of the Convention and for this purpose she requested that a report be procured from the LegalPsychiatric Clinic (Retspsykiatrisk Klinik) concerning the applicant's mental state of health during and after his detention on remand. On 18 September 1997 the City Court complied with his request, and the report was submitted on 19 January 1998 stating, inter alia: “The subject is a now 32-year-old male, who had never exhibited any signs of a mental disorder until just over three years ago. From his early youth and until 1992 he was a successful competition swimmer. As from 1990 he was self-employed in a business which he ran successfully until his arrest in December 1994. Until his arrest he seems always to have functioned well. He has never abused any drugs or alcohol. During this examination he was found of normal to good intelligence. There is no basis for assuming that he suffers from epilepsy or any other organic brain disease. [The applicant] states having delusions of persecution and that he suffers from megalomania, and he appears distrustful and on guard. His perception of reality is lacking to such an extent that he can be characterised as psychotic. A final clarification of his illness cannot be made, but most likely he suffers from a paranoid psychosis. Since his release, probably due to his psychotic condition, the [applicant's] way of living has been affected by a considerable and vagrant travel activity, which to some degree has been characterised by a lacking capability to maintain human contacts, to make bond or to root himself in localities. On the basis of the information available it must be assumed that [the applicant's] mental suffering coincided with the period when he was detained on remand in solitary confinement. Moreover, taking into account [the applicant's] distinct personality and mental vulnerability, it is probable that the out-break and the progress of [his] illness are causally linked to the fact that he was solitary confined during a longer period”. 45. In addition, statements of 30 March and 4 May 1998 from the MedicoLegal Council (Retslægerådet) were submitted before the City Court. In the former it was stated inter alia: “... the Medico-Legal Council states that until about three years ago [the applicant] did not seem to exhibit any signs of a mental disorder or personality disorder. He is of good intelligence. During his prolonged pre-trial detention and solitary confinement in the period from December 1994 until May 1996, he developed a psychosis, characterised particularly by failing perception of reality and grandeur. It is difficult to fix the exact time when the psychosis developed during the pre-trial detention. At a psychiatric visit on 18 January 1995 no psychosis-like symptoms were found, but a “situational reaction” and a hunger strike. During the forensic psychiatric examination - completed in January 1998 - he was found both by clinical psychiatric testing and by psychological testing to be psychotic, probably suffering from a paranoid psychosis (mental disorder with delusions). In the Medico-Legal Council's view it is very difficult to establish [the exact cause for the applicant's mental illness], but it is reasonable to assume that the considerable and long lasting mental strain which the case involved, presumably in conjunction with a distinct personality characterised by sensitivity and vulnerability significantly influenced the progress of the mental illness. The solitary confinement was a particular and severe mental strain, but also other circumstances like the charge and the subsequent indictment may have contributed to the progress of the applicant's mental disorder.” In the latter the MedicoLegal Council supplemented: “ ... The Council finds it substantiated that the main diagnosis is paranoid schizophrenic and not a post traumatic stress reaction, as the condition is a psychosis-like condition. But heavy mental strain is one of the prerequisites both for development of [the applicant's] psychosis and for the development of a posttraumatic stress reaction, and in addition to the psychotic symptoms [the applicant] exhibits symptoms which are characteristic of a post-traumatic stress reaction (irritability, concentration difficulties, sleeping difficulties, nightmares, depressive tendencies with suicidal thoughts). ... the Council cannot assess or make any statement as to whether the mental disorder is permanent.” 46. Moreover, an assessment of 3 August 1998 by the National Board of Industrial Injuries (Arbejdsskadestyrelsen) was submitted as to the applicant's degree of disablement and loss of working capacity as a result of his mental illness. The Board estimated that the degree of the applicant's disablement amounted to approximately 30 % and that he had lost 1/3 of his working capacity. 47. During the proceedings before the City Court, the applicant and fifteen witnesses were heard. The witnesses testified about their knowledge of the applicant's income, businesses and possessions, and about their observations of the applicant before, during and after the criminal proceedings. None of the doctors or the nurses that had carried out the medical inspections of the applicant during his pre-trial detention in solitary confinement were heard or summoned before the City Court. With regard to his behaviour during this period i.e. from 13 December 1994 until 28 November 1995 the following witnesses testified in so far as relevant: 48. The applicant's mother stated, among other things, that she felt that it was worst for the applicant during the detention period when he was also solitary confined. Thereafter, he became more human and spoke more coherently. During the solitary confinement he wrote some letters with weird contents, including a letter with incomprehensible presentation of how the universe works. She had talked with counsel about getting a psychologist in from outside, but it was too difficult to cope with and nothing came of it. She would describe the difference in the applicant's behaviour before and after by saying that he used to be dynamic, committed and extrovert but had become grumpy and inaccessible. 49. The applicant's cousin stated, among other things, that the applicant seemed deeply unhappy and preoccupied. Often he was just listening. He had also changed appearance, having grown a big beard and lost weight. The applicant became better as time passed, as if he had found some peace. 50. The prison chaplain stated, among other things, that the applicant moved with great care around the grounds and walked practically sideways along the wall. He moved like a person who had done no exercise and seemed timid. The applicant needed exercise, both physically and mentally. He had a great feeling of powerlessness. The applicant seemed different than other inmates, like a stranger in that he could both think and talk and was not already broken. The chaplain found that in general persons detained in solitary confinement lose their concentration. This was also the case as regards the applicant. The applicant cheered up and felt stimulated by the visits to the chaplain and it had been difficult to end the consultations as the applicant kept finding new subjects and knew which subjects were interesting to the chaplain. 51. The prison teacher stated, among other things, that the applicant from the first day seemed desperate. Subsequently he appeared resigned. On his index card of 18 September 1995, the teacher had noted that the applicant got more and more depressed. The applicants' physical condition worsened, he got careless about himself, both concerning clothing and hygiene. The applicant read a lot, although he encountered difficulties in concentrating. 52. Police officer JL, who investigated the case against the applicant and regularly kept visits to the applicant under surveillance, stated among other things, that the applicant's mental state appeared the same, whether questioned in the presence of his counsel or receiving visits. At some time the applicant turned his sports jersey the wrong side out as he did not wish to be like everybody else. He wanted to be a loner. 53. During the proceedings before the City Court the applicant raised his claim for compensation to DKK 22,556,334. By judgment of 1 October 1998 the City Court granted the applicant compensation in the amount of DKK 790,475 and stated inter alia: “... Having regard to the findings on the evidence in the High Court's verdict of 14 May 1996, and to the evidence produced during these proceedings, the court finds it established that an agreement had been concluded between PL and MP on the smuggling of cocaine from Brazil to Denmark so that the cocaine was to be hidden in a consignment of papaya fruits. Accordingly, in Brazil MP placed the cocaine in a pallet with green papaya fruits to be imported by the firm..., from which [the applicant] had ordered the fruits. However, PL had tricked [the applicant] into establishing ... a health firm, and ordering the papaya fruits via this firm by stating that the import of green papaya fruits was to cover smuggling of diamonds, although to PL cocaine was involved. After the arrival [of the papaya fruits] complications arose whereby the smuggled cocaine was discovered. [The applicant] had taken initiatives as to the potential commercial exploitation of green papaya fruits for health products, etc. The court finds that [the applicant] has exhibited considerable contributory negligence by embarking on an agreement with PL on the smuggling of diamonds from Brazil. He knew that PL was a trained gemmologist, but their acquaintance was of recent date and his efforts to ensure that PL's criminal intention was limited to diamond smuggling were poor. PL's statement to the effect that at some time he briefly remarked to [the applicant] that he had previously tried to smuggle cocaine is contested by [the applicant] and no decisive weight has been attached to it in this assessment of the evidence. ...On the evidence [before it] the court finds that [the applicant] started establishing [the health firm] to be in charge of the import of papaya fruits etc. after having agreed with PL to assist in smuggling diamonds from Brazil hidden in consignments of papaya fruits. According to the evidence it cannot be excluded that [the applicant] also intended to obtain a commercial profit from [the health firm]. However, having regard to the applicant's knowledge of the discovery of the cocaine and to the police interviews in general, the court finds that [the applicant] should have realised that the investigation theory of the police was that [his established health firm] was only a cover for the import of cocaine, and that any profit from the sale of health products made from papaya fruits was quite immaterial. Furthermore, the court notes that [the applicant's] rather experimental/impulsive way of starting up his firm was suited to strengthen this assumption by the police, and that the applicant should have realised this. After the police had found the cocaine and after the press publicity on 26 October 1994, but before his own arrest, [the applicant] chose together with PL to agree on a false statement about the background of his import of papaya fruits, ...[the story about RS and RB] supported by construed diary notes. [The applicant] maintains that he asked PL repeatedly at this stage whether PL had anything to do with the cocaine. Despite PL's denials [the applicant] should have suspected serious mischief at least at this stage. [The applicant] was arrested on 13 December 1994. He did not change his statement until 26 September 1995, when during an interview [with the police] he told about the planned diamond smuggling. This statement was repeated at the hearings before the court on 28 and 30 November 1995 and then maintained. The solitary confinement was terminated at the court hearing on 28 November 1995. ... accordingly, the court finds that [the applicant] has exhibited contributory negligence by way of his suspicious conduct/failure to clear himself of suspicion, partly by having embarked on the alleged smuggling of diamonds and taking relevant steps, having construed and made use of a false cover story and having failed to explain the true facts of the case until the autumn of 1995, whereby he must also have realised that with this course of events in the autumn of 1995 he himself had considerably contributed to causing doubts about the correctness of his present statement, cf. in this respect [the High Court decision of 15 January 1996 as to the continued pre-trial detention]. The court finds that the contributory negligence exhibited by [the applicant] therefore entails that he has basically forfeited the right to compensation for the harm inflicted on him by the arrest and the pre-trial detention... In accordance with the opinion of the Medico-Legal Council the court finds that the applicant did not show any signs of mental disorder or personal disorder [before his arrest], but that during the prolonged pre-trial detention and solitary confinement he developed a psychosis, particularly characterised by a failing perception of reality, delusions of reference as well as delusions of persecution and of grandeur. It is impossible to fix the exact time when the psychosis developed during the pre-trial detention as no psychosis-like symptoms were found at a psychiatric visit on 18 January 1995, but a “situational reaction” and a hunger strike, whereas in the forensic psychiatric examination - completed in January 1998 - [the applicant] was found psychotic, probably suffering from a paranoid psychosis (mental disorder with delusions) ... Particularly concerning the European Convention on Human Rights and the basis of responsibility in general: ... generally, any kind of deprivation of liberty constitutes a strain on the person involved. Such a strain manifests itself even more with regard to pre-trial detention in solitary confinement, which entails complete exclusion from association with other inmates, and visits only to a limited extent and subject to surveillance. In some cases this strain may, for a particular individual, prove to have consequences beyond what is generally foreseeable and predictable by the legislator owing to that individual's mental preparedness and life situation in general. It must be presumed that the legislator considers solitary confinement necessary for the sake of the investigation, particularly in grave criminal cases committed by a group of persons acting in a more organised way, in which the clearing up to a great extent depends on the persons' lack of opportunities to harmonise their statements mutually and with others. In order to balance the interests of the detainee against the interest of the society in prosecuting crimes, the legislator has laid down provisions on solitary confinement cf. sections 770a to 770c of the Administration of Justice Act. Thus, the use of totally solitary confinement is limited to a continuous period of eight weeks [except for] cases, where the charge concerns an offence being punishable under the law by imprisonment for six years or more, which are not subject to any restriction in time. The charge against [the applicant] for drug offences under Article 191 of the Penal Code satisfies this condition. Under section 770b, the courts must check whether the purpose of the solitary confinement can be fulfilled by less radical measures, and they must ensure that the measure is not disproportionate to the importance of the case and the sanction that may be expected if the person charged is found guilty. Furthermore, under this provision the court must “take into account the special potential strain on the person charged owing to his youth, or physical or mental weakness” when it orders solitary confinement. In the opinion of the court, the legislator has thus realised that solitary confinement may at worst result in an unintended harmful effect owing to the mental weakness of the person charged. This is attempted countered by imposing a duty on the Prison and Probation Service staff (kriminalforsorgens personale), including the prison doctor, to be aware of any danger signals, according to which psychiatric monitoring may prove relevant. The question of medical monitoring may be raised by everybody who is in contact with the detainee, including counsel, as well as the detainee himself and the prison staff. If so, the judge responsible for a continuation of the pre-trial detention in solitary confinement must decide whether the interest of society in prosecution must give way for the mental wellbeing of the person charged, with particular regard to the risk of permanent mental harm. It is a matter for the courts to check and apply the provisions of the law compared with general principles of law, including the principles expressed in the European Convention on Human Rights... as incorporated into Danish law by Act No. 285 of 29 April 1992. Article 3 of the European Convention on Human Rights sets out that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Article 5 of the Convention provides for the situations in which a person may exceptionally be deprived of his liberty. [The applicant's] detention on remand was ordered due to the risk of influencing others and the risk of evasion, and solitary confinement was imposed in addition due to the risk of influencing others. 's health. In addition to the specific elements of the case, the court has taken into account the assessments made by the European Commission of Human Rights, the Human Rights Committee of the United Nations (CCPR), the Committee against Torture of the United Nations (CAT), and the Committee for the Prevention of Torture of the Council of Europe (CPT) on the conditions of solitary confinement in Denmark as well as national deliberations, most recently report (betænkning) No. 1358/1998 on pretrial detention in solitary confinement... The court finds that the pre-trial detention in solitary confinement and the subsequent ordinary pre-trial detention did not involve any violation of Article 3 of the Convention by virtue of its duration, form or conditions, as seen in relation to the nature of the suspected offence. The same applies as to the effect of the imprisonment on [the applicant's] health. However, the court finds that the detention on remand in solitary confinement has had a mental consequential effect to [the detriment of the applicant and that it] occurred under such circumstances as to trigger liability for the Government [for the following reason]. It must be assumed, even without the establishment of committed human errors e.g. by failing monitoring, that incidents may occur, where the detained subsequently are found to have developed psychiatric damage, which to a significant extent has been caused by the pre-trial detention [as opposed to normal predictable mental aftereffects], and which may be entailed by the usual administrative rates fixed to cover non-pecuniary damage. In the present case, having regard to the medical statements, the court finds it established that [the applicant] suffers from a paranoid psychosis (mental disorder with delusions) and a traumatic strain-reaction, and that the detention on remand to a very significant extent caused this. The public authorities have a special duty of solicitude for detainees, which entails liability to compensation should they fail to comply with this duty. With regard to solitary confinement the court finds that a strengthened degree of culpability must be employed towards the public authorities. It may be difficult for the surroundings to recognise in particular a paranoid psychosis. However, having regard to the information provided by [the applicant] about his claustrophobia and his contemplation of suicide, which resulted in his placement in an observation cell, the court finds that [the applicant], maybe already at the time of the arrest, behaved in such a way that could and should have caused a closer observance in the period to follow, than were actually performed of [the applicant's] mental development, in any case subsequent to [the applicant's] hunger strike in January 1995. The court finds that the authorities carry the burden of proof that the [above] circumstances have had no influence on the psychiatric damage incurred. Thus, the court finds that it cannot be excluded that the mental damage to a significant extent could have been avoided or reduced by a more thorough observation, and that the courts [had such an observation been carried out] would have had an opportunity for balancing the risk of (permanent) damage against the interest of the investigation cf. section 770b of the Administration of Justice Act.” 54. Both the applicant and the prosecution appealed against the City Court judgment of 1 October 1998 to the High Court of Eastern Denmark. 55. Before the High Court a letter of 5 October 1998 was submitted containing an account of the nurses' monitoring of the applicant during his pretrial detention in solitary confinement during the period from 13 December 1994 until 28 November 1995. Thus, as to the forty-three medical inspections which had been carried out by nurses the head of nursing stated inter alia: “. It does not appear at any time from the nurses' report books summarising the visits that the nurses suspected that [the applicant] was developing a paranoid psychosis. Considering the nurses' background both in the prison service and the psychiatric system, one would expect that the nurses who made these visits would have observed it, if [the applicant] had been developing a psychosis-like condition. It should be added that the nurses' visits in the south wing [where the applicant was placed] were performed by the “permanent nurses” of the south wing, who were [therefore] able to monitor any changes in [the applicant's] mental condition.” 56. The head of nursing also testified before the High Court and explained the routines and observations of the prison nurses, including that the applicant gave cause for discussion only once at the nurses' morning conferences, namely when he was on his hunger strike. Otherwise, he was considered “nice and talkative” 57. A similar account was made as to the doctors' monitoring of the applicant, i.e. twenty-seven medical examinations carried out by doctors in the relevant period. In a letter of 2 October 1998 the chief consultant of the Copenhagen Prisons (Københavns Fængsler), a specialist of internal medicine and medical gastroenterology concluded inter alia: “that [the applicant] was not at any time found to be mentally ill to a major extent corresponding to the otherwise obvious and probable harmful effect of the solitary confinement ordered by the courts; that at no time [the applicant] was found to be borderline psychotic, not to mention psychotic (thus not suffering from a paranoid psychosis either); that the psychiatrist's assessment of [the applicant] on 18 January 1995 was carried out for administrative reasons only in connection with [the applicant's] short-term refusal to eat, which had caused no complications (it was not a total fast as [the applicant] drank juice). The psychiatric assessment was not carried out due to an uncertainty on the prison doctor's behalf as to [the applicant's] mental state, [since] neither the ordinary prison doctor nor, in particular, the psychiatrist had found [the applicant's mental state] very remarkable or even mentally threatened. [Instead] the psychiatrist made the said administrative assessment to make doubly sure that [the applicant] was found competent [to cope with the situation] concerning his refusal to eat.” 58. The chief consultant did not question that the applicant was found to be psychotic during the period of psychiatric observation from 8 December 1997 until 19 January 1998, but underlined that the applicant had not been found to be significantly mentally ill, borderline psychotic or psychotic during the period of detention from 13 December 1994 until 14 May 1996. None of the highly qualified and welltrained doctors and nurses attending the applicant during that period had noted any signs of mental disorder in the applicant. He pointed out that the said doctors and nurses had plenty of experience with examining inmates held in solitary confinement and that they knew what telltale signs of oncoming or existing mental disorder to look for when examining such inmates. Accordingly, in the chief consultant's opinion, it could not established that the mental disorder, found when examining the applicant a year and a half after the determination of his detention, actually began during his detention at the Western Prison. 59. The chief consultant also provided a general account on visits and assessments of detainees. He mentioned that such may take place at counsel's request. In this respect the letter stated as follows: “Concerning [the applicant] it should be noted in this connection that the doctors [of the Prison and Probation Service] have received no inquiries during the said detention period from [the applicant's] prosecutor or two counsel, apart from the letter of 18 January 1995 from [the applicant's] first counsel and the letter of 21 June 1995 from [the applicant's] second counsel. In the letter of 18 January 1995 [the first counsel] stated that he found the applicant very depressed, and he asked that doctors attend to [the applicant]. No letter of reply was sent to [the first counsel] since he had not requested such, and since he had stated in the letter that he had not notified [the applicant] that he had written the said letter (all other things being equal, a reply would require [the applicant's] specific consent and thus indicate to [the applicant] that his counsel had sent a letter without his consent), but the most important reason for not sending a reply was the fact that [the applicant] had not been found depressed in connection with a medical assessment, including the psychiatric assessment made on 18 January 1995. If the latter had been the case, a letter of reply would have been forwarded to counsel nevertheless, possibly even without [the applicant's] specific (informed) consent, and ... also from the prison doctor to the judicial instances via the Prison and Probation Service. In the letter of 21 June 1995 [the second counsel] asked that herbal medicine ... be given to [the applicant]. Otherwise, [the two counsel] have not given notice orally, by telephone or in writing about any deviant state observed as to [the applicant]. [It should be noted in this respect that notably [the second counsel] and the doctors [of the Prison and Probation Service] are in regular good contact concerning the inmates' state of health and particular complex matters related thereto, also in relation to court measures, such as solitary confinement]. The doctors [of the Prison and Probation Service] are pleased to receive notices from everybody (including school teachers, ministers of religion etc. within and outside [the Prison and Probation Service], not to mention the applicant) regardless of the nature of the notices and the information since, all other things being equal, such notices give the doctors better possibilities of performing their work of ensuring the best possible conditions for the inmates' health subject to the terms ordered by the courts. “ 60. The chief consultant was heard as a witness before the High Court. He explained in more general terms the routines of the prison doctors and the attention focused on inmates held in solitary confinement for long periods and he gave further description of some of the findings noted in the medical record sheet relating to the applicant. 61. The applicant's case was discussed at the daily conferences between the doctors. The witness himself never saw the applicant. There were no signs that the applicant was characterised by incipient isolation syndrome. The symptoms of this syndrome are difficulties of concentrating, sleeping trouble, disturbed perception of time and space, disturbed interpretation of sensory impulses, depression, possibly with self destruction and thought of low self-esteem, fits of anxiety, lack of interests in surroundings. This may develop into a borderline psychosis, the symptoms being delusions/paranoia, feeling of unreality and into an actual psychosis. When he suspects incipient isolation syndrome, he writes to the prison management about it with a view to forward it to the counsel and the prosecutor. In 1998, for example, the witness wrote such letters in thirtytwo cases. He did not know exactly how many letters like that he wrote in 1995, but he has not changed practise in this respect since 1992. 62. As to the notes in the medical record of 17 January 1995, when the applicant was on hunger strike, the chief consultant specified that doctors always assess whether a person is mentally competent and understands the consequences of a hunger strike and that all doctors have psychiatric training. He would rather call the applicant's hunger strike a refusal to eat, since he drank plenty of water and juice, which contains calories and nourishment. According to the Medical Act (Lægeloven), a doctor is not allowed to interrupt a competent person's hunger strike by force. He may try to procure consent to treatment when the person becomes weak. The applicant granted no such consent. Force may be used against mentally ill persons. 63. As to the psychiatric attendance on 18 January 1995 the witness stated inter alia that the applicant was found to suffer from a situational reaction such as many new detainees do. It is not uncommon in the Western Prison that inmates state their intention of going on hunger strike. The applicant was not in any bodily danger, but might in time become mentally endangered. Thus, the close observation of the applicant continued. 64. The Director of the Copenhagen Prisons gave his account before the High Court of the monitoring of the applicant during the latter's pre-trial detention and period of solitary confinement. In a letter of 7 October 1998 he stated, among other things: “For the purpose of this account the prison management has procured information on [the applicant's] stay in the prison from the chief consultant, the head of nursing, the welfare worker, supervisory staff [at the applicant's unit] and from his workplace in the prison. Supervisory staff in the south wing [which monitored the applicant during his entire period in solitary confinement] stated that despite the solitary confinement he functioned well, knew how to structure his everyday life and occupy himself, and he did not in any way appear mentally conspicuous. At no time did the staff find any reason to contact the health staff to obtain a psychiatric assessment, which is otherwise an initiative very frequently taken by staff. The principal officer of the west wing [to which the applicant was transferred after the solitary confinement] and the staff in the kitchen where he worked have stated the same. [The applicant's] welfare worker who regularly talked with him during his entire detention has also stated the same. With reference to the comments of the court [in connection with the compensation proceedings] decisive importance must be attached, however, to the question whether these assessments are supported by the doctors' monitoring of [the applicant]. The chief consultant has provided the appended statement on the case. For details please refer to this assessment. It appears from the chief consultant's statement that during his entire period of detention [the applicant] has been extremely carefully monitored and assessed by doctors. Visits by doctors, including psychiatrists, may be carried out at the request of the health staff of the Copenhagen Prisons, but may also be carried out at the request of staff, counsel or the prosecutor. In [the applicant's] case, counsel only once requested a visit from a doctor [i.e. the first counsel in his letter of 18 January 1995], which had, however, already been made by a psychiatrist in connection with the hunger strike, cf. below. During all visits, doctors and nurses of the Copenhagen Prisons have their attention directed at signs of psychoses, both obvious signs and minute signs. They are, of course, particular attentive to such signs in a case of solitary confinement, which is in itself a stressful measure. If, in connection with a visit, a doctor finds even the slightest suspicion that the inmate is or may possibly be on his way to become mentally ill, a statement to that effect is given to counsel and the prosecutor. This was not done in [the applicant's] case, as there was never at any time any suspicion of a mental illness. The reason why [the applicant] was attended to by a psychiatrist on 18 January 1995 at the initiative of the Copenhagen Prisons was not that a mental illness was suspected, but solely that the internal guidelines prescribe this when inmates go on hunger strike. Anyway, no psychopathological characters were found at the examination, but a situational reaction ...Particularly referring to the chief consultant's statement, the Copenhagen Prisons repudiate that [the applicant] has been subjected to failure of health monitoring. During his entire stay, [the applicant] was regularly visited by doctors and nurses, and these visits have not given any rise to any suspicion of mental disorders...” 65. Moreover, by letter of 8 October 1998 the Director of the Western Prison gave his account of the monitoring of the applicant during the latter's pre-trial detention and solitary confinement. The letter read inter alia: “After the passing of the judgment in the compensation proceedings on 1 October 1998 I have had conversations with the following persons about [the applicant's] stay in the Copenhagen Prisons: DW, then social worker in the east unit, states that [the applicant] was an intelligent and interesting young man. During his stay [the applicant] started painting. He read a lot. His behaviour was not conspicuous. He seemed present during conversations. He was bitter and angry with the police and felt unjustly treated. These thoughts did not seem pathological to DW. JL, prison officer, ... , who knew [the applicant] during his entire stay in the south wing, stated that he painted, was active and seemed to function well. He was good-humoured to be with and was given a rather free rein. He was always ready with a gay remark. He was considered by all staff as a person who functioned well and was not conspicuous. He knew how to establish an everyday life. He felt unjustly treated by the system and thought that solitary confinement in general could be considered as some kind of torture. CL, prison officer, ... , who also monitored [the applicant] in the south wing, stated that he was not pathologically conspicuous. He was quite ordinary to talk to. In the circumstances he managed the solitary confinement incredibly well. JEL... who was the foreman in the kitchen where [the applicant] worked after the solitary confinement, stated that he did not seem mentally conspicuous or affected by the long solitary confinement. VB, principal officer, west wing, stated that [the applicant] functioned well during his stay in the west wing after the solitary confinement and did not seem affected by the solitary confinement.” 66. Additional statements from the LegalPsychiatric Clinic and the MedicoLegal Council were submitted on 29 April 1999 and 9 August 1999 respectively, and the applicant and several witnesses were heard. 67. By judgment of 27 August 1999 the High Court granted the applicant compensation in the amount of DKK 1,334,600 covering as follows: non-pecuniary damage DKK 100,000 lost earnings DKK 125,000 loss of working capacity DKK 1,022,000 disablement DKK 87,600 68. The High Court found that the applicant's mental illness was caused or mainly caused by the solitary confinement, but pointed out that on the basis of the medical statements before it, it was not possible to establish when the mental disorder broke out or how it had progressed. On the material before it, the court found it established that during his detention the applicant had been treated in a proper manner. Thus, having regard to the reason for the solitary confinement and the treatment of the applicant during this period, the court found that in spite of the duration of the solitary confinement and its serious effects on the applicant's mental health, Article 3 of the Convention could not be considered breached. 69. The court found that compensation for non-pecuniary damage was justified pursuant to section 1018a § 2 of the Administration of Justice Act for the deprivation of liberty exceeding the sentence laid down in the verdict of 14 May 1996. However, according to section 1018a § 3 of the said Act the applicant was found to a considerable extent to have given rise to the measures himself, due to so-called “own fault”, in the period between 13 December 1994 until 26 September 1995, when the applicant made the statement to the police as to his participation in diamonds smuggling. Accordingly, a sum of DKK 100,000 was found to be reasonable. Also, the compensation for lost earnings was reduced due to “own fault”. 70. The amounts for disablement and loss of working capacity were calculated on the basis of the Compensation Act (Erstatningsansvarsloven), and the information on the applicant's previous yearly income. Since no exact moment of injury could be established the court chose 13 December 1994 as the starting point. Considering that it was common knowledge to the authorities that solitary confinement entails a risk of disturbing the mental health, and taking into account the extraordinary and severe damage, which the long lasting detention in segregation caused the applicant, the court found no reason to reduce these amounts on the “own fault” considerations. 71. Finally, the High Court decided that the Government should pay all the legal costs before the City Court as well as before the High Court. 72. Having been granted leave to appeal, before the Supreme Court (Højesteret) the applicant claimed compensation in the amount of DKK 18,618,602.36 for pecuniary and non-pecuniary damage. By judgment of 5 September 2000 the Supreme Court reduced the amount to be paid in compensation to DKK 1,109,600, covering as follows: non-pecuniary damage DKK 0 lost earnings DKK 0 loss of working capacity DKK 1,022,000 disablement DKK 87,600 73. The Supreme Court agreed unanimously with the High Court that the solitary confinement was the main reason for the applicant's mental suffering. Also, noting that there was no reason to assume that the applicant had not been treated in a proper manner during his detention on remand, it confirmed the High Court's finding that the case disclosed no appearance of a violation of Article 3 of the Convention. 74. Moreover, the Supreme Court upheld the High Court's finding that to a significant extent the applicant himself gave rise to measures taken against him, and pointed out that the applicant's explanations during the criminal proceedings did not leave an impression of being provided by someone who lacked ability to act rationally. 75. As to the amounts regarding compensation for disablement and loss of working capacity the Supreme Court confirmed that it was common knowledge that solitary confinement entails a risk of disturbing the mental health. On the other hand it found that the applicant could not have foreseen, by his conduct and the measures to which he was consequently subjected, that accordingly he would be induced a permanent mental disorder causing loss of working capacity and disablement. Therefore, the Supreme Court endorsed that the amounts covering compensation for disablement and loss of working should not be reduced on “own fault” considerations. 76. As to the applicant's claim covered by Section 1018a, Subsection 2 cf. Subsection 1, the majority of the Supreme Court (three judges) stated: “We find that by participating in the papaya project and by his attitude shown during part of the detention period, notably by having actively opposed the investigation of the case, [the applicant] is thereby excluded from obtaining compensation for these claims pursuant to Section 1018a, Subsection 3 of the Administration of Justice Act.” A minority of two judges stated: “When assessing the 'own fault' shown by [the applicant], regard must be had to the difficult situation he was facing and to the severity of the measure [he was subjected to], thus in our view [own fault] should not influence the compensation to be awarded to cover lost earnings as to the period after 12 October 1995 or non-pecuniary damage as to the period after 26 September 1995. The case contains no such special circumstances, which can justify a deviation from the administrative rates fixed to cover nonpecuniary damage. Otherwise agreeing with the High Court's reasoning concerning each of the claims we find that the applicant, in addition to compensation for loss of working capacity and disablement, be granted DKK 250,000 covering lost earnings and DKK 106,800 covering non-pecuniary damage.” 77. The Supreme Court decided that the applicant pay legal fees in the amount of DKK 37,500 inclusive VAT. 78. The relevant provisions of the Administration of Justice Act read as follows at the relevant time: Section 762 1. A suspect (en sigtet) may be detained on remand when there is a reasonable ground for suspecting that he has committed an offence which is subject to public prosecution, provided that under the law the offence may result in imprisonment for one year and six months or more, and (i) according to information received concerning the suspect's situation, there are specific reasons for assuming that he will evade prosecution or execution of judgment, or (ii) according to information received concerning the suspect's situation, there is specific reason to fear that, if at large, he will commit a new offence of the nature described above, or 2. ... 3. Detention on remand may not be imposed if the offence can be expected to result in a fine or in light imprisonment (hæfte) or if the deprivation of liberty will be disproportionate to the interference with the suspect's situation, the importance of the case and the sanction expected if the suspect is found guilty. Section 770a 1. At the request of the police the court may decide that a detained shall be totally or partially excluded from association with other inmates (solitary confinement) if (i) the detention on remand was decided pursuant to Section 762, Subsection 1 (iii), and (ii) the purpose of the detention on remand requires solitary confinement in order to prevent the suspect from influencing co-suspects though other inmates or from influencing others by threats or in another similar way. 2. Totally solitary confinement may not be imposed for a continuous period of more than eight weeks unless the charge relates to an offence which, under the law, may result in imprisonment for six years or more. Section 770b Solitary confinement may not be initiated or continued if the purpose thereof can be fulfilled by less radical measures or if the measure is disproportionate to the importance of the case and the sanction to be expected if the suspect is found guilty. Decisions on solitary confinement must also take into account the special potential strain on the suspect owing to his youth or physical or mental weakness. Section 1018a 1. Any person who has been arrested or held in custody as part of a criminal prosecution is entitled to compensation for the damage suffered thereby if the charges are withdrawn or the accused is acquitted... 2. Even if the conditions for granting compensation under subsection 1 are not satisfied, compensation may be granted if the deprivation of liberty cannot be considered proportionate to the outcome of the prosecution, or if it is found unreasonable for other particular grounds. 3. The compensation may be reduced or refused, if the person charged has given rise to the measures himself. 79. The CPT visited Denmark from 2 to 8 December 1990. With regard to solitary confinement it found inter alia the following (CPT/Inf (91) 12): 136. ... at the Western Prison the CPT's delegation was able to observe at first hand the practice of the solitary confinement of remand prisoners ordered by judicial decision. Numerous allegations were made as regards the adverse effects of such confinement. The CPT wishes to underline that, in certain circumstances, solitary confinement could amount to inhuman and degrading treatment, and that in any event all forms of solitary confinement should be as short as possible. The question of solitary confinement is currently being examined by the Danish authorities. The CPT, for its part, has formulated several recommendations designed to strengthen the protection of prisoners in this area. Emphasis is placed in particular on the importance of the respect of the principle of proportionality between the requirements of the investigation and placement in solitary confinement (a measure which can have very harmful consequences for the persons concerned), of an effective periodic judicial review of the solitary confinement, and of the proper medical examination of a prisoner subject to such a measure. 80. The CPT also visited Denmark from 29 September to 9 October 1996. Its findings with regard to solitary confinement, and the condition of the Western Prison were the following (CPT/Inf (97) 4): 3. Solitary confinement of remand prisoners by court order 54. In the course of its ongoing dialogue with the Danish authorities, the CPT has stressed that all forms of solitary confinement without appropriate mental and physical stimulation are likely in the long term to have damaging effects, resulting in deterioration of mental faculties and social abilities. It has paid particular attention to the solitary confinement of remand prisoners by court order, which can continue for extended periods. 55. The Danish authorities have long recognised the importance of this subject and, in 1990, the Minister of Justice commissioned a research project to examine "any possible harmful effects of being remanded in custody in solitary confinement". The results of that research were published, in a report entitled "Remand in Custody and Mental Health", in May 1994. The research team found that: "...remand in custody in solitary confinement versus non-solitary confinement involves the risk of harmful effects on mental health" and that "...there is a greater probability that those in solitary confinement develop mental problems and are transferred to prison hospitals for mental reasons than those who are not placed in solitary confinement". (cf. page 164 of document CPT/Inf (96) 14) However, researchers found no proven link between the length of judicially-ordered solitary confinement and prisoners' mental health. The report concludes that: "... the harmful effects of solitary confinement are not in general such as to result in abnormalities in the cognitive functions, e.g. concentration and memory". (cf. page 165 of document CPT/Inf (96) 14). The Criminal Justice Review Committee is currently examining the findings of "Remand in Custody and Mental Health", with a view to re-assessing the rules governing placement in judicially ordered solitary confinement. In addition, the same research team is producing a follow-up study, which is to be published in the form of a supplementary report. 56. The CPT welcomes the fact that the mental health of prisoners in judicially ordered solitary confinement has been the subject of a study. However, it feels bound to point out that, during its 1996 visit, a considerable number of doctors, lawyers, prison staff and other persons who have frequent contact with such inmates expressed considerable surprise at the study's principal conclusion. In their experience, prisoners subjected to lengthy periods of judicially ordered solitary confinement frequently exhibited lapses in concentration, memory loss and impaired social skills. These observations were borne out by the Committee's own findings during its second periodic visit. Many prisoners subject to judicially ordered solitary confinement complained of symptoms including anxiety, depression, inability to concentrate, irregular sleeping patterns, nausea and persistent headaches. In one particular case, the delegation's psychiatric expert was of the opinion that symptoms such as impairment of concentration, depressive mood and suicidal thoughts could be attributed to the inmate's lengthy placement in solitary confinement. In short, notwithstanding the principal conclusion of "Remand in Custody and Mental Health", the CPT considers that there remain serious grounds for concern about the effects upon remand prisoners' mental health of being placed in judicially-ordered solitary confinement for prolonged periods. 57. In addition to stressing that all forms of solitary confinement should be as short as possible, the CPT's 1991 report recommended that the Danish authorities take steps to ensure that remand prisoners were only placed in solitary confinement in exceptional circumstances which were strictly limited to the actual requirements of the case. It also recommended that there be an effective judicial review of placements in solitary confinement and that, where a placement was prolonged, the reasons for such prolongation be set out in writing (cf. paragraph 29 of document CPT/Inf (91) 12). In their response, the Danish authorities asserted that Danish law was already in accordance with these recommendations and cited a steady fall in the number of remand prisoners being placed in judicially-ordered solitary confinement. 58. The CPT welcomes the above-mentioned fall. However, the information gathered during the second periodic visit would suggest that - at least in respect of certain types of cases (serious drugs offences, crimes of violence etc.) - the balance between the legitimate requirements of a criminal investigation and the potentially harmful effects of imposing solitary confinement is still not being struck in an appropriate way. As an example, senior police officers, prosecutors and judges with whom the delegation spoke agreed that it would be extremely unusual were solitary confinement not to be sought (and granted) in a case brought under Section 191 of the Administration of Justice Act (which deals with serious drugs offences). It is also noteworthy that a detailed examination of the court transcript of a randomly-selected Section 191 case showed that no specific reasons had been given by the judge for imposing solitary confinement; instead, he had simply cited the statute which authorised him to grant the prosecutor's request. Furthermore, although it is true that the statistical information which has been supplied by the Danish authorities shows a downward trend in the number of placements in solitary confinement, it also indicates that the average length of solitary confinement has increased. Indeed, in the course of the 1996 visit, the CPT's delegation met a number of prisoners who had been subject to judicially ordered solitary confinement for long periods of time (one for ten months, two for six months and six for three months or more). 59. In the light of the information set out above, the CPT considers that further action is required to ensure that the safeguards in Danish law concerning the placement of remand prisoners in solitary confinement are rendered fully effective in practice. The CPT recommends that steps be taken to ensure that: - prosecutors are reminded that they should only seek a placement in solitary confinement when this is strictly necessary in the interests of a particular criminal investigation; - on every occasion when the question of whether to impose or prolong solitary confinement is raised before a court, the reasoned grounds for the decision which results are recorded in writing; - prisoners are systematically informed in straightforward language of the reasons for their placement in judicially-ordered solitary confinement; - in the context of each periodic review of the necessity to continue remand in custody, the necessity to continue a placement in solitary confinement is fully considered as a separate issue, bearing in mind the general principle that all placements in solitary confinement should be as short as possible. The Committee also invites the Danish authorities to consider introducing a maximum limit on the total period for which a remand prisoner may be placed in solitary confinement. 60. The effect upon remand prisoners of being placed in judicially ordered solitary confinement can be exacerbated by the imposition of prohibitions/restrictions upon their letters and visits. The imposition of such restrictions lies within the sole discretion of the police (although a prisoner may appeal to a court against the imposition of restrictions). In the course of its second visit, the delegation found that the police rarely if ever sought to prohibit letters or visits; however, it was common for remand prisoners' letters to be monitored and their visits supervised. In its report on the first visit, the CPT recommended that the police be given clear instructions on the circumstances in which such prohibitions/restrictions might be imposed and required to state the reasons in writing for any such measures. This recommendation has not been implemented by the Danish authorities, who consider that the Administration of Justice Act already provides sufficient safeguards in this respect. In the view of the CPT, the current system of police-imposed restrictions upon letters and visits still does not adequately ensure that the measures adopted in a given case will be strictly proportionate to the needs of the criminal investigation involved. Accordingly, the Committee recommends that the Danish authorities take steps to implement its 1991 recommendation on this subject without further delay. The CPT also recommends that, in the context of each periodic review by a court of the necessity to continue remand in custody, the question of the necessity for the police to continue to impose particular restrictions upon a remand prisoner's visits and letters be considered as a separate issue. 61. As regards the question of activities for remand prisoners placed in judicially-ordered solitary confinement, the Committee was pleased to note that the Ministry of Justice fully agrees with the CPT's view that persons in solitary confinement should be provided with access to purposeful activities and appropriate human contact in order to counteract the effects of being placed in solitary confinement (cf. page 165 of document CPT/Inf (96) 14). During the second periodic visit, the delegation noted that efforts were being made to achieve this objective in the establishments visited. The CPT recommends that the Danish authorities pursue their efforts in this respect. 4. Conditions of detention in general ... b. the Western Prison in Copenhagen i. introduction 64. Since the CPT's first visit to the Western Prison in 1990, the establishment has become the reception facility for all of the Copenhagen Prisons (a role previously filled by the Police Headquarters Prison, cf. paragraph 62, above); the Western Prison now has a turnover of between 8,000 and 10,000 inmates per year. With an official capacity of 439, on the first day of the 1996 visit the establishment was holding 426 inmates. (As compared to some 403 (with an official capacity of 430) at the time of the first periodic visit) ... 81. The Danish Government replied inter alia as follows: According to the existing Danish legislation, only the courts can decide whether a suspect may be placed in solitary confinement and that such a decision requires that certain conditions are met, i.e. that the suspect is remanded in custody because he or she must be prevented from influencing other suspects through other inmates or in any other way. Total isolation was only possible for a maximum period of eight weeks unless the person involved was charged with a criminal offence punishable by six years' imprisonment or more. Furthermore, the principle of proportionality must be observed – hence, if the purpose of the solitary confinement may be achieved through other means of less vital importance, or if the solitary confinement is disproportionate to the importance of the case and the legal consequences to be expected if the suspect is found guilty, solitary confinement must not be used. When deciding this matter, the judge must also take into account the strain, which solitary confinement may put upon the suspect due to the suspect's young age or mental or physical weakness. The Government also pointed out that the number of persons kept in solitary confinement was decreasing significantly over the years and that the conditions to be met in order to keep someone in solitary confinement were among the strictest in Europe; Only the courts can decide to detain a suspect in solitary confinement and the courts' decisions regarding this issue must explain in detail the reasons for this decision; The staff of the Danish Prisons has been instructed to inform the prison doctor/nurse in all cases where a prisoner wishes to get medical attention. The prison doctor will specifically look not only for somatic inmates but also psychiatric problems when examining an inmate. It is always possible for the doctor to inform the prison management and in certain cases also the public prosecutor, the inmate's counsel and the courts of whether and to what extent a psychopathological symptom ascertained must be deemed to have been caused or worsened by solitary confinement and what the inmate's prognosis must be deemed to be under continued solitary confinement. Such medical information will form part of the considerations of the courts when deciding whether solitary confinement is proportionate in the case in question; The Administration of Justice Act contains specific provisions concerning prohibitions/restrictions of the prisoners' correspondence and visits, and a prisoner who is subjected to such restrictions has a right to request that the decisions be brought before a court. | 0 |
train | 001-119382 | ENG | UKR | CHAMBER | 2,013 | CASE OF TYMOSHENKO v. UKRAINE | 3 | Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Bringing before competent legal authority;Reasonably necessary to prevent fleeing);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 18+5-1-c - Limitation on use of restrictions on rights (Article 18 - Restrictions for unauthorised purposes) (Article 5 - Right to liberty and security;Article 5-1-c - Bringing before competent legal authority) | André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger | 7. The applicant, born in 1960, is serving a prison sentence in Kachanivska Penal Colony no. 54 in Kharkiv. She is currently hospitalised in the Central Clinical Hospital of the State Railway in Kharkiv. 8. The applicant is the leader of the Batkivshchyna political party and of Yulia Tymoshenko’s Bloc. 9. During the periods from 24 January to 8 September 2005 and from 18 December 2007 to 3 March 2010, she exercised the function of Prime Minister of Ukraine. Before becoming Prime Minister, the applicant was one of the leaders of the Orange Revolution, during which she had openly criticised the then rival presidential candidate Victor Yanukovych. 10. In the parliamentary elections held in 2006 Yulia Tymoshenko’s Bloc was victorious in fourteen regions in the country (out of twenty-seven) and polled 22.27% nation-wide. 11. In the 2007 parliamentary elections Yulia Tymoshenko’s Bloc polled 30.71% throughout Ukraine and received 156 seats (out of 450) in Parliament. 12. The applicant was the main opponent of President Victor Yanukovych in the presidential election held in 2010. In the second round of the election she won the support of 45.47% voters, while Mr Yanukovych won 48.95%. 13. At the time of the introduction of the application, the applicant was the most visible opposition politician and the head of one of the strongest opposition parties in Ukraine. 14. On 11 April 2011 the General Prosecutor’s Office (hereinafter “the GPO”) instituted criminal proceedings against the applicant on suspicion of abuse of power under Article 365 § 3 of the Criminal Code. The applicant was suspected of exceeding her authority and abusing her office in ordering the head of the State-owned enterprise Naftogaz of Ukraine to sign an agreement with the Russian enterprise Gazprom providing for the importation of natural gas at a price of 450 United States dollars (USD) per 1,000 cubic metres, which had caused the State to suffer considerable financial losses. 15. On 25 May 2011 the pre-trial investigation was officially completed and the applicant was given fifteen working days to read the case file. At the same time, she was called almost daily to attend the GPO’s premises for questioning concerning the other criminal cases which had been initiated against her in the meantime. The case file at that time comprised some 4,000 pages in fifteen volumes. 16. On 17 June 2011 the case was referred to the Kyiv Pecherskyy District Court (hereinafter “the Pecherskyy Court”) for trial. 17. In a judgment of 11 October 2011 the court found the applicant guilty as charged. It sentenced her to seven years’ imprisonment and imposed a three-year prohibition on exercising public functions on her. 18. On 23 December 2011 the Kyiv Court of Appeal upheld the first-instance judgment. 19. On 29 August 2012 the Higher Specialised Court delivered a final judgment in the case confirming the applicant’s guilt and sentence. 20. Earlier, in 2010, two other criminal cases – one concerning the misuse of funds allocated for the purchase of ambulances and the other concerning funds received by Ukraine within the framework of the Kyoto Protocol – had been opened against the applicant under Articles 364 and 365 of the Criminal Code. 21. In July 2011 the Ukrainian Security Service re-opened another criminal case against the applicant, on suspicion of financial fraud during her tenure as head of the company United Energy Systems of Ukraine in the 1990s, which had been closed in 2001. 22. On 7 December 2011 the investigator asked the Kyiv Shevchenkivskyy District Court (“the Shevchenkivskyy Court”) to order the applicant’s remand in custody in order to facilitate the further pre-trial investigation of this case. 23. On 8 December 2011 the court granted that motion following two hearings conducted in the SIZO medical unit, during which the applicant was lying in bed because of pain. The hearings were interrupted three times for her emergency treatment with painkillers. 24. On 21 December 2011 the Kyiv Court of Appeal upheld the above ruling. 25. On 29 March 2012 the applicant was officially indicted. 26. During the initial stages of the pre-trial investigation and the trial concerning the gas agreement the applicant was at liberty, subject to an undertaking not to abscond. 27. Between 29 June and 4 August 2011 the Pecherskyy Court held sixteen hearings, in all of which the applicant participated. 28. On 5 August 2011 the hearing started at 9.00 a.m. The applicant was late and her counsel asked for a half-hour break. The applicant arrived seven minutes later. The court resumed the hearing at 9.30 a.m. The applicant explained that she was late due to her exhaustion. The previous hearing had ended at 8:02 p.m. the day before and she had had to prepare for the next hearing late at night. 29. During the hearing the judge heard the incumbent Prime Minister, Mr Azarov. The applicant’s questions were almost all dismissed by the judge, but allegedly made the witness overly nervous and upset. It is not clear whether the applicant asked the questions herself or through her lawyers. 30. After the cross-examination of this witness, a representative of the GPO asked the judge to order the applicant’s remand in custody on the grounds that she had obstructed justice and had demonstrated her disrespect for Judge K. and those taking part in the hearing. 31. Judge K. granted the GPO’s motion on the same day and ordered the applicant’s detention for an undetermined period, with reference to Article 148 of the Code of Criminal Procedure. His reasoning was as follows: “Both during the pre-trial investigation stage and the trial the defendant has systematically been violating court procedures, has been ignoring the presiding judge’s orders, has been showing contempt towards the participants in the hearing and the court, has been knowingly protracting the judicial examination of this case, and has been performing acts aimed at impeding establishing the truth in the case, in particular, by hindering the questioning of witnesses.” 32. He added that the applicant had refused to give any information about her domicile (referring to the case file). The letters sent to the address indicated by her had been returned by the post office. The applicant had also repeatedly refused to sign notices informing her of scheduled hearings. As noted in the ruling, it was final, no appeal lying against it. 33. The applicant was detained in the court room and was transferred to Pre-Trial Detention Facility no. 13 in Kyiv (“SIZO no. 13”). 34. In the course of subsequent court hearings held on 8, 10, 11, 15, 16, 18, 22, 25, 26, 29 and 31 August and on 1, 2, 5, 6, 7 and 21 September 2011 the applicant and her defence counsel repeatedly lodged requests to have her detention replaced with another preventive measure. They submitted that the applicant had complied with the obligation not to leave town, had participated in all the investigative measures as required and had attended all the court hearings. The applicant further contended that there was no legal basis for remanding her in custody as punishment for her supposed lack of respect towards the presiding judge. She also complained that her detention was contrary to the safeguards of Article 5 of the Convention and should be replaced by a less intrusive preventive measure. Numerous letters of personal guarantee from prominent public figures including clergy, artists, writers, journalists and scientists were addressed to Judge K. with a request to release the applicant under their personal commitment to ensure her attendance at court. A proposal of bail in the amount of one million Ukrainian hryvnias was also made. 35. The Pecherskyy Court dismissed all the requests for the applicant’s release with reference to its reasoning given in the ruling of 5 August 2011. Each subsequent dismissal was based on the earlier dismissals. The court stated, inter alia, that the applicant had continued to show disrespect for the court and the trial participants, and had not followed the instructions of, and had not responded to remarks made by, the presiding judge. 36. On 12 August 2011 the Kyiv City Court of Appeal examined the applicant’s appeal against the detention order, in which the applicant had claimed that her detention was unlawful and unlimited in duration. The appellate court dismissed it without examination of the merits with the following reasoning: “... Pursuant to Article 274 of the Code of Criminal Procedure (“the CPC”), a court may change a preventive measure during its examination of the case. When choosing remand in custody as a preventive measure, the court shall be guided by the relevant provisions of Chapter 13 of the CPC. Article 274 of the CPC does not provide, in substance, for the right to challenge a court’s decision about a change of preventive measure during the examination of a criminal case. During the examination of the present criminal case, allowing the prosecutor’s motion on 5 August 2011 the Kyiv Pecherskyy District Court changed the preventive measure in respect of the defendant Yu. Tymoshenko from an undertaking not to abscond to remand in custody. This decision has been challenged on appeal. However, according to the CPC, rulings on selection, change or discontinuation of a preventive measure delivered during the judicial examination of a case are not amenable to ordinary appeal. It follows that there are no grounds for accepting [the applicant’s] appeal against the decision of 5 August 2011 for examination.” 37. In its verdict of 11 October 2011 convicting the applicant (see paragraph 17 above), the Pecherskyy Court decided to keep her in detention as a preventive measure until her conviction became final. 38. On 29 November, 1 and 20 December 2011 the applicant lodged further requests for release referring, in addition to her earlier arguments, to the deterioration of her health. 39. The applicant was detained in SIZO no. 13 from 5 August to 30 December 2011. 40. The applicant was placed in cell no. 242 together with two other detainees. In her original application, she indicated that the size of the cell was about fourteen square metres, while in her observations on the admissibility and merits she stated that its size was sixteen square metres. According to the Government, the cell measured 16.4 square metres. 41. The applicant also maintained that the cell had a single window which could not be opened, being too high to be reached by the inmates, and was unventilated which, taking into account the fact that her two cellmates had smoked, had caused serious problems for her health. According to the Government, the applicant had been able to open the window, which had measured 1.5 by 1.5 metres, and one of her cellmates had not been a smoker while the other had only smoked outside the cell during her outdoor walks. Moreover, the cell had been equipped with a ventilation system. 42. According to the applicant, the cell had lacked hot water and had often not had a supply of cold water, and she had not been provided with any drinking water. The Government indicated that the cell had been equipped with a supply of hot and cold water, a separate toilet and a washing stand with a tap and had been equipped with central heating. They added that during her time in the SIZO, the applicant had received 316 litres of drinking water in 82 containers. 43. According to the applicant, the cell had not been sufficiently lit, had been damp and had had a pungent smell and mould growing in it. The light in the cell could not be switched off and had been kept permanently on. The Government specified that two lamps each consisting of two 40-watt bulbs (a total of four 40-watt bulbs) had been used for lighting during the day and one lamp with a 60-watt bulb for lighting during the night. 44. The applicant stated that at the time of introducing her application to the Court, on 11 August 2011, she had been entitled to take a shower once per week and, according to her, the bedding in her cell was not regularly changed. In her observations on the admissibility and merits, she indicated that she had been allowed to shower twice per week. The Government observed that while, according to the general rule, each detainee was provided with access to bathing facilities for thirty minutes once every seven days, the applicant had been permitted to have a shower several times a week. They further pointed out that all detainees were provided with bed linen. They noted that as of 5 August 2011, the remaining stock of new bedding in the SIZO included 444 blankets, 545 pillows, 8,216 sheets, 6,179 towels and 4,473 pillowcases. The applicant, having received a total of 278 items of bed linen from her relatives, had never asked the SIZO administration to have her bed linen changed. 45. The applicant noted that the Government had not mentioned the number of inmates who had been present at the relevant time in respect of the quantity of bed linen, and what bed linen had been available to her. She maintained that she had had to rely exclusively on her relatives in order to be provided with drinking water, bed linen, food and other essentials. 46. On 25 November 2011 the applicant was temporarily moved to cell no. 300, where she stayed until 29 November 2011 when she was transferred to a newly refurbished cell, no. 260, in the medical unit. According to her, there had been no heating or hot water supply in cell no. 300. 47. Between 29 November and 6 December 2011 an ad hoc CPT mission visited Kyiv SIZO no. 13. On 30 November 2011 they paid a visit to the applicant. According to her, that visit was the reason for her transfer to cell no. 260 and the improvement of the conditions of her detention. 48. On the days of court hearings, which were, according to the applicant, conducted almost daily, she was woken up at 5 a.m. in order to be transported to the court by 7 a.m. As further submitted by her, she had had to spend, before and after the hearings, two or more hours in a room measuring about 1.2 x 1.4 metres without a window. The Government denied this. After the hearings, the applicant had returned to her cell no earlier than 9 pm. On these days she had not been given time for exercising or an outdoor walk. 49. In her original application, the applicant stated that she had not been able to eat any food provided by the SIZO due to her chronic gastroenterological diseases and allergies. After she had eaten a few meals there, her chronic gastroenterological diseases had worsened and she had experienced constant pain in her stomach. The applicant also argued that her daily court hearings had left her no time to seek medical assistance while in the SIZO. In addition, she had not been allowed to take her food with her to the court. As a result, she had spent up to sixteen hours without any food on days when she had been required to attend court hearings. 50. In her observations on the admissibility and merits of the application, the applicant stated that she had not had an assigned room or time to consume food in the court building and had found it humiliating to do so in front of the public including journalists, reporters and photographers. According to her, she had been held in the courtroom for the entire hearing and had only been able to leave it to use the toilet facilities. As a result, she had remained without any food or drink for entire court hearings, which had lasted for up to fourteen hours. 51. According to the Government, before the start of the court hearings, the applicant had been held in the courtroom where her case was to be examined. The Government also noted that, contrary to the applicant’s claims, she had been given time for outdoor walks and physical exercise on the days of court hearings. In fact, when she had been escorted back to the SIZO after court hearings before 2 p.m., she had been able to go for an outdoor walk in accordance with the routine daily schedule. In other instances, the applicant had usually refused to have an outdoor walk. 52. The Government further stated that the applicant had brought various foodstuffs and personal items of clothing back to the SIZO with her after each court hearing on 31 August, 1, 2, 5, 7 and 8 September 2011, which indicated that she had been able to receive and consume food on the days of court hearings. Consequently, the SIZO administration had not prepared a packed lunch to be taken by the applicant upon being escorted to the courtroom. 53. The Government also observed that the applicant had received substantial food parcels after her arrival in the SIZO. From 5 to 11 August 2011, she had been provided with food in compliance with legal requirements. Subsequently, from 11 August 2011 onwards, the applicant had officially refused to consume food prepared in the SIZO and had indicated that she would only accept food delivered from her home. The Government noted that during the period from 5 August to 22 December 2011, the applicant had received 82 parcels including, in total, 60 eggs; 605 dietary food items; 224 food items with a high fat content; 202 vegetables and pieces of fruit; and 316 litres of drinking water. 54. The Government noted that the applicant had refused to consume food prepared in the SIZO which had, therefore, been unable to provide her with a special diet. Moreover, despite her contention that her doctors’ recommendations did not allow her to eat, in particular, eggs and food items with a high fat content, the food delivered to her in the parcels suggested that the applicant had actually consumed a great number of prohibited food items. 55. The applicant stated that due to her chronic illnesses, her personal physician had insisted on a strict diet, excluding any traces of eggs, meat or fatty foods. In order to prevent allergies the applicant’s physician had also advised her to limit her exposure to toxic compounds, including tobacco smoke, disinfectants and plastic utensils. She complained of sudden subcutaneous haemorrhages, acute pain in her stomach and throat, the exacerbation of chronic illnesses, including chronic gastritis, chronic pancreatitis, intestinal dysbiosis, adenomyosis of the uterus, grade 2 nodular goitre, insomnia, relapsing urticaria caused by a variety of allergic reactions, and severe drug and food (egg) allergies. 56. On 10 August 2011 the applicant requested the Court under Rule 39 of the Rules of Court to indicate to the Government the necessity of her release given the alleged risk to her life inherent in her detention. 57. On 16 August 2011 the Court rejected this request. 58. On 19, 25 and 29 August and on 1 and 2 September 2011 Judge K. and the SIZO authorities rejected the applicant’s requests for a medical examination by doctors whom she trusted. Instead, the applicant was offered a medical examination by doctors assigned by the Ministry of Public Health. She refused the offer. 59. According to the Government, the applicant was examined by doctors from the SIZO medical unit upon her arrival there on 5 August 2011 but refused to undergo a detailed medical examination. On 6 August 2011 she refused to be seen by a generalist, a psychiatrist, and a dentist, to have her blood pressure measured, to undergo an electrocardiogram, a fluorography examination, and blood and urine tests. She maintained her refusal on 12 August 2011. 60. On 16 August 2011, having returned from a court hearing to the SIZO, the applicant complained of a build up of fluid in the cavity of her left elbow. She was diagnosed with a haematoma under the skin of the cavity of the left elbow with an undetermined cause. She insisted on undergoing tests in an independent laboratory. 61. On the following day the applicant was examined by the head of the SIZO medical unit, who established that her state of health had not changed. The applicant refused to undergo a blood test in the SIZO and insisted that the test be carried out in an independent laboratory in the presence of her personal doctor. 62. On 18 August 2011 the applicant complained of newly discovered haematomas on her body but refused to undergo the suggested medical examination. She was advised to undergo laboratory tests but she refused to do so without the presence of her personal doctor, Dr P., and a nurse. She also refused to be seen by an expert panel of doctors appointed by the Ministry of Public Health (“the medical panel”). In the evening on the same day she complained of asthenia, vertigo, dehydration and vomiting. 63. On 19 August 2011 the applicant complained of general asthenia, fatigue, vertigo, areas of swelling caused by a build up of fluid on the lower limbs, a nosebleed and frequent dehydration. According to her, there were no newly discovered haematomas. However, she refused to be seen by the medical panel, insisting on undergoing an examination and laboratory tests in the presence of Dr P. and the nurse. 64. On 20 August 2011 the applicant was examined by the head of the SIZO medical unit, who found that her state of health was satisfactory and that there were no newly discovered haematomas. The applicant refused to undergo a detailed medical examination. 65. She was also seen by the head of the SIZO medical unit on the following day. The doctor confirmed that her state of health was satisfactory. The applicant complained of dehydration and a bleeding nose at night; according to her, there were no newly discovered haematomas but she refused to undergo a detailed medical examination. 66. On 22 August 2011 the applicant agreed to be examined by the medical panel. She complained of the appearance of a petechial skin rash and haematomas and stated that she had twice had a bleeding nose at night without having high blood pressure. The panel agreed that the applicant’s general state of health was satisfactory. The applicant was advised to undergo laboratory tests. 67. On 23 August 2011 she was seen again by the medical panel. Dr P. and her nurse were allowed to join the panel. The applicant refused to undergo a medical examination and confidential laboratory tests but agreed to have her blood clotting time assessed by the Turner method on condition that any biological material be destroyed by incineration. The results showed that her body’s ability to coagulate blood was normal. The applicant was told to eat food full of protein and vitamin C. In the evening she complained of headache and asthenia. She was examined but her blood flow was normal. She was given two tablets of ketanov (ketorolac, an antiinflammatory drug) and her treatment with collagen and ascorutin (vitamin C and flavonoids) was prescribed. 68. On 24 August 2011 the applicant was examined by the head of the SIZO medical unit. She complained of asthenia, vertigo, dehydration and new haematomas, but refused to undergo a detailed examination. In the course of examinations carried out on 25 and 26 August 2011 no serious change in her state of health was established. 69. On 27 August 2011 the applicant was offered an examination by the medical panel in the presence of Dr P. and the nurse. She refused to undergo the examination or laboratory tests in two laboratories outside the SIZO and insisted on a confidential examination by doctors of her choice and on a laboratory examination without the medical panel being informed of the results. 70. On 30 August 2011 the applicant was again advised to undergo an examination by the medical panel in the presence of Dr P. and the nurse. She drew attention to the appearance of a rash on the lower third of her chest, but refused to undergo a further medical examination or laboratory tests. 71. On 31 August and on 1 and 2 September 2011 she was examined by the head of the SIZO medical unit, who found no serious changes in her state of health. 72. On 3 September 2011 the applicant was advised to undergo examination by the medical panel in the presence of Dr P. and the nurse. The applicant refused to do so. 73. On 6 September 2011 she maintained her refusal. 74. On 4, 5, 6 and 7 September 2011 she was examined by the head of the SIZO medical unit. Her state of health was found to be satisfactory. The applicant complained of asthenia, headache, dehydration, abdominal pain on an empty stomach and broken sleep but she refused to undergo a detailed examination and insisted on being seen by Dr P. She was told to take pariet (rabeprazole, a drug which slows or stops the production of stomach acid) tablets. 75. The head of the SIZO medical unit visited the applicant again on 8 September 2011. He found no serious changes and added a multivitamin tablet to the applicant’s treatment regimen. On 9, 10 and 11 September 2011 the applicant was advised to continue the indicated treatment. 76. On 12, 13, 14 and 15 September 2011 she continued to be seen by the head of the SIZO medical unit. She complained of pain while swallowing, asthenia, headache, vertigo, intestinal pain and broken sleep. No new haematomas were discovered and the applicant refused to undergo a further detailed examination. She was told to use a nasal spray, gargle with a solution, drink hot drinks and take paracetamol. 77. On 15 September 2011 the applicant was advised to undergo an examination by the medical panel in the presence of Dr P. and the nurse. She refused to do so. 78. On 17 September 2011 the applicant was consulted by a medical panel composed of experts from the SIZO, the State Prisons Service and the O.O. Bogomolets National Medical University. She complained, inter alia, of coughing, general asthenia and periodic vertigo. She noted the improvement of her state of health after gargling and drinking tea with honey and taking vitamins. She was advised to continue gargling and to consume healthy food and drinks. However, she refused to undergo a more detailed medical examination. 79. On 21 September 2011 the applicant was seen by the medical panel in the presence of Dr P. She complained of general asthenia, periodic vertigo, and right subcostal pain and irritation. The panel confirmed an improvement in her state of health. The applicant refused to undergo a further medical examination. She was advised not to eat fresh vegetables and fruits, but rather to eat them cooked and to exclude dairy products and spicy, salty and sour dishes from her diet. She was also prescribed, inter alia, motilium (domperidone, used to suppress nausea and vomiting) and told to eat no less than four times per day. 80. From 16 September to 3 October 2011 the applicant was examined on a daily basis by specialists from the SIZO medical unit, who established that her state of health had gradually improved and that her catarrhal symptoms had disappeared. 81. On 3 and 4 October 2011 she was examined by the head of the SIZO medical unit, who confirmed that her state of health was satisfactory. The applicant complained of asthenia, headache, vertigo, the periodic appearance of haematomas, dehydration and broken sleep. She refused to undergo a detailed examination. She was prescribed detralex (diosmin, a flavonoid used to treat venous insufficiency), motilium, ascorutin and multivitamins. 82. Between 5 and 11 October 2011 the applicant was examined by the head of the SIZO medical unit on a daily basis. She complained of pain in the lumbar region of the spine that, according to her, had first occurred when walking after she had jumped from a horizontal bar. She was diagnosed with lumbago and prescribed a medicine (pariet) and an intramuscular injection of movalis (a non-steroidal anti-inflammatory drug) was administered. She was also given one tablet of movalis to take after eating. 83. On 12 October 2011 the applicant was prescribed additional treatments of movalis, pariet, donormyl (a sleeping tablet), tetramycin (an antibiotic) and multivitamins. 84. On 13 October 2011 she again complained of pain in lumbar region of the spine. She was prescribed treatment with xefocam (lornoxicam, a painkiller), pariet and multivitamins. 85. On the following day the applicant was examined by the medical panel. She complained of pain in the lumbar region of her spine, but refused to be examined in detail. Manual therapy was carried out. 86. From 14 October to 5 November 2011 the applicant continued to be examined by the head of the SIZO medical unit on a daily basis. The medical treatment continued in accordance with the previous recommendations, with some additional treatment being provided. 87. On 18 October 2011 she was examined by the medical panel. She complained of pain in the lumbar region of her spine. From 18 to 28 October 2011 she was provided with massage and medicinal treatment. 88. In the meantime, on 20 October 2011, the applicant had been examined again by the medical panel. She confirmed that the pain in the lumbar region of the spine had decreased. The doctors noted an improvement in her general state of health and advised her to continue the prescribed treatment (xefokam and dolobene, a gel containing ibuprofen). The applicant, however, refused to take the prescribed medicines. 89. The medical panel also examined the applicant on the next day. She stated that the pain in the lumbar region of the spine had decreased. The doctors confirmed an improvement in her state of health and advised her to continue the prescribed treatment (xefokam, dolobene). 90. On 24 October 2011 the applicant was examined by the medical panel. She complained of pain in the lumbar region of the spine. She was given an intramuscular injection of xefokam and dolobene. 91. On a daily basis from 25 to 28 October 2011 the applicant continued to be under the supervision of the medical panel, which found that her state of health had improved. She continued to refuse to undergo further detailed examination. 92. On 5 November 2011 she refused to undergo an x-ray examination. 93. On 7 November 2011 the applicant was examined by the medical panel, which recommended an additional examination and continuance of the prescribed treatment. 94. She was examined again by the medical panel two days later. In addition, she underwent ultrasonic duplex scanning of her lower limbs. She had been previously diagnosed with lumbar osteochondrosis, sciatica on the right side, tonic muscle spasms, serious disturbances of the functions of the spine and right lower limbs and, possibly, spondyloarthrosis and spondyloarthralgia. The panel concluded that the verification of the diagnosis and a determination of the treatment strategy were necessary and an additional examination and additional consultations between experts were therefore needed. However, the applicant refused to undergo the suggested x-ray examination. 95. On 12 November 2011 the applicant was given another prescription of ascorutin and tetramycin. 96. On 14 November 2011 she was examined by the medical panel, but refused to undergo a detailed examination and a blood test. 97. On 16 November 2011 the applicant refused to take tetramycin, which had been prescribed on the same day. 98. On 19 November 2011 the applicant was examined by the medical panel in the presence of Dr P. and her nurse. In order to adjust the treatment previously prescribed, the applicant was advised to undergo a blood test but she refused to do so. The applicant also refused to undergo a detailed examination and receive injections of betamethasone (a steroid with anti-inflammatory and immunosuppressive properties). The medical panel recommended continuing the previous treatment. 99. On 23 November 2011 the applicant underwent an examination (including an MRI scan) of the abdomen. She was advised to provide blood, urine and stool samples for laboratory examination but she refused to do so. The medical panel established no signs of any medical condition affecting her pancreas but detected chronic cholecystitis which had developed after an acute cholecystitis episode, and prescribed chofitol (an indigestion remedy). The applicant was told to continue taking ascorbic acid and rutin, to exclude fatty, fried and spicy foods from her diet and to increase the dosage of the pills she was taking that were intended to remove toxic compounds from her system. The panel noted that the applicant had not fully complied with the previous recommendations. 100. In the course of an examination of 26 November 2011 the applicant complained that after receiving vitamin B injections (milgamma), she had had an allergic reaction. After taking one tablet of telfast (fexofenadine, an antihistamine), the allergic reaction had stopped. According to her, there were no new haematomas on her body. She was prescribed furosemide (a diuretic). 101. From 6 tо 29 November 2011 the applicant was seen daily by the doctors of the SIZO medical unit. She complained of headache, dehydration, discomfort in the epigastric and right subcostal regions and broken sleep, but refused to undergo a thorough examination and stated that she would follow the prescribed treatment at her discretion. During this period, she noted that the pain in the lumbar region of the spine had decreased. 102. On 29 November 2011, at her request, she was transferred to the SIZO medical unit. After an initial examination, she was prescribed treatment with diclofenac (an anti-inflammatory drug), furosemide, sirdalud (a muscle relaxant), diprospan (a corticosteroid), milgamma, pariet, chofitol, ascorbic acid, rutin, and Viprosal B (a pain-relieving ointment). She was also advised to undergo a general and biochemical blood test, coagulogram analysis, to provide urine and stool samples for testing, and was also prescribed a special diet. 103. On 30 November 2011 the applicant was examined by the head of the SIZO medical unit, who diagnosed widespread lumbar osteochondrosis in the form of sciatica on the right side with temporary severe pain but without signs of compressive radiculopathy, and a hemangioma. 104. On 2 December 2011 she was examined by the medical panel in the presence of Dr P. and her nurse. She was advised to undergo a blood test but she refused to do so, continuing to insist on a confidential blood examination outside Ukraine with the involvement of her personal doctor and without the involvement of State representatives. 105. The applicant stated that on 7 December 2011 her lawyer had been in the SIZO medical unit in order to prepare for the appeal hearing. The applicant and her lawyer had not been able to have their meeting in private because she had been unable to move, walk on her own or be seated. 106. On 8 December 2011 the applicant refused to undergo a medical examination by the medical panel which, having examined the available medical documentation, noted that among other illnesses the applicant was suffering from chronic cholecystitis which had developed after an acute cholecystitis episode and that she had not fully complied with the previous medical recommendations. 107. On 12 December 2011 the applicant was again examined by the medical panel. The applicant was advised, inter alia, to continue using Discus Compositum and Traumeel S. (homeopathic ointments designed to reduce joint pain and inflammation), to undergo general and biochemical blood tests, coagulogram analysis and to provide a urine sample for testing. The applicant was repeatedly offered the opportunity to undergo a laboratory blood test, but she refused to do so. The panel again noted that the applicant had not fully complied with the previous recommendations. It was also noted that there was no need for surgery. 108. On 13 and 14 December 2011 the applicant was advised to submit to an examination by a specialist from the Ministry of Public Health and the State Prisons Service, but she refused to do so. 109. On 16 December 2011 the applicant was examined by medical specialists from the State Prisons Service. Based on the results of the report of 12 December 2011 and the information obtained during the medical examination on 16 December 2011, the panel found that there were no medical reasons that would render the applicant’s attendance at the court hearings inappropriate. 110. On 21 December 2011 the applicant underwent an electrocardiogram and an echocardiogram. No heart condition was discovered. 111. On 30 December 2011 the applicant was moved to Kachanivska Colony in Kharkiv to serve her prison sentence. She was held in a cell measuring 37.1 square metres, sharing it with another inmate. The cell was equipped with two PVC windows each measuring 3.5 square metres, providing natural light and aeration of the cell. Artificial lighting was provided by energy-efficient bright tube lamps. The cell was also ventilated mechanically. 112. The cell had a separate shower room measuring 3.5 square metres and a WC of 4.1 square metres. The shower room was equipped, among other things, with a water heater and a washing machine. The applicant therefore had round-the-clock access to hot and cold water and could take a shower at any time. The inventory of the cell included two single wooden beds with orthopaedic mattresses, four sets of bed linen, a sliding-door wardrobe, a kitchen table, a coffee table, two chairs, a coat rack, a bedside table for shoes, and a suite of kitchen furniture with a dishwasher and cabinets. There were also a TV set, an ironing board, a hairdryer, a refrigerator, a microwave oven, an electric kettle and all necessary kitchen utensils. 113. Food was provided in accordance with national regulations. The food was prepared in the dining room of the colony and delivered to inmates in special containers. In addition, the applicant had the right to receive an unrestricted number of parcels containing foodstuffs. By 5 April 2012, the applicant had received thirty such parcels. 114. According to the Government, from the date of her arrival at the colony, the applicant had refused to take daily walks on account of her state of health. As a rule, she had been entitled to daily walks at any time during the day. The exercise yard measured 52 square metres. 115. The applicant stated that due to her state of health, she had requested a crutch and, on 17 January 2012, a walker to assist her in moving on her own, but the administration of the colony had refused to provide her with any walking aids. As a result, the applicant had been unable to walk on her own in her cell, let alone be able to enjoy daily outdoor walks. The colony had not taken any measures such as providing her with a walker or a wheelchair to assist her moving around or to allow her to enjoy being outdoors. 116. According to the Government, on 7 January 2012 the applicant was examined in the regional clinical hospital. She underwent a helical computed tomography scan of her brain, an MRI scan of her jugular spine, lumbosacral spine and neck, and a blood test. On the same date she was examined by medical specialists from Kharkiv National Medical University and the State Prisons Service. Upon those examinations, the previous diagnoses were confirmed as follows: widespread lumbar osteochondrosis in the form of sciatica on the right side, with temporary severe pain but without signs of compression radiculopathy; and hemangiomas of the lumbar spine vertebrae. However, the protrusion of the intervertebral discs in comparison with the previous MRI scan had decreased. It was recommended that the applicant be kept under active observation by the colony doctors, that she have blood pressure checks two or three times per day and her temperature taken twice per day, and an examination by a neurologist and otolaryngologist was scheduled for 10 January 2012. She was also prescribed betahistine (an anti-vertigo drug), detralex and diacarb (acetazolamide, an inhibitor used to treat a variety of illnesses including glaucoma, epileptic seizures and altitude sickness and which also functions as a diuretic); and, in case of necessity, symptomatic treatment, therapeutic exercise and medical massage. 117. On 14 February 2012 the applicant was examined by German doctors from the Charité Hospital in Berlin who recommended, on 17 February 2012, her transfer to a specialised hospital for additional examination and treatment. 118. On 23 February 2012 the applicant underwent additional examinations. 119. On 7 March 2012 a joint meeting of Ukrainian and German doctors took place in order to reach a common approach to the applicant’s treatment. According to the Government, upon the recommendations of the German doctors being received a common plan of comprehensive medical treatment of the applicant was developed. According to the applicant, however, the German doctors were not involved in the discussion and did not sign the recommendations in question. 120. According to Government, on 12, 15, 19, 22 and 26 March 2012 the applicant was offered the opportunity to start the treatment recommended by the German doctors in accordance with the developed plan. However, the applicant refused to undergo that treatment, insisting on her hospitalisation in a civilian hospital, not excluding a German medical institution. She agreed, however, to be hospitalised in a medical institution inspected and recommended by the German doctors. 121. On 14 March 2012 the applicant requested the Court under Rule 39 of the Rules of Court to indicate to the Government that she should be provided with appropriate medical treatment by independent doctors in a specialised institution. 122. On 15 March 2012 the Court applied the interim measure under Rule 39 and requested the Government “to ensure that the applicant receives treatment appropriate to her complaints in an appropriate institutionalized setting”. 123. On 16 March 2012 the Government brought medical equipment from nearby hospitals to the prison. On the same date, the applicant was offered a lumbar puncture in the medical ward. She refused to undergo this procedure on the grounds that it was a surgical procedure which ought to be performed in a surgical operating room and the ward did not offer proper, sterile conditions and lacked appropriate medical equipment. 124. On 15, 22, 24 and 25 March 2012 the applicant submitted written requests for medical treatment and complained about the lack of that treatment to the colony administration. On 26 and 30 March 2012 the head of the administration offered the applicant the opportunity to undergo treatment in the medical unit of the colony and also allowed her to choose between two medical institutions in which to undergo a paravertebral block procedure. The applicant asked to consult the neurologist, Dr P., who had been her doctor in SIZO no. 13 and whose diagnoses had been fully confirmed by the German doctors. The head of the administration refused to allow her to consult Dr P., referring to the conclusions of 7 March 2012 which had allegedly reflected the common position of the Ukrainian and German doctors. 125. On 27 March 2012 the applicant refused to be treated either in the Urgent Medical Treatment and Trauma Centre at the regional clinical hospital or in the M. Sitenko Institute of Spinal and Joint Care, in order to undergo a paravertebral block procedure. 126. The Government noted that on 2 April 2012 the applicant was examined by the medical panel, including the First Deputy Minister of Health and specialists from the O.O. Bohomelets National Medical University and the M. Sitenko Institute of Spinal and Joint Care of the Academy of Medical Sciences. The applicant was prescribed treatment in the Kharkiv Central State Railway Clinical Hospital (“the Central Clinical Hospital”). At the same time, it was explained to her that this institution’s facilities complied with the requirements set out by the medical specialists from Germany. The applicant agreed to undergo this treatment. 127. However, on the next day she changed her mind and explained that the Central Clinical Hospital was not a specialized medical institution meeting the requirements contained in the interim measure ordered by the Court on 15 March 2012. She also noted that she would undergo treatment in the above institution only after the German doctors had confirmed that it was able to provide the treatment recommended by them. 128. On 4 April 2012 the applicant was offered a transfer to the Central Clinical Hospital. She was examined by the medical panel. She was told that the panel had visited the Central Clinical Hospital, had found its premises and equipment satisfactory and had concluded that the hospital provided the best conditions for the applicant’s treatment. The applicant agreed to be treated there provided that the hospital was assessed by the German doctors, who were expected to arrive on 6 April 2012. 129. Between 13 and 15 April 2012 the German doctors examined the applicant and checked the quality of the hospital proposed by the Government. They accepted the cleanliness of the hospital and the sincere attempts of the doctors there to be open, friendly and respectful, emphasising at the same time that in the short time available to them, they had not been able to assess whether the doctors were able to offer the complex underlying treatment needed. 130. On 17 April 2012 the German doctors delivered their report as regards the appropriateness of the Central Clinical Hospital for the applicant’s needs. The report indicated a number of problems with the applicant undergoing the treatment in the Central Clinical Hospital. 131. In a letter of 20 April 2012 sent to the Government at 4.54 p.m. the Court invited the Government to inform it, by 27 April 2012, what steps had been taken by them to comply with the terms of the interim measure ordered on 15 March 2012. 132. At an unspecified time on the same day a medical panel composed of five doctors visited the applicant. A statement issued on the same day reads as follows: “Members of the International Medical Board ... arrived at Kachanivska Penal Colony on 20 April 2012. Accompanied by the staff of Kachanivska Penal Colony, they entered the room where Yu.V. Tymoshenko was being kept proposing to carry out a medical check-up. While communicating with Yu.V. Tymoshenko, the board members again, with the use of arguments, convincingly and persistently suggested to her that she finally start inpatient treatment, which had been recommended by the International Medical Board and confirmed again by German health professionals on 13 April 2012, at the Central [Clinical] Hospital, where all necessary conditions had been created to make it possible to administer [the necessary] drugs and physical therapy, [and] to adjust, complement and extend [that treatment] if necessary. While communicating with the board, the prisoner was sitting at the table. She was in the right mood to talk with the health professionals. She read the report regarding the assessment of the hospital by health professionals which had been handed over by the penal colony management. Members of the medical board, [having] consulted [the relevant report], thoroughly analysed the conclusions of the German doctors regarding their visit to the Central [Clinical] Hospital and Yu.V. Tymoshenko on 13 April 2012 (letter from the Ministry of Foreign Affairs of Ukraine dated 19.04.2012 no. 411/17-994-313), received and discussed information from members of medical staff of Kachanivska Penal Colony regarding the state of health of Yu.V. Tymoshenko, took into account objective evidence provided by the medical staff of Kachanivska Penal Colony regarding the lack of deterioration of the prisoner’s state of health; the board also took into account the fact that no additional complaints were received from the prisoner during their communication with her. The board repeatedly advised hospitalisation [in order for] comprehensive treatment to be carried out. In response, the patient repeatedly stated that she wished to be treated in an inpatient facility. However, she did not specify the date on which such treatment should begin. Based on all the available medical information, the board jointly arrived at the conclusion that, as of 20 April 2012, the prisoner can be transferred, both to the place of treatment and in other cases provided for by law.” 133. On the same day, the head of the medical unit of the Kachanivska Colony ordered the applicant’s hospitalisation in the Central Clinical Hospital of the State Railways. Again on 20 April 2012, at about 11 p.m., the applicant was transferred to this hospital. According to her, she objected to the transfer to that hospital as not suitable for her needs, and force was used against her. The applicant claims that, as a result, she was bruised and sustained haematomas on her stomach and a number of haematomas on her arms. 134. More specifically, the applicant’s account of the events of the evening of 20 April 2012 is as follows: at about 9 p.m. her cellmate was removed from the cell. Three prison guards came and, after the applicant refused to follow them, they forced her to leave the cell. They wrapped her in a sheet and hit her in the abdomen. Feeling acute pain in her abdomen and spine, the applicant lost consciousness and only woke up in the hospital. She remembered having been carried out to the ambulance by one of the prison guards. Despite the permanent surveillance of her cell, the prison administration claimed that no recording of the incident had been made. 135. According to the applicant, upon her admission to the hospital, she refused to be treated by the hospital staff and asked to contact her lawyer. Moreover, in response to being physically abused by the prison guards, she announced and began a hunger strike. Despite her request, the applicant’s lawyer was not allowed to visit her on 21 April 2012. 136. On 22 April 2012 at about 2 p.m. she was returned to the colony. 137. The applicant stated that on 23 April 2012 she had asked to be examined by the prison doctors who, however, had ignored her request. On the same date she had filed a complaint with the Kharkiv Regional Prosecutor’s Office about her forced transfer to the hospital and her alleged ill-treatment. She claimed that she had not been allowed to meet with her lawyer under the pretext that a “cleaning day” was taking place in the colony. The lawyer complained to the Kharkiv Regional Prosecutor’s Office. 138. Again on 23 April 2012 the applicant asked for a forensic examination to be carried out by an independent expert but, according to her, her request was dismissed by the Kharkiv Regional Prosecutor’s office. 139. On 24 April 2012 the applicant was allowed to see her lawyer for the first time since her return to the colony. 140. On the same date she showed her bruises to the colony medical staff. According to their examination report, minor bodily injuries (a bruise on the left forearm and two bruises on the right iliac area) were found on the applicant’s body as a result of a compressive blow by, or contact with, blunt solid objects one or two days prior to the applicant’s examination. The report also established that the apparent age of the bruises did not coincide with the time indicated by the applicant. Taking into account the locality and number of the applicant’s injuries, the report indicated that no less than one blow had been inflicted in the area of the left forearm, and no less than two, in the area of the abdominal cavity. The report pointed out that the localisation of these bodily injuries was such as for it to have been possible for the applicant to have inflicted them herself. 141. According to the Government, on 24 April 2012 a forensic medical expert was invited to examine the applicant. She, however, refused to allow the suggested examination. 142. Later on the same date the head of investigative department of the Kharkiv Regional Prosecutor’s Office refused to institute criminal proceedings against colony staff in the absence of corpus delicti in their actions. According to the applicant, the prosecutor admitted, at a press conference, the application of force against her, but considered it to have been justified. 143. On the following day the above refusal was quashed due to the widespread dissemination in the media of information about the bodily injuries which had allegedly been inflicted on the applicant by colony staff. The prosecutor had also received the results of the applicant’s examination by the colony medical staff on 24 April 2012 confirming the existence of the bruises. Accordingly, additional investigation was deemed necessary. 144. On 25 April 2012 a representative of the Ombudsman’s Office visited the applicant, and on the same date the Ombudsman, Ms Nina Karpachova, made a public statement regarding the applicant’s state of health and the fact that she had been physically abused during her forced transfer to the hospital. She stated as follows: “Yu. Tymoshenko gave her consent to an examination of her injuries by the Ombudsman’s representative in the presence of the governor of Kachanivska Colony. The examination established the presence of bruises on the upper part and near the elbow of the right arm, and a sizable bruise on the right lower part of the stomach. Yu. Tymoshenko confirmed her statement of 23 April made to the Kharkiv Regional Prosecutor ... and expressed resentment over the absence of any reaction to that statement. She also stated that the Ombudsman had not been informed of her application and [that she had] asked for [the Ombudsman] to immediately visit the colony. In order to verify all the circumstances of the application of physical force to Yu. Tymoshenko, the Ombudsman’s representative met with the Kharkiv Regional Prosecutor ... and the Head of the Kharkiv Regional Department of the State Prisons Service of Ukraine. The Ombudsman is obliged to state that, by the end of the working day on 24 April, the prosecution authorities had not duly responded to Yu. Tymoshenko’s application. The Ombudsman declares that the transfer of Yu. Tymoshenko in such a manner amounts to ill-treatment of a detainee and could be classified as torture in breach of Article 3 of the European Convention of Human Rights ... In this connection, the Ombudsman demands: 1. From the Prosecutor General of Ukraine – to open a criminal case and to suspend from their professional duties all those involved in Yu. Tymoshenko’s ill-treatment during her transfer from the colony. 2. From the Head of the State Prisons Service of Ukraine – to immediately ensure [the provision of] all necessary medical assistance [to Yu. Tymoshenko] in compliance with the decision of the European Court of Human Rights and the conclusions of the Ukrainian and independent foreign doctors.” 145. On the same date the applicant submitted a new request for an interim measure under Rule 39 of Rules of Court, asking that the Government be ordered to immediately use all available means at their disposal to ensure her treatment in the Charité Hospital in Germany. 146. On 26 April 2012 a further offer of a forensic medical examination was made but, according to the Government, the applicant refused to be examined. As a result, the head of Kharkiv Medical Academy’s department of forensic medicine, a doctor of medicine, was assigned to evaluate her injuries on the basis of the medical examination report of 24 April 2012. He confirmed that the report had been drawn up in accordance with the relevant requirements. He fully agreed with the doctors’ conclusions and noted that, due to the state of the haematomas on 24 April 2012 and their appearance one or two days before the applicant’s examination, the injuries could not have been inflicted on 20 April 2012. In addition, having familiarised himself with the medical file, which recorded the applicant’s state of health during her detention in Kyiv SIZO no. 13, he noted that recurrent “haematomas” under the skin had appeared from time to time on the applicant’s body since 16 August 2011, and had not been a result of external blows and could have resulted from a condition linked to the state of the applicant’s vascular and circular systems. The expert also expressed his opinion on the photographic materials published in the media, noting, in particular, that the photos on which the opinions expressed in the media were based could not be the subject of any standalone assessment, and that, in general, any opinions based on the photos would be ill-founded. 147. According to the applicant, the forensic expert wrote a report in which he summarized that her bodily injuries were “self-inflicted”. She refused to sign the report, as she felt it had wrongly presumed that her injuries could have been “self-inflicted”. She asked for a forensic examination to be carried out by an independent doctor, but her request was rejected by the Kharkiv Regional Prosecutor’s Office. 148. On 27 April 2012 the Ombudsman published pictures of the applicant’s bruises. On the next day, the Kyiv City Prosecutor Office allegedly searched the Ombudsman’s office and served writs on a number of her staff members who had been involved in reporting on the applicant’s physical injuries in the colony. According to the applicant, the Government declared that Ms Nina Karpachova had forced her staff to make a false statement about the bruises on the applicant’s body, without mentioning any names or sources for that statement. 149. On 3 May 2012 the investigator at the prosecutor’s office again refused to institute criminal proceedings against colony staff due to the absence of any indication of a crime in their actions. He noted in his decision, inter alia, the following: “On 24.04.2012, upon referral by the Oblast prosecutor’s office, in a residential area of the colony, expert in forensic medicine SERBINENKO I.Yu. offered Tymoshenko Yu.V. to have a forensic medical examination. She flatly refused ... On 26.04.2012, at 7.55, Tymoshenko Yu.V., again, flatly refused having a forensic medical examination with participation of SVENTITSKA S.G, head of the forensic medicine department at Kharkiv Oblast Forensic Medicine Centre ... ... Copies of written requests by Tymoshenko Yu.V., dated 24.04.2012, in which she asks to carry out her examination aimed at registration of her injuries by the staff of the colony, with presence of the prosecutor and indicates her unwillingness to be examined by the expert in forensic medicine Serbinenko I.Yu., were added to the materials of the investigation. In the same documents, Tymoshenko Yu.V., with her own hand, indicated that staff of Kachanovska Correctional Colony no. 54 (doctor on duty Malyuga V.A., nurse on duty Rodina V.I., head of the medical unit Tsyura O.M., senior police operative at the operation branch Makarenko A.M.) examined her, and all her injures, as of 24.04.2012 were documented, and all the relevant data were entered into her medical records. ...” 150. According to the Government, in order to establish the circumstances of the applicant’s transfer to the hospital on 20 April 2012, her return to the colony on 22 April 2011 and her bodily injuries, the investigator had collected evidence from the head of the colony and fourteen other colony employees, two medical workers and two ambulance drivers who had been on duty, six members of the medical panel, two employees of the hospital and other individuals. 151. The head of the colony stated that on 20 April 2012 he had granted permission for the applicant’s transfer to the hospital. He had then given instructions to the deputy head of the colony (also head of the security department) and another deputy head of the colony to ensure the applicant’s transfer. He had been informed that the applicant had not objected to her transfer and had not complained of the infliction of any injuries. On 22 April 2012 the applicant had been visited by the colony medical staff on duty, who had observed no injuries on her body, while the applicant herself had made no statement about having suffered any injuries. The head of the colony had not given any instructions to his subordinates to use physical force on the applicant. 152. The deputy head of the colony stated that on 20 April 2012 he had been helping the applicant to come down the stairs to the ambulance and had accompanied her to the hospital. As she slowly descended the stairs from the second floor to the first, the applicant had told him that she was tired and had allowed him to carry her. He had carried the applicant to the ambulance, had placed her on a stretcher and had helped the driver to put the stretcher into the ambulance. He made it clear that no bodily injuries had been inflicted on the applicant in his presence. Similar statements were also given by the other deputy head of the colony and by a senior inspector. 153. The head of the colony medical department stated that on 20 April 2012 at about 7 p.m., he and two deputy heads of the colony had gone to the applicant’s cell and had informed her that she was to undergo an examination and to be hospitalised. He had asked her to gather together her personal belongings. At about 9.30 p.m. the applicant had been put into the ambulance. During her transfer to the hospital, she had not expressed any complaints that bodily injuries had been inflicted on her. The head of the colony medical department stated that the applicant had not lost consciousness. Once the ambulance had arrived at the hospital, the applicant had been advised to undergo an initial medical examination, but she had refused to do so. On 23 April 2012 at about 9.30 a.m. colony medical staff had gone to see the applicant, who had refused to undergo a medical examination. She had not made any complaints and the staff had not found any injuries on her body. At approximately 8.39 a.m. on 24 April 2012, in the course of their visit, changes had appeared on the applicant’s skin and she had allowed the medical officers to examine them. The head of the colony medical department noted, however, that she had categorically refused to allow a forensic examination of her injuries. Evidence to the same effect was also given by the colony’s doctor, by the colony’s duty doctor and by the nurse. 154. Guards from the colony’s surveillance and security department stated that on 20 April 2012 they had been on day duty in department no. 1 of the colony, where the applicant’s cell was situated. The department was equipped with video cameras working in real-time mode but without a recording function. While viewing the applicant’s cell on the monitor, one of the inspectors said that he had seen no use of physical violence on the applicant by the members of colony staff who had visited her; nor had he heard any noises. Once the staff members had left the cell, the inspector had seen on the screen that the applicant had taken a shower, had gathered her belongings together and had got into bed. In the course of the video surveillance, the guards had not noticed that the applicant had sustained any bodily injuries. 155. A cardiologist and paramedic working as part of the emergency team and the ambulance driver submitted that on 20 April 2012 they had arrived at the colony in the evening. They had seen a young man carrying the applicant in his arms from the doors of the exercise yard and placing her on the stretcher. They had not noticed any injuries on the applicant’s body. 156. The colony staff involved explained that at about 10 p.m. on 20 April 2012 they had entered the ambulance to take the applicant to the hospital and had later accompanied her to a ward on the ninth floor. The applicant had not made any complaints in their presence. According to them, no-one had inflicted any bodily injuries on her. 157. The doctor and ambulance driver stated that they had been on duty on 22 April 2012. After their arrival at the hospital at about noon the applicant had been carried out on a stretcher and placed on the gurney. 158. The Deputy Minister of Health stated that the applicant had been driven to the colony accompanied by police vehicles. She had not made any complaints to the persons involved and they had not noticed that she had any bodily injuries. She stated that on 20 April 2012 the medical panel had advised the applicant to start the treatment at the hospital. The applicant had not refused the treatment but had wanted to consult her lawyer. At about 10.40 p.m. she had been brought to the hospital, but the witness did not know the specific details of her transfer. She knew that from 20 to 22 April 2012 the applicant had been refusing to allow any kind of medical examination or treatment. During her visit to the applicant, the latter had not made any complaints and there had been no bodily injuries on any visible part of her body. Evidence to the same effect was given by other members of the medical panel. 159. The hospital doctors stated during their questioning that after the applicant’s arrival at the hospital at 10.40 p.m., she had immediately been hospitalised. During her admission there she had refused to allow any medical examination of her. On 21 April 2012 she had only complained of pain in her back and a headache; she had not made any other complaints. 160. The applicant’s cellmate stated that in the afternoon of 20 April 2012 colony staff had come into the cell and had notified the applicant that permission had been granted to hospitalise her. The applicant had refused to be transferred to the hospital, but the head of the colony medical department had asked her to be prepared to be transferred. The cellmate was asked by the applicant to prepare what was necessary in case it would be needed. The applicant’s cellmate went on to explain that at about 9.00 p.m. staff had taken her out of the cell and had accompanied her to the medical unit. 161. In the course of the inquiry, prisoners who were serving sentences in the colony and who had occupied cells next to the applicant’s cell were questioned. They stated that in the evening of 20 April 2012 they had not heard any cries or other noise. 162. On 4 May 2012 the applicant informed the Court that Ukrainian legislation did not provide for the possibility of outside doctors (either Ukrainians or foreigners) to take part in treatment in a particular hospital if they were not employed by it. 163. On the same date the Government informed the Court that they would grant an exemption to the aforesaid rule and allow the German doctors to join the Ukrainian medical team from the Central Clinical Hospital and be involved in the applicant’s medical treatment, which was to start on 8 May 2012. 164. On 9 May 2012 the applicant was transferred to the Central Clinical Hospital, where she started her medical treatment under the supervision of a German neurologist. On the same date she ended her twenty-day hunger strike. 165. In a letter of 12 May 2012 the applicant’s lawyer stated that the applicant had been under round-the-clock video surveillance, even while undergoing medical procedures. The prison authorities had also allegedly published a full report of the applicant’s medical history in the Ukrainian media and released video recordings which the lawyer claimed had been taken in her prison cell. 166. According to a report made by the German doctor regarding the treatment of the applicant between 7 and 17 May 2012, the termination of her hunger strike had been slow but successful and had allowed the commencement of some physiotherapeutic measures. However, the disclosure on the television of her diet and treatment on 15 May 2012 had triggered her strong indignation. As a result, the applicant had interrupted her treatment and had even contemplated completely refusing to follow it and returning to the prison. She had been convinced to continue the treatment under the condition that no doctors not directly involved in it would be present at the regular doctors’ consultations conducted in the hospital. 167. On 16 May 2012 the applicant filed a criminal complaint concerning her permanent surveillance in the hospital and publication of the confidential information concerning her state of health. On 1 June 2012 the prosecutor notified the applicant that there were no grounds to take any prosecution measure in this respect. 168. On 27 May 2012 the German doctor issued another report covering the applicant’s treatment between 21 and 27 May 2012. He noted the cooperative attitude of the Central Clinical Hospital doctors, who had been taking due note of his recommendations. As also noted in the report, the applicant had confidence in the competence and good faith of the hospital’s medical staff. The doctor further indicated the progress of the therapy and an increase in the applicant’s free time to three-and-a-half hours daily. At the same time, he pointed out that the applicant was under stress owing to the permanent video surveillance and presence of a security guard in her ward. He specified that the applicant had only been screened off from the video cameras using a curtain during his visits. This had often only taken place following his reminders. The guard had stayed in the ward during all medical procedures. Lastly, the doctor noted that the applicant had continued to refuse to allow any laboratory blood analysis to be conducted in Ukraine and therefore considered the possibility of that analysis being conducted in Germany. 169. On 31 May 2012 the interim measure applied on 15 March 2012 was lifted, following the Government’s request of 21 May 2012. On the same date, the applicant’s second request for an interim measure, made on 25 April 2012, was rejected. 170. On 1 June 2012 the German doctor issued another report on the applicant’s treatment, in which he summarised the impediments to its success as follows: the applicant had accumulated, over the preceding eight months, profound mistrust towards Ukrainian doctors because they were civil servants, and was refusing to receive any treatment from them or to allow any blood samples to be taken for analysis; it was impossible to have confidential doctor-patient conversations with the applicant – an essential part of the requisite therapy – because of the permanent video surveillance and the presence of a security guard and another inmate whose connection with the State authorities remained unclear; there had been breaches of confidentiality relating to examination results, diagnoses and medical prescriptions (for example, the reports made by the German doctors had been disclosed on the Internet without the agreement of the applicant or the doctors); the applicant was refusing to allow any medical measures requiring physical intimacy for fear of being discredited in the eyes of the public by the disclosure of the video records; and interdisciplinary therapy was difficult to organise given the Charité Hospital’s inability to send a full team of doctors. 171. According to a letter sent by the Government dated 11 July 2012, the information which had been disclosed in the media had concerned the applicant’s diet and the scheduling of her medical procedures and had not been, contrary to her allegations, confidential. They also denied that it had contained any information concerning the applicant’s state of health and the nature of the medical procedures she had been undergoing. 172. On 8 June 2012 the applicant brought an administrative action before the Kyiv District Administrative Court, which she further complemented on 31 August, 21 September, 17 October and 24 October 2012. The applicant requested the court (i) to recognise as illegal the actions by officials of the State Penitentiary Service and of the Kachanivka Colony on the failure to fulfil her right to make telephone calls in accordance with Article 110 of the Criminal Code; (ii) to oblige the State Penitentiary Service and the Kachanivka Colony to meet the requirements of Article 110 of the Criminal Code by providing her a right to telephone calls including on the territory of the Central Clinical Hospital of the State Railway; (iii) to recognise as illegal the actions of the officials of the State Penitentiary Service and the Ministry of Health on the dissemination of confidential information regarding her and the state of her health; (iv) to prohibit the Ministry of Health and the State Penitentiary Service from disclosing confidential information regarding her and the state of her health in the future; (v) to recognise as illegal the actions of the officials of the Kachanivka Colony and the Main Department of the Ministry of the Interior in the Kharkiv region of installing video cameras including hidden ones on the ninth floor of the Central Clinical Hospital of the State Railway and the video surveillance of the applicant; (vi) to recognise as illegal the actions of the officials of the Kachanivka Colony of filming the applicant in the Central Clinical Hospital of the State Railway; (vii) to bind by a commitment the Kachanivka Colony and the Main Department of the Ministry of the Interior in the Kharkiv region at the entry into force of the decision to cease surveillance and remove surveillance equipment that is located on the ninth floor of the Central Clinical Hospital of the State Railway where she was accommodated; (viii) to recognise as illegal the actions of the officials of the Main Department of the Ministry of the Interior in the Kharkiv region in the implementation of public order, establishing barriers that impede the access of citizens to the ninth floor of the Central Clinical Hospital of the State Railway; and (ix) to recognise as illegal the actions of the officials of the Kachanivka Colony in providing male security officers at the Central Clinical Hospital of the State Railway. 173. In a judgment of 30 October 2012 the Kyiv District Administrative Court dismissed the applicant’s administrative application. In respect of the applicant’s complaint concerning the dissemination of the confidential information of her health condition the court stated as follows: “The Ministry of Health of Ukraine denied the claim in this part on the grounds that the information about the plaintiff’s health condition is public, due to social publicity the information was given precisely in order to inform the public about important facts concerning the life and activities of a public person. The defendant states the press-release given on 16.02.2012 contains information about the activities of an established commission and the results of its work. The Ministry of Health further argues that the statement of the Minister is a comment on information which had been previously published in mass media. ... The State Penitentiary Service of Ukraine denies the illegality of the disclosures of the above information, referring to the fact that this information was published to refute a statement released in the media and in the Internet. Specifically, the defendant states that information disseminated in the Internet on 25.11.2011, 01.12.2011, 08.12.2011, 13.02.2012, 17.02.2012, 27.02.2012, 09.03.2012, 23.03.12, reported the health status of the plaintiff, appeals of citizens, deputies and foreign diplomats to the defendant about the plaintiff’s health. ... Having reviewed the materials submitted by the parties, the Court concludes that the information about the health condition and the fact of the plaintiff’s appeal for medical treatment was first disseminated by persons authorized by the plaintiff. In particular, the case file contains a copy of the power of attorney dated 31.03.2011, registered under number 165 and issued by the plaintiff to Mr Sergii Volodymyrovych Vlasenko. By this power of attorney the plaintiff authorizes the mentioned person to provide judicial actions on her behalf. Also, the case file contains a copy of the document signed on 17.02.2012 and addressed ‘To whom it may concern’, by the meaning of which Sergii Volodymyrovych Vlasenko and Eugenia Olexandrivna Tymoshenko were entitled to communicate with foreign and Ukrainian doctors, to make decisions on behalf of the plaintiff on full or partial withdrawal of the confidentiality of any data and results of medical examinations, including public disclosure and any other action with this information and data. This copy of the document contains the signature and decryption of the signature "Tymoshenko". The mentioned copy of the document was added to the case file in the court hearing of 30.07.2012 by a motion of the plaintiff’s representative S.V. Vlasenko. The case file confirmed that information regarding the plaintiff’s health condition was disseminated by the above persons who had been authorized to do so by the plaintiff, since November 2011. Given that information was distributed by the plaintiff’s authorized representatives, with whom the plaintiff continues to work and not withdrawing the power of attorney dated 31.03.2011, registered with number 165 and without notification about the cancellation of the right to disseminate information, the court finds that the dissemination of information on Y. Tymoshenko’s health condition and the fact of request for medical help was agreed with her and did not violate the legitimate rights and interests, including rights under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. ... The Court ascertains that the dissemination of information by Yulia Tymoshenko’s authorized representatives about the health condition of the plaintiff draw a wide public response and heightened public interest in the country and abroad, as Mrs Yulia Volodymyrivna Tymoshenko is one of the prominent politicians and public figures of Ukraine during 1999-2011 years. ... Accordingly, the aggregate of these facts gives a reason to believe that Mrs Yulia Volodymyrivna Tymoshenko is a public figure of the socio-political activities of Ukraine, whose life and activity causes heightened public interest of the public and media, both in Ukraine and in other countries. The Court considers that the defendants had disseminated information about the refusals of the medical examination and conditions of detention in accordance with article 20 of the Law of Ukraine On Information, which establishes that the information with restricted access might be disseminated, if it is socially necessary, that is a subject of public interest and the right of the public to know this information prevails on the potential harm from its dissemination. ... Instead, the defendants did not disseminate information on plaintiff’s diagnosis, the results of her examination or prescribed medical procedures, all disseminated information did not contain any names or other indications, which can identify the plaintiff’s disease. Having considered the publications, which were added to the defendant’s objections, the panel of judges concluded that disseminated information by the defendants did not go beyond the previously directly defined boundaries by authorized representatives of the plaintiff and journalists who publicly provide adequate announcements and comments on various aspects of the health of Mrs Yulia Volodymyrivna Tymoshenko and the circumstances of her residence in the hospital. The Court considers that the information referred to by the plaintiff in proving her claims was given by the defendants in response to the initial comments of the plaintiff’s representatives in order to inform the public about the objective state of affairs, including responses to comments by Mrs Yulia Volodymyrivna Tymoshenko’s representatives. Considering the injury of the plaintiff’s interests by dissemination of information about her, the Court concludes that the dissemination of information about health can not be considered as an invasion of privacy or a disclosure of information. According to the court, the dissemination of information about the circumstances regarding the plaintiff, including measures that were not conducted on the plaintiff, including because of the refusal, does not violate the rights of the plaintiff. 174. In response to the applicant’s complaint on the unlawfulness of the video surveillance at the hospital, the court gave the following reasoning: “According to Article 103 of the Penal Code of Ukraine, the administration of the colony may use audiovisual, electronic and other technical equipment to prevent escapes and other crimes, violations of established by law procedures of detention, to obtain necessary information about the behaviour of inmates. The administration of the colony shall inform prisoners about the use of equipment for surveillance and control. A list of surveillance and control equipment and the protocol of their application is determined by regulations of the central executive body of penitentiaries. The panel of judges considers that this legal provision permits video surveillance of convicts, which is one of the measures in detention and control of convict’s behaviour. Such restrictions on the rights of the sentenced persons are directly stipulated by the Penal Code of Ukraine. The plaintiff’s references in the court proceedings to surveillance by male security officers during the medical procedures and to surveillance with recorded camera images have not been proved. In this regard, the panel of judges has taken into account the expert opinion dated 22.10.2012, No. 26, according to which the file ‘Тимошенко в больнице.flw’, provided for research by the State Penitentiary Service of Ukraine, was not recorded on video-tape. Given that the panel of judges reaches the conclusion that the actions of the defendants in video surveillance were legal. With regard to the video surveillance provided by the Main Department of the Ministry of Internal Affairs of Ukraine in the Kharkiv region, the court assumes that, given the location of cameras which were set by the mentioned defendant, the plaintiff is not under video surveillance of the MIA of Ukraine in the Kharkiv region. Conducting video surveillance by this defendant with the purpose to protect public order does not violate the rights of the plaintiff and meets the requirements of the current legislation. The panel of judges considers that surveillance over the movement of an unlimited number of persons, including the plaintiff, in the corridors of the hospital, is conducted legally and does not violate the rights of the plaintiff. The Court concludes that the actions of the Main Department of Internal Affairs of Ukraine in the Kharkiv region on establishing barriers that impede the access of citizens to the ninth Floor of the STPI Ukrainian Railways Central Clinical Hospital does not violate the plaintiff’s rights, since the plaintiff is limited in movement because of the status of a sentenced person. Herewith, the restriction of the plaintiff to move freely in her hospital room, which is not disputed by the parties, denied the violation of the plaintiff’s limited access to the floor.” 175. Criminal Code 2001 “1. Abuse of power or office, namely the intentional use, for financial gain or with another personal interest or in the interest of third parties, by an official of his/her power or office against the interests of the service, if it has caused serious damage to the State or the public interest or to the lawful interests, rights and freedoms of natural or legal persons, – shall be punishable by ... 2. The same acts, if they caused grave consequences, – shall be punishable by ...” “1. Exceeding authority or official powers, namely the intentional commission of acts by an official which go manifestly beyond the scope of the rights and powers vested in him or her and which cause serious damage to the State or the public interest or to the lawful interests, rights and freedoms of natural or legal persons – shall be punishable by ... 2. Exceeding authority or official powers combined with violence or use of a weapon, or combined with humiliating acts or acts causing pain to the victim, provided that such acts do not fall within the scope of torture, – shall be punishable by ... 3. Acts as described in paragraphs 1 or 2 of this Article, if they have caused grave consequences, – shall be punished by imprisonment for seven to ten years with a prohibition of up to three years on occupying certain posts or carrying out certain activities.” 176. Code of Criminal Procedure 1961 “Preventive measures shall be imposed on a suspect, accused, defendant, or convicted person in order to prevent him from attempting to abscond from an inquiry, investigation or the court, from obstructing the establishment of the truth in a criminal case or pursuing criminal activities, and in order to ensure the execution of procedural decisions. Preventive measures shall be imposed where there are sufficient grounds to believe that the suspect, accused, defendant or convicted person will attempt to abscond from the investigation and the court, or if he fails to comply with procedural decisions, or obstructs the establishment of the truth in the case or pursues criminal activities. ...” “At the pre-trial investigation stage a non-custodial preventive measure shall be selected by a body of inquiry, investigator [or] prosecutor. If a body of inquiry [or] investigator considers that there are grounds for remand in custody [it or] he shall, with the prosecutor’s consent, submit an application to the court. A prosecutor is entitled to submit a similar request. When considering the matter the prosecutor shall familiarise himself with all the material containing grounds for remand in custody, check whether the evidence was lawfully obtained and whether it is sufficient to bring charges [against the suspect]. The application shall be considered within seventy-two hours of the arrest of the suspect or accused. If the application concerns the remand in custody of a person who is at liberty, the judge shall have the power to issue a warrant for the arrest of the suspect or accused and his escort to the court. In such a case, the detention shall not exceed seventy-two hours, or, if the person concerned is outside the locality in which the court operates, [the detention] shall not exceed forty-eight hours from the time the arrested person was brought to the locality. Upon receipt of an application, the judge who is assigned [to the case] in accordance with Article 16-2 of this Code shall study the materials of the criminal case file submitted by the body of inquiry, investigator [or] prosecutor, question the suspect or accused, and, if necessary, obtain explanations from the person dealing with the case, hear the prosecutor, [and] the defence lawyer if [the latter] has appeared before the court, and deliver an order: (1) refusing the preventive measure, if there are no grounds for its application; (2) ordering the remand in custody of the suspect or accused. The court shall only decide on the remand in custody of a person in his absence if that person is on the international wanted list. In such cases, after the arrest of the person and no later than forty-eight hours from the time of his transfer to the place where the proceedings are pending, the court, with the participation of the person [concerned], shall consider [whether to] apply a preventive measure in the form of remand in custody or [whether to] change [such a measure] and shall issue an order accordingly. If the court has refused to remand the suspect [or] accused in custody, it shall have the power to apply a non-custodial preventive measure to him or her. The court’s order may be appealed against to the court of appeal by the prosecutor, suspect/accused, his defence or representative within three days of its delivery. The introduction of an appeal shall not suspend the execution of the court’s order. If remand in custody requires reviewing additional information concerning the character of the arrested person or ascertaining other circumstances of importance in order for a decision to be taken on this issue, the judge may extend the period of detention for up to ten days, or, upon the request of the suspect/accused for up to fifteen days, and shall issue an order accordingly. Whenever it is necessary to decide this issue in respect of a person who has not been arrested, the judge may defer consideration of the matter for up to ten days and take measures to ensure his/her good behaviour during this time or may order the arrest of the suspect or accused for this period.” “In the course of the consideration of a case the court may issue a ruling changing, discontinuing or selecting a preventive measure in respect of a defendant, if there are grounds for this. The procedure for selecting detention as a preventive measure shall be governed by the relevant provisions of Chapter 13 of the Code.” 177. Code on the Enforcement of Sentences 2003 “1. The administration of a colony has the right to use audio, visual, electronic and other technical means in order to prevent escape and other crimes by inmates, breaches of the prison rules, or in order to obtain necessary information about the behaviour of inmates. 2. The administration of a colony shall inform inmates about the use of technical means of surveillance and control. 3. The list of technical means of surveillance and control and the procedure for their use shall be established by regulations of the [Prisons Service of Ukraine]. ...” “1. Physical force ... may be used against inmates with a view to putting an end to physical resistance, violence, rowdiness (буйство) and opposition to lawful orders of the colony administration, or with a view to preventing prisoners from inflicting harm on themselves or on those around them. 2. The use of force should be preceded by a warning if the circumstances so allow. ... 4. If the use of force cannot be avoided, it should not exceed the level necessary for fulfilment by the officers of their duties, should be carried out so as to inflict as little injury as possible and should be followed by immediate medical assistance if necessary. 5. Any use of force must be immediately reported to the prison governor. ...” “1. Prisoners have the right to ... receive medical assistance and treatment, including medical services paid for at their own or their relatives’ expense. ...” “... 5. Prisoners may seek, at their own or at their relatives’ expense, medical assistance, including treatment, from civilian medical institutions. In such cases, medical assistance is to be provided at the medical unit of the colony in which the prisoner is serving his/her sentence, under the supervision of the colony’s medical staff.” 178. Health Care Act 1992 “Every citizen of Ukraine has a right to health care, which includes: (a) living standards, including food, clothing, accommodation, medical services and care which are necessary for maintaining a person’s health; (b) qualified medical and/or welfare assistance, [which] includes the free choice of a doctor [and] methods of treatment in accordance with a physician’s recommendations ... (e) correct and timely information about his/her state of health and the state of health of the population, including potential risk factors and the scale of their severity; (f) compensation for injuries to health; (g) the possibility of an independent medical examination if a person disagrees with the conclusions of state medical experts, a prohibition on enforced treatment or any [other] activities which might violate a person’s rights and freedoms ...” 179. Pre-Trial Detention Act 1993 “Persons remanded in custody shall be provided with living conditions which comply with sanitary and hygiene requirements. The standard size of a cell cannot be less than 2.5 square metres per person ... Persons under arrest under the regulations of the Cabinet of Ministers are entitled to free food, a personal sleeping space, bedding, and other necessities. Where appropriate they shall be provided with clothing and shoes .... Health care and rehabilitation services, ... are organized and provided in accordance with the Health Care Act. The order of granting health services to persons under arrest, using hospitals, and examinations by physicians shall be determined by the [State Prisons Service] of the Ministry of Defence and the Ministry of Health.” 180. The Ukrainian Cabinet of Ministers’ Resolution no. 336 of 16 June 1992 “On Food and Nutrition Standards for Persons Detained in State Prisons Service Prisons and Pre-Trial Detention Centres or in Temporary Police Detention Facilities, Reception Centres and Other Temporary Remand Centres of the Ministry of the Interior” establishes detailed nutrition standards for detainees and prisoners, according to which the daily nutrition value should be 3,026.2 kCal. 181. Code of Administrative Justice of 6 July 2005 (in force from 1 September 2005): “1. The role of the administrative justice system shall be the protection of the rights, freedoms and interests of physical persons and the rights and interests of legal entities in the field of public-law relations from violations by public authorities ... 2. Any decisions, actions or inaction on the part of public authorities may be appealed against to the administrative courts, except for cases in which the Constitution and laws of Ukraine provide for a different procedure of judicial appeal against such decisions, actions or inactivity ... 3. In cases where the decisions, acts or inactivity of a public authority are being challenged, the courts shall review whether [the impugned decisions and acts] have been adopted or taken: ... (6) reasonably; ... (8) proportionately, in particular, by ensuring a necessary balance between any possible unfavourable outcome for an individual’s rights, freedoms and interests and the aims the impugned decision or action seeks to achieve; ...” “1. Everyone has a right to apply to the administrative courts, in accordance with the procedure envisaged by this Code, if he or she considers that his/her rights or interests are breached by a decision of a public authority, or its actions or inactivity. ...” “1. When considering a case, a court shall be governed by the principle of the rule of law, which provides, in particular, that a human being and his or her rights and freedoms shall be the highest social value and shall determine the essence and orientation of the activity of the State. 2. A court shall apply the principle of the rule of law by taking into account the case-law of the European Court of Human Rights. ...” “1. The jurisdiction of the administrative courts shall cover legal relationships arising in the course of the exercise of public administrative powers by ... public authorities and [legal relationships arising] in the course of the public formation of a ... public authority by way of an election or referendum. 2. The jurisdiction of the administrative courts shall cover public-law disputes, in particular: (1) disputes between physical persons or legal entities and ... public authorities concerning the decisions of the latter (normative legal acts or legal acts of individual effect), or their actions or inactivity; ...” Pursuant to Article 117, an administrative court may suspend a disputed decision by way of application of an interim measure, on an initiative of the party to procedure. A measure may be applied if there exists a real danger of harm to the plaintiff’s rights, freedoms and interests, or if there are grounds to believe that a failure to apply the measure would render impossible the protection of such rights, freedoms and interests or would require considerable efforts and expense for their restoration. An interim measure can also be applied if it is evident that the contested decision is unlawful. According to Article 162 of the Code, the administrative court, should it find an administrative claim substantiated, may (amongst other things) declare the impugned action, omission or decision unlawful, invalidate the decision in question and/or oblige the defendant to undertake, or abstain from taking, certain actions. It may also order the defendant to pay compensation for the damage caused by the unlawful action, omission or decision. 182. The issue of compensation for unlawful detention in Ukraine is regulated by the Act “On the procedure for compensation for damage caused to citizens by the unlawful acts of bodies of enquiry, pre-trial investigation authorities, prosecutor’s offices and courts” of 1 December 1994 (“the State Compensation Act”). The relevant provisions of the State Compensation Act (as worded at the relevant time) can be found in the judgments in the cases of Afanasyev v. Ukraine (no. 38722/02, § 52, 5 April 2005) and Klishyn v. Ukraine (no. 30671/04, §§ 49-50, 23 February 2012). 183. Recommendation Rec(2006) 2 of the Committee of Ministers of the Council of Europe to member States on the European Prison Rules reads, insofar as relevant, as follows: “... 4. Prison conditions that infringe prisoners’ human rights are not justified by lack of resources. ... 10.1 The European Prison Rules apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction. ... 18.1 The accommodation provided for prisoners, and in particular all sleeping accommodation, shall respect human dignity and, as far as possible, privacy, and meet the requirements of health and hygiene, due regard being paid to climatic conditions and especially to floor space, cubic content of air, lighting, heating and ventilation. 18.2 In all buildings where prisoners are required to live, work or congregate: a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system; b. artificial light shall satisfy recognised technical standards; ... 18.3 Specific minimum requirements in respect of the matters referred to in paragraphs 1 and 2 shall be set in national law. 18.4 National law shall provide mechanisms for ensuring that these minimum requirements are not breached by the overcrowding of prisons. ... 19.3 Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy. 19.4 Adequate facilities shall be provided so that every prisoner may have a bath or shower, at a temperature suitable to the climate, if possible daily but at least twice a week (or more frequently if necessary) in the interests of general hygiene. ... 21. Every prisoner shall be provided with a separate bed and separate and appropriate bedding, which shall be kept in good order and changed often enough to ensure its cleanliness. 22.1 Prisoners shall be provided with a nutritious diet that takes into account their age, health, physical condition, religion, culture and the nature of their work. 22.2 The requirements of a nutritious diet, including its minimum energy and protein content, shall be prescribed in national law. 22.3 Food shall be prepared and served hygienically. 22.4 There shall be three meals a day with reasonable intervals between them. ... 27.1 Every prisoner shall be provided with the opportunity of at least one hour of exercise every day in the open air, if the weather permits. ...” 184. The relevant extracts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 9 to 21 September 2009 (published on 23 November 2011) read as follows: “5. Conditions of detention of the general prison population a. pre-trial establishments (SIZOs) i) the SIZO in Kyiv 100. The SIZO in Kyiv occupies a complex of buildings in one of the central areas of Kyiv. Some of the detention buildings had been constructed some 140 years previously. Three smaller, more recent blocks provided accommodation for sentenced working prisoners, women and juveniles. A new block for women was in the process of construction, but that process had virtually been halted due to lack of resources. With an official capacity of 2,950 places, on 8 September 2009 the establishment was holding 3,440 inmates, including 217 women and 69 juveniles. The vast majority of the inmate population was on remand. The establishment was also holding 297 inmates awaiting the outcome of their appeal (including 41 life-sentenced prisoners), 93 prisoners in transit and 100 sentenced inmates assigned to work in the prison’s general services and maintenance. Further, there were 11 inmates who had been subject to forensic psychiatric assessment and who were awaiting a final decision concerning their criminal responsibility. The prisoner population comprised 210 foreign national prisoners (of whom 170 were from countries of the Commonwealth of Independent States). Since 2001, following amendments to the CC, a section referred to as an “arrest house” had been set up for first-time offenders serving sentences of up to 6 months. ... 103. Material conditions prevailing in the section for women were somewhat better [than those in the section for men]. In particular, the cells were less overcrowded (e.g. 6 inmates in a cell measuring 8 m²; 16 prisoners in a cell measuring 27 m²). The cells had good access to natural light, but ventilation was inadequate and prisoners complained that in the summer the cells became very hot. The in-cell sanitary annexes were fully partitioned and had both cold and hot water taps. Some of the cells had been decorated by the inmates themselves and gave a homely impression. ... 104. The section for sentenced working prisoners provided the best conditions of detention in comparison with the other sections. The dormitories were adequately lit, well ventilated and clean. They were suitably furnished (beds, tables and chairs or stools, some shelves and lockers) and inmates could have their own radio or television. Further, the section comprised a sports hall, a spacious “club” where prisoners could watch films and play table tennis, and a chapel. 105. The prison did not provide inmates with personal hygiene products other than soap. As mentioned in paragraph 88, access to the shower was limited to once a week. As regards food, prisoners were provided with three meals a day. The quantity of the food appeared to be sufficient, but many prisoners complained about its poor quality and lack of variety. In particular, there was no fresh fruit, eggs or milk (not even for juvenile prisoners). To supplement their diet, prisoners relied to a great extent on food parcels from their families and purchases from the prison shop. ... The SIZO had a library with a collection of some 27,000 books. The delegation was surprised to learn that remand prisoners were not allowed to receive books (other than the Bible) or newspapers from outside. The CPT would like to receive the Ukrainian authorities’ comments concerning this prohibition. The only regular out-of-cell activity was outdoor exercise of one hour per day, which took place in a series of exercise yards located on the top of the accommodation blocks. By virtue of their size and configuration, these high-walled, bare areas (measuring between 16 and 60 m²) did not allow prisoners to exercise themselves physically. The CPT recommends that the Ukrainian authorities make strenuous efforts to offer organised out-of-cell activities (work, recreation/association, education, sport) to prisoners at the Kyiv SIZO. Further, the Committee recommends that steps be taken to construct more appropriate exercise yards which allow prisoners to exert themselves physically, as well as indoor and outdoor sports facilities. ... 6. Health care a. introduction 123. In the course of the 2009 visit, the delegation was informed of a proposal to set up a working group to study the transfer of prisoners’ health care to the Ministry of Health. The CPT can only encourage this initiative, which is consistent with the remarks made in paragraph 142 of the report on its 1998 visit, namely that a greater involvement of the Ministry of Health in the provision of health-care services in prison will help to ensure optimal health care for prisoners, as well as implementation of the general principle of the equivalence of health care with that in the outside community. The Committee wishes to be informed of the action taken on the abovementioned proposal. In this context, the CPT also wishes to stress the need for continued professional training for prison health-care staff, with a view to enabling them to perform their duties satisfactorily. The Committee would like to be informed of the national policy in this respect. 124. The reports on previous visits by the CPT to Ukraine contain a number of recommendations, comments and requests for information in the area of provision of health care to prisoners. Despite efforts made by the Ukrainian authorities in recent years and the goodwill and commitment of health-care staff at the penitentiary establishments visited, the provision of health care to inmates remains problematic, due to the shortage of staff, facilities and resources. During the visit, the delegation heard a number of complaints from prisoners at the establishments visited concerning delays in access to a doctor, lack of medication, and the inadequate quality of care.” 185. The relevant extracts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 29 November to 6 December 2011 [CPT/Inf (2012) 30] read as follows: “... 48. On the occasion of this visit and in the light of reports recently received by the CPT, the delegation also examined in detail the health care being provided to certain persons who were being held at the Kyiv SIZO and, in particular, Mr Valeriy IVASHENKO, Mr Yuriy LUTSENKO and Ms Yulia TYMOSHENKO. In this connection, the CPT would like to stress that the role of medical members of a visiting delegation is not that of a treating doctor; their task is to assess the quality of health care and, more specifically, the access to medical treatment of detained persons. The Committee also wishes to recall that the prison authorities are responsible for the health care of all prisoners; all efforts possible must be made to ensure that a precise diagnosis is promptly established and that adequate treatment required by the state of health of the person concerned is provided to all prisoners. The CPT must express its concern that in respect of each of the three above-mentioned persons, considerable delays occurred – for various reasons – in arranging specialised medical examinations outside the SIZO. Problems of this kind have repeatedly been observed by the CPT during all previous visits to the Kyiv SIZO as well as to other penitentiary establishments in Ukraine. The Committee urges the Ukrainian authorities to take all the necessary measures to ensure that in future, all prisoners who are in need of specialist treatment/examinations are transferred to an outside hospital without undue delay.” 186. The relevant extracts from the Government’s response to the above CPT Report [CPT/Inf (2012) 31] read as follows: “Regarding paragraph 48 In accordance with the abovementioned Joint Order of the Ministry of Justice of Ukraine and the Ministry of Healthcare of Ukraine of 10.02.2012 No. 239/5/104 all persons put under custody enjoy the possibility to receive specialized medical assistance in healthcare institutions of the Ministry of Healthcare of Ukraine without delays. Regarding paragraph 49 In respect of the convict Ms. Julia Tymoshenko During the time Ms. Julia Tymoshenko spent in Kachanivska penal colony (No. 54) until May 9, 2012, inclusively, 21 medical boards were set up comprising over 20 academicians, PhDs of medical sciences and Associates of Sciences; she refused to undergo medical examinations in 13 cases. In addition, pursuant to the Joint Order of the SPS of Ukraine, the Ministry of Healthcare of Ukraine and the Ministry of External Affairs of Ukraine of 10.02.2012 No. 69/105/40 ‘On establishment of Medical Board Comprising Foreign Specialists for Medical Examination of Ms. Julia Tymoshenko and Support of Operation of this Board on the Territory of Ukraine’ the international medical board comprising foreign specialists was established, which performed medical examinations of convict Julia Tymoshenko on February 14 and 15, 2012, and gave relevant recommendations. It must also be noted that medical workers of Kachanivska penal colony (No. 54) proposed on a daily basis convict Julia Tymoshenko to undergo medical examinations, which were turned down by her in most cases. Out of 284 proposed medical examinations, 247 were turned down. All board medical examinations with respect to convict Julia Tymoshenko were performed exclusively based on her written consent. Medical examinations of convict Julia Tymoshenko performed by medical personnel of Kachanivska penal colony (No. 54) were compliant with legal regulatory acts regulating procedures for provision of medical assistance to detained and convict persons. On April 20, 2012 the board of Ministry of Healthcare and SPS specialists proposed Ms. Julia Tymoshenko to continue her treatment in the facilities of Central Clinical Hospital of UKRZALIZNYTSIA general health institution, in which, according to the opinion of German specialists, most favourable conditions were created for rehabilitation of Ms. Julia Tymoshenko. Upon her arrival to the hospital on April [21], 2012 convict Julia Tymoshenko refused to undergo initial medical screening and examination and to start the course of rehabilitation measures. On [sic] April, 2012 in view of implicit refusal of convict Julia Tymoshenko to sign informed consent for initial medical screening and medical intervention, she was signed out from the hospital and transferred back to Kachanivska penal colony (No. 54). On May 4, 2012 after the course of rehabilitation measures was suggested to Ms. Julia Tymoshenko by German and Ukrainian doctors, she agreed in the oral form to undergo this course in the facilities of Central Clinical Hospital of UKRZALIZNYTSIA general health institution under supervision of specialists from German Clinic ‘[S]harite’. On May 9, 2012 Mrs. Julia Tymoshenko was hospitalized in the said healthcare institution with the purpose to undergo the course of rehabilitation measures under supervision of specialists from German Clinic ‘[S]harite’, where she stays until present. ...” 187. The relevant extract of the Country Report on Human Rights and Practices of the US Department of State released by the Bureau of Democracy, Human Rights and Labor in respect of Ukraine reads as follows: “There was a sharp increase in charges brought against opposition politicians after the appointment of a new prosecutor general on November 4, giving rise to the appearance of selective and politically motivated prosecutions by the Yanukovych government. Between November 1 and December 31, prosecutors brought charges against former prime minister Yulyia Tymoshenko and more than eight high-level members of her government for abuse of office and/or misuse of state funds during their tenure. The questioning of accused individuals by government prosecutors, which often lasted for hours at a time over a period of several days, and the denial of bail in certain cases further exacerbated the perception of politically motivated prosecution (see section 4). The government contended that the prosecutions were not targeting the opposition, and that there were many ongoing investigations of members of the governing party; however, with only a few exceptions these were low-level, career officials.” 188. On 9 June 2011 the European Parliament adopted a resolution on Ukraine: the cases of Yulia Tymoshenko and other members of the former Government. The resolution reads in so far as relevant as follows: “The European Parliament, ... G. whereas 12 former high-ranking officials from the Tymoshenko government are in pre-trial detention, including ... the former First Deputy Minister of Justice, Yevhen Korniychuk, who was arrested on 22 December 2010 on charges of breaking the law in connection with public procurement procedures for legal services, ... I. whereas a preliminary report of the Danish Helsinki Committee for Human Rights on the Lutsenko and Korniychuk trials has listed massive violations of the European Convention on Human Rights, ... 1. Stresses the importance of ensuring the utmost transparency in investigations, prosecutions and trials, and warns against any use of criminal law as a tool to achieve political ends; 2. Is concerned about the increase in selective prosecution of figures from the political opposition in Ukraine as well as the disproportionality of measures applied ... 3. Reminds the Ukrainian authorities that the principle of collective responsibility for the decisions of the government does not permit the prosecution of individual members of the government for decisions that were taken collegially; ... ” | 1 |
train | 001-106602 | ENG | LVA | ADMISSIBILITY | 2,011 | APINIS v. LATVIA | 3 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Mihai Poalelungi | 1. The applicant, Mr Guntis Apinis, is a Latvian national who was born in 1962 and is currently serving a thirteen-year prison sentence in Olaine prison for aggravated murder. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine. 2. The applicant submitted numerous complaints to the Court. Among those was a complaint that he had been denied the right to vote in the general election to the Saeima, the Latvian parliament, on 7 October 2006, as the police had failed to send his passport to the prison where he was being held in custody at the time. He also alleged a violation of Article 6 § 2 of the Convention, on account of the fact that he had been called a “murderer” during a TV broadcast. 3. The applicant’s complaints under Article 3 of Protocol No. 1 to the Convention and Article 6 § 2 of the Convention were communicated to the Government on 14 June 2010, who submitted observations on the admissibility and merits of the case. 4. The applicant did not submit any observations. Instead, in his letter of 26 October 2010 he stated that “the Latvian State is not afraid of [the Court], because [the Court] plays with it like a toy”. 5. On 8 November 2010 the Court repeatedly requested him to appoint a representative and advised him to contact the Latvian Bar Association if he could not find one himself. The applicant did not designate a lawyer. 6. On 1 December 2010 the applicant expressed distrust in the Court and used grossly abusive language towards it. In reply, the Court notified the applicant that the time-limit for submission of his observations had expired, and drew his attention to Article 37 § 1 (a) of the Convention, which provides that the Court may strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application. 7. On 17 February 2011 the applicant informed the Court that he did not intend to withdraw his application, and requested an extension of time to submit his observations. Exceptionally, the President of the Section granted that request. 8. On 24 March 2011, in reply to the Government’s letter stating their position on a friendly settlement, the applicant issued threats directed at officials of the Court. The Court replied to the applicant on 2 May 2011, explaining the procedure before it and insisting on the need for the applicant to appoint a representative. 9. In the letter sent on 5 May 2011 the applicant continued to issue abusive and threatening remarks. He stated that “the Court supports fascism” and that during the next eight years he would “find the opportunity to discover the truth and [the chance] to make sure that those who call themselves gods get what they deserve”. In reply, the Court referred to its previous letter. 10. In the letter dated 30 May 2011 the applicant stated that he did not have any trust in the Court because it scoffed at human rights. 11. In his letter of 29 June 2011 the applicant continued to use grossly abusive language towards the State and the Court. | 0 |
train | 001-79795 | ENG | ROU | CHAMBER | 2,007 | CASE OF GHEORGHE v. ROMANIA | 3 | Violations of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings | Alvina Gyulumyan;Corneliu Bîrsan;David Thór Björgvinsson;Egbert Myjer;Elisabet Fura;Ineta Ziemele;John Hedigan | 6. The applicant was born in 1971 and lives in Ploieşti. 7. The applicant suffers from haemophilia A which was diagnosed at birth. Haemophilia A is a congenital hereditary disorder characterised by delayed clotting of the blood and severe bleeding following even minor injuries. It requires treatment with the specific coagulant, factor VIII. 8. The applicant was working as an official in a local hospital. 9. Starting in 1992, the Medical Expert Reports and Occupational Rehabilitation Board (“the Board”) attached to the Ministry of Employment and Social Welfare examined the applicant once a year and issued him each time with a temporary certificate stating that he suffered from a seconddegree disability. 10. This certificate served as the basis for obtaining from the County Disabled Persons' Bureau (“the Bureau”) the entitlements provided for by Law no. 53/1992 on special protection for disabled persons – which included free medical assistance, transport and telephone rental – together with tax relief under Law no. 35/1993 in the form of exemption of the disabled person's salary from income tax. 11. On 26 October 1998 the Board confirmed the applicant's seconddegree disability by means of a certificate bearing the handwritten endorsement “valid for Law no. 35/1993”. According to the information supplied by the applicant, endorsements of this kind were commonly added by the Board, since the same certificate was used to obtain the entitlements under Law no. 53/1992 and tax relief under Law no. 35/1993. 12. In a letter of 15 December 1998 the Bureau informed the applicant that its accounting department had decided to suspend his entitlements under Law no. 53/1992, on the ground that the certificate issued on 26 October 1998 referred only to Law no. 35/1993 and could therefore be used only to obtain the entitlements provided for by that law. 13. By letter of 3 February 1999 the Employment Ministry informed the applicant that “in the absence of any provision to the contrary, there [was] no legal impediment preventing persons who [held] a certificate attesting to a degree of disability requiring special protection from enjoying all the entitlements and concessions for which they [were] eligible by law”. 14. On 29 October 1999 the Board confirmed the applicant's seconddegree disability. The certificate it issued on that occasion was again marked “valid for Law no. 35/1993”. 15. Following a sharp deterioration in his condition owing to his lack of treatment the applicant, in a memorial lodged with the State Secretariat for Disabled Persons on 3 April 2000, challenged the suspension of his entitlements under Law no. 53/1992. 16. In a reply dated 6 April 2000 the State Secretariat informed the applicant that no statutory provision barred the aggregation of entitlements under Laws nos. 35/1993 and 53/1992, and that persons suffering from a second-degree disability should be able to benefit from the entitlements available under both laws. 17. In an administrative action brought before the Ploieşti Court of Appeal on 30 November 2000 against the Bureau and the State Secretariat for Disabled Persons, the applicant requested recognition of his status as a disabled person requiring the special protection provided for by Law no. 53/1992 and claimed compensation for the pecuniary and nonpecuniary damage caused by the suspension of his entitlements between October 1998 and September 2000 which, he alleged, had resulted in a serious and rapid deterioration of his condition. He requested that the State Secretariat be ordered to pay him the sum of 1,184,502,000 Romanian lei (ROL), representing the cost of the treatment he would have received free of charge had the Bureau not suspended his entitlements under Law no. 53/1992, and a sum of ROL 11,920,200 corresponding to the value of the transport and telephone rental which he was no longer entitled to receive free of charge. 18. Following a hearing held on 15 January 2001, the applicant's lawyer requested that delivery of the judgment be adjourned to enable him to file written pleadings. 19. The Court of Appeal delivered its judgment on 22 January 2001. It observed that the Board had issued the applicant with annual certificates stating that he had a second-degree disability. The court therefore considered that the applicant had been recognised as having the status he requested during the period in question; accordingly, it rejected the first request as unfounded. 20. As to damages, the court held that it did not have jurisdiction to consider the issue and returned the case file to the Prahova County Civil Court. 21. From 5 to 10 February 2001 the applicant received in-patient treatment for haemorrhaging in Colţea Haematology Clinic in Bucharest. 22. During the proceedings before the County Court, on 12 March, 4 May and 1 June 2001, the applicant's lawyer requested an adjournment to enable him to add evidence to the case file and file written pleadings. 23. In a judgment of 5 June 2001 the County Court in its turn declined jurisdiction in favour of the Court of Appeal. The Supreme Court of Justice, called upon to resolve the conflict of jurisdiction, delivered a judgment on 21 November 2001 in which it held that the Ploieşti Court of Appeal had jurisdiction. The case was re-entered in that court's list. 24. The Court of Appeal heard evidence from two witnesses called by the applicant and ordered a medical expert report on the applicant's health. 25. The expert report was prepared by the forensic medical service of the city of Ploieşti. It noted numerous episodes of internal bleeding which had led to very severe bone deformation, immobilised joints and impaired mobility. In conclusion, the report stated that “the discontinuation of treatment [had] resulted in a sudden worsening of the disease, promoting the onset of very serious complications, namely internal and external bleeding, intracranial bleeding with haematomas, paralysis, phlebitis and asphyxia”. 26. During the proceedings before the Court of Appeal, on 12 March 2002, the applicant requested an adjournment to enable him to hire a new lawyer. On 7 June 2002 his lawyer requested a further adjournment so that he could file written pleadings. 27. In a judgment of 14 June 2002 the Court of Appeal, basing its findings on the certificates issued by the Board in 1998 and 1999, found that, for the period in question, the applicant had been recognised as having a second-degree disability. It dismissed the applicant's claim for damages on the ground that he “[had] not dispute[d] using a statutory remedy [section 27 of Government Ordinance no. 102/1999 of 29 June 1999, replacing Law no. 53/1992] his assignment to one of the categories of disability” and pointed out that he could “dispute and request revision of his classification in a given category if it no longer corresponded to the reality”. The court added that the applicant could only bring an action before the courts seeking to assert his rights if the competent authorities, after deciding to assign him to a different disability category, subsequently refused to award him the entitlements provided for by law. The court concluded that, in so far as the applicant “[had] not furnish[ed] proof that he now belonged to the category of persons with a more severe disability, which might have qualified him for a wider range of entitlements”, his complaint was unfounded. It dismissed the action accordingly. 28. The applicant appealed to the Supreme Court of Justice on the ground that the Court of Appeal had misconstrued the subject of his action, that it had omitted to rule on his complaint concerning the suspension of his entitlements under Law no. 53/1992 and that the second-degree disability he had been recognised as suffering from made him eligible for the aggregate of entitlements under the two laws. 29. At a hearing held on 25 February 2003 the applicant requested that examination of his appeal be adjourned on account of his state of health, which allegedly prevented him from attending the hearing. The hearing was scheduled for 27 May 2003 and then for 21 October 2003. It took place on the latter date. 30. From 6 to 15 May 2003 the applicant received in-patient treatment in the emergency ward of Ploieşti County Hospital. 31. In an order dated 7 May 2003 the County Pensions Office decided that the applicant should be granted a retirement pension on grounds of invalidity. 32. On 22 May 2003 the Board found that the applicant's condition had worsened and that he now suffered from a first-degree disability. 33. In a judgment of 4 November 2003 the Supreme Court of Justice dismissed the applicant's appeal and upheld the Court of Appeal's judgment of 14 June 2002. It considered that “since the appellant [had] not dispute[d] [the certificate attesting to his disability] before the Higher Medical Expert Reports Board, in accordance with the statutory provisions, the Court of Appeal [had] correctly held that he could not claim the entitlements provided for by Ordinance no. 102/99”. 34. Following further episodes of bleeding the applicant was again admitted to the emergency ward of Ploieşti County Hospital, where he remained from 25 to 30 March and from 10 to 18 December 2004. Between 29 May and 1 June 2005 he again received in-patient treatment in the Colţea Haematology Clinic in Bucharest. 35. The Administrative Disputes Act (Law no. 29/1990) provides, in its relevant parts: “Individuals or legal entities who consider that their rights have been infringed by an administrative act or by the unjustified refusal of an administrative authority to respond to a request concerning those rights may bring an action before the competent court seeking to have the act in question set aside, to have the alleged right recognised and to be awarded compensation for any damage sustained.” “The court shall give an urgent ruling on the action...” 36. The relevant extracts from Law no. 53/1992 on special protection for disabled persons read as follows: “Classification in one of the categories of disabled persons requiring special protection shall be based on a certificate issued by one of the medical expert reports and occupational rehabilitation boards attached to the county hospitals...” “Disabled persons shall have the right to: (a) medical assistance and medication free of charge ... in the case of persons whose monthly income is below the gross minimum wage guaranteed by the State... ... (e) free use of urban ... and inter-urban public transport... ... (f) exemption from payment of the costs of telephone installation, transfer and rental...” 37. The relevant provisions of Government Emergency Ordinance no. 102/1999 of 29 June 1999 on special protection and access to employment for disabled persons, which replaced Law no. 53/1992, read as follows: “Classification in one of the categories of disabled persons requiring special protection ... shall be based on a certificate issued by the [county] boards on medical expert reports and disability issues.” “... adults suffering from a disability shall qualify for the following entitlements: ... (f) exemption from payment of the costs of telephone installation, transfer and rental... (g) free use of urban public transport... (h) free use of inter-urban public transport... ... (j) medical assistance in accordance with the provisions of the Social Health Insurance Act and the regulations of the Ministry of Health and the State Secretariat for Disabled Persons.” “The boards on medical expert reports and disability issues shall be attached [from 1 January 2000] to the county disabled persons' bureaux.” | 1 |
train | 001-122453 | ENG | TUR | ADMISSIBILITY | 2,013 | DEVECİOĞLU AND OTHERS v. TURKEY | 4 | Inadmissible | András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen | A list of the applicants is set out in the Appendix. Additionally, the case and decision numbers of the impugned proceedings appear in the Appendix. On various dates, the applicants initiated actions before various civil courts or civil proceedings were brought against them before the civil courts. The procedures are still pending before the domestic courts. A description of the relevant domestic law may be found in Müdür Turgut and Others ((dec.), no 4860/09, §§ 19-26, 26 March 2013). | 0 |
train | 001-87896 | ENG | RUS | CHAMBER | 2,008 | CASE OF SUKHORUKOV v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 13 - Right to an effective remedy | Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | 4. The applicant was born in 1953 and lives in Ust-Labinsk, a town in the Krasnodar Region. 5. On 31 March 1999 the Ust-Labinskiy District Court awarded the applicant 2,000 Russian roubles against a local welfare authority for a delayed payment of social benefits. This judgment became binding on 6 May 1999, but has not been enforced to date. 6. On 1 June 1999 the applicant submitted enforcement papers to bailiffs, and on 29 June 1999 the bailiffs passed the papers to the Treasury. In December 2001 the Treasury returned the papers to the applicant, because in the meantime the procedure of enforcement had changed. 7. To vindicate his right to a timely enforcement of the judgment, the applicant sued bailiffs for pecuniary and non-pecuniary damages. On 16 August 2002 the District Court rejected this claim, having found that the bailiffs had done everything they should have done to enforce the judgment. 8. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment within three months. | 1 |
train | 001-98937 | ENG | GBR | ADMISSIBILITY | 2,010 | SPRINGETT and OTHERS v. THE UNITED KINGDOM | 4 | Inadmissible | Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | The first applicant, Mr Robert Charles John Springett, is a British national who was born in 1925 and lives in Roquefort, France. The second applicant, Mr Gerald Thomas Easto-Brigden, is a British national who was born in 1926 and lives in Barcelona, Spain. The third applicant, Mrs Vivien Sheffield, is a British national who was born in 1943 and lives in Tenerife, Spain. s, may be summarised as follows. On 14 August 2002 the applicant's claim for payment under the Winter Fuel Payment (“WFP”) scheme was rejected by the Pensions Service, on the ground that as he had left the United Kingdom in 1982, before the scheme was introduced, he had “never acquired entitlement to the benefit.” On 13 August 2003 an appeal against the Pensions Service's decision was refused on the same grounds as the original decision. The applicant submitted a further complaint to the Commission of the European Union and was informed by a letter dated 9 September 2004 that the policy of the British Government to restrict the WFP to individuals who had “acquired entitlement” by receiving the payment before leaving the United Kingdom created a difference in treatment between pensioners, depending on when or how old they were when they moved abroad. However, the policy was not contrary to European Union (EU) Law and the matter could not, therefore, be taken further. In 2004 the second applicant applied to be considered for WFP. On 24 February 2005 his application was turned down on the basis that he had never acquired entitlement to the payment because he had left the United Kingdom in October 1993. On 8 April 2005 a final confirmation that he would not be eligible was issued by the Pensions Service. The applicant challenged that decision, but never received a reply from the Winter Fuel Office. On 10 July 2003, the third applicant applied to be considered for WFP in respect of the winter of 2002/3. On 6 November 2003 this claim, and her claim for 2003/4, were turned down on the basis that she had left the United Kingdom in December 1997, before acquiring entitlement. She claims that she was not resident outside the United Kingdom before 1 January 1998. On 9 March 2004 her appeal was rejected on the same grounds, by the Appeals Tribunal. On 28 June 2004 the Social Security Commissioner refused her leave to appeal. This matter was revised because a second pensioner in a similar position had his case considered in the light of EU law before the Commissioner, in October 2004. This latter case was dismissed. Consequently, on 23 May 2005 the Commissioner refused to set aside his refusal to grant the applicant leave to appeal. WFP is a non-contributory, non-means tested benefit of between GBP 100 and GBP 200 or, for a person aged 80 or over, GBP 300 per annum paid, since 5 January 1998, to residents of the United Kingdom aged 60 or more. European Regulation 1408/71 on the co-ordination of social security schemes for people who move within the EU provides that a person may “export” to another Member State a social security benefit he or she is entitled to in their home Member State. However, the regulation leaves it to the Member States to determine the conditions of entitlement to social security benefits, and requires Member States only to “export” benefits to people who are subject to its legislation. Following complaints to the European Commission about the non-availability of WFP to those living outside the United Kingdom, in 2000 domestic law was amended so that individuals residing in other EU Member States could also receive the winter fuel payment as long as they had received it before leaving the United Kingdom. According to the 2002 legislation, claimants had the choice to leave the United Kingdom before reaching the age of 60 with no WFP or remain until reaching the age of 60, receive one payment and thereby export their WFP yearly thereafter. | 0 |
train | 001-114776 | ENG | TUR | CHAMBER | 2,012 | CASE OF DİSK AND KESK v. TURKEY | 3 | Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - finding of violation sufficient | András Sajó;Guido Raimondi;Ineta Ziemele;Isabelle Berro-Lefèvre | 4. On 29 April 2008 the applicants jointly notified the Beyoğlu district governor that they would be gathering before the Taksim Atatürk memorial on 1 May 2008 at 1 p.m. to celebrate Labour Day and commemorate their friends who had lost their lives during the demonstrations of 1 May 1977. 5. On 30 April 2008 the Beyoğlu district governor authorised a gathering at the requested location for representatives of trade unions only. The district governor specifically indicated that a demonstration on a larger scale at the said location was not authorised. 6. Subsequently, certain government authorities, including the Minister of the Interior and the Government’s spokesman, as well as the Istanbul Governor’s office, issued press statements, declaring that they were in possession of intelligence reports which precluded them from authorising any demonstration in Taksim Square, for security reasons. The authorities held that any demonstration held in Taksim on 1 May 2008 would be unlawful and unconstitutional on account of possible provocations and disruption of traffic and public order. They further stated that they were going to take extensive security measures on 1 May 2008, including shutting down certain schools in the nearby districts, stopping the operation of ferries and subways, blocking the roads leading to Taksim Square and deploying extra police for that day. As alternative locations, the Istanbul Governor’s office indicated four other squares for the demonstration, namely two on the European side and two on the Anatolian side of Istanbul. 7. On 30 April 2008 the first applicant lodged a complaint against the Governor of Istanbul with the Istanbul public prosecutor, accusing him of denying the trade unions their right to assembly in a discriminatory manner. The first applicant complained that there was no justification for denying them access to Taksim Square on Labour Day, when the same location was available for other large-scale demonstrations and celebrations (investigation no. 2008/20905). 8. At approximately 6 a.m. on 1 May 2008, members of the DİSK and KESK began gathering in front of the DİSK headquarters located in the district of Şişli for Labour Day celebrations. At around 6.30 a.m. the police asked the group to disperse, warning them that they were acting in violation of the Assemblies and Marches Act (Law no. 2911). The members of the group refused, arguing that they were merely waiting in front of the DİSK headquarters, which was a pedestrian area, and that they were not violating the said law in any way. The police, however, proceeded to disperse the group, by spraying them with pressurised water, paint and tear gas, both inside and outside the DİSK building. 9. Similar police interventions occurred over the next couple of hours with increasing intensity. Some of the demonstrators were injured as a result of the use of force by the police. While the injured demonstrators were trying to reach the nearby Şişli Etfal Hospital for medical care, they were chased by the police and were subjected to gas attacks even within the hospital premises. Some members of the DİSK were arrested. 10. At approximately 10.30 a.m. the group of demonstrators broke up of its own accord to forestall any further violence. 11. On 2 May 2008 the Chief of Şişli Etfal Hospital gave a statement to the police, stating that on 1 May 2008 around 20-30 demonstrators had entered the hospital and opened a banner. Subsequently, police officers had also entered the hospital premises in their pursuit and used a gas bomb in the hospital’s garden to neutralise the demonstrators. He further explained that one of the police officers had mistakenly sat on a gas bomb and exploded it in the police car parked at the entrance of the Emergency Service; as a result staff working in the Emergency Service as well as some of the patients had been affected. He concluded by stating that the gas bomb was not deliberately thrown in the hospital building. 12. On an unspecified date after 1 May 2008, the director of the DİSK, along with other persons, lodged a complaint with the Istanbul public prosecutor against various authorities, including the office of the Prime Minister, the Minister of the Interior, the Minister of Justice, the Istanbul Governor’s office, the Head of the Istanbul Security Directorate and the police officers involved in the incidents of 1 May 2008, accusing them of breach of the right to freedom of assembly and a disproportionate use of force (investigation no. 2008/59361). On an unspecified date, the public prosecutor issued a decision of lack of jurisdiction in connection with the complaint lodged against the Istanbul Governor and the Head of Istanbul Security Directorate. The case file was accordingly transferred to the Public Prosecutor’s Office at the Court of Cassation. Pursuant to the terms of Law no. 4483, the public prosecutor at the Court of Cassation sought authorisation from the Minister of the Interior to prosecute the Istanbul Governor and the Head of Istanbul Security Directorate. On an unspecified date, the Minister refused to do so. Consequently, on 8 April 2009 the public prosecutor decided not to proceed with the case. This decision was notified to the applicants’ lawyer on 16 April 2009. The applicant’s appeal lodged against this decision was further dismissed by the Supreme Administrative Court as the court held that pursuant to domestic legislation, no appeal was possible against the decision of 8 April 2009. 13. Regarding the complaint lodged against the Prime Minister, the Minister of the Interior, and the Minister of Justice, on 1 February 2009 the Istanbul public prosecutor delivered a decision of non-prosecution, holding that pursuant to the Constitution, the Prime Minister, the Minister of the Interior, and the Minister of Justice could not be held liable for their actions in the course of their duties. This decision was served on the applicants’ lawyer on 24 February 2009. The applicants’ appeal was rejected on 22 May 2009 by the Sincan Assize Court, which held that no objection could be lodged against the decision of the public prosecutor dated 1 February 2009. 14. On 5 May 2008 the representative of the first applicant handed to the Şişli public prosecutor an undetonated gas bomb belonging to the police force, found inside the DİSK headquarters following the events of 1 May 2008. 15. On 19 June 2008, upon a complaint lodged by the Istanbul Governor’s office, the Beyoğlu public prosecutor questioned the director of the DİSK in relation to the events that took place on 1 May 2008 (investigation no. 2008/9241). It appears from the documents in the case file that no prosecution was initiated against the applicants in relation to the events of 1 May 2008. 16. Article 34 of the Constitution provides: “Everyone has the right to hold unarmed and peaceful meetings and demonstration marches without prior permission. ... The formalities, conditions, and procedures governing the exercise of the right to hold meetings and demonstration marches shall be prescribed by law.” 17. Section 22 of Law No. 2911 prohibits demonstrations and processions on public streets, in parks, places of worship and buildings in which public services are based. Demonstrations organised in public squares have to comply with security instructions and not disrupt individuals’ movements or public transport. Finally, Section 24 provides that demonstrations and processions which do not comply with the provisions of this law will be dispersed by force on the order of the governor’s office and after the demonstrators are warned. | 1 |
train | 001-98140 | ENG | UKR | CHAMBER | 2,010 | CASE OF LOTAREV v. UKRAINE | 3 | Preliminary objection dismissed;Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award | Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 5. The applicant was born in 1972 and is currently serving a sentence of life imprisonment in Zhytomyr no. 8 Prison (“the prison”). 6. In the morning of 9 June 2004 the wardens conducted a routine cell inspection and body searches of life prisoners. Following such an inspection in the applicant's cell an incident took place, the parties' accounts of which differ. 7. According to the applicant, he requested warden P. to clean up the mess left behind after the search, after which the latter handcuffed him, took him out into the corridor and repeatedly threw him against the walls until the applicant pushed him away in self-defence. At that point another warden, T., joined in the applicant's beating. Both wardens continued kicking and punching him even after he had been knocked on to the floor. Later the applicant was conveyed to the operational unit, where he was beaten again by wardens whose identities and number he was not able to establish. The applicant was left on the floor for several minutes, examined superficially by two medical assistants who found his condition to be satisfactory, and then taken back to his cell. Although he had a fever and was suffering from pain in the chest which severely constrained his movements, the applicant felt discouraged from seeking any medical assistance by what he perceived to be indifference and mockery on the part of the prison's medical staff. 8. As submitted by the Government with reference to the information provided by the prison administration, the applicant resisted being body-searched by warden P., using obscene language and attempting to hit the latter with his head. Although warned that force might be used against him if he resisted further, the applicant tried to kick officer P., who, in his turn, knocked him down using a martial art technique (sambo). The applicant was then convoyed to the prison's operational unit where he was held until he had calmed down. 9. On the same date warden P. completed a “Form regarding application to a prisoner (detainee) of handcuffs, straitjacket or other special measures”, in which he reported to the prison governor that he had used a sambo technique against the applicant caused by the latter's “physical resistance”. Two other wardens certified the form as accurate. The prison surgeon, in his turn, issued a report on the applicant's examination “following the usage of a sambo technique”, in which he noted that the applicant's condition was satisfactory with no pathology of the internal organs discovered, while the applicant himself had not raised any complaints. 10. According to the Government's submissions based on the domestic investigation materials, on 9 June 2004 the applicant was X-rayed with no bone fractures discovered. The applicant denied having been X-rayed before November 2004 (see paragraph 20 below). 11. On 15 June 2004 the prison governor disciplined the applicant for the incident of 9 June 2004 by way of a written reprimand. 12. On an unspecified date the applicant complained to the prison's medical unit of pain in the left part of his chest which worsened with a deep inhalation or sharp movement. 13. On 16 July 2004 the head of the prison's medical unit, a therapist, a surgeon and a radiographer examined the applicant and diagnosed him with “osteochondrosis”. 14. On 25 August 2004 the applicant's mother complained to the prosecution authorities that prison wardens had used unjustified force against her son. 15. On 17 September 2004 the investigator of the Zhytomyr Prosecutor's Office for Supervision of Compliance with the Legislation in Enforcement of Sentences (“the Zhytomyr Prosecutor's Office”) examined wardens P. and T., whose description of the events of 9 June 2004 was identical to that summarised in paragraphs 8 and 9 above. 16. On the same date the investigator issued a decision refusing to institute criminal proceedings against warden P. as there had been nothing criminal in his actions. It was based on a finding that force had been used against the applicant on the grounds and in the manner envisaged by the Internal Regulations of the Establishments for Enforcement of Sentences. The investigator also took into account the fact that the applicant had been examined by a doctor immediately after the incident, with no complaints received from him and no injuries discovered. It was further mentioned in the decision that the applicant had refused, with reference to Article 63 of the Constitution (absolving a person from any responsibility for refusing to testify or to explain anything about himself) to give any explanation as regards his disobedience of the legitimate orders of the prison administration on 9 June 2004. 17. On 28 October 2004 the Deputy Prosecutor of the Zhytomyr Prosecutor's Office quashed the above decision as not based on comprehensive investigation. Specifically, the investigator had wrongly dispensed with questioning the applicant's cellmate. He should also have identified and heard other prisoners who might have witnessed the incident. Lastly, no forensic medical examination of the applicant had been undertaken with a view to establishing the nature and gravity of his injuries. 18. On 4 November 2004 the investigator examined A., the inmate with whom the applicant shared a cell from April to July 2004, who stated that he knew the applicant as a calm and even-tempered person. A. described the events of 9 June 2004 as follows. Warden P. and his colleague conducted a search in the cell, which they left in a mess. The applicant made a remark to P., who advised him to officially complain to the prison administration if he wished to. The applicant, in his turn, addressed some obscene language to P., who then unlocked the cell and took the applicant out into the corridor. A. submitted that he had seen P. kicking the applicant once and punching him twice. After that the door to the cell was closed and he heard the sound of blows. The applicant returned about forty minutes later with the left part of his back bruised and his left ear injured. 19. On 12 November 2004 warden T., as well as another prison staff member, gave written statements concordant with those of P. 20. From 15 to 29 November 2004 the Zhytomyr Regional Bureau of Forensic Medical Examinations examined the applicant and studied his medical documentation at the investigator's instruction with a view to clarifying: whether there were any injuries on the applicant's body and what their origin was; as well as the date, the nature and the gravity of the injuries, should any be discovered. In the course of that examination the applicant was X-rayed on 15, 18 and 19 November 2004. According to him, that was his first X-ray since the incident of 9 June 2004. The experts discovered (in addition to some changes in the applicant's lungs characteristic of chronic tuberculosis) that he had a closed blunt chest injury and fractures of two ribs estimated to be of medium gravity and no older than two months. The possible date of the fractures was established on the basis of the appearance of the broken bones' edges on the X-ray film, which were only to a slight extent covered by callus (a connective tissue emerging on a bone at the site of a fracture and transforming into normal bone in approximately one year). The fractures had resulted from blows with blunt objects. As regards the X-ray film of 9 June 2004, which was among the applicant's medical documents, three radiographers participating in the examination concluded that it was impossible to identify it as belonging to the applicant, given that it was of low quality and did not mention his name. 21. On 2 December 2004 the Zhytomyr Prosecutor's Office again refused to institute criminal persecution of warden P. and the prison doctors (against whom the applicant and/or his mother had apparently also made complaints) having found that the elements of the crime had not been set out. In addition to the reasons given for the refusal on 17 September 2004 (see paragraph 16 above), the investigator referred to the medical report of 29 November 2004, according to which the applicant's injuries could not have dated back as far as to June 2004. While noting the statement given by the applicant's cellmate A. (summarised in paragraph 18 above), the investigator decided to treat it with scepticismprison administration”. 22. On 3 December 2004 the Zhytomyr Prosecutor's Office directed the prison governor to investigate the circumstances in which the applicant could have sustained the rib fractures which had been discovered during his medical examination in November. 23. In the course of the investigation subsequently undertaken the prison governor took written statements from eleven wardens who had been on duty at various times during August and September 2004. All of them stated that the applicant had never complained about anything and that there had been no fights or other incidents during their shifts. 24. On 8 December 2004 the prison administration issued a report about the applicant's refusal to give any explanation regarding the injuries supposedly sustained by him some two months before mid-November 2004. 25. On the same date the head of the prison medical unit issued a report, according to which the applicant had not addressed any complaint to the medical unit regarding his injuries. 26. In December 2004 (the date is illegible on the available copy) the prison governor issued a report finding no grounds to initiate criminal investigations into the infliction of the rib fractures on the applicant. He noted that the applicant had neither complained about those injuries nor explained their origin. 27. On 2 April 2005 the Zhytomyr Prosecutor's Office quashed the decision of 2 December 2004, finding that additional investigation was required. It noted that the investigation had failed to duly examine all the concerned staff of the prison. Neither had it clarified whether any force had been applied to the applicant when he was being convoyed from his cell to the operational unit and later in the operational unit. The applicant's cellmate A. had not been duly examined as regards the applicant's beating supposedly witnessed by him. While the medical examination established that the applicant had had two ribs broken, the circumstances in which he had sustained those injuries remained unknown. Furthermore, it had not been established whether the applicant had in fact been X-rayed on 9 June 2004 and whether that had been duly reflected in the documentation of the prison's medical unit. Lastly, the decision to refuse to institute criminal proceedings concerned only warden P., while the applicant alleged that he had been beaten up by several wardens. 28. On 12 April 2005 wardens P. and T. gave additional written statements. According to T., he had not participated in the applicant's convoying to the operational unit on 9 June 2004 and was therefore not aware whether any force had been applied to the applicant at that stage. As submitted by P., he had been among the wardens who had convoyed the applicant. He stated that he could give an assurance however that no force had been used. 29. On the same date the investigator examined the scene of the incident of 9 June 2004. 30. According to his report, also dated 12 April 2005, the applicant's cellmate at the material time, A., “unequivocally refused to give any explanations”. 31. On 13 April 2005 the investigator questioned another inmate, O., who had been sharing the cell with the applicant between 15 July and 15 August 2004. He contended to have noticed bruises on the applicant's face and on the left side of his torso as soon as he had been transferred to that cell. The applicant had told him that he had been beaten by wardens P. and T. on 9 June 2004. O. further submitted that he had not had any conflict with the applicant, and that during the period when they had been sharing the cell the applicant had not had any fights with anybody and had not fallen. Two other inmates who were held later in the same cell with the applicant refused to make any statements. 32. On 19 April 2005 another medical report was issued with a view to clarifying, at the prosecutor's request, whether the applicant could have sustained the fractures of his two ribs as a result of a fall or of being punched or kicked. The expert replied that the injuries could have been inflicted by punches, kicks or by other blunt objects, while he excluded any accidental fall as a plausible reason. 33. On the same date the Zhytomyr Prosecutor's Office issued a new decision refusing to institute criminal proceedings against wardens P. and T., as well as against the staff of the prison's medical unit, for lack of corpus delicti in their actions. In addition to the findings of the previous similar decisions (see paragraphs 16 and 21 above), the investigator mentioned the medical report of the same date (19 April 2005) and the statements of inmate O., without comment. Having repeatedly referred to the doctors' finding of 29 November 2004, the investigator concluded that it should be interpreted as refuting the applicant's allegation about his ill-treatment on 9 June 2004. He further noted that the applicant had had unfriendly relations with warden P. and therefore his allegations against the latter had to be taken with criticism. 34. The Government submitted to the Court a copy of a letter of the Zhytomyr Prosecutor's Office addressed to the applicant's mother and dated 20 April 2005, by which it informed her about the aforementioned decision, as well as that it was possible to challenge it with the Zhytomyr Regional Prosecutor's Office within seven days of receiving its copy (which would be sent to her if requested). The applicant and his mother denied ever having received that letter. 35. Following the communication of the application to the Government, Mr Bushchenko, the applicant's lawyer representing him in the proceedings before the Court, requested a private expert, Mr T. (Professor of the Criminology, Forensic Medicine and Psychiatry Department of the Kharkiv National University of the Interior, Ph.D. in medicine (кандидат медичних наук) and a forensic medical expert of the highest-qualified category according to the existing appraisal system) for an advisory opinion with a view to clarifying, in particular: what could have been the object, which had caused the fractures of the applicant's ribs; the probable date of the fractures; explanation of the absence of any visible injuries on the applicant's body during his examination by the prison's doctors; what illnesses the applicant was suffering from; and whether his tuberculosis and lengthy stay in prison could have delayed the fractures' healing process. 36. On 10 September 2009 the expert issued the requested advisory opinion, which was based on the applicant's medical documentation and contained the following findings: The fractures in issue could have been inflicted by a foot in a shoe or by another object with a short protrusion. Having regard to the statements given by the applicant's cellmates A. and O., the applicant's consistent complaints of pain in the left part of his chest and the nature of those complaints, as well as the poor quality of the applicant's X-ray film of 9 June 2004, it was not ruled out that the applicant could have sustained the fractures on 9 June 2004. As to the medical report of 29 November 2004, according to which those fractures could not have been inflicted more than two months before the last X-ray (15 and 18 November 2004), that conclusion was based on an assumption that a regular recovery process was being analysed, while the coalescence in the applicant's case could well have been retarded by his chronic tuberculosis (from which he was suffering, as was obvious from his X-rays), as well as by the fact that the prison conditions were not the most favourable for a quick recovery. In other words, the expert found it possible that while indeed under the normal circumstances the callus on the edges of the broken ribs had the appearance of being two months old, in the applicant's case it could have in fact been older (several months). Lastly, as regards the fact that the prison doctors who had examined the applicant shortly after the incident of 9 June 2004 had not seen any visible injuries on his body, the expert noted that it could have been explained by the “depth” of the haematomas, which could have become apparent with a delay. 37. In November 2001 the applicant was diagnosed with tuberculosis. 38. In March 2002 he considered himself to have fully recovered, attributing that to his faith. From then on he refused all treatment, for religious reasons, and complained to various authorities that his diagnosis was false. The doctors however considered that the applicant remained ill. 39. On 24 April 2002 the Bogunskyy District Court of Zhytomyr (“the Bogunskyy Court”) ordered the applicant to be treated forcibly for tuberculosis, which was apparently undertaken. 40. As discovered by a routine check in April 2005 and confirmed by control X-raying in July and September 2005, the disease reappeared. The applicant however again refused from any treatment for religious reasons. 41. On 6 April 2006 a commission of the Ministry of Health examined him and confirmed infiltrative tuberculosis of both lungs. 42. On 4 December 2006 the applicant was transferred for specialised treatment to Kherson no. 61 Prison, where he stayed till 21 February 2008, when his condition was found satisfactory. 43. According to his submissions to the Court, he had contracted tuberculosis anew at some point because of being forced to share cells (or wards) with inmates who were ill. 44. The applicant has been serving his sentence of life-term imprisonment in Zhytomyr no. 8 Prison since 5 October 2001, with exception of the period from 4 December 2006 to 21 February 2008 (see paragraph 42 above). 45. The cells in which the applicant was held fell short of meeting basic hygienic standards being dirty, damp and poorly ventilated. The situation deteriorated even more after the prison authorities had stopped providing prisoners with chlorine powder in summer 2005. The applicant had to whitewash and paint his cell at his own expense once in an attempt to improve its sanitary condition. 46. The medical wing of the prison, which was situated on the ground floor and where the applicant was placed occasionally, was often flooded with sewage and its walls were covered in mould. While staying there, he had to share a ward with another inmate suffering from tuberculosis, while he considered himself to have recovered from that disease. The ward lacked proper ventilation. The medical staff were not well qualified and lacked compassion. No medical assistance was provided when it was required, but was imposed on prisoners who did not need it. 47. The nutrition was insufficient and inadequate, while the prices of food in the prison shop were unreasonably high and the administration either refused to accept parcels of food for the applicant from his mother or kept them for themselves. There was a practice of adding bromine to food, adversely affecting the prisoners' cerebral cortex and sexual potency. While being treated for tuberculosis the applicant did not receive the required diet. 48. The cells for life prisoners underwent cosmetic repairs on the annual basis. Prisoners of this category are never involved in any repairing of the cells, which is the job of other prisoners assigned to the maintenance service of the prison. Life prisoners are transferred to a different cell twice a month. The cells in which they are held measure at least eight square metres and twenty-four cubic metres. They have natural ventilation and double window frames with ventilation panes. An assigned staff member disinfects once a week the cells of life prisoners who are under follow-up medical monitoring after recovery from tuberculosis. The prison does not have any shortages of disinfection materials, and the chlorine powder is never issued to prisoners. 49. The prison medical unit is staffed with highly-qualified doctors and assistants of various areas of specialisation. Namely, its staff includes: the chief of the medical unit, a therapist, a tuberculotherapist, a dermatovenerologist, a radiologist, a dentist, six medical assistants (фельдшери), a clinic laboratory assistant, an X-ray examination assistant, a pharmacist, and a disinfector. Some of the personnel are assigned qualification categories meaning that they have extensive work experience and positive theoretical and practical competence appraisals reaffirmed on a regular basis. Thus, the dermatovenerologist has the first qualification category, for which at least seven years' experience is required; the dentist and the clinic laboratory assistant have the highest qualification category assignable after at least ten years' experience; while the X-ray examination assistant and the pharmacist have the second qualification category (at least five years' experience). The medical assistants are occasionally seconded to the Zhytomyr ambulance station with a view to improving their skills. Pursuant to the accreditation certificate issued by the Ministry of Health on 22 March 2007, the medical unit has the right to carry out medical practice in the following areas: therapy, surgery, psychiatry, dermatovenereology, dentistry, radiology, phthisiology, and clinical laboratory diagnostics. The unit is fully equipped in compliance with applicable standards. Its premises, which are wet-cleaned and disinfected on a daily basis, are of satisfactory sanitary condition. The applicant never shared a cell or ward with prisoners with an active form of tuberculosis. 50. The food for prisoners is subjected to regular and strict control. A staff member of the medical unit and the deputy prison governor taste each meal after the cooking and certify its quality in a special logbook, that being a precondition for its distribution to prisoners. The food undergoes laboratory verification as regards its nutritional value and chemical composition twice a year. During the whole period of the applicant's stay in the prison there was not a single case of any deterioration of prisoners' health caused by inadequate quality of food. Prisoners with tuberculosis follow a special diet in the framework of the recurrence prevention programme twice a year. Thus, during the period from 1 March to 31 May, from 1 September to 30 November 2008, and from 1 March to 31 May 2009 the applicant received dietetic nutrition according to his medical condition and in compliance with the applicable regulations. The prices of food in the prison shop are within the limits set by the State Department for Enforcement of Sentences. In any event, the applicant never had any money on his prison account and never bought anything there. 51. The prison administration returned to the applicant's mother the parcel of food she had sent, which was received on 14 March 2002, as it had been sent less than six months following the previous one, while the applicant had only been entitled to two parcels per year at that time. 52. On 22 February 2005 the applicant's mother complained about the conditions of his detention and insufficient nutrition to the prison governor, who, in his turn, had a conversation with the applicant. According to the prison governor, the applicant did not complain about anything. 53. According to the applicant, the prison administration reviewed all his incoming and outgoing correspondence and did not dispatch any of his complaints to the authorities. It also delayed or reported lost some of his correspondence with his mother. 54. In May 2006 the applicant's mother complained to the State Department for Enforcement of Sentences of, inter alia, a failure of the prison authorities to dispatch the applicant's letters to various authorities. 55. On 18 August 2006 the Zhytomyr Regional Office of the Department found her allegation unsubstantiated, referring to a number of letters successfully sent by the applicant to the prosecution and other authorities in 2006. 56. On 3 August 2004 and 22 June 2005 the applicant's mother complained to the Court, on his behalf, about his alleged ill-treatment, health problems, conditions of detention, and alleged interferences of the prison administration with his correspondence. 57. On 6 July 2005 the Court received the application form signed by the applicant's mother. Enclosed to it there was a standard authority form distributed earlier by the Court Registry, which had been completed by the applicant's mother and signed both by her and the applicant and by which the latter authorised her to represent him in the proceedings before the Court. It did not state the date it had been issued. 58. On 16 August 2005 the Registry received a letter from the applicant, in which he referred to the number of his case file and reiterated the earlier submitted complaints. It was sent by his mother and contained additional notes written by her in the margins. 59. In September 2009 the applicant's lawyer submitted to the Court, inter alia, a copy of an informally worded letter of authority dated 29 August 2005, in which the applicant stated that he fully trusted his mother to represent his interests before any domestic or international authority, including the Strasbourg Court. 60. Article 106 of the Code on Enforcement of Sentences (2003) sets out rules governing the use of force in prisons. Prison officers are entitled to use force with a view to putting an end to physical resistance, violence, outrage (буйство) and opposition to lawful orders of the prison administration, or with a view to preventing prisoners from inflicting harm on themselves or on those around them. The use of force should be preceded by a warning if the circumstances so allow. If the use of force cannot be avoided, it should not exceed the level necessary for fulfilment by the officers of their duties, should be carried out so as to inflict as little injury as possible and should be followed by immediate medical assistance if necessary. Any use of force must be immediately reported to the prison governor. 61. The above rules are reiterated in paragraph 25 of the Internal Regulations of the Establishments for Enforcement of Sentences (2003). Paragraph 59 of the Regulations further specifies that prison officers are entitled to use force, including martial art techniques with a view to putting an end to wrongdoing by prisoners and overcoming their resistance to lawful orders of the administration when other means prove ineffective for the officers to be able to carry out their duties. The choice of a special measure to be used and its time and intensity depend on the circumstances, the nature of the wrongdoing and the personal characteristics of the perpetrator. 62. The relevant provisions of the Code of Criminal Procedure (1960) are summarised in Kats and Others v. Ukraine, no. 29971/04, §§ 76-80, 18 December 2008. 63. Pursuant to Article 117 of the Code on Enforcement of Sentences, prisoners suffering from contagious diseases who have not completed their medical treatment and refuse from it should be treated forcefully. A decision to that regard shall be taken by a court following a respective application from the prison administration. 64. Before it was amended on 28 December 2007, Article 151 of the Code on Enforcement of Sentences allowed life prisoners to receive no more than two parcels (packages) per year. After the aforementioned date that restriction was lifted. 65. The relevant extracts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 24 November to 6 December 2002 [CPT/Inf (2004) 34] read as follows: “94. In its report on the 2000 visit ..., the CPT stated that the treatment of prisoners serving life sentences was a major source of concern to the Committee, and it made a whole series of recommendations with a view to improving their situation. The delegation's on-the-spot observations in 2002 in Zhytomyr Prison no. 8 ... confirmed that certain improvements have been made to material conditions and some aspects of the regime. 95. Material conditions of detention for these prisoners in Zhytomyr Prison No. 8 ... were acceptable. The cells were clean, properly lit and ventilated, equipped with beds with full bedding, a table, a stool and toilets that were partitioned off. The cells measured 6 to 10.2 m². They had all been originally designed for two prisoners, although sometimes they accommodated only one. The CPT would stress that cells measuring 6 to 7 m² should, as a rule, be reserved for one prisoner (except in exceptional circumstances, where it is inadvisable to leave a prisoner alone). Cells measuring 10 m² could be considered acceptable for two people, provided the prisoners are able to spend a reasonable part of the day outside their cell. ... 96. The 2002 visit confirmed that life-sentenced prisoners may now receive two large parcels weighing 30 kg each a year and two small packets weighing 2 kg each a year; they may also buy supplies at the prison shop. It emerged, however, that the amount they could receive was much smaller than that which sentenced persons in the colonies could receive. In addition, for many of them, access to supplies from the prison shop was only theoretical since, because of lack of work, they did not earn any money. ... 105. In Prison No. 8, the delegation observed the practice of frequently moving life-sentenced prisoners ... to different cells. Life-sentenced prisoners changed cells within the section every week and changed floors every six months .... The CPT has already dealt with this issue in ... its report on the 2000 visit, in which, while acknowledging that operational considerations might exceptionally require such measures, the Committee stressed that it was desirable to avoid, as far as possible, the needless uprooting of prisoners. The CPT recommends that the Ukrainian authorities review the policy of frequently moving prisoners to different cells in Prison No. 8 and, if necessary, in Ukraine's other penitentiary establishments, in the light of these considerations. ... 107. Prison No. 8 in Zhytomyr was built in 1914. With a capacity of 1,600 places, it was accommodating 1,199 prisoners at the time of the visit. ... 111. ... material conditions varied. Many of the cells visited, although modestly equipped, were properly maintained and clean. Others, however, had been damaged by damp and were dirtier, with toilets in relatively poor condition, rusty beds and very modest bedding infested with cockroaches and other vermin. ... 112. The prison administration made real efforts to provide those prisoners who needed them with basic essentials (hygiene and cleaning products and, if necessary, extra clothing/shoes). ... 118. In the establishments visited, the delegation received numerous complaints about restrictions on the number of parcels. The CPT notes that Section 41 of the Code on the Execution of Sentences provides for different entitlements in terms of the number of parcels per year, depending on the type of regime. ... The CPT can understand that in certain penitentiary establishments there may be logistical, as well as security-related reasons for imposing a restriction on the number of parcels which can be received. However, this implies that the penitentiary administration is in a position to respond adequately to prisoners' fundamental needs (food, clothing, medication, etc.). The fact is that this is not yet the case, since economic problems are preventing it from meeting prisoners' basic needs. In the circumstances, the grounds for the restrictions should be reviewed. Indeed, some countries faced with a similar situation have granted prisoners the right to receive an unlimited number of parcels. The CPT recommends that the Ukrainian authorities review the provisions of the Code on Execution of Sentences and of the law governing detention on remand in respect of the entitlement to receive parcels, in the light of the above remarks. ... 194. A number of improvements had been made to the material conditions of detention and some aspects of the regime applicable to life-sentenced prisoners. While welcoming this progress, the CPT stressed the need to give a high priority to the introduction of a proper prison management policy for these prisoners. ... 195. With regard to material conditions of detention, the CPT recommended that in Prison No. 8 the necessary repairs be carried out to building No. 1 so that the material conditions equalled those in building No. 2, reserved for women and minors, in all respects. ... 197. With regard to health care, the CPT welcomed the progress that had been made in combating tuberculosis, in terms of a decrease in the number of prisoners suffering from tuberculosis and the fall in the number of deaths due to the disease. Substantial efforts had also been made to ensure that penitentiary establishments were provided with sufficient quantities of appropriate medication for the treatment of the disease. Progress was, however, slower with regard to the standard of food for prisoners suffering from tuberculosis, because of the limited resources of the prison administration. The CPT recommended sparing no effort in ensuring that the measures adopted to combat tuberculosis were fully implemented and giving a high priority to the implementation of the nutritional programme for prisoners suffering from the disease. ...” | 1 |
train | 001-93526 | ENG | ISL | ADMISSIBILITY | 2,009 | BENEDIKTSDÓTTIR v. ICELAND | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | The applicant, Ms Jónína Benediktsdóttir, is an Icelandic national who was born in 1957 and lives in Reykjavík. She was represented before the Court by Mr Hróbjartur Jonatansson, a lawyer practising in Reykjavík. The Icelandic Government (“the Government”) were represented by Mrs Ragna Árnadóttir, as Agent. The facts of the case, as submitted by the parties, may be summarised as follows. On 1 July 2005 an indictment was issued against Mr J.J. (the founder of a supermarket chain, Bonus, from which a multinational company the Baugur Group had originated), his son Mr J.A.J., Chief Executive Officer of Baugur Group, his daughter Ms K. and Mr T.J., a former Deputy Chief Executive Officer of the Group. It resulted from a criminal investigation instigated following a complaint by a Mr Jón Gerald Sullenberger in the United States of America, a former colleague of J.A.J. - Chief Executive Officer of the Baugur Group. The Baugur Group was a major shareholder in 365-prentmiđlum (365 Print Media Pvt. Ltd), which was the publisher of, inter alia, Fréttablađiđ, a national newspaper in Iceland. At the material time there was an ongoing public debate in Iceland relating to allegations that undue influence had been exerted by prominent figures on the most extensive criminal investigations ever carried out in Iceland. On 24, 25 and 26 September 2005 Fréttablađiđ published, without the applicant’s knowledge or consent, a number of e-mail communications which she had sent to and received from other named persons. The disputed material, consisted of direct quotations or paraphrasing of e-mail exchanges, dating back to the years 2002 and 2003, between Jón Gerald Sullenberger, the applicant and Styrmir Gunnarsson, former editor of another newspaper, Morgunblaðið, and between the applicant and T.J, then Deputy Chief Executive Officer of the Baugur Group. The communications related inter alia to Jón Gerald Sullenberger’s wishes to find a suitable lawyer to assist him in handing over to the police allegedly incriminating material he had in his possession and to represent him in a future court case against the leaders of the Baugur Group; Styrmir Gunnarsson acting as an intermediary between Jón Gerald Sullenberger and Supreme Court Advocate Jón Steinar Gunnlaugsson; the applicant’s recommendation to Jón Gerald Sullenberger that he choose Jón Steinar Gunnlaugsson; arrangements discussed between the applicant and Styrmir Gunnarsson on the handing over of material to the tax authorities; the applicant’s suggestion to him that he interview Jón Gerald Sullenberger. In relation to the recommendation of Jón Steinar Gunnlaugsson, reference was made to Kjartan Gunnarsson, managing Director of the Independence Party. The disputed publication also included information about the applicant’s own financial situation and claims, her suggestion to Styrmir Gunnarsson that the interview with Jón Gerald Sullenberger should not take place until her own claims had been honoured; her claims against J.J. of the Baugur Group; her intention conveyed to T.J. to publicise the documents she held in her possession unless the Baugur Group honoured her claims; and T.J.’s suggestion to hand the documents over to the authorities if she thought that the Baugur Group had acted unlawfully. By the time of the disputed publications, the applicant had become a well-known figure in Icelandic society; in September 2005 she had announced her candidacy for the forthcoming local council elections in Reykjavik, due to be held in the spring of 2006. The applicant submitted that, without her knowledge or consent, the e-mails had been unlawfully obtained by a third party unknown to her. Before the national courts she submitted that she had previously ran a company Aktiverum ehf., which had operated a fitness centre under the name Planetpulse. The company had had a computer domain, where the applicant and other employees had been allocated e-mail addresses. She alone knew the password to her e-mail account at the company. In 2003 the company had been wound up and its assets sold, including the computer, or server, on which the employees’ e-mail accounts had been located. No information was available as to whether the administrator of the company’s estate had taken measures to delete e-mails from the server before it was sold. Whilst the materials in question had been printed from her e-mail account in July or August 2005, the computer which she had used in 2002 had long since become inoperative. According to the applicant, after the first publication on 24 September 2005, she demanded Fréttablađiđ’s editor to discontinue further publications and to hand the e-mails over to her, but the editor refused. According to the editor, the applicant had only asked whether his intention was to continue publishing, to which he had responded in the affirmative. She had not asked to have further publication stopped or to have the material handed over to her. On 29 September 2005, the applicant requested the Reykjavík District Commissioner to issue an injunction (sections 24(1) and 26 of the Seizures, Injunctions (Etc.) Act, No. 31/1990) against 365-prentmiðlar ehf, restraining the latter from “publishing [the applicant’s] private materials in the daily newspaper ‘Fréttablaðið’ or in other media owned by the respondent, in part or in their entirety, by means of direct or indirect quotation, irrespective of whether the materials involved were e-mails of which the plaintiff was the sender or the recipient, or other such personal private documents of the plaintiff which the respondent had in its keeping.” The applicant further requested that the District Commissioner remove from the respondent all the aforementioned private materials which the respondent had in its possession and which had been used, or which were evidently intended for use, in the actions in respect of which the injunction was being requested (section 25 (2)). In addition, the applicant requested that the injunction be imposed without prior notice and served at the respondent’s business premises (section 26 and item 2 of section 21 (3) of the Enforcement Measures Act). On 30 September 2005 the District Commissioner, without prior notice and with immediate effect, imposed the requested injunction against further publication and urged the respondent to hand over all the material as requested by the applicant. Fréttablaðið’s news editor, Sigurjón M. Egilsson affirmed that he had the documents in question in his possession and handed them over to the District Commissioner, who took them into his custody. The respondent’s lawyer declared that he accepted the release of the materials and met the applicant’s demands. The above injunction was imposed temporarily, pending the outcome of the proceedings described below. According to the Government no information originating from e-mails pertaining to the applicant was published either pending the court proceedings or after. This is undisputed by the applicant. In October 2005 the applicant instituted judicial proceedings before the Reykjavík District Court against the publisher, 365-prentmiðlar ehf., and K.J., Fréttablaðið’s editor. She requested the District Court to confirm the District Commissioner’s injunction and seizure of the material kept by the publisher but made no further claims in this respect. She did not request that the materials be handed over to her. The applicant requested that the editor, K.J., be convicted and sentenced for having obtained access to her private materials, which had been stored in machine-readable (computerised) form, by trickery or another similar unlawful method, and had pried into their contents, in violation of Article 228 of the Penal Code. She also requested that he be convicted and sentenced under Article 229, pursuant to which any person who publicly disclosed the private affairs of another person without sufficient justification shall be liable to pay a fine or be sentenced to a term of up to one year’s imprisonment. In addition, she sought an order against both defendants requiring them to pay her compensation for non-pecuniary damage under, inter alia, section 26 of the Tort Damages Act No. 50/1993. By a judgment of 14 December 2005 the District Court rejected the applicant’s action on every point. In her appeal to the Supreme Court the applicant dropped her claims under Article 228 (1) and (3) and instead relied on Article 228 (2); she omitted to pursue her claims of violations of the Personal Data Act no. 77/2000 and the Telecommunications Act no. 81/2003 which had been rejected by the District Court; otherwise she maintained her claims before the latter. On 1 June 2006, the Supreme Court upheld the District Court’s judgment, giving the following reasoning: “III As is stated above, on 30 September 2005 the appellant had an injunction imposed on the publication by the defendant, 365-prentmiðlar ehf., “of the injunction plaintiff’s private materials in the newspaper Fréttablaðið or in other media owned by the injunction respondent, in part or in their entirety, through direct or indirect quotation, irrespective of whether the materials involved were e-mails of which the injunction plaintiff is the sender or the recipient, or other such personal private documents of the plaintiff which the defendant had in its keeping. Following this, she brought a legal action by a writ of summons issued by the president of the Reykjavík District Court on 6 October 2005, the case being registered on 11 October 2005. In the writ issued by the District Court, the plaintiff made the demand that the injunction be confirmed, and also that the court confirmed the decision by the District Commissioner to seize materials in the keeping of the defendant, 365-prentmiðlar ehf. No demand was made, on the other hand, regarding the rights in respect of which the appellant had sought temporary protection under the injunction, nor that the aforementioned materials be handed over to her. In this respect, the appellant’s demands before the Supreme Court, which are similar, are at variance with the rule of the second paragraph of Article 36 of the Act No. 31/1990, which states that a court judgment confirming both an injunction and the rights which it is designed to protect are to be sought in one and the same action. Nevertheless, this flaw in the plaintiff’s claim is not sufficient, in itself, to result in the dismissal of the case. On the other hand, the plaintiff must content herself with the fact that in this case, the Court’s resolution will extend solely to whether the formal and material conditions for confirming the injunction obtain. As has been stated above, the plaintiff applied, in her request for an injunction, to have the defendant, 365-prentmiðlar ehf., prevented from publishing matter from unspecified private materials of hers, in their entirety or in part, and irrespective of whether this were done through direct or indirect quotation. Even though the plaintiff sought to define the content of her demand more precisely by stating that this applied to e-mails which she had either sent or received, and other similar personal private documents, no precise statement was made as to whether her demand covered all matters appearing in these materials, irrespective of whether they were generally known or corroborated by other available sources. No distinction was made in her demand between materials originating from the appellant herself or directed to her by those who sent her messages, and materials which had nothing to do with her but nevertheless had come into her possession. No further explanation was given, in the appellant’s injunction request, of what was meant by the words “other such personal private documents,” and no evidence has been revealed to suggest that such documents came into the possession of the defendant, 365-prentmiðlar ehf. No attempt was made to define in further detail what matters these documents were considered to refer to. Under the circumstances, it was not possible to impose an injunction which it would be possible to maintain, in terms of its content, under the rules of section 32 of the Act No. 31/1990 unless, as appropriate, the appellant had specified her demand in further detail at the time when the injunction was imposed and it came to light what materials this defendant had in its possession (see the second paragraph of section 31 of the same Act). The appellant’s request for an injunction was thus both too broad and too indefinite for it to be possible to grant it. In the light of these considerations, the Court has no alternative but to reject the appellant’s demand that it confirm the injunction. According to the established facts of the case, the District Commissioner has held in his cusotdy the materials that were removed from the keeping of the defendant, 365-prentmiðlar ehf., when the injunction was imposed (see the second paragraph of section 25 of the Act No. 31/1990). Under Section VI of the same Act, it is not possible to seek a separate judgment confirming such a measure taken when an injunction is imposed: a ruling on the lawfulness of such a measure is to be made in connection with the validation of the measure as a whole. The appellant has not submitted any claim in this case for the Court to adjudicate on her right to have these materials handed over to her from the keeping of the District Commissioner. The question therefore cannot be entertained further in this case. IV Before the District Court, the appellant demanded that the defendant, K.J., be punished for violations of Article 228 of the General Penal Code. In the writ of summons it was stated that the defendant had violated this provision by obtaining access to the appellant’s private materials, which had been stored in machine-readable form, by trickery or another similar unlawful method, and pried into their contents. This description in the writ of summons accords with the provision of the first paragraph of Article 228, which prescribes punishment for such conduct; that provision lists letters and other materials containing the private affairs of another person. Before the Supreme Court, the appellant has dropped her demand for punishment under the first and third paragraphs of Article 228. She demands that the defendant be punished under the second paragraph of Article 228, which prescribes punishment for rendering useless, or concealing, the private materials listed in the first paragraph of the same Article. In the writ of summons before the District Court, the defendant’s alleged conduct was not described in such a way that this provision could apply to it and the demand for punishment could be based on it (see item d of the first paragraph of section 80 of the Act No. 91/1991). It follows immediately from this reason that the defendant cannot be punished under the second paragraph of Article 228 of the General Penal Code. The appellant also bases her demand that the defendant, K.J. be punished on Article 229 of the Penal Code, under which any person who publicly discloses the private affairs of another person in the absence of sufficient reason to justify the action, is to be subjected to a fine or up to one year’s imprisonment. In connection with this demand, the Court must resolve the question of whether the coverage in Fréttablaðið concerned the appellant’s private affairs, which were to be found in the aforementioned computer documents, and if so, whether the newspaper disclosed them publicly in the absence of sufficient reason to justify doing so. It has been mentioned above that the coverage in the newspaper was based, to some extent, on correspondence between other persons, which passed to the appellant, and from her to the defendant, 365-prentmiðlar ehf. This correspondence contained nothing at all about the appellant, and the coverage in the newspaper that was based on it therefore did not constitute any violation against her. For the most part, the coverage in the newspaper was based on correspondence between the appellant herself and other persons which was no longer stored in her computer, but had come into the possession of other parties in printed form. Mention has been made above of the subject of that coverage, which involved the planning of charges against the managers of Baugur Group Ltd; the newspaper’s coverage also focussed on e-mail correspondence between the appellant and another person concerning her financial claims against one of the representatives of the company. Taking this into consideration, the Court must concur with the appellant that Fréttablaðið’s writings about her financial affairs concerned her private affairs in the sense of Article 229 of the General Penal Code, as did those parts of these writings which reported on the appellant’s encouragement of, and her other involvement in, plans to bring charges against named individuals. Then there arises the argument by the defendants that there was sufficient reason to justify the publication of coverage that drew on the aforementioned e-mail correspondence and contained, amongst other things, the appellant’s private affairs. In adjudicating on this, the Court must take into consideration the fact that when Fréttablaðið’s coverage appeared, matters connected with a charge concerning alleged criminal conduct by the managers of Baugur Group Ltd had for a long time featured prominently in public discussion in Iceland and been the subject of intense controversy resulting, amongst other things, from a police search of the premises of the company in August 2002 and a charge against some of its managers in July 2005. The newspaper’s coverage contained material that was of public interest and concerned a case that had been the subject of great controversy in Icelandic society. Even though the coverage in the newspaper had included disclosures concerning the appellant’s financial affairs, these affairs were, says the defendant, so closely intertwined with the news material as a whole that it was not possible to distinguish between them. The Court concurs with the defendant that no greater encroachment was made on the appellant’s private life than was unavoidable in a public discussion of a matter that was of concern to the public. Taking all this into consideration, the Court can accept that sufficient reason existed to justify the publication of this coverage by the newspaper. The defendant, K.J., cannot be punished under Article 229 of the General Penal Code. Finally, the appellant demands that the defendants be ordered, jointly, to pay her compensation for non-pecuniary damage amounting to ISK 5,000,000 under Section 26 of the Tort Damages Act, No. 50/1993 (see section 13 of the Act No. 37/1999). The Court reached the conclusion above that the limits of permitted expression were not overstepped in the coverage in Fréttablaðið. As is described in the summing-up in the District Court judgment, this claim has not been presented in such a way as to give occasion for accepting it on other grounds. The defendants must therefore be acquitted of this demand”. On 26 September 2005 another newspaper, DV, went further than other media in its discussion of the dealings between the applicant and the editor of Morgunblaðið, in connection with the reporting on their e-mail correspondence. The applicant brought separate court proceedings against DV’s editors seeking their conviction and sentence under Article 229 of the Penal Code, for having, in their newspaper report, disclosed her private affairs without sufficient reason. The editors argued that the news report in question was of interest and concern to the public in view of the public discussion about the connection between the persons referred to in the report and the Baugur case. At the same time, they pointed out that the applicant was a candidate in the primary round of selection of candidates for the Independence Party for the elections to the Reykjavík City Council, and that Styrmir Gunnarsson had been an influential figure in the Independence Party and Icelandic politics in general for many decades. When such persons were connected by particular bonds at the same time as they were working for the advancement of a matter in which they were interested, in order to promote justice, as they saw it, it was important for the normal formation of opinion that the public be allowed to know about the connections that existed between the persons in question. The Reykjavík District Court rejected these arguments by a judgment of 8 December 2006, and convicted both editors of a violation of the applicant’s rights under Article 229 of the Penal Code and sentenced them each to a fine of ISK 150,000 and to pay her ISK 500,000 in compensation for non-pecuniary damage. On an appeal by the editors, the Supreme Court, by a judgment of 4 October 2007, upheld the District Court judgment. Articles 228 and 229 of the General Penal Code, No. 19/1940 may be found in its Chapter XXV on “Defamation and Offences against the Inviolability of Private Life”. These provisions read: Article 228 “Any person who pries into letters, documents, diaries or other comparable materials containing information about another person’s private affairs, having gained access to the materials by trickery, opened letters, entered a locked container or employed another similar method, shall be liable to a fine or up to one year’s imprisonment. The same punishment shall apply to a person who unlawfully obtains access to other persons’ data or programs stored in a computerised form. The same punishment shall apply to the destruction or concealment of the private materials referred to in the first paragraph of this Article. Any person who pries into containers belonging to another person without sufficient reason shall be liable to up to three months’ imprisonment.” Article 229 “Any person who publicly discloses the private affairs of another person in the absence of sufficient reason to justify the action shall be liable to a fine or up to one year’s imprisonment.” Section 26 of the Tort Damages Act, No. 50/1993 read: Article 26 “A person who a. intentionally, or through gross negligence, causes bodily harm or b. is responsible for an unlawful act of malice against the freedom, peace, honour or person of another person may be made to pay compensation for non-financial damage to the person against whom the offence was committed. A person who, intentionally or through gross negligence, causes the death of another person, may be made to pay the spouse, children or parents of that person compensation for non-financial damage.” The applicant drew attention to section 47(5) of the Telecommunications Act, no. 81/2003. Chapter IX on the protection of personal data and the sanctity of private life, read: “Any person who by coincidence, mistake or without special authorisation receives telegrams, pictures or other telecommunicated signs or symbols, or listens to telephone conversations may not write down any such material or use them in any manner. Additionally, he should notify the sender that data were incorrectly received by him. It is obligatory to exercise the utmost confidentiality in such instances” According to section 74 violations of the Act were punishable by fines or imprisonment. The applicant also pointed to sections 5 and 7 of the Act on the Protection of Privacy as regards the Processing of Personal Data, no. 77/2000. | 0 |
train | 001-4570 | ENG | HUN | ADMISSIBILITY | 1,999 | SABRI ALI AL-JAZAEERY v. HUNGARY | 4 | Inadmissible | Marc Fischbach | The applicant, born in 1968, is an Iraqi national. When introducing his application, he was held at the Communal Accommodation of the Budapest Border Guards Directorate, located on the premises of the Budapest Ferihegy Airport. Before the Court he is represented by Mr. J. Somogyi, a lawyer practising in Budapest and acting on behalf the Hungarian Helsinki Committee, and by Mr. F. Kőszeg, the executive director of the Helsinki Committee. The facts of the case, as submitted by the parties, may be summarised as follows. A. On 14 December 1998 the applicant arrived at the Budapest Ferihegy II Airport from Cairo. His Iraqi passport contained a transit visa for Hungary issued by the Hungarian Embassy in Amman, Jordan. He possessed an Amman-Cairo-Budapest return flight ticket. At the immigration control a border guard expert found that it was likely that the applicant’s passport had been falsified. The applicant’s entry was therefore denied and his return to Egypt was ordered. Subsequently he lodged a request for recognition as a refugee. On 15 December 1998 the applicant, who had meanwhile been committed to the Communal Accommodation of the Budapest Border Guards Directorate, was heard by an officer of the Border Guards Directorate in the presence of an interpreter. On 16 December 1998 the applicant was heard by the Office for Refugees and Migration Affairs (“the Office”). In these proceedings the applicant, assisted by an interpreter, stated that in 1991 his late father, once belonging to the opposition in Iraq, had been arrested and executed in July 1992. Following the arrest of their father, the applicant’s two brothers had fled from Iraq. In connection with his father’s political activity, the applicant had been arrested in March 1991 and had been detained until late 1992, during which period he had regularly been subjected to interrogation by means of electric shocks. Following his release he had been under surveillance by the Iraqi security service. In 1995 he had obtained a passport with an exit visa and left Iraq for Jordan where he had spent one month being under constant surveillance by Iraqi agents. On his return to Iraq he had been detained again for about a month and interrogated by the Iraqi security service concerning his contacts with his late father’s political allies in Jordan. On 22 December 1998 the Office dismissed the applicant’s request for recognition as a refugee as unsubstantiated. The decision specified that a subsequent action to challenge the lawfulness of the administrative proceedings before the civil courts would be of no suspensive effect concerning the applicant’s return to Egypt as ordered. On the same day, the Communal Accommodation was designated as the applicant’s compulsory place of residence. On 30 December 1998 the applicant brought an action before the Budapest Regional Court to challenge the decision of 22 December 1998 concerning the dismissal of his request for asylum. These proceedings are still pending. Meanwhile, apparently during the night 31 December 1998 to 1 January 1999 the Hungarian authorities attempted to return the applicant to Amman via Cairo. Having been denied entry to Egypt, he was, however, returned to Hungary on 2 January 1999. On the same day a meeting between the applicant and the Iraqi consul in Budapest took place on the premises of the Border Guards Directorate. On 18 January 1999 the Border Guards Directorate requested the Office to form an opinion as to any reasons excluding the applicant’s deportation. On 25 January 1999 the Office informed the Border Guards Directorate that it held that, in pursuance of S. 32 § 1 of the 1993 Aliens Act, the applicant could not be deported to Iraq or Egypt. B. Relevant domestic law 1. The 1993 Aliens Act (Act no. 86 of 1993) Section 4 § 1 provides that foreigners may cross the Hungarian state frontier and stay on the territory of the Republic of Hungary only in possession of valid passports verifying their citizenship and particulars of identification, and with valid visas issued by the Hungarian authorities. Section 5 § 1 provides that, at the request of the Hungarian authorities, foreigners shall certify - unless international agreements provide otherwise - that the financial means necessary for entry to, stay in and exit from Hungary, as well as the visas necessary for further travel or return, are at their disposal. According to S. 25 §§ 1, 2 and 4, all conditions of entry and stay shall be inspected by the border guards at the time of entry to the country by the foreigner, prior to crossing the state frontier, while the availability of financial means shall be inspected by the customs authority. Foreigners who do not satisfy the conditions prescribed for entering the country, shall be - subject to the provisions of S. 32 § 1 - returned to the territory of the country they arrived from. Upon notification, an appeal may be lodged against the order of return. Section 32 § 1 provides that foreigners shall not be returned or expelled to such countries, or to the frontier of such areas, where they would be exposed to the danger of persecution for reasons connected with their race, religion, national, social belonging or political views; furthermore, to the territory of such states, or to the frontier of such areas, where it is to be greatly feared that they would be exposed to torture, inhuman or degrading treatment. These reasons shall be established by the refugee authority. Section 43 provides the possibility of ordering an alien’s residence at a designated place. According to paragraphs 1 and 3, the police headquarters and the directorate or branch of Border-Guards may order the residence of the foreigner at a designated place, restricting his personal liberty, if: (a) he is not able to certify his identity, until the establishment thereof; or (b) he is not able to certify the lawfulness of his stay in Hungary, until the verification thereof or until an official permit to stay is issued; or (c) this is necessary for the purposes of guaranteeing the execution of an expulsion, until the establishment of the conditions of expulsion; or (d) his return was ordered (see S. 25 above); or (e) his return or expulsion should take place, but he may not be returned or expelled in accordance with the prohibition under S. 32 § 1. The compulsory place of residence may also be designated at a communal accommodation, if the foreigner is not able to support himself, and no appropriate accommodation, financial means, income and inviting party or relatives obliged to support him are at his disposal. Paragraph 5 provides that, although no administrative appeal may be lodged against the order to reside at a designated place, the foreigner may request the court review of the decision. The procedure of the court shall be governed by the provisions applicable to the court review of the lawfulness of ‘custody for the purposes of supervision of aliens’. These provisions are as follows: Section 39 §§ 1 and 2 provide that foreigners may request - during the period of custody - a review of the lawfulness of the decision from the local court competent at the place of custody. The submission of such a request has no suspensive effect in respect of the enforcement of the custody order. If the foreigner requests the court review of the lawfulness of the ‘custody for purposes of supervision of aliens’, he shall be brought before the court in order to be heard. According to S. 41 § 1, if the court finds that the foreigner’s taking into, or holding in, custody violates the law, it shall take immediate measures for his release. Section 42 §§ 1, 3 and 4 provide that the authority ordering the taking into custody as well as the foreigner may appeal against the decision of the court. The appeal may be submitted orally in the course of the hearing or in writing to the local court within three days following the announcement of the decision. Appeals submitted against the decision of the local court shall be decided by the regional court within five days. Section 50 requires that the court shall act promptly in matters of judicial review of decisions of the immigration authorities. 2. The 1997 Asylum Act (Act no. 139 of 1997) Section 33 §§ 3 and 4 provide that the applicant shall have the opportunity to use legal assistance of his choice, at his expenses, or to accept free legal aid offered by any registered organisation providing legal protection on a regular basis. The aliens control authorities and the refugee authorities shall provide the person applying for protection with information on his rights and the possibility to use legal assistance during the proceedings. According to S. 42 § 1, the immigration authority shall, prior to allowing a foreigner to enter the territory of the Republic of Hungary at the border crossing point of the International Airport, immediately notify the refugee authority with a view to instituting asylum proceedings, if such a foreigner refers to a reason for seeking asylum defined in this Act, arrived from a safe country of origin or a safe third country, and is unable to prove his identity by means of a passport or other appropriate document. 3. Government Decree no. 64/1994 (of 30 April 1994) on the Implementation of the 1993 Aliens Act According to S. 25 § 1, the competent aliens control authority shall issue ex officio a certificate permitting temporary residence to any foreigner who does not hold a permit to enter and stay in Hungary issued under the 1993 Aliens Act or other legislation and may not be returned or expelled from Hungary in compliance with S. 32 § 1 of the 1993 Aliens Act or may not leave the country for other reasons. Paragraph 3 provides that the certificate’s period of validity shall be determined by the aliens control authority by means of appreciating the foreigner’s circumstances. The period of validity may be extended until the foreigner’s departure or until he is granted a residence permit. 4. Government Decree no. 24/1998 (of 2 February 1998) on the Detailed Rules of the Refugee Determination Procedure Section 22 §§ 4 and 5 govern the “airport procedure”, according to which if an applicant does not prove his personal identity, moreover, the Office finds that he arrived from a safe third country and this presumption is not refuted, then the Office promptly delivers a decision on the rejection of the application and informs the aliens control authority thereof. If a decision on the merits cannot be delivered promptly or in accelerated procedure, the Office arranges for the applicant’s entry into the country and proceeds with the application under the general rules. 5. The Code of Civil Procedure (Act no. 3 of 1952) a. General rules Section 95 § 1 provides that if a submission is not in conformity with the provisions of the Act or must be supplemented or corrected for another reason, the presiding judge shall give it back to the party for completion, fixing a short time limit and indicating the deficiencies, and shall simultaneously warn the party that the court will dismiss the submission or handle it according to its incomplete contents, if it is submitted incompletely again. Section 121 § 1 requires that an action must be brought by filing a submission indicating the trial court; the names, domiciles and legal positions of the parties and their representatives; the rights intended to be enforced, the relevant facts and evidence; data from which the competence and jurisdiction of the court can be established and an express claim. According to S. 124 § 1, the presiding judge shall examine the action immediately after its receipt to see whether it has to be given back to the party for completion, forwarded to another court or rejected without issuing summonses and shall take the necessary measures without delay. Section 130 § 1 (j) provides that an action shall be rejected by the court without issuing summonses, inter alia, if it can be established that the plaintiff did not re-file the submission given back to him for completion within the time limit fixed or re-filed it incompletely and, as a consequence, the action cannot be adjudged. b. Judicial review of administrative decisions Section 324 provides that the application of the general rules contained in Chapters 1 to 14 of the Code to litigations concerning the judicial review of administrative decisions is subject to the provisions in Chapter 20. Some of these special rules are outlined below. Section 330 §§ 1 and 4 provide that the action shall be filed either with the authority which has passed the first instance administrative decision or with the competent court and within 30 days from the service of the decision requested to be reviewed. The first instance authority shall forward the action along with the case-file to the competent court within 8 days. If the plaintiff failed to observe the time-limit fixed for filing the action, he may apply for the reinstatement of the proceedings. The defendant authority shall not have the right to reject an action filed out of time, rather, it shall forward it to the court even if no request for the reinstatement of the proceedings has been filed by the plaintiff. According to S. 331, the authority, which has passed the decision requested to be reviewed, shall submit its written observations in reply to the action either when forwarding the case-file to the court (in case the action has been filed with the authority), or otherwise within 8 days from the date when the authority has been notified of the action by the court. | 0 |
train | 001-101568 | ENG | RUS | GRANDCHAMBER | 2,010 | CASE OF SAKHNOVSKIY v. RUSSIA | 2 | Preliminary objection dismissed (non-exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (victim);Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;David Thór Björgvinsson;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;George Nicolaou;Giorgio Malinverni;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Ledi Bianku;Mark Villiger;Mirjana Lazarova Trajkovska;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen;Renate Jaeger;Sverre Erik Jebens | 10. The applicant was born in 1979. He is currently serving his sentence in the Novosibirsk Region. 11. On 30 April 2001 the applicant was arrested on suspicion of having murdered his father and uncle. The applicant made a written request to be provided with a legal-aid lawyer. On the same day an expert examination of fingerprints and a forensic examination were ordered and on 3 May 2001 the applicant was remanded in custody. 12. On 4 May 2001 legal-aid counsel, Ms P., was appointed to assist the applicant, and he was charged with aggravated murder on 10 May 2001. 13. From May to September 2001 a number of expert examinations were carried out. Subsequently the applicant received copies of orders for such examinations. He signed each of them confirming their receipt and indicating that he had no comments or requests. 14. On 30 September 2001 the detention order was lifted and replaced with an undertaking not to leave his place of residence. 15. In October 2001 the applicant's former cellmate in the detention facility, Mr Zh., testified that the applicant had told him in detail how he had murdered his father and another man. 16. On an unknown date the applicant's friend, Mr R., gave a witness statement alleging that the applicant had asked him to murder his father and that when R. refused the applicant seemingly intended to do it himself. 17. On 5 November 2001 the applicant was again remanded in custody. 18. On 20 December 2001 the Novosibirskiy Regional Court examined the criminal charges against the applicant. The applicant pleaded not guilty. The court examined seventeen witnesses including Zh. and R., and found the applicant guilty of the murder of two persons, sentencing him to eighteen years' imprisonment. In its judgment the court referred to witness statements, forensic reports and extensive material evidence. 19. The applicant and his lawyer appealed, alleging that Zh. and R. had given their statements under pressure from the police and claiming that the investigation had been vitiated by numerous violations of the applicant's defence rights. They also complained that they had received the expert examination orders belatedly. 20. On 12 May and 29 July 2002 the applicant requested to be assigned another lawyer to represent him in the appeal proceedings because Ms P. was unable to attend the hearing, as she was already engaged in another trial. 21. On an unknown date the applicant was informed that his participation in the appeal hearing would be ensured by video link. On 26 and 30 July 2002 he requested leave to attend the appeal proceedings in person because he did not consider that the video link would provide him with an adequate opportunity to participate in the hearing. 22. On 16 October 2002 the Supreme Court of the Russian Federation ordered the Moscow IZ-77/3 detention centre to ensure the applicant's participation in the appeal hearing, which was to take place on 31 October 2002, by video link. 23. On 31 October 2002 the Supreme Court of the Russian Federation examined the applicant's appeal. The applicant participated in the proceedings by video link. No defence counsel attended the hearing. The court dismissed the applicant's appeal, having found no proof that the testimony of Zh. and R. was false. As regards the alleged breach of his defence rights, the court found this to be unsubstantiated. 24. In the following months the applicant filed several supervisory review complaints. In letters of 24 April and 19 November 2003 the Novosibirsk Prosecutor's Office and the General Prosecutor's Office informed the applicant that they refused to entertain his complaints. The Novosibirsk Prosecutor's Office noted, in particular, that the applicant's right to take part in the appeal proceedings had been fully respected. On 2 July 2003 Judge R. of the Supreme Court refused to open supervisory review proceedings on the applicant's complaint. That decision was confirmed by the President of the Supreme Court on 5 December 2003. On 4 February 2004 another supervisory-review complaint by the applicant was returned without examination, with reference to the earlier decisions on that matter. 25. On 26 March 2007 the Court decided to communicate the application to the Russian Government. On 4 July 2007 the Presidium of the Supreme Court granted an application for supervisory review by the Deputy Prosecutor General and quashed the Supreme Court's appeal decision of 31 October 2002. The Presidium found that the applicant's right to legal assistance had been violated in the appeal hearing and remitted the case for a fresh examination before the appellate court. 26. The applicant requested to take part in the appeal hearing in person. On 10 August 2007 the Supreme Court, sitting as a bench of three judges, granted him leave to attend in person and ordered the applicant's temporary transfer from the prison in the Novosibirsk Region to a detention facility in Novosibirsk (over 3,000 km from Moscow), apparently to allow him to use the video link. 27. On 20 August 2007 the applicant made a new statement of appeal. He requested the Supreme Court to examine his appeal on the basis of this new statement alone and also requested leave to attend the appeal hearing in person rather than by video link. 28. On 29 November 2007 the Supreme Court, sitting in Moscow, examined the case. First, it considered the applicant's requests of 20 August 2007. In a separate decision on procedure it found that there were no grounds to accept the applicant's new statement of appeal and decided to examine the case on the basis of the statement by the applicant's former counsel, Ms P., from 2002. It also rejected the applicant's request to attend in person, finding that the video link would be sufficient to ensure that the applicant could follow the proceedings and make objections or other submissions, and that this form of participation would be no less effective than if he was personally present in the courtroom. The Supreme Court then introduced the applicant to Ms A., his new legal-aid counsel who was present in the Supreme Court's courtroom and then allowed them fifteen minutes of confidential communication by video link before the start of the hearing. All persons, both in the courtroom and in the detention facility, left the rooms. 29. The applicant rejected the assistance of Ms A. on the grounds that he needed to meet his counsel in person. The Supreme Court, having noted that the applicant did not rely on any divergence with Ms A. in his defence, did not request her replacement by another legal-aid lawyer, did not accept the Supreme Court's proposal to retain private counsel of his choosing and, taking into account the quashing of the previous appeal decision on the grounds of a lack of legal assistance, rejected the applicant's objection to the counsel's assistance. Accordingly, Ms A. represented the applicant in the appeal hearing. 30. On the same day the Supreme Court examined the merits of the case. It upheld the judgment of the Novosibirsk Regional Court of 20 December 2001, making one correction to the text and excluding one piece of evidence. The substantive findings and the applicant's sentence remained unchanged. 31. Article 51 of the Code of Criminal Procedure of the Russian Federation (in force from 1 July 2002) provides for mandatory legal representation if the accused faces serious charges carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty. Unless counsel is retained by the accused, it is the responsibility of the investigator, prosecutor or the court to appoint legal-aid counsel. Article 52 of the Code provides that the accused can waive his right to legal assistance, but such waiver must be established in the written form. The waiver can be revoked at any moment. 32. Article 373 of the Code provides that the appellate court (суд кассационной инстанции) examines appeals (кассационные жалобы) with a view to verifying the lawfulness, validity and fairness of judgments. Under Article 377 §§ 4 and 5 of the Code, it may directly examine evidence, including additional material submitted by parties. 33. Article 402 of the Code (“Appeal against judgments, decisions and rulings which have come into force”) stipulates as follows: “1. Defendants who have been convicted or acquitted, ... and the public prosecutor shall be entitled to request review of court judgments ... which have come into force in accordance with the procedure set out in the present Chapter. 2. The public prosecutor's request shall be termed a supervisory-review application (представление). Other parties' requests shall be termed supervisory-review complaints (жалоба).” 34. Article 406 of the Code (“Examination of supervisory-review complaints or applications”) stipulates as follows: “1. A supervisory-review complaint or application shall be examined by a supervisory-review court within 30 days of being lodged. 2. The judge who examines the supervisory-review complaint or application may, where necessary, obtain ... any criminal case file ... 3. After examining the supervisory-review complaint or application, the judge shall decide as follows: either (i) to dismiss the supervisory-review complaint or application; or, (ii) to institute supervisory-review proceedings and to pass the supervisory-review complaint or application for consideration to the supervisory-review court ... 4. The President of the [competent] court may decline to accept the judge's decision to dismiss the supervisory-review complaint or application. In this case he shall set aside this decision and give a decision according to paragraph 3 (ii) [above].” 35. Article 412 of the Code (“Lodging of new supervisory-review complaints or applications”) stipulates as follows: “1. It is forbidden to lodge new supervisory-review complaints or applications with a court which has already dismissed such complaints or applications. 2. Where an earlier judgment, decision or ruling has been quashed on appeal or under the supervisory-review procedure, it is possible to lodge a supervisory-review complaint or application against it in accordance with the rules of the present Chapter, irrespective of the reasons why the original judgment, decision or ruling was quashed.” Article 413 of the Code, setting out the procedure for re-opening of criminal cases, reads, in so far as relevant, as follows: “1. Court judgments and decisions which became final should be quashed and proceedings in a criminal case should be re-opened due to new or newly discovered circumstances. ... 4. New circumstances are: ... (2) a violation of a provision of the European Convention for the Protection of Human Rights and Fundamental Freedoms committed by a court of the Russian Federation during examination of a criminal case and established by the European Court of Human Rights, pertaining to: (a) application of a federal law which runs contrary to provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms; (b) other violations of provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms; ....” 36. Examining the compatibility of Article 51 of the Code of Criminal Procedure with the Constitution, the Constitutional Court ruled as follows (decision no. 497-O of 18 December 2003): “Article 51 § 1 of the Code of Criminal Procedure, which describes the circumstances in which the participation of defence counsel is mandatory, does not contain any indication that its requirements are not applicable in appeal proceedings or that the convict's right to legal assistance in such proceedings may be restricted.” 37. That position was subsequently confirmed and developed in seven decisions delivered by the Constitutional Court on 8 February 2007. It found that free legal assistance for the purpose of appellate proceedings should be provided in the same conditions as for earlier stages in the proceedings and that it was mandatory in the situations listed in Article 51. It further underlined the obligation of courts to secure participation of defence counsel in appeal proceedings. 38. On 18 December 2003 the Constitutional Court of Russia dismissed a constitutional complaint by Mr R. as inadmissible. In its ruling (определение) the Constitutional Court held inter alia that Article 51 of the Code of Criminal Procedure, which defined situations where participation of a defence lawyer in the criminal proceedings was mandatory, also applied to the proceedings before the court of appeal. 39. In a number of cases (decisions of 13 October 2004 and 26 January, 9 February, 6 April, 15 June and 21 December 2005, 24 May and 18 October 2006, 17 January 2007, 3 September and 15 October 2008) the Presidium of the Supreme Court of the Russian Federation quashed judgments of appeal courts and remitted cases for fresh consideration on the ground that the courts had failed to secure the presence of defence counsel in the appeal proceedings, although it was obligatory for the accused to be legally represented. That approach was also confirmed by the Presidium of the Supreme Court in its report concerning cases adopted in the third quarter of 2005 (Decree of 23 November 2005) and by the Decree of the Plenary of the Supreme Court of 23 December 2008, as amended on 30 June 2009. In the later document the Supreme Court emphasised that the accused could waive his right to a lawyer only in writing, and that the court was not bound by that waiver. | 1 |
train | 001-57420 | ENG | IRL | CHAMBER | 1,979 | CASE OF AIREY v. IRELAND | 2 | Violation of Art. 6-1;Violation of Art. 8;Just satisfaction reserved | null | Particular facts of the case 8. Mrs. Johanna Airey, an Irish national born in 1932, lives in Cork. She comes from a humble family background and went to work at a young age as a shop assistant. She married in 1953 and has four children, the youngest of whom is still dependent on her. At the time of the adoption of the Commission’s report, Mrs. Airey was in receipt of unemployment benefit from the State but, since July 1978, she has been employed. Her net weekly wage in December 1978 was £39.99. In 1974, she obtained a court order against her husband for payment of maintenance of £20 per week, which was increased in 1977 to £27 and in 1978 to £32. However, Mr. Airey, who had previously been working as a lorry driver but was subsequently unemployed, ceased paying such maintenance in May 1978. Mrs. Airey alleges that her husband is an alcoholic and that, before 1972, he frequently threatened her with, and occasionally subjected her to, physical violence. In January 1972, in proceedings instituted by the applicant, Mr. Airey was convicted by the District Court of Cork City of assaulting her and fined. In the following June he left the matrimonial home; he has never returned there to live, although Mrs. Airey now fears that he may seek to do so. 9. For about eight years prior to 1972, Mrs. Airey tried in vain to conclude a separation agreement with her husband. In 1971, he declined to sign a deed prepared by her solicitor for the purpose and her later attempts to obtain his co-operation were also unsuccessful. Since June 1972, she has been endeavouring to obtain a decree of judicial separation on the grounds of Mr. Airey’s alleged physical and mental cruelty to her and their children, and has consulted several solicitors in this connection. However, she has been unable, in the absence of legal aid and not being in a financial position to meet herself the costs involved, to find a solicitor willing to act for her. In 1976, Mrs. Airey applied to an ecclesiastical tribunal for annulment of her marriage. Her application is still under investigation; if successful, it will not affect her civil status. Domestic law 10. In Ireland, although it is possible to obtain under certain conditions a decree of nullity - a declaration by the High Court that a marriage was null and void ab initio -, divorce in the sense of dissolution of a marriage does not exist. In fact, Article 41.3.2o of the Constitution provides: "No law shall be enacted providing for the grant of a dissolution of marriage." However, spouses may be relieved from the duty of cohabiting either by a legally binding deed of separation concluded between them or by a court decree of judicial separation (also known as a divorce a mensa et thoro). Such a decree has no effect on the existence of the marriage in law. It can be granted only if the petitioner furnishes evidence proving one of three specified matrimonial offences, namely, adultery, cruelty or unnatural practices. The parties will call and examine witnesses on this point. By virtue of section 120 (2) of the Succession Act 1965, an individual against whom a decree of judicial separation is granted forfeits certain succession rights over his or her spouse’s estate. 11. Decrees of judicial separation are obtainable only in the High Court. The parties may conduct their case in person. However, the Government’s replies to questions put by the Court (see paragraph 7 above) reveal that in each of the 255 separation proceedings initiated in Ireland in the period from January 1972 to December 1978, without exception, the petitioner was represented by a lawyer. In its report of 9 March 1978, the Commission noted that the approximate range of the costs incurred by a legally represented petitioner was £500 - £700 in an uncontested action and £800 - £1,200 in a contested action, the exact amount depending on such factors as the number of witnesses and the complexity of the issues involved. In the case of a successful petition by a wife, the general rule is that the husband will be ordered to pay all costs reasonably and properly incurred by her, the precise figure being fixed by a Taxing Master. Legal aid is not at present available in Ireland for the purpose of seeking a judicial separation, nor indeed for any civil matters. In 1974, a Committee on Civil Legal Aid and Advice was established under the chairmanship of Mr. Justice Pringle. It reported to the Government in December 1977, recommending the introduction of a comprehensive scheme of legal aid and advice in this area. At the hearings on 22 February 1979, counsel for the Government informed the Court that the Government had decided in principle to introduce legal aid in family-law matters and that it was hoped to have the necessary measures taken before the end of 1979. 12. Since Mrs. Airey’s application to the Commission, the Family Law (Maintenance of Spouses and Children) Act 1976 has come into force. Section 22 (1) of the Act provides: "On application to it by either spouse, the court may, if it is of the opinion that there are reasonable grounds for believing that the safety or welfare of that spouse or of any dependent child of the family requires it, order the other spouse, if he is residing at a place where the applicant spouse or that child resides, to leave that place, and whether the other spouse is or is not residing at that place, prohibit him from entering that place until further order by the court or until such other time as the court shall specify." Such an order - commonly known as a barring order - is not permanent and application may be made at any time for its discharge (section 22 (2)). Furthermore, the maximum duration of an order given in the District Court - as opposed to the Circuit Court or the High Court - is three months although provision is made for renewal. A wife who has been assaulted by her husband may also institute summary criminal proceedings. | 1 |
train | 001-108831 | ENG | RUS | CHAMBER | 2,012 | CASE OF GADZHIKHANOV AND SAUKOV v. RUSSIA | 4 | No violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen | 6. The first applicant was born in 1927 and lives in Derbent, Republic of Dagestan. The second applicant was born in1977 and lives in Severodvinsk, Arkhangelsk Region. 7. By a judgment of 20 December 1999 the Derbent Town Court of the Republic of Dagestan granted in part the applicant’s claim against the town administration, recognized that the State had unlawfully confiscated the house owned by his father and awarded him compensation in the amount of 8,349 Russian roubles (RUB). 8. On 2 February 2000 the Supreme Court of the Republic of Dagestan upheld that judgment on appeal, and on the same day the trial court forwarded the applicant a writ of execution. The trial court specified in the writ of execution that the debtor was the Commission for Restoration of the Rights of the Rehabilitated Victims of Political Repressions at the town administration. 9. The applicant did not take any further steps to recover the judicial award. As a result, the judgment of 20 December 1999 remains unenforced. 10. By a judgment of 19 July 2005 the Arkhangelsk Regional Court convicted the applicant of various crimes and sentenced him to imprisonment. That judgment was quashed by way of supervisory review on 11 April 2007 by the Presidium of the Arkhangelsk Regional Court (“the Presidium”). Having found that the lower courts had incorrectly assessed evidence in the case, the Presidium decided to discontinue the criminal proceedings against the applicant. 11. The applicant sued the State for damages. By a judgment of 20 March 2008 the Severodvinsk Town Court of the Arkhangelsk Region awarded the applicant compensation for unlawful detention in the amount of RUB 1,000. On 19 June 2008 the trial court issued a writ of execution and sent it to the applicant. The above judgment was upheld on appeal by the Arkhangelsk Regional Court on 2 October 2008. By a letter of 23 December 2008 the Legal Department of the Ministry of Finance informed the applicant of the domestic procedure to follow in order to recover the judicial award in his favour. 12. Despite that information the applicant did not take any further steps to recover the judicial award. As a result, the judgment of 20 March 2008 remains unenforced. 13. Article 242.1 § 1 of the Budget Code of the Russian Federation provides that enforcement of judicial decisions recovering funds from the budgetary system of the Russian Federation is held on the basis of the enforcement documents (writ of execution, court order). 14. Article 242.1 § 2 of the same Code provides that along with the writ of execution the creditor or the court acting on his or her behalf should submit a duly certified copy of the judicial decision and a written request containing the creditor’s bank account details. | 0 |
train | 001-78892 | ENG | MDA | CHAMBER | 2,007 | CASE OF KOMMERSANT MOLDOVY v. MOLDOVA | 4 | Violation of Art. 10 | Nicolas Bratza | 5. The applicant newspaper published a series of articles in June-September 2001, criticising the authorities of Moldova for their actions in respect of the break-away region of Moldova (“Moldavian Republic of Transdniestria” or “MRT”, see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, ECHR 2004...) and reproducing harsh criticism of the Moldovan Government by certain MRT and Russian leaders. 6. The applicant published the articles under the following headlines: “The State Duma of the Russian Federation has annexed Moldova and [MRT] to the Union of Russia and Belarus”, “There shall be no meeting...”, “The Russian Ministry of Foreign Affairs acknowledged that the withdrawal of Russian troops from [MRT] may affect stability in the region”, “That’s why NATO is what it is, or a holy place is never empty”, “The black list”, “A Nobel Prize for the leader”, “If the person disappears, there will be no problem?”, “So is it a blockade or WTO conditions?”, “One does not choose one’s neighbours”, “[MRT] is much closer to WTO conditions than Moldova” and “Mission impossible”. 7. In these articles, the applicant reproduced, literally or in a summary, or commented upon declarations by Moldovan, Russian and MRT authorities in respect of the negotiation process between Moldova and MRT, as well as economic, (geo-)political, social and other issues. In a number of these articles the actions and declarations of high-ranking Moldovan officials were harshly criticised. The applicant emphasised, however, that it did not call for any violent or unlawful act and, in the impugned articles, expressly qualified such expressions as “to annihilate” (“убрать”) as meaning “political annihilation [of MRT leader]”. 8. On 5 November 2001 the Prosecutor General of Moldova initiated court proceedings against the applicant in the Economic Court of Moldova. The applicant was accused of “endangering, through its publications, national security and territorial integrity together with public safety and order in Moldova”, by “lending open support to the unconstitutional regime of the self-proclaimed [MRT], promoting the separatist ideas expressed by its leaders and misrepresenting the essence of legal actions of Moldovan authorities and international organisations in solving the problems of the regions to the East of the Dniester”. The Prosecutor General illustrated his request with two examples of phrases from the impugned articles, namely: “The lack of legal balance between the [MRT] and the Republic of Moldova, as a recognised State, allows the latter to approach the negotiations from a position of superiority and dictatorship, which is the main reason for the slow pace of the negotiation process”; “In the circumstances of an ongoing political, diplomatic and economic blockade of MRT by the Republic of Moldova we consider impossible a meeting between the Presidents of MRT and the Republic of Moldova”. Since the applicant’s publications, while formally presented as an exercise of the right to inform the public, were contrary to Article 32 of the Constitution and Article 4 of the Press Act (see below) and the applicant had been warned against continuing to violate the law, the court was requested to order the closure of the newspaper. 9. On 30 November 2001 the Economic Court of Moldova accepted the claims of the Prosecutor General and ordered the closure of the newspaper. The court recalled the submissions of the parties and cited the applicable domestic law. It referred in its judgment to the headlines listed in paragraph 7 above and stated that it considered the articles to have: “exceeded the limits of publicity set out in Article 4 of the Press Act and endangered the territorial integrity of Moldova, national security and public safety and created the potential for disorder and crime, violating Article 32 of the Constitution.” The court also stated that systematic violations of the Press Act could be sanctioned with the closure of a newspaper under Article 7 of the same Act (see below). 10. In response to the applicant’s arguments the court found that: “Article 10 of [the Convention] provides for freedom of expression ... (§1) but the exercise of this freedom carries with it duties and responsibilities, and may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law (§2)”. 11. The court did not specify which expression or phrase constituted a threat and gave no further detail. It added that the articles did not represent a fair summary of public statements by public authorities and thus could not be immune from liability under Article 27 of the Press Act (see paragraph 17 below). The court found that the Prosecutor General had contacted the publisher before initiating the proceedings, as required by law. The applicant was ordered to pay court fees of 180 Moldovan lei. 12. The applicant appealed, arguing that it had simply informed the public about current events and about the Government’s attitude and actions towards the authorities of the MRT. It relied on Article 32 of the Constitution, Article 4 of the Press Act and Article 10 of the Convention. 13. On 5 February 2002 the Appellate Chamber of the Economic Court of Moldova upheld that judgment, repeating the arguments of the lower court. The court found, inter alia, that: “the lower court correctly assessed the facts and rejected the [applicant’s] objections. ... It was correctly decided that no violation of Article 10 of the Convention had been committed, since although that Article provides for the right to freedom of expression, it carries with it duties and responsibilities and its exercise is subject to such formalities, conditions, restrictions or penalties as are prescribed by law”. The court rejected the applicant’s submission that the economic courts were not competent to examine a freedom of expression case since it had been registered as a joint-stock company. It also rejected the submission that the Prosecutor General had not followed the proper pre-trial procedure and was not competent to initiate the relevant proceedings. 14. On 29 May 2002 the Supreme Court of Justice upheld the two judgments. It also essentially repeated the reasoning of the Economic Court and found that the applicant: “has exceeded the limits of restrictions on freedom of expression, determined in Article 4 of the Press Act, through some of the publications annexed to the file which undermine national security, territorial integrity and public safety, the protection of order and the prevention of crime”. 15. The newspaper was subsequently re-registered under the name “Kommersant-Plus”. 16. Article 32 of the Constitution reads as follows: “Article 32 Freedom of opinion and of expression (1) Each citizen is guaranteed freedom of thought, of opinion, as well as freedom of expression in public through words, images or through other available means. (2) Freedom of expression shall not harm the honour or dignity of others or the right of others to have their own opinion. (3) The law prohibits and punishes the contestation and defamation of the State and the nation, calls to war and aggression, national, racial or religious hatred, and incitement to discrimination, territorial separatism, or public violence, as well as other expression which endangers the constitutional order.” 17. The relevant provisions of the Press Act of 26 October 1994 (Law no. 243-XIII) read as follows: “Article 4. Publishers of periodicals ... shall have a discretion as to the documents and information they choose to publish, but shall have regard to the fact that, since it carries with it duties and responsibilities, the exercise of these freedoms is subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. Article 7 ... (4) The court shall adopt a decision to end the activity of a newspaper or a news agency in the case of systematic violation of the present Act. Article 27 The founders, publishers and journalists shall not be held responsible for imparting information, if it: is part of official documents and statements of the public authorities; or textually reproduce public statements or fairly summarise them” | 1 |
train | 001-111006 | ENG | BGR | ADMISSIBILITY | 2,012 | ILIEVA AND GEORGIEVA v. BULGARIA | 4 | Inadmissible | David Thór Björgvinsson;George Nicolaou;Georgieva;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva | 1. The applicants, Ms Patka Georgieva Ilieva and her daughter, Ms Petya Silvestrova Georgieva, are Bulgarian nationals who were born in 1950 and 1969 respectively and live in Trastenik. The respondent Government were represented by Mrs M. Dimova, of the Ministry of Justice. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicants lived together next door to the first applicant’s brother, G.M. G.M. lived with his wife T.M. and their son S.M. The first applicant’s mother, an elderly woman, used to live with G.M., but following a dispute with him moved in with the first applicant and her daughters. 4. The first applicant and G.M. had also had a long-running dispute. The move of their mother exacerbated the rift between the neighbours. It appears that their ongoing conflict prompted the police to warn them several times not to harass each other or their families. On various occasions the applicants and G.M. lodged actions and complaints with the competent authorities, alleging harassment and unlawful conduct. 5. On 28 July 2002 the first applicant and her other daughter argued with G.M. over the presence of a brick wall between the two yards. The tension escalated and someone called the police. There is contradictory information regarding the incident but, in any event, the police officers warned G.M. not to physically or psychologically harass the applicants. 6. At about 7.30 a.m. the next day, 29 July 2002, the applicants, the first applicant’s other daughter and two grandchildren, who were minors, were walking past G.M.’s house, heading towards the children’s school. The first applicant’s mother was standing at the front door of their house. 7. There is conflicting evidence about the events which followed. During the ensuing investigation, the applicants claimed that when G.M. noticed them walking down the street, he started throwing stones at them. According to the applicants he was still feeling angry about the incident of the day before. Despite the provocation, the applicants simply told him to stop and continued walking. According to the applicants, G.M. and T.M. took advantage of the fact that the applicants were leaving and started verbally abusing G.M.’s mother. The latter began calling for help. 8. G.M. and T.M. contested this account of the events and maintained that the argument had started when, while having their morning coffee, they heard the mother murmuring obscenities at G.M. and were drawn into an argument with her. In their view, at that point the elderly woman started complaining loudly of harassment. 9. It appears that when they heard the elderly woman’s cries, the first applicant and her daughters rushed back and engaged in a physical fight with T.M. G.M. got involved and started hitting the applicants, according to them with something resembling a hoe. The first applicant allegedly started exerting pressure on his testicles. Having heard the commotion, S.M. ran out of the house and joined in the fight, hitting the applicants with a stick. In their statements during the investigation the applicants claimed that G.M., T.M. and S.M. also shouted obscenities at them. 10. The fight apparently did not last a long time. Shortly after it was over the applicants made a complaint at the police station and visited a doctor. The doctor noted in his report that the first applicant had sustained the following injuries: a wound of 5 by 15 mm with uneven sores around the edges on the left side of the back of her head; swelling, a bruise and a small wound of 5 by 7 mm in the left corner of her mouth; a bruise of 40 by 80 mm on the back of her left forearm; a welt across the buttocks of 100 by 250 mm; and abrasions on both knees. The second applicant had swelling and a bruise of 8 by 10 mm with a ruptured mucous membrane on the inside of her left cheek. 11. On the same day the applicants filed a complaint with the Pleven district prosecutor. On 10 October 2002 the police warned G.M., T.M. and S.M., in writing, not to physically and psychologically harass the applicants. 12. It appears from the applicants’ submissions that by a decree of an unspecified date the district prosecutor refused to open criminal proceedings on the ground that the actions complained of constituted minor bodily harm and proceedings were to be taken on the basis of a private criminal complaint lodged with the court. 13. Following that, on 8 November 2002 the applicants brought a private criminal complaint before the Pleven District Court against G.M., T.M. and S.M for inflicting minor bodily harm and insulting them in public. 14. At a hearing on 20 November 2003 the court accepted for examination the applicants’ civil claims together with their private criminal complaint. 15. Between 20 November 2003 and 16 June 2005 the court held several hearings and heard a number of witnesses. 16. In a decision of 16 June 2005 the court discontinued the proceedings and transferred the case to the prosecutor on the ground that the actions complained of constituted hooliganism, a crime which was subject to public prosecution. The parties did not appeal against the decision. 17. The prosecutor examined the case file in the light of the court’s findings that the legal characterisation of the offence was hooliganism. By a decree of 7 July 2005 he refused to open criminal proceedings against G.M., T.M. and S.M., stating once again that the criminal characterisation of the actions complained of was minor bodily harm, to be prosecuted by means of a private criminal complaint. 18. The applicants learned about the prosecutor’s decree of 7 July 2005 on an unspecified date. It appears that the first applicant’s appeal against the decree resulted in the case being remitted to the district prosecutor with instructions. However, the applicants failed to submit any information about the reasons for the remittal or about any subsequent actions of the district prosecutor. 19. Meanwhile, the prosecutor sent his decree of 7 July 2005 to the Pleven District Court. By a judicial order of 13 July 2005 the judge rapporteur who had previously been in charge of the case withdrew and, on the same date, another judge was appointed. 20. On 21 April 2006 the court held a hearing but decided to discontinue the examination of the case against G.M., T.M. and S.M., noting that the court’s decision of 16 June 2005 had become final and put an end to the criminal proceedings against G.M., T.M. and S.M. The court further noted that in view of the discontinuance of the proceedings by a final act, the steps undertaken by the court, namely the withdrawal of the previous judge rapporteur and the appointment of a new one, were irrelevant. In view of this, it also stated that its findings were not subject to appeal. 21. Nevertheless, the applicants challenged the court’s decision. In a decision of 12 July 2006 the Pleven Regional Court upheld the District Court’s findings, in particular its conclusion that the court’s decision of 16 June 2005 had put an end to the criminal proceedings against G.M., T.M. and S.M. 22. On an unspecified date, but apparently before 12 July 2006, the first applicant sent another complaint concerning the same matter to the Pleven District Court, which transferred it to the district prosecutor. On 9 October 2006, the district prosecutor refused to open criminal proceedings. The prosecutor stated that at the time the applicants submitted their complaint to the District Court, criminal proceedings had been pending before the District Court on the same facts, which prevented the institution of criminal proceedings by a public prosecutor. It appears that the decree became final shortly thereafter. | 0 |
train | 001-88805 | ENG | HRV | CHAMBER | 2,008 | CASE OF BRAJOVIC-BRATANOVIC v. CROATIA | 4 | Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property | Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 4. The applicant was born in 1946 and lives in Bethesda, the United States of America. 5. The applicant owns a flat in Cavtat, Croatia. In September 1995 Parliament passed a law governing the temporary use of property of persons who had left Croatia - Temporary Takeover and Management of Certain Property Act ( Zakon o privremenom preuzimanju i upravljanju određenom imovinom - hereinafter the “Property Takeover Act”), which allowed municipalities to temporarily accommodate other persons in such property. 6. In 1992 R., a policeman, forcibly moved into the applicant’s flat in Cavtat, Croatia. On 25 September 1995 the Konavle Housing Commission granted him refugee status and legalised his occupation of the applicant’s flat. On 30 January 2002 the applicant applied to the Housing Commission for repossession of her property. 7. On 11 January 2002 the applicant instituted civil proceedings before the Dubrovnik Municipal Court seeking R.’s eviction. On 27 February 2002 the claim was declared inadmissible for lack of jurisdiction. The applicant appealed. 8. On 29 August 2002 the applicant lodged a request with the Ministry of Public Works, Reconstruction and Construction seeking annulment of the decision authorising R. to occupy her flat. 9. The judgment of the Dubrovnik Municipal Court of 27 February 2002 was quashed by the Dubrovnik County Court on 30 August 2002 and the case was remitted to the Municipal Court for a fresh trial. 10. On 1 October 2002 the Amendments to the Act on Areas of Special State Care (Zakon o izmjenama i dopunama Zakona o područjima od posebne državne skrbi – “the 2002 Amendments”) entered into force. They transferred the jurisdiction in the matter from the housing commissions (which were abolished) to the Ministry of Public Works, Reconstruction and Construction (Ministarstvo za javne radove, obnovu i graditeljstvo – “the Ministry”). 11. On 25 October 2003 the Dubrovnik Municipal Court upheld the claim and ordered R.’s eviction. R. appealed. 12. On 12 December 2003 the Ministry set aside the Property Takeover Commission’s decision authorising R. to occupy the applicant’s flat but also stated that R. had the right to housing under section 7 of the Act on Areas of Special State Concern. 13. The judgment of the Dubrovnik Municipal Court of 25 October 2003 was quashed by the County Court on 17 February 2005 on the ground that no alternative accommodation had been provided to R. Accordingly, the case was returned to the Municipal Court for further examination. On 12 May 2006 the applicant lodged an application with the Supreme Court complaining about the length of the proceedings. In a letter of 26 May 2006 the Supreme Court instructed the Dubrovnik Municipal Court to speed up the proceedings. 14. On 31 May 2006 the Municipal Court again granted the applicant’s claim and ordered R.’s eviction. R. appealed against this judgment to the Dubrovnik County Court. While the case was pending there the applicant once more applied to the Supreme Court complaining about the length of the proceedings. In a letter of 11 September 2006 the Supreme Court instructed the County Court to speed up the proceedings and adopt a judgment. 15. On 2 October 2006 the County Court again quashed the judgment of the Municipal Court and accordingly the latter was once more required to examine the applicant’s claims. In a judgment of 27 March 2007 the Municipal Court, as in its previous judgments, found in favour of the applicant. R. appealed against this judgment and the appeal is at present pending before the Dubrovnik County Court. 16. The following are the relevant sections of the Property Takeover Act (Zakon o privremenom preuzimanju i upravljanju određenom imovinom, Official Gazette nos. 73/1995 and 7/1996):- Section 2(2) transferred the property belonging to persons who had left Croatia after 17 October 1990 to the care and control of the State. Section 5, inter alia, authorised the property takeover commissions to allow temporary occupation of property under section 2 by refugees, displaced persons or persons whose property had been destroyed in the war. 17. Section 9 of the Programme for Return (Program povratka i zbrinjavanja prognanika, izbjeglica i raseljenih osoba, Official Gazette no. 92/1998) provided as follows: “Persons with Croatian [citizenship] documents who are owners of property in Croatia in which other persons are temporarily accommodated may apply to the municipal housing commission seeking repossession of their property. The commission shall inform the owner within five days about the status of his property. Relying on proof of ownership, the commission shall set aside any previous decision allowing the temporary accommodation of other persons and order the temporary occupier to vacate the premises. The commission shall serve a written decision on the owner and on the temporary occupier within seven days. The decision shall contain a time-limit for eviction and an offer of alternative accommodation for the temporary occupier in a house or flat under state ownership. ... If a temporary occupier fails to vacate the premises within the fixed time-limit, the commission shall institute eviction proceedings in the competent municipal court within seven days. The court shall apply the provisions concerning summary procedure in civil matters. The court’s decision shall be immediately enforceable. An appeal shall not interfere with the enforcement proceedings or the repossession of the property by the owner.” 18. Section 2(3) and 2(4) of the Termination Act (Zakon o prestanku važenja Zakona o privremenom preuzimanju i upravljanu određenom imovinom, Official Gazette no. 101/1998) provided that the Programme for Return applied to proceedings concerning the temporary use, management and control of the property of persons who had left Croatia and that such proceedings were to be conducted by housing commissions in the first instance and by municipal courts in the second instance. They were required to apply the Administrative Procedure Act. 19. Sections 7, 9 and 17 of the Act on Areas of Special State Concern (Zakon o područjima od posebne državne skrbi, Official Gazette nos. 44/1996, 57/1996 (errata), 124/1997, 73/2000, 87/2000 (errata), 69/2001, 94/2001, 88/2002, 26/2003 (consolidated text), 42/2005), as amended by the 2002 Amendments, gave a temporary occupier a right to housing. Section 24 (enacted on 14 July 2000, published in the Official Gazette no. 73 of 21 July 2000, came into force on 29 July 2000) obliges the Ministry to secure alternative accommodation for the occupier within six months of the owner’s request for the return of his or her property, failing which the owner is entitled to seek the conclusion of a lease agreement by which the occupier leases the premises and the Ministry pays the rent to the owner. Section 27 obliges the Ministry to pay compensation for the damage sustained by an owner who applied for repossession of his or her property prior to 30 October 2002 but to whom the property was not returned by that date. 20. The Decision on the Level of Compensation Due to Owners for Damage Sustained (Odluka o visini naknade vlasnicima za pretrpljenu štetu, Official Gazette no. 68/2003) establishes the amount of that compensation at seven Croatian kunas (HRK) per square metre. 21. The following are the relevant sections of the Property Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette nos. 91/1996, 73/2000 and 114/2001):- Section 161(1) entitles the owner of property to recover it from anyone who is in possession of it. Section 163(1) allows anyone entitled to retain possession (that is, if he or she has a right of possession) to refuse to return the property to its owner. 22. The relevant part of the Courts Act (Zakon o sudovima, Official Gazette no. 150 of 21 December 2005, entered into force on 1 January 2006) reads as follows: “(1) In the determination of his rights and obligations or of a criminal charge against him or her, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial tribunal established by law. ...” “(1) A party to the judicial proceedings ... may lodge a request for the protection of the right to a hearing within a reasonable time with a court hierarchically superior [to the one conducting the proceedings]. ...” “(1) Where the court deciding a request under section 27 finds it founded it shall set a time-limit within which the competent court must decide the case on the merits ... and shall also assess appropriate compensation for the applicant for the violation of his or her right to a hearing within a reasonable time. ... (3) An appeal lies to the Supreme Court against a decision on a request for protection of the right to a hearing within a reasonable time. ... a constitutional complaint may be lodged against the Supreme Court’s decision.” 23. The relevant part of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 – “the Constitutional Court Act”) reads as follows: Section 63 “(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the applicant’s rights and obligations or a criminal charge against him or her within a reasonable time ... (2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits... (3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date on which a request for payment is lodged.” 24. In a series of decisions (for example, in cases nos. Rev-291/1999-2 of 11 September 2002, Rev-1157/02-2 of 21 November 2002 and Rev1289/00-02 of 6 November 2003), starting with decision no. Rev574/02-2 of 23 April 2002 the Supreme Court interpreted the relationship between the Property Act and the Termination Act as follows: “The jurisdiction to decide on an owner’s application for repossession conferred on the administrative authorities under the Termination Act does not exclude ordinary court jurisdiction in such matters under the Property Act. Therefore, a civil action for repossession, based on section 161(1) of the Property Act and brought in a court against a temporary occupier by an owner whose property had been taken over under the Takeover Act, should be decided on its merits rather than declared inadmissible for lack of jurisdiction.” 25. In its decisions nos. Rev-967/00-2 of 30 September 2004 and Rev1444/02-2 of 29 June 2004 the Supreme Court gave a further interpretation of the relationship between the Property Act and the Termination Act as well as of the Programme for Return: “The temporary occupier’s right to use the owner’s property does not cease merely for the reason that a housing commission has set aside the decision allowing him or her to do so. This is because the duty to return the property to its owner is conditional upon the duty of the State to provide alternative accommodation for the temporary occupier. It follows that the temporary occupier is not obliged to compensate the owner for the use of his or her property since, before being provided with alternative accommodation, he or she remains in bona fide possession.” | 1 |
train | 001-107254 | ENG | TUR | CHAMBER | 2,011 | CASE OF NACİ AKKUŞ AND NECMİ AKKUŞ v. TURKEY | 4 | Violation of Art. 6-1;Violation of P1-1 | András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi;Paulo Pinto De Albuquerque | 3. The applicants were born in 1977 and 1966 respectively and live in Bursa. 4. In 2004 the General Directorate of Highways seized a plot of land belonging to the applicants without any formal expropriation, for the construction of a highway. The applicants brought an action before the Karacabey Civil Court to obtain compensation for the de facto expropriation of their property. They requested 5,500 Turkish liras (TRY) as compensation from the court and reserved their right to increase this claim in due course. 5. On 29 December 2005 the Karacabey Civil Court awarded the applicants TRY 5,500 as compensation for the de facto expropriation of their land, as requested, plus interest. The applicants initiated execution proceedings before the Bursa Execution Office to obtain that amount (file no. 2006/2200). 6. On 29 May 2006 the Court of Cassation upheld the judgment of the first-instance court. 7. The applicants subsequently brought an additional action (“ek dava”) before the Karacabey Civil Court to obtain further compensation for their land in the light of the expert report obtained during the previous proceedings, which had valued the land at a rate higher than that initially requested by them. 8. On 2 November 2006 the Karacabey Civil Court awarded the applicants TRY 100,723.25, plus interest. The applicants initiated another set of execution proceedings before the Bursa Execution Office to obtain the amount awarded (file no. 2009/2817). 9. On 13 March 2007 the Court of Cassation upheld the judgment of the Karacabey Civil Court. 10. On 16 January 2009 the administration paid TRY 9,414.62 to file no. 2006/2200 before the Bursa Execution Office in respect of the debt arising from the initial action. 11. Subsequently, on 24 March 2009 they paid TRY 152,951.97 to file no. 2009/2817 before the Bursa Execution Office in respect of the debt under the additional action. According to the information provided by the applicants, there has been no outstanding debt in the execution files. | 1 |
train | 001-60496 | ENG | NLD | CHAMBER | 2,002 | CASE OF LANDVREUGD v. THE NETHERLANDS | 2 | No violation of P4-2;No separate issue under Art. 8 | Elisabeth Palm;Gaukur Jörundsson | 10. On 2 December 1994 the Burgomaster (Burgemeester) of Amsterdam, relying on Sections 172 and 175 of the Municipality Act (Gemeentewet) as amended on 1 January 1994, imposed a prohibition order (verwijderingsbevel) on the applicant to the effect that the latter would not be allowed for a period of fourteen days to enter a particular area, i.e. the “Ganzenhoef” area, one of the emergency areas designated by the Burgomaster. The following events were referred to in the Burgomaster’s decision as having led to this order being issued: – It appeared from police reports that on 9 and 12 September, 3 October, 14 and 16 November 1994 the applicant had either overtly used hard drugs, had had utensils for the use of hard drugs in his possession or had had hard drugs in his possession in the Ganzenhoef area and that on four of those occasions the applicant had been ordered to leave the area for eight hours. – On 16 November 1994 the applicant had been heard by the police about his conduct and he had been told that he would either have to refrain from acts which disturbed the public order (openbare orde) or have to stay away from the area. The applicant had further been informed that if he committed such acts again in the near future, the Burgomaster would be requested to impose a prohibition order for fourteen days on him. On that occasion the applicant did not wish to state anything as to the reasons for his presence in that area. – On 25 November 1994 the applicant had nevertheless overtly used hard drugs in the Ganzenhoef area. He had once again been ordered to leave the area for eight hours and the police had subsequently requested the Burgomaster to impose a prohibition order for fourteen days on the applicant. 11. In the opinion of the Burgomaster the applicant would again commit acts disturbing public order within the near future. In this respect the Burgomaster took account of the kind of conduct involved, i.e. acts seriously disturbing public order, the repetition and continuity of this conduct, the statement of the applicant, the short period of time within which the acts concerned had been observed and the fact that the applicant had continued his disruptive behaviour despite the eight-hour prohibition orders imposed on him and the warning given by the police. Finally, the Burgomaster noted that neither the applicant’s home nor his place of work were situated in the area concerned. 12. On 12 December 1994 the applicant submitted an objection (bezwaarschrift) against the prohibition order to the Burgomaster. He submitted, inter alia, that the Burgomaster had failed to take into account the fact that he was residing in the Ganzenhoef area, that he needed to be present there in person twice a week in order to collect his social security benefits and that he received social counselling there. The applicant stated that the police knew this, but had failed to mention it in the police report on the applicant’s hearing of 16 November 1994. 13. The applicant further submitted that the prohibition order could not be considered as having a legal basis in that the emergency powers granted to the Burgomaster under the Municipality Act were intended for emergency situations. According to the applicant, the legislature had never intended structural nuisance caused by drug abusers to be considered as creating an emergency situation. Moreover, the applicant’s absence from the Ganzenhoef area would not make any difference in this respect since he was only one of many drug abusers in that area. The applicant also complained that the order was contrary to Article 6 of the Convention in that it constituted a sanction and could therefore only be imposed by a judge. He further complained that the order restricted his freedom of movement and was contrary to his right to respect for his private life, family life, home and correspondence. 14. On 10 January 1995 a hearing took place before an advisory committee. During this hearing the representative of the Burgomaster stated that already on 19 April 1994 a prohibition order for fourteen days had been imposed on the applicant and that on 16 November 1994 the applicant had not wished to make any statement to the police as to the reasons for his presence in the Ganzenhoef area. Despite the previous orders, the applicant had continued his undesirable conduct and on this ground the imposition of a new prohibition order had been sought. The Burgomaster’s representative further stated that the address where the applicant had stated that he resided and where he collected his mail and social security benefits was in fact the address of the Streetcornerwork Foundation. It was not possible to reside at that address. This Foundation had a procedure under which social-security benefits for persons subject to a prohibition order could be collected by an authorised third party and it was possible for the applicant to avail himself of that procedure. 15. On 29 June 1995 the committee advised the Burgomaster to reject the objection and to maintain the prohibition order. It considered, inter alia, having regard to the fact that the applicant had, within a short period of time, regularly committed acts which had disrupted public order and that the prohibition orders for eight hours which had been issued had not prevented him from behaving in that manner, that the imposition of the prohibition order had not been unreasonable. It further found that the order was in conformity with Section 172 (3) of the Municipality Act, that therefore it was not necessary to examine the question whether or not the conditions set out in Section 175 of the Municipality Act had been fulfilled, and that the Burgomaster had not exceeded his competence under the Municipality Act. It did not agree with the applicant that the impugned measure constituted a penalty as it had been issued in order to maintain public order. The committee finally found that the interference with the applicant’s right to liberty of movement had been justified and that the prohibition order could not be regarded as disproportionate. 16. By decision of 6 July 1995 the Burgomaster rejected the applicant’s objection, adopting as his own the reasoning applied by the advisory committee. 17. The applicant lodged an appeal with the Regional Court (arrondissementsrechtbank) of Amsterdam. 18. By judgment of 19 January 1996, following adversarial proceedings in the course of which a hearing was held on 8 December 1995, the Regional Court declared the applicant’s appeal well-founded and quashed the prohibition order. 19. The Regional Court accepted that the overt use of hard drugs in public places and the presence of a concentration of drug abusers and dealers disrupted public order and acknowledged the necessity to end such nuisance, in particular when this occurred continuously at specific locations in the city. The Regional Court noted that the Burgomaster availed himself of two means to that end, namely prohibition orders of either eight hours or fourteen days. It considered the procedure established as regards the imposition of prohibition orders for a duration of fourteen days and noted that this procedure had not been fully complied with in that the applicant’s prohibition order had not been sought by the competent police officer. However, as it was not established that this had harmed the applicant’s interests, it did not find that this flaw should result in the quashing of the order. It did, however, find that the order should be quashed on other grounds. 20. The Regional Court held that, unlike the situation in which an eighthour prohibition order has been imposed, Section 172 (3) of the Municipality Act offered no basis for the imposition of a prohibition order for a duration of fourteen days. It held on this point that the competence established by this provision aimed to create a possibility for direct reaction to an expected disturbance of public order and might serve to prohibit someone’s presence for a limited period of time in the area where the disturbance of public order was expected. It held that the eight-hour prohibition order was such as to meet this need, but not the fourteen days prohibition order, the latter measure being disproportionate in relation to the expected disruption of public order and thus going beyond what could be considered necessary for maintaining public order. 21. The Regional Court added that in the present case this was all the more so as the applicant had no permanent place of residence and used the address of the Streetcornerwork Foundation as his postal address. The prohibition order implied that the applicant’s freedom of movement was limited for fourteen days in a manner which prevented him from collecting his mail and from receiving his social security benefits. It rejected the argument advanced by the Burgomaster’s representative that the police would not undertake any formal action against the applicant for acting contrary to Article 184 of the Criminal Code (Wetboek van Strafrecht), i.e. the offence of failure to comply with an official order (ambtelijk bevel), when collecting his social security benefits at the address of the Streetcornerwork Foundation, considering that the applicant’s freedom of movement could not be made dependent on the willingness of the police officer on duty to tolerate intrinsically punishable conduct. 22. The Regional Court further found that the situation at issue, i.e. nuisance caused by drug abuse, did not constitute a situation within the meaning of Section 175 of the Municipality Act and accordingly held that the Burgomaster could not have based the prohibition order on this provision. As it had already found the prohibition order to be incompatible with national law, the Regional Court did not find it necessary to determine whether or not the order was compatible with Article 6 of the Convention. 23. On 7 February 1996, the Burgomaster lodged an appeal against the Regional Court’s judgment with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). 24. In its judgment of 19 December 1996, following adversarial proceedings, the Administrative Jurisdiction Division quashed the Regional Court’s judgment of 19 January 1996 and rejected the applicant’s appeal to the Regional Court as ill-founded. Its reasoning included the following: “The prohibition order issued against Landvreugd is based on a decision of the appellant, dated 28 October 1993 and addressed to the Chief Superintendent of Police, which contains an instruction to the police relating to the preparation and issuing of a fourteen-day prohibition order. This instruction designates the Ganzenhoef area as an “emergency area” and indicates the behaviour which the appellant considers to be constitutive of serious breaches of public order, including the overt possession or use on or near the public highway of addictive substances within the meaning of Section 2 of the Opium Act. The Regional Court held, among other things, that the appellant was not competent to act on the basis of Section 175 of the Municipality Act, because a situation within the meaning of that Section was lacking. The Administrative Jurisdiction Division does not share this opinion. Its reasons are the following. It is laid down in Section 175, first paragraph, of the Municipality Act that in case of a riotous movement, of other serious disorders or of calamities, as well as in case of a well-founded fear of the development thereof, the Burgomaster is empowered to issue all orders which he deems necessary for the maintenance of public order or the limitation of general danger. In doing so he may deviate from rules other than those of the Constitution. The Administrative Jurisdiction Division notes at the outset that giving orders in the situations described in Section 175 of the Municipality Act is not contrary to the right to freedom of movement as guaranteed by Article 12 of the International Covenant on Civil and Political Rights and Article 2 of Protocol No. 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, since provision has been made for the possibility to limit this right by law – which also includes an order given by the Burgomaster pursuant to the law – for the protection of public order. Section 175 of the Municipality Act replaced Section 219 of the Municipality Act which was repealed as of 1 January 1994. As did Section 219, Section 175 grants the Burgomaster emergency powers which should only be used in exceptional situations. Thus provision has been made by law for circumstances in which ordinary means are insufficient to restore and maintain public order. The Administrative Jurisdiction Division notes in this connection that the wording of Section 175 does not lead to the conclusion that that provision, as compared with Section 219, is intended to introduce any changes as regards the circumstances in which emergency powers may be used. Its drafting history does not justify holding otherwise. In the opinion of the Administrative Jurisdiction Division, ordinary means may be considered insufficient in the present case and there was, at the time of the decision on the objection, an exceptional situation of the kind referred to above. The Administrative Jurisdiction Division finds in this regard that the facts relating to the situation in the Ganzenhoef area, based on which the appellant decided to issue the fourteen-day prohibition order, are established. In light of the decision of 28 October 1993 the situation there was characterised by the presence of a large number of drug addicts and the attendant nuisance, inconvenience, insecurity and threats to other citizens. This factual situation is so serious that the personnel and means available to the appellant were insufficient to counter the disruptions of public order thereby caused. It is important to note in this context that at the time the objection was decided on, it was not possible to solve the problem there by means of a regulation adopted by the municipality (gemeentelijke regeling). At that time there was no relevant provision in any municipality bye-law, nor were any other adequate administrative-law means available. Given that the decision dismissing the objection was given before the Administrative Jurisdiction Division delivered its decision of 14 May 1996 ..., the absence of such a provision cannot be held against the appellant. Apart from that, by a decision of 26 June 1996, Section 2.6 A has been added to the General Municipal Bye-law of Amsterdam, which contains a regulation governing prohibition orders in relation to hard drugs. Against this background, the Administrative Jurisdiction Division is of the opinion that it cannot be maintained that the appellant was not entitled to use the powers granted him by Section 175 of the Municipality Act. ... The position taken by the appellant, that the risk of repetition of behaviour constituting a breach of the peace was so great that a fourteen-day prohibition order was necessary, is not unreasonable. The Administrative Jurisdiction Division further notes that Landvreugd is not resident in the Ganzenhoef area, is not dependent on that area for work, and that he was offered the possibility to collect his social-security benefits from the Streetcornerwork Foundation.” 25. Apart from the proceedings described above, the applicant was arrested and placed in detention on 4 December 1994 for failure to comply with the prohibition order of 2 December 1994. On 20 December 1994 the single-judge chamber (politierechter) of the Amsterdam Regional Court (arrondissementsrechtbank) suspended the applicant’s pre-trial detention in order to allow the applicant to be admitted to the Crisis Observation and Detoxification Department of the J. clinic and adjourned the criminal proceedings against the applicant sine die. 26. By judgment of 22 May 1995, the single-judge chamber of the Regional Court convicted the applicant of having failed to respect a prohibition order on two occasions and sentenced him to four months’ imprisonment with deduction of the time spent in pre-trial detention. The applicant appealed to the Court of Appeal (gerechtshof) of Amsterdam. 27. In its judgment of 4 February 1997, the Court of Appeal quashed the judgment of 22 May 1995 and convicted the applicant of having failed to respect a prohibition order on one occasion. However, as the applicant had also amassed other convictions which the law required to be taken into account for sentencing purposes, the Court of Appeal was prevented from imposing any sentence as the maximum aggregate penalty had already been attained. The applicant’s subsequent appeal on points of law was rejected on 16 June 1998 by the Supreme Court (Hoge Raad). 28. The criminal proceedings against the applicant do not form part of the case before the Court. 29. Section 219 of the former Municipality Act, in force until 31 December 1993, provided as follows: “1. In case of a riotous movement, gathering or other disturbance of public order or of serious calamities, as well as in case of a well-founded fear of the development thereof, the Burgomaster is empowered to issue all orders which he deems necessary for the maintenance of public order or the limitation of general danger. ...” 30. A new Municipality Act entered into force on 1 January 1994. Section 172 of the new Municipality Act provides as follows: “1. The Burgomaster is responsible for maintaining public order. 2. The Burgomaster is empowered to prevent or to end offences against statutory provisions relating to public order. In doing so he avails himself of the police under his authority. 3. In case of disruption of public order or a well-founded fear of the development thereof, the Burgomaster is empowered to issue orders deemed necessary for the maintenance of public order.” 31. Section 175 of the new Municipality Act reads: “1. In case of a riotous movement, of other serious disorders or of calamities, as well as in case of a well-founded fear of the development thereof, the Burgomaster is empowered to issue all orders which he deems necessary for the maintenance of public order or the limitation of general danger. In doing so he may deviate from rules other than those of the Constitution. 2. The Burgomaster shall not have recourse to measures of violence without having issued the necessary warning.” 32. Article 184 of the Criminal Code (Wetboek van Strafrecht), in so far as relevant, reads: “1. Any person who intentionally fails to comply with an order or demand made in accordance with a statutory regulation by an official charged with supervisory powers or by an official responsible for the detection or investigation of criminal offences or duly authorised for this purpose, and any person who intentionally obstructs, hinders or thwarts any act carried out by such an official in the implementation of any statutory regulation, shall be liable to a term of imprisonment not exceeding three months or a secondcategory fine. 2. ... 3. ... 4. If the offender commits the indictable offence within two years of a previous conviction for such an offence having become final, the term of imprisonment may be increased by a third.” 33. In the Netherlands, a Burgomaster of a town or city is appointed by the Queen (Section 61 of the Municipality Act). Municipal regulations, such as general municipal bye-laws, are adopted by the Municipal Council (Section 147 of the Municipality Act) which is elected by those inhabitants of the town or city who are eligible to vote in elections for the Lower House of Parliament (Article 129 of the Constitution). 34. By letter of 4 July 1983 the Burgomaster of Amsterdam informed the Chief Superintendent (Hoofdcommissaris) of the Amsterdam police that, in view of the situation in the city centre, the Chief Superintendent and police officers acting on the Burgomaster’s behalf would be able to give orders, based on Section 219 of the Municipality Act, as in force at the time, to people to leave a particular area within the city centre and not to return to it for eight hours. 35. The Burgomaster extended the area of the city centre where these orders could be issued by letter of 25 July 1988. Subsequently, by letter of 8 March 1989, the Burgomaster also empowered the Chief Superintendent and his officers to order people to leave the designated city centre area for fourteen days. 36. By letter of 17 October 1989 the Burgomaster changed this instruction replacing the discretion of the police officers to issue eight-hour prohibition orders by a strict order to do so in specified circumstances. This letter contains the following passage: “In so acting I have considered that the designated city centre area exerts a continuing attraction on persons addicted to, dealers in, and addicts dealing in, hard drugs. The attending behaviour disrupts public order, causes considerable nuisance and constitutes an incessant threat to public life. In these circumstances (in dit verband) I judge the situation to constitute an exceptional situation within the meaning of Section 219 of the Municipality Act.” 37. The Burgomaster’s instructions were further changed by letter of 13 November 1989 pursuant to which prohibition orders for fourteen days could no longer be issued by the police on behalf of the Burgomaster but only by the Burgomaster himself. 38. A prohibition order for fourteen days could be imposed on a person if in the preceding six months five procès-verbaux or other reports had been drawn up by the police concerning acts committed by him which had disturbed public order, such as, inter alia: – the possession and use of addictive substances appearing in Annex 1 to the Opium Act (Opiumwet; i.e. hard drugs) on the public highway; – dealing in addictive substances appearing in Annex 1 to the Opium Act on the public highway; – overt possession of knives or other banned objects in so far as this constituted a criminal offence pursuant to the general municipal bye-law or the Arms and Ammunition Act (Wet Wapens en Munitie); – committing the offence of Article 184 of the Criminal Code where the order not complied with was a prohibition order for eight hours; – acts of violence, thefts from cars on or along the public highway, overt selling of stolen goods on or along the public highway, in so far as there was a connection between these offences and hard drugs. 39. On the occasion of a fourth procès-verbal being drawn up against him, the person concerned would be heard by a police sergeant about his disruptive behaviour and the reason for his (continued) presence in the emergency area. The police sergeant would issue a warning to the effect that if in the near future the person concerned again disrupted public order, the police would request the Burgomaster to impose a prohibition order for fourteen days. 40. It is undisputed that the Burgomaster’s letters aforementioned were neither published nor laid open to public inspection and that the Burgomaster’s instructions were not otherwise made public. 41. In a decision of 11 January 1989, Administratiefrechtelijke Beslissingen (Administrative Law Reports) 1989, no. 424, given under former Section 219 of the Municipality Act and relating to a part of the old city centre of Amsterdam where the situation was similar to that in the Ganzenhoef area, the President of the Judicial Division of the Council of State held as follows: “As the Judicial Division has held in previous decisions, Section 219 of the Municipality Act – paraphrased above – confers on the Burgomaster emergency powers which should be used only in exceptional situations. Such exceptional situations include riotous movements, gatherings or other disturbances of public order, serious calamities, and also a serious fear of the development thereof. Thus provision has been made by law for situations in which it may definitely be expected that ordinary measures will be insufficient for restoring and maintaining public order. It must now first be examined whether in the present case there was a situation of the kind aimed at by the aforementioned Section 219, first paragraph. In so doing, we will consider the undisputed statement made by the respondent party at the hearing concerning the situation in the (old) city centre of Amsterdam: ‘The old city centre of Amsterdam is known internationally and nationally as a centre for the trade in hard drugs. It continues to attract large numbers of addicts. The doings and dealings of addicts and dealers generally cause serious nuisance: overt use and dealing, intimidating group behaviour, threats to passers-by (frequently with knives), shouting, raving, fights, robberies (frequently with knives), thefts, receiving stolen property, etc. The old city centre has many functions; an important one is as a residential and commercial area. However, the situation threatens all the time to become unliveable. The extent to which matters have deteriorated for the residents yet again is apparent from the desperate protests which took place at the beginning of November last year. These protests ended, for the time being, at a meeting of the Police Affairs Committee which was attended by a crowd of people. The Damstraat, Oude Doelenstraat, Nieuwe and Oude Hoogstraat are part of the crisis area. The Damstraat (the Oude Doelenstraat, the Nieuwe and Oude Hoogstraat are the prolongation of the Damstraat) constitutes the entrance to the old city centre. In this part of the town all manner of soft drugs, but especially hard drugs, are for sale, in small or large amounts: hashish, cocaine, amphetamine, LSD, heroin and other mindaltering substances. In this area especially street traders go about more than elsewhere in the city centre peddling fake hard drugs. The presence of the dealers and large numbers of addicts with the attending criminality seriously affect the area. Because of, amongst other things, the strong protests of local residents a special project team of the police was active in the Damstraat area for six weeks from 14 November 1988 onwards. Their actions were directed in particular towards the bridge between the Oude Doelenstraat and the Oude Hoogstraat, the so-called pills bridge. This bridge was occupied by representatives of a new phenomenon, namely multiple drugs use. The project team set itself the primary task of restoring public order. During the action there were 600! arrests, hundreds of knives were seized and hundreds of prohibition orders were issued.’ Noting all this, we are of the provisional opinion that an emergency situation of the kind referred to in Section 219, first paragraph, of the Municipality Act was rightly found to exist. The respondent was therefore entitled to issue the disputed orders.” Similarly, in a decision of 31 July 1989, Kort Geding (Summary Proceedings Law Reports) 1989, no. 314, the President of the Judicial Division held: “As the Judicial Division has held in previous decisions, Section 219 of the Municipality Act – paraphrased above – confers on the Burgomaster emergency powers which should be used only in exceptional situations. Such exceptional situations include riotous movements, gatherings or other disturbances of public order, serious calamities, and also a serious fear of the development thereof. Thus provision has been made by law for situations in which it may definitely be expected that ordinary measures will be insufficient for restoring and maintaining public order. It must now first be examined whether in the present case there was a situation of the kind aimed at by the aforementioned Section 219, first paragraph. As was held in the decision of 11 January 1989 (...) in relation to the situation in the (old) city centre, the respondent rightly found that an emergency situation of the kind referred to in Section 219, first paragraph, of the Municipality Act existed.” 42. In a judgment of 23 April 1996, Nederlandse Jurisprudentie 1996, no. 514, which related to a criminal prosecution under Article 184 of the Criminal Code for failure to comply with an eight-hour prohibition order, the Supreme Court (Hoge Raad) accepted that the Burgomaster’s powers under Section 219 of the former Municipality Act (for present purposes, the predecessor to Sections 172 and 175 of the present Municipality Act) were intended only for exceptional situations. It held, however, that the mere fact that two and a half years had passed since the Burgomaster had declared an emergency situation – the case related to the Burgomaster’s instruction of 17 October 1989 – was not sufficient per se to justify the conclusion that an exceptional situation no longer existed. It also held, in the same judgment, that Article 6 of the Convention did not apply to eight-hour prohibition orders because such orders were not given by way of penal sanction but were in the nature of a measure aimed at preserving public order. Nor did such orders violate Article 2 of the Fourth Protocol, since they were “in accordance with law” and “necessary in a democratic society” for “the maintenance of ordre public”. The judgment of the Supreme Court left in force a judgment of the Amsterdam Court of Appeal sentencing the defendant in that case to two weeks’ imprisonment. 43. Section 7:1 of the General Administrative Law Act (Algemene wet bestuursrecht) provides, in relevant part, that a person entitled to appeal to an administrative tribunal against a decision of an administrative organ (see the following paragraph) should first submit an objection to the administrative organ in question. The objector and any other interested party are entitled to be heard (Section 7:2). The administrative organ can delegate the hearing to an advisory committee (Section 7:13). 44. A person directly affected by a decision of an administrative organ (certain categories of decisions, not relevant to the present case, excepted) is entitled to appeal against that decision to the Regional Court (Section 8:1 of the General Administrative Law Act). Except in certain exceptional cases not relevant to the present case, a further appeal lay to the Administrative Jurisdiction Division of the Council of State (Section 37 of the Council of State Act – Wet op de Raad van State). | 0 |
train | 001-95083 | ENG | UKR | CHAMBER | 2,009 | CASE OF KOMNATSKYY v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy;Violation of Article 1 of Protocol No. 1 - Protection of property | Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger | 4. The applicant was born in 1925 and lives in Zhytomyr, Ukraine. He has been recognised as falling within Category I disabled status (the gravest one) on account of his service during the Second World War. 5. The applicant was an operative who dealt with the consequences of the Chernobyl disaster. From 1997 he was on a special priority list of persons to be allocated an apartment by the State. 6. On 31 August 2006 the Korolyovskyy District Court of Zhytomyr ordered Zhytomyr Town Council to provide the applicant with an apartment in accordance with the requirements of section 20 § 10 of the Chernobyl Victims' Status and Social Security Act (see paragraph 12 below). This decision became final. Enforcement proceedings were commenced on 28 September 2006. 7. According to the Government, in February 2008 the bailiff requested from the Korolyovskyy District Court of Zhytomyr replacement of the in-kind award conferred by the decision of 31 August 2006 with an equivalent amount of money. On 8 July 2008 the court dismissed that request. The court's reasoning is unknown, as neither the party furnished a copy of that decision. The State Bailiffs' Service appealed and the proceedings are apparently still pending before the Kyiv Administrative Court of Appeal. 8. Although the debtor was fined several times by the bailiffs, the decision of 31 August 2006 has not been enforced. On several occasions, in their replies to the relevant applicant's complaints, the State authorities gave explanations based on a lack of funds in the budget to purchase or construct new apartments and the lack of available apartments. The enforcement proceedings are still pending. 9. According to the applicant, he lives in a rented house in poor living conditions (for example, without water supply). The local press described the house as “old” and “ramshackle”. 10. The general provisions of domestic legislation on enforcement of judicial decisions are set out in the judgment of 27 July 2004 in the case of Romashov v. Ukraine (no. 67534/01, §§ 16-18). 11. Under section 33 of the Enforcement Proceedings Act the bailiff is entitled to request proprio motu the relevant court to change the means of enforcement of a court decision if there are circumstances which preclude its enforcement by the means specified in that decision. 12. Section 20 § 10 of the Chernobyl Victims' Status and Social Security Act (adopted on 28 February 1991) provides, inter alia, that the entitled persons must be housed within one year of the date of their relevant application. Construction of houses shall be funded from the State budget. | 1 |
train | 001-61135 | ENG | GBR | CHAMBER | 2,003 | CASE OF CHALKLEY v. THE UNITED KINGDOM | 3 | Violation of Art. 8;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Georg Ress;Nicolas Bratza | 7. The applicant was born in 1961. 8. In March 1994 the applicant was suspected by police officers in the Cambridge Constabulary of involvement in robbery. The view was taken by the Cambridgeshire Regional Crime Squad that it was necessary to place a hidden battery-powered listening and recording device in the applicant’s home. An application was therefore made to the Chief Constable for the instalment of such a device, which was authorised on 21 June 1994, pursuant to the non-statutory Home Office Guidelines of 1984. 9. In order to install the device, the police decided to arrest the applicant and his partner in connection with another matter (credit card fraud) and to remove them and their children from their home. Enquiries into the credit card fraud had previously lapsed without any arrest or questioning of the applicant or his partner. However, DC Harrison of the Regional Crime Squad and WDC Fletcher, an officer in the intelligence bureau of the Cambridgeshire County Constabulary, decided to revive the investigation for the purpose of removing the applicant and his partner from their home for long enough to enable the installation of the listening device. 10. WDC Fletcher briefed three officers about purported grounds for arresting the applicant and his partner for credit card fraud, without informing them of the intended installation of the device. 11. At 6.15 a.m. on 8 July 1994 the three officers arrested the applicant’s partner in her home and shortly thereafter arrested the applicant. Both were taken to the police station. The officers seized the keys to the applicant’s home and car. Officers from the Regional Crime Squad then used the house key to enter the applicant’s home and install the listening device. They also had a copy of the key cut to enable them to enter the house at a later date. 12. The applicant and his partner were released from police custody on the evening of 8 July 1994 after being interviewed. Neither was charged, but both were released on police bail and required to report back to the police station on 24 August 1994. The applicant’s keys to his home and car were returned to him. 13. On 24 August 1994 the applicant and his partner attended the police station in accordance with their bail and were interviewed again. Neither was charged at that time or subsequently with credit card fraud. During their interview police officers entered their home using the duplicate key in order to renew the battery in the listening device. 14. During September 1994, police officers again entered the applicant’s home to renew the battery in the listening device. 15. As a result of conversations that were recorded between the applicant and J, his co-defendant in the criminal proceedings, both men were arrested in September 1994. They were charged with conspiracy to commit robbery and burglary between 1 January 1993 and 9 December 1994. 16. The trial was at Peterborough Crown Court in October 1996. An application was made, in a voir dire procedure, on behalf of the defendants for the tape recorded evidence to be excluded under section 78 of the Police and Criminal Evidence Act 1984 on the basis that it had been obtained unlawfully and in breach of Article 8 of the European Convention on Human Rights. This application was rejected by the trial judge on 24 October 1996. The judge found that the officers who carried out the arrests on 8 July 1994 did have reasonable grounds for suspecting those whom they arrested and that if further information had arisen at the interviews or from the other enquiries which were carried out it was possible that charges would have been brought for those matters. He did find that the removal of the applicant’s keys was in breach of the search and seizure requirements of PACE, that the taking and use of the house key constituted a civil wrong, that there was a trespass to the applicant’s home and that minor criminal damage had taken place. However, balancing the various factors, including the fact that the tape-recordings amounted to confessions of serious crimes involving the possible use of firearms, that there was no suggestion of improper inducement or incitement to commit the offences and that there was no dispute about the content of the conversations, the judge ruled the evidence admissible. 17. As a result of the ruling on admissibility, the applicant and his co-defendant changed their pleas to guilty. They were each sentenced to ten years’ imprisonment. 18. On 18 December 1997, after being granted leave to appeal, the applicant’s appeal against conviction was dismissed by the Court of Appeal (R. v. Chalkley and Jeffries [1998] 2 All ER 155). On 15 June 1998 the House of Lords refused the applicant’s petition for leave to appeal. In early 2001, the applicant was released on licence. 19. Guidelines on the use of equipment in police surveillance operations (The Home Office Guidelines of 1984) provided that only chief constables or assistant chief constables were entitled to give authority for the use of such devices. The Guidelines were available in the library of the House of Commons and were disclosed by the Home Office on application. 20. In each case, the authorising officer had to satisfy himself that the following criteria were met: (a) the investigation concerned serious crime; (b) normal methods of investigation must have been tried and failed, or must from the nature of things, have been unlikely to succeed if tried; (c) there was 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; d) the use of equipment was operationally feasible. The authorising officer had also satisfy himself that the degree of intrusion into the privacy of those affected by the surveillance was commensurate with the seriousness of the offence. 21. 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, entered into force on 22 February 1998. 22. 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. | 1 |
train | 001-91782 | ENG | SVK | ADMISSIBILITY | 2,009 | MAZUREK v. SLOVAKIA | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | The applicant, Mr Miroslav Mazurek, is a Slovak national who was born in 1962 and lives in Kežmarok. The Slovak Government (“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. The applicant used and reconstructed real property of which he was a co-owner. On 3 February 1992 two other co-owners sued the applicant and several other persons, seeking their eviction from the property. On 16 March 1992 the District Court in Poprad, by an injunction, ordered the applicant to refrain from further reconstruction of the building. As a result, the applicant was obliged to live in a rented flat. On 30 June 2003 the plaintiffs withdrew the action. On 27 October 2003 the District Court discontinued the proceedings on that ground. On 22 December 2003 the applicant appealed. On 17 March 2004 the Regional Court in Prešov upheld the first-instance judgment, which became final on 15 June 2004. On 23 July 2004 the applicant, represented by an advocate, lodged a complaint with the Constitutional Court alleging that the proceedings before the District Court had lasted an excessively long time. In particular, the applicant alleged that the District Court had failed to examine the merits of the case for more than eleven years, from 3 February 1992 to 26 May 2003, and that the court had remained entirely inactive from 4 April 1995 to 15 April 2003. The letter indicated that the plaintiffs had withdrawn their action on 30 June 2003 and that at the time when the constitutional complaint was lodged the proceedings had been discontinued by a final decision. The applicant enclosed with his complaint a copy of the District Court's decision of 27 October 2003. A stamp on the decision indicated that it had become final on 15 June 2004. On 23 September 2004 the Constitutional Court rejected the complaint as out of time. The Constitutional Court observed that under section 53 (3) of the Constitutional Court Act 1993 a complaint about delays in proceedings (which were to be considered as “notification of other interference” for the purpose of that provision) should be made within two months of the date when the plaintiff could have learned of the interference. The decision further stated, with reference to section 20 (3) of the Constitutional Court Act 1993, that the Constitutional Court was bound by the applicant's submission, including his allegation that the proceedings had ended following the withdrawal of the action on 26 May 2003. The Constitutional Court held that unjustified delays in the proceedings of which the applicant complained had ended more than two months prior to the introduction of his complaint under Article 127 of the Constitution. Under section 20 (3), which applies to all types of proceedings before the Constitutional Court, as a general rule the scope of the Constitutional Court's examination of a case is limited by the summary of the application for commencement of the proceedings, as formulated in a standardised and prescribed form by the plaintiff. Specific rules applicable in respect of complaints under Article 127 of the Constitution are laid down in sections 49 et seq. Section 53 (3) provides that a constitutional complaint can be lodged within a period of two months from the date on which the decision in question has become final and binding or on which a measure has been notified or on which notice of other interference has been given. As regards measures and other interferences, the above period commences when the complainant could have become aware of them. In many cases it has been the practice of all chambers of the Constitutional Court to entertain complaints about excessive length of proceedings only where the proceedings complained of are pending before the authority liable for the alleged violation at the moment when such complaints are lodged (see, for example, decision files nos. I. ÚS 34/99, II. ÚS 55/02, III. ÚS 20/00, III. ÚS 150/03, IV. ÚS 96/02, I. ÚS 161/02, IV. ÚS 176/03 and many others). In his separate opinions in such cases one judge of the Constitutional Court consistently expressed the view that, in accordance with section 53 (3) of the Constitutional Court Act 1993, a complaint about length of proceedings could be lodged within two months of the date when the proceedings ended by a final decision (see, for example, decision file nos. III. ÚS 168/02, III. ÚS 64/03, III. ÚS 109/03, III. ÚS 117/03, III. ÚS 143/03 and III. ÚS 150/03). Reference was made, inter alia, to the Court's practice under Article 35 § 1 of the Convention. The judge argued that the termination of domestic proceedings by a final decision was not an obstacle to the examination by the Constitutional Court of their length where the relevant complaint had been made within the statutory time-limit. In a reply to the Government Agent's inquiry in the context of the present application, on 1 October 2008 the Vice-President of the Constitutional Court indicated that it was the practice of chambers of the Constitutional Court to examine complaints about delays in proceedings before ordinary courts only in cases where such proceedings were still pending. | 0 |
train | 001-115399 | ENG | HRV | COMMITTEE | 2,012 | CASE OF LONČAR v. CROATIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Erik Møse;Julia Laffranque | 4. The applicant was born in 1952 and lives in Split. 5. On 23 February 1999 the applicant brought a civil action for defamation against the Croatian Radio Television in the Split Municipal Court (Općinski sud u Splitu), seeking non-pecuniary damages. 6. In the period between 20 May 1999 and 19 May 2000 the firstinstance court held seven hearings. 7. By a judgment of 19 May 2000 the Municipal Court dismissed the applicant’s action. 8. Following an appeal by the applicant, on 21 May 2004 the Split County Court (Županijski sud u Splitu) quashed the first-instance judgment and remitted the case. 9. In the resumed proceedings, the Municipal Court held three hearings, and on 21 September 2009 delivered a judgement whereby it ordered the defendant to pay the applicant 30,000 Croatian kunas (HRK) as compensation for non-pecuniary damage. 10. Following an appeal by the defendant, on 26 November 2010 the Split County Court reduced the amount of damages payable to the applicant to HRK 20,000. The judgment was served on the applicant’s representative on 4 January 2011. 11. Meanwhile, on 5 November 2007 the applicant lodged a request for the protection of the right to a hearing within reasonable time (zahtjev za zaštitu prava na suđenje u razumnom roku) with the Split County Court. 12. On 18 August 2008 the Split County Court found a violation of the applicant’s right to a hearing within reasonable time, awarded her HRK 12,5001 in compensation and ordered the Split Municipal Court to give a decision in her case within six months of the service of its decision. The County Court’s decision was served on the Split Municipal Court on 31 October 2008. 13. The relevant provisions of the Courts Act (Zakon o sudovima, Official Gazette nos. 150/05, 16/07 and 113/08), governing the request for the protection of the right to a hearing within a reasonable time, as the remedy for the length of judicial proceedings in Croatia, are set out in Praunsperger v. Croatia, no. 16553/08, § 21, 22 April 2010. | 1 |
train | 001-91843 | ENG | HUN | CHAMBER | 2,009 | CASE OF PATKOVA v. HUNGARY | 4 | Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | 5. The applicant was born in 1942 and lives in Prague. 6. In the context of an inheritance dispute, in early 1992 the applicant brought an action before the Hungarian Buda Surroundings District Court. On 20 July 1992 the case was transferred to the Hungarian Pest Central District Court. 7. On 26 January 2005 the procedure was interrupted after a few hearings because the applicant did not identify the successor of one of the respondents who had died. 8. As of 1 April 2006, sections 114/A and 114/B of the Code of Civil Procedure provided a first instance remedy and appeal for complaints about the undue length of civil proceedings. The courts dealing with such complaints, if well-founded, are expected to order measures to facilitate the progress of the litigation at issue. | 1 |
train | 001-80947 | ENG | RUS | CHAMBER | 2,007 | CASE OF ZAGORODNIKOV v. RUSSIA | 3 | Violation of Art. 6-1 (public hearing);No Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 6. The applicant was born in 1967 and lives in Moscow. He was an investor in Russian Credit, a private bank which is now insolvent. 7. In 1998 and 1999 the applicant won two legal actions against the bank. Unable to recover his investment despite the judgments in his favour, the applicant instituted numerous sets of proceedings against the bank and various authorities involved in its insolvency. 8. In April 2000 188,900 of the bank's creditors joined together to form a union, obtained a settlement with the bank and asked the Commercial Court of Moscow to ratify it. 221 creditors disagreed with the settlement. Some of them, including the applicant, lodged their written objections with the court. 9. The Commercial Court of Moscow heard the case in four hearings which took place on 10, 11, 14, and 15 August 2000. The court gave notice of the hearings to the 221 creditors who had objected to the settlement, representatives of the creditors' union and representatives of the bank. Since the applicant received the notice only on 14 August 2000, he was able to participate in the last hearing only. According to the applicant, on 15 August 2000 the judge refused to hear his pleadings on the ground that they were essentially the same as those of the other creditors. 10. Access to the court building was restricted throughout the proceedings. On 10 August 2000 a policeman standing at the entrance turned away twenty to twenty-five people who wished to enter the courtroom but who did not have a notice to appear or an identity card. On each of the following days about three to five people wishing to attend the hearings were refused access to the court building. At each hearing a number of seats in the courtroom remained free. 11. On 15 August 2000 the Commercial Court of Moscow ratified the settlement. The applicant appealed. 12. On 9 October 2000 the Appeals Division of the Commercial Court of Moscow upheld the settlement. The applicant participated in the hearing, pleaded his case and submitted written arguments. Disagreeing with the judgment, the applicant appealed on points of law. 13. On 1 December 2000 the Federal Commercial Court of the Moscow Circuit dismissed the appeal on points of law. The applicant participated in the hearing, pleaded his case and submitted written arguments. 14. Public access to the appeal hearings was also restricted. Both appeal courts ignored the applicant's complaint that the first-instance hearings had not been public. 15. The commercial courts ratified the settlement in accordance with the Code of Commercial Procedure of the Russian Federation (Law no. 70-FZ of 5 May 1995, in force at the material time). Article 9 of the Code required proceedings to be public: “Proceedings in commercial courts shall be public. A hearing in camera shall be possible if [the case concerns] State, commercial, and other secrets...” 16. Article 115 of the Code required the commercial court to verify at the beginning of the proceedings whether the notice to appear had been properly dispatched to the absentee parties: “The presiding judge ... shall verify the presence of the parties and other participants at the hearing ... [and shall find out] whether persons who do not appear have been properly notified and if there is information available concerning the reasons for their failure to appear.” | 1 |
train | 001-57430 | ENG | DNK | CHAMBER | 1,989 | CASE OF BARFOD v. DENMARK | 2 | No violation of Art. 10 | null | 7. The applicant is a Danish citizen, born in 1919. He is a precious-stone cutter by profession and resides at Narssaq, Greenland. 8. When, in 1979, the Greenland Local Government decided to introduce taxation of Danish nationals working on American bases in Greenland, a number of the persons affected (which persons did not include Mr Barfod) challenged that decision before the High Court of Greenland (Grønlands Landsret). They argued that the decision was illegal on the grounds, inter alia, that they did not have the right to vote in local elections in Greenland and did not receive any benefits from the Greenland authorities. The case was heard in the High Court sitting with one professional judge and two lay judges; the latter were both employed by the Local Government. In its judgment of 28 January 1981, which is not the object of the present complaint, the High Court unanimously found for the Local Government; this judgment was subsequently upheld by the High Court for Eastern Denmark (Østre Landsret) on 8 September 1983 ("the 1981 tax case"). 9. After learning about the judgment of the High Court of Greenland, the applicant wrote an article on the judgment, published in a magazine called "Grønland Dansk" in August 1982. In the article he expressed his opinion that the two lay judges were disqualified under Article 62 of the Danish Constitution (see paragraph 15 below); he also questioned their ability and power to decide impartially in a case brought against their employer. The article included the following passage (translation from Danish): "Most of the Local Government’s members could ... afford the time to watch that the two Greenland lay judges - who are by the way both employed directly by the Local Government, as director of a museum and as consultant in urban housing affairs - did their duty, and this they did. The vote was two to one [cf paragraph 13 below] in favour of the Local Government and with such a bench of judges it does not require much imagination to guess who voted how." 10. The professional High Court judge considered that these remarks on the two lay judges were of a kind which might damage their reputation in the eyes of the public and hence generally impair confidence in the legal system. As head of the Greenland judiciary, he consequently applied to the Greenland Chief of Police, asking for a criminal investigation to be instituted. The applicant was subsequently charged with defamation of character within the meaning of Article 71(1) of the Greenland Penal Code (Kriminalloven for Grønland; see paragraph 17 below) before the District Court (Kredsret) of Narssaq. 11. After an initial question of venue had been settled, the case was heard by the District Court of Narssaq on 9 December 1983. The applicant confirmed that he had written the article in question but he maintained that the lay judges had been barred, by virtue of Article 62 of the Danish Constitution (see paragraph 15 below), from adjudicating in the tax case and that the defamation case brought against him violated Article 77 of the Danish Constitution, which guarantees freedom of expression (see paragraph 16 below). In its judgment of the same day, the District Court stated (translation from Danish): "The Court does not find that the validity of the High Court judgment of 28 January 1981 should be examined in the present proceedings. The sole question is whether the accused, through the contents of his article, has insulted two of the judges sitting in that case. The Court finds that in the particular paragraph of the article in question the accused used such words that the two judges concerned may rightly consider their honour offended. The right invoked by the accused to freedom of expression in accordance with Article 77 of the Constitution is not found to be violated since the accused is entitled, without prior censorship, to state his views, although he may still be held responsible in the courts. Accordingly, the Court finds the accused guilty of having violated Article 71(1) of the Greenland Penal Code since it does not find that the accused has, in accordance with Article 71(2) of the same Code, proved the justification of his choice of words in the article in question." The District Court imposed a fine of 2,000 Danish Crowns on the applicant. 12. The applicant appealed to the High Court for Eastern Denmark, but the proceedings were transferred to the High Court of Greenland as this court was considered the proper court of appeal. When the High Court heard the case, the usual professional judge, who was disqualified as he had been responsible for initiating the proceedings, was replaced by one of his deputies (see paragraphs 10 above and 18 below). 13. In its judgment of 3 July 1984 upholding the District Court’s judgment, the High Court emphasised that the applicant had misunderstood the votes in the 1981 tax case: it was only with regard to the reasoning that there was a dissent; with regard to the conclusion all three judges had decided in favour of the Local Government (see paragraph 8 above). As to the charge brought against the applicant, the Court stated inter alia (translation from Danish): "Like the District Court, the High Court agrees with the prosecution that the words of the article to the effect that the two Greenland lay judges did their duty - namely their duty as employees of the Local Government to rule in its favour - represent a serious accusation which is likely to lower them in public esteem. Proof of the accusation has not been adduced, something which, moreover, would not have been possible since it cannot be excluded that they would have reached the same result had they not been employed by the Local Government. The accused will hereafter be considered guilty of having violated Article 71(1) of the Penal Code. Finally, concerning the question of the competence of the two lay judges, the High Court agrees with the accused that they, being employed in leading positions by the defendant party, ought - as was pointed out by the defence and notwithstanding the specific difficulties in Greenland of observing strict rules in regard to competence - to have considered themselves as disqualified and thus refrained from participating in the case, and that he was correct in drawing attention to this. Having regard, on the one hand, to the seriousness of the accusation and the information now available about the accused’s economic situation - which would give grounds for a considerable increase of the fine imposed - and, on the other hand, to the appropriateness of drawing attention to the failure to observe reasonable rules of competence which occurred, the Court finds that the fine imposed should be confirmed." 14. The applicant subsequently asked the Ministry of Justice for leave to appeal to the Supreme Court (Højesteret), but his request was rejected on 14 March 1985. 15. According to Article 62 of the Constitution (Danmarks Riges Grundlov), the administration of justice shall remain separated from the Executive and the rules in this respect shall be laid down by law. 16. Freedom of expression is protected by Article 77 of the Constitution, which provides (translation from Danish): "Everyone shall be entitled to make public his views in print, in writing and in speech, with the proviso that he may be held responsible in a court of justice. Censorship and other preventive measures shall never again be introduced." 17. The crime of defamation of character is defined in Article 71 of the Greenland Penal Code (Kriminalloven for Grønland), which provides (translation from Danish): [(1)] "Any person shall be liable to punishment for defamation of character if he degrades the honour of another person through insulting words or acts or if he makes or disseminates an accusation which is likely to damage the esteem in which the insulted party is held by his fellow citizens or which may in other ways damage his relationship with other people. (2) However, no person may be convicted on the ground of an accusation which is proved true or has been made in good faith, if the perpetrator was under an obligation to make the statement or acted in order to safeguard, justifiably, an evident public interest or his own or another’s interest. (3) A person making an accusation supported by evidence may nevertheless be convicted if the wording of the accusation is unduly insulting or if the perpetrator had no reasonable cause to make the accusation. (4) Whenever a defamatory accusation is unwarranted, the insulted party may call for a statement to this effect to be included in the conclusions of the judgment." 18. The administration of justice in Greenland is much influenced by the special conditions obtaining there: time-honoured traditions, the country’s enormous size and widely scattered settlements. The legal system consists of two levels of courts: the district courts, which are the courts of first instance, and the High Court, which is the court of appeal but can also hear certain cases at first instance. Depending on whether the High Court decides a case on appeal or at first instance, its judgment can be appealed either to the Supreme Court, if leave to appeal is granted by the Ministry of Justice, or to the High Court for Eastern Denmark. The High Court is presided over by the High Court Judge or one of his deputies, all of whom are legally trained. The High Court also includes two lay judges, appointed for four years at a time by the Greenland Parliament (Landstinget) upon nomination by the High Court Judge. The district courts are composed of three lay judges appointed for four years: the president, appointed by the High Court Judge, and two other lay judges appointed by the local authorities upon nomination by the High Court Judge. The lay judges discharge their duties as a civic obligation alongside their ordinary work. Any person entitled to vote in local elections may be appointed to act as a lay judge. Only if it is especially onerous for a lay judge to discharge his duties, may he be relieved of his appointment by the High Court Judge. 19. It is a fundamental principle of Danish as well as Greenland administration of justice that a judge must be impartial and be guided solely by the law and the evidence adduced. This principle applies to all persons exercising judicial power, that is both professional judges and lay judges. 20. The rules relating to disqualification of judges are laid down in the Greenland Administration of Justice Act. However this Act is worded in general terms and does not explicitly mention an employee/employer relationship between judges and parties as a ground for disqualification. 21. A decision given by a judge under the influence of considerations other than those deriving from the law or the evidence adduced, for example in deference to his employers, would be a manifest breach of duty for which sanctions would be available either under the Greenland Administration of Justice Act (disciplinary punishment) or under Article 28 of the Greenland Penal Code (abuse of public authority). | 0 |
train | 001-57564 | ENG | GBR | CHAMBER | 1,986 | CASE OF REES v. THE UNITED KINGDOM | 2 | No violation of Art. 8;No violation of Art. 12 | C. Russo | 11. The applicant, a British citizen born in 1942, lives at Tunbridge Wells in England. 12. At birth the applicant possessed all the physical and biological characteristics of a child of the female sex, and was consequently recorded in the register of births as a female, under the name Brenda Margaret Rees. However, already from a tender age the child started to exhibit masculine behaviour and was ambiguous in appearance. In 1970, after learning that the transsexual state was a medically recognised condition, she sought treatment. She was prescribed methyl testosterone (a hormonal treatment) and started to develop secondary male characteristics. 13. In September 1971, the applicant - who will henceforth be referred to in the masculine - changed his name to Brendan Mark Rees and subsequently, in September 1977, to Mark Nicholas Alban Rees. He has been living as a male ever since. After the change of name, the applicant requested and received a new passport containing his new names. The prefix "Mr." was, however, at that time denied to him. 14. Surgical treatment for physical sexual conversion began in May 1974 with a bilateral masectomy and led to the removal of feminine external characteristics. The costs of the medical treatment, including the surgical procedures, were borne by the National Health Service. 15. The applicant made several unsuccessful efforts from 1973 onwards to persuade Members of Parliament to introduce a Private Member’s Bill to resolve the problems of transsexuals. Representations were also made by him, and by a number of Members of Parliament on his behalf, to the Registrar General to secure the alteration of his birth certificate to show his sex as male, but to no avail. 16. On 10 November 1980 his solicitor wrote to the Registrar General making a formal request under Section 29(3) of the Births and Deaths Registration Act 1953, on the ground that there had been "a mistake in completing the Register". In support of his request, the applicant submitted a medical report by Dr. C.N. Armstrong. The report stated that, in Dr. Armstrong’s opinion, of the four criteria of sex - namely chromosomal sex, gonadal sex, apparent sex (external genitalia and body form) and psychological sex, the last was the most important as it determined the individual’s social activities and role in adult life, and it was also, in his view, pre-determined at birth, though not evident until later in life. Dr. Armstrong considered that as the applicant’s psychological sex was male, he should be assigned male. On 25 November the Registrar General refused the application to alter the Register. He stated that the report on the applicant’s psychological sex was not decisive and that, "in the absence of any medical report on the other agreed criteria (chromosomal sex, gonadal sex and apparent sex)", he was "unable to consider whether an error (had been) made at birth registration in that the child was not of the sex recorded". No further evidence in support of the applicant’s request was subsequently submitted. 17. The applicant considers himself a man and is socially accepted as such. Except for the birth certificate, all official documents today refer to him by his new name and the prefix "Mr.", where such prefix is used. The prefix was added to his name in his passport in 1984. 18. In the United Kingdom sexual reassignment operations are permitted without legal formalities. The operations and treatment may, as in the case of Mr. Rees, be carried out under the National Health Service. 19. Under English law a person is entitled to adopt such first names or surname as he or she wishes and to use these new names without any restrictions or formalities, except in connection with the practice of some professions where the use of the new names may be subject to certain formalities (see, inter alia, Halsbury’s Laws of England, 4th ed., vol. 35, para. 1176). For the purposes of record and to obviate the doubt and confusion which a change of name is likely to involve, the person concerned very frequently makes, as did Mr. Rees, a declaration in the form of a "deed poll" which may be enrolled with the Central Office of the Supreme Court. The new names are valid for purposes of legal identification (see Halsbury’s Laws of England, loc. cit., para. 1174) and may be used in documents such as passports, driving licences, car registration books, national insurance cards, medical cards, tax codings and social security papers. The new names are also entered on the electoral roll. 20. Civil status certificates or equivalent current identity documents are not in use or required in the United Kingdom. Where some form of identification is needed, this is normally met by the production of a driving licence or a passport. These and other identity documents may, according to the prevailing practice, be issued in the adopted names of the person in question with a minimum of formality. In the case of transsexuals, the documents are also issued so as to be in all respects consistent with the new identity. Thus, the practice is to allow the transsexual to have a current photograph in his or her passport and the prefix "Mr.", "Mrs.", "Ms." or "Miss", as appropriate, before his or her adopted names. 21. The system of civil registration of births, deaths and marriages was established by statute in England and Wales in 1837. Registration of births is at present governed by the Births and Deaths Registration Act 1953 ("the 1953 Act"). The entry into force of this Act entailed no material change to the law in force in 1942, the date of the applicant’s birth. The 1953 Act requires that the birth of every child be registered by the Registrar of Births and Deaths for the area in which the child is born. The particulars to be entered are prescribed in regulations made under the 1953 Act. A birth certificate takes the form either of an authenticated copy of the entry in the register of births or of an extract from the register. A certificate of the latter kind, known as a "short certificate of birth", is in a form prescribed and contains such particulars as are prescribed by regulations made under the 1953 Act. The particulars so prescribed are the name and surname, sex, date of birth and place of birth of the individual. An entry in a birth register and the certificate derived therefrom are records of facts at the time of the birth. Thus, in England and Wales the birth certificate constitutes a document revealing not current identity, but historical facts. The system is intended to provide accurate and authenticated evidence of the events themselves and also to enable the establishment of the connections of families for purposes related to succession, legitimate descent and distribution of property. The registration records also form the basis for a comprehensive range of vital statistics and constitute an integral and essential part of the statistical study of population and its growth, medical and fertility research and the like. 22. The 1953 Act provides for the correction of clerical errors, such as the incorrect statement or omission of the year of the birth, and for the correction of factual errors; however, in the latter case, an amendment can be made only if the error occurred when the birth was registered. The birth register may also, within twelve months from the date of registration, be altered to give or change the name of a child and re-registration of a birth is permitted where the child has been legitimated. In addition, under the Adoption Act 1958, where a child is adopted, the register of births is to be marked with the word "adopted"; the adoption is also registered in the Adopted Children Register and a short certificate of birth may be obtained which contains no reference to parentage or adoption. 23. The criteria for determining the sex of the person to be registered are not laid down in the 1953 Act nor in any of the regulations made under it. However, the practice of the Registrar General is to use exclusively the biological criteria: chromosomal, gonadal and genital sex. The fact that it becomes evident later in life that the person’s "psychological sex" is at variance with these biological criteria is not considered to imply that the initial entry was a factual error and, accordingly, any request to have the initial entry changed on this ground will be refused. Only in cases of a clerical error, or where the apparent and genital sex of the child was wrongly identified or in case of biological intersex, i.e. cases in which the biological criteria are not congruent, will a change of the initial entry be contemplated and it is necessary to adduce medical evidence that the initial entry was incorrect. However, no error is accepted to exist in the birth entry of a person who undergoes medical and surgical treatment to enable that person to assume the role of the opposite sex. 24. The birth registers and the indexes of all the entries are public. However, the registers themselves are not readily accessible to the general public as identification of the index reference would require prior knowledge not only of the name under which the person concerned was registered, but also of the approximate date and place of birth and the Registration District. 25. The law does not require that the birth certificate be produced for any particular purpose, although it may in practice be requested by certain institutions and employers. In particular, a birth certificate has in general to accompany a first application for a passport, although not for its renewal or replacement. A birth certificate is also generally (though not invariably) required by insurance companies when issuing pension or annuity policies, but not for the issue of motor or household policies nor, as a rule, for the issue of a life insurance policy. It may also be required when enrolling at a university and when applying for employment, inter alia, with the Government. 26. In English law, marriage is defined as a voluntary union for life of one man and one woman to the exclusion of all others (per Lord Penzance in Hyde v. Hyde (1868) Law Reports 1 Probate and Divorce 130, 133). Section 11 of the Matrimonial Causes Act 1973 gives statutory effect to the common-law provision that a marriage is void ab initio if the parties are not respectively male and female. 27. According to the decision of the High Court in Corbett v. Corbett (1971) Probate Reports 83, sex, for the purpose of contracting a valid marriage, is to be determined by the chromosomal, gonadal and genital tests where these are congruent. The relevance of a birth certificate to the question whether a marriage is void only arises as a matter of evidence which goes to the proof of the identity and sex of the person whose birth it certifies. The entry in the birth register is prima facie evidence of the person’s sex. It may, however, be rebutted if evidence of sufficient weight to the contrary is adduced. 28. If, for the purpose of procuring a marriage or a certificate or licence for marriage, any person knowingly and wilfully makes a false oath or makes or signs a false declaration, notice or certificate required under any Act relating to marriage, he is guilty of an offence under Section 3 (1) of the Perjury Act 1911. However, a person contracting a marriage abroad is not liable to prosecution under this Act. 29. The biological definition of sex laid down in Corbett v. Corbett has been followed by English courts and tribunals on a number of occasions and for purposes other than marriage. The applicant has drawn the Court’s attention to the following cases. In one case concerning prostitution, a male to female transsexual, who had undergone both hormone and surgical treatment, was nevertheless treated as a male by the Court of Appeal for the purposes of Section 30 of the Sexual Offences Act 1956 and Section 5 of the Sexual Offences Act 1967 (Regina v. Tan and Others 1983, [1983] 2 All England Law Reports 12). In two cases concerning social security legislation, male to female transsexuals were considered by the National Insurance Commissioner as males for the purposes of retirement age; in the first case the person in question had only received hormone therapy, in the second he had involuntarily begun to develop female secondary characteristics at the age of 46, which developments were followed by surgery and adoption of a female social role some 13 years later (cases R (P) 1 and R (P) 2 in the 1980 Volume of National Insurance Commissioner Decisions). Lastly, in a case before an Industrial Tribunal a female to male transsexual, who had not undergone any sex change treatment, was treated as a female by the Tribunal for the purposes of the Sex Discrimination Act 1975; the person in question had sought and received employment in a position reserved for men under the Factories Act, but was dismissed after discovery of her biological sex (White v. British Sugar Corporation Ltd. [1977] Industrial Relations Law Reports p. 121). | 0 |
train | 001-102376 | ENG | UKR | COMMITTEE | 2,010 | CASE OF KOVALEV v. UKRAINE | 4 | Violation of Art. 6-1 | Mirjana Lazarova Trajkovska;Rait Maruste;Zdravka Kalaydjieva | 4. The applicant was born in 1958 and lives in Odessa. 5. On 23 December 1999 the applicant lodged a claim with the Kyivskyy District Court of Odessa against the local land department. He sought the acknowledgement of his ownership title over a land plot which according to him was within his family estate. 6. On 27 September 2000 the applicant lodged a claim with the Zhovtnevyy District Court of Odessa against the municipal council seeking the ownership certificates in respect of the disputed land to be declared invalid. The two claims were subsequently joined into one case. 7. K., a private person and the owner of the disputed land plot, participated in the proceedings as a third party. 8. On 16 August 2001 the Kyivskyy District Court of Odessa left the applicant’s claims without examination in view of his repeated failure to appear before the court. On 27 November 2001 the Odessa Regional Court of Appeal quashed the ruling of 16 August 2001 and sent the case for further examination. 9. On 24 May 2002 the Kyivskyy District Court of Odessa found that the applicant had no legal basis to claim a title to the land plot and rejected his claims as unsubstantiated. 10. On 6 September 2004 the Odessa Regional Court of Appeal dismissed the applicant’s appeal which he had to re-submit on several occasions in order to comply with procedural requirements and upheld the judgment of 24 May 2002. 11. On 5 October 2004 the applicant appealed in cassation. 12. On 20 July 2007 the Kharkiv Regional Court of Appeal, acting as a court of cassation, dismissed the applicant’s appeal in cassation and upheld the decisions of the lower courts. 13. The applicant received a copy of the ruling of 20 July 2007 in September 2009 after he had lodged a number of enquiries with the courts. 14. In the course of the proceedings the applicant lodged a number of procedural requests, some of which were allowed, including those concerning the application of provisional measures, withdrawal of the judges from his case, suspension of the proceedings in view of his health problems and pending the outcome of a criminal case against a private person concerning the matter. He also lodged appeals against some of the procedural rulings and requested copies of documents from the case-file. On six occasions the applicant failed to appear before the courts or requested adjournment of the hearings because of his health problems which caused a delay of about seven months. Another five-month delay was caused by respondents’ non-appearance before the courts. | 1 |
train | 001-96865 | ENG | ROU | CHAMBER | 2,010 | CASE OF BALINT v. ROMANIA | 4 | Violation of Art. 6-1 | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra | 4. The applicant was born in 1969 and lives in Bucharest. 5. On 29 September 1994, the applicant was arrested mainly on charges of robbery and trespassing. The criminal proceedings against him and three other persons were opened the same day. 6. On 28 November 1994, he was released from custody. 7. In an indictment dated 29 September 1995, the Prosecutor's Office attached to the Bucharest County Court committed the applicant and the three other persons for trial. 8. On 12 October 1995 the case was registered with the Bucharest District Court. 9. On 2 April 1996, on an appeal by one of the co-accused against an interlocutory judgment rendered in the case, the file was sent to the Bucharest County Court, from where it was returned on 13 May 1996 and was entered into the court's list on 29 May 1996. However, none of the contents of the file could be found after this date. 10. Consequently, on 7 March 1997, the District Court sent the case back to the County Prosecutor's Office to reconstitute the file. 11. On 6 June 1997, under Article 510 of the Code of Criminal Procedure, the County Prosecutor's Office referred the case back to the District Court, this being the appropriate judicial authority to reconstitute the file at that stage of the proceedings. 12. Therefore, on 30 June 1997, the case was re-entered into the District Court's list. Several items, such as the indictment and the arrest warrants, were requested from the Prosecutor's Office. 13. On 7 December 2001 the District Court considered the file reconstituted. It gave judgment on 7 February 2003, sentencing the applicant to six years' imprisonment. 14. Most of the adjournments of the hearings were caused by the failings of the judicial authorities in summoning the defendants or civil parties 15. Following an appeal by the applicant, the sentence was upheld in a decision of 12 May 2004 of the Bucharest County Court and lastly in a final decision of 29 July 2004 of the Bucharest Court of Appeal. | 1 |
train | 001-105421 | ENG | FRA | CHAMBER | 2,011 | CASE OF DE SOUZA RIBEIRO v. FRANCE | 3 | Remainder inadmissible;No violation of Art. 13+8 | Dean Spielmann;Elisabet Fura;Isabelle Berro-Lefèvre;Jean-Paul Costa;Karel Jungwiert;Mark Villiger | 5. The applicant, a Brazilian national, was born in 1988 and lives in Remire Montjoly in French Guiana. 6. He arrived on French soil in 1992 at the age of four and remained there until 1994, when he returned to Brazil. 7. In 1995, holding a tourist visa, the applicant returned to Cayenne in French Guiana, where he went to primary school in 1996 and then to secondary school. As he had no valid residence permit and could not apply for one until he came of age, he had to leave school in 2004, at the age of sixteen. 8. In 2005 he was stopped for a drug offence. By an order of 17 May 2006 he was placed under court supervision and barred from leaving French Guiana. On 25 October 2006 the Cayenne Youth Court gave him a two-month suspended sentence and two years’ probation. 9. On 25 January 2007 the applicant was stopped for a road check and, being unable to present any valid papers, was taken into custody. 10. A removal order and an administrative detention order were issued against him that same day at 10 a.m. 11. On 26 January, at 3.11 p.m., the applicant lodged an appeal against the removal order with the Cayenne Administrative Court, for abuse of authority, arguing that the order was illegal under Article 511-4 of the Code regulating the entry and residence of aliens and asylum seekers (see the section on “Relevant Domestic Law”). A hearing was scheduled for 1 February 2007. An urgent application was filed at the same time as the appeal, asking the court to suspend the enforcement of the removal order while it examined the validity of the measure. In support of his application for a suspension the applicant relied on Article 8 of the Convention, arguing that he had entered French territory before the age of thirteen, that he had lived there on a habitual basis ever since, that both his parents had residence permits, and that one of his brothers had acquired French citizenship and the other three would be entitled to apply for it at the age of thirteen as they had been born on French soil. 12. On 26 January at 4 p.m. the applicant was removed to Brazil. 13. The same evening the Cayenne Administrative Court declared his urgent application for a suspension of his removal devoid of purpose as he had already been deported. 14. On 6 February 2007 the applicant lodged an urgent application with the Cayenne Administrative Court requesting that the Prefect of French Guiana be instructed to organise his return there within twenty-four hours because of the interference with his family life. The application was rejected on 7 February as the court had not yet reached a decision concerning the validity of the removal order, and the applicant’s return would amount to a permanent measure whereas the urgent-applications judge could only order interim measures. 15. On an unspecified date the applicant returned to French Guiana illegally, by his own means, to live with his family. 16. In a judgment of 18 October 2007 the Cayenne Administrative Court found the removal order illegal on the grounds that the applicant had shown that he had been habitually resident in France since the age of thirteen and could therefore not be deported. The court refused to have the applicant issued with a residence permit, but ordered the Prefect of French Guiana to re-examine his administrative situation within three months. 17. On 16 June 2009 the authorities in French Guiana issued the applicant with a “visitor’s” permit, which was valid for one year but did not allow him to work. 18. An investigation revealed that the authorities had issued the “visitor’s” permit by mistake. The applicant was accordingly issued, in September 2009, with a new residence permit for “private and family life”, backdated to June 2009 and allowing him to work. 19. That residence permit was not renewed upon expiry because of a problem with the documents required for its renewal. In October 2010, however, the applicant was eventually issued with a residence permit valid from June 2010 to June 2011. “The following persons shall not be required to leave French territory or removed therefrom under the provisions of this chapter: ... 2o Aliens who can prove by any means that they have been habitually resident in France at least since the age of thirteen.” “For the purposes of this part [concerning expulsion measures], the following provisions shall apply in French Guiana and Saint-Martin: ... 2o Without prejudice to the provisions of the preceding paragraph, an alien who has been ordered to leave French territory or against whom a removal order has been issued and who refers the matter to the administrative court may, at the same time, apply for a stay of execution. Consequently, the provisions of Articles L. 512-1 and L. 512-2 to L. 512-4 [whereby a removal order issued by the prefecture may be challenged before the administrative court within 48 hours, with suspensive effect on the removal order] shall not apply in French Guiana or SaintMartin.” “The provisions of Article L. 514-1 shall apply in the département of Guadeloupe and in Saint-Barthélemy, for five years from the publication of Law no. 2006-911 of 24 July 2006 on immigration and integration.” | 0 |
train | 001-110145 | ENG | RUS | CHAMBER | 2,012 | CASE OF KAZANTSEV v. RUSSIA | 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) | Anatoly Kovler;Elisabeth Steiner;Erik Møse;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen | 5. The applicant was born in 1966 and lives in the town of Pokachi, Tyumen Region. 6. On 1 July 1999 the applicant was arrested and charged with sexual assault of a minor. Immediately upon his arrest, at 3.15 a.m., the applicant was subjected to a body search at the police station. The report stated, inter alia, that no injuries were found on the applicant. 7. On the same day at 5 a.m. the applicant underwent a physical examination in the presence of attesting witnesses A.T. and P. No injuries were noted in the examination report. The applicant alleges that during the examination the officer of the detention facility of the Interior of Pokachi (ИВС Покаческого ГОВД), T., beat him up with a police truncheon and that investigator B. abused him verbally. 8. On the same day at 9 a.m. the applicant was assigned legal counsel. 9. On the same day at 1 p.m. a forensic examination of the applicant was carried out in connection with the criminal charges against him. He was examined by a forensic expert who found two bruises on the right side of the applicant’s back. The report stated that the bruises were inflicted with a “blunt, hard, long object with a round or oval cross-section, such as a police truncheon or a baton”, and that they dated back to less than twenty-four hours before the forensic examination. 10. According to the applicant, on 2 June 1999 he complained about his ill-treatment to K., the investigator of the Pokachi prosecutor’s office, who was investigating his case. She allegedly promised to register his complaint and to bring the matter to the prosecutor’s attention. The applicant claimed that he had complained to the prosecutor’s office again a number of times, but received no reply. 11. On 24 September 1999 the applicant was given access to the results of the forensic examination. 12. On 27 December 1999 the applicant sent a written complaint to the prosecutor’s office of Pokachi complaining about the ill-treatment he allegedly received on the day of his arrest. 13. Having received no reply, on 20 January 2000 the applicant wrote to the Pokachi prosecutor’s office asking for news on his complaint of illtreatment. 14. On 28 February 2000 and on 31 May 2000 the applicant complained to the Prosecutor’s Office of the Khanty-Mansiyskiy Autonomous Circuit about the lack of response to his complaint of ill-treatment. On 1 June 2000 they replied that his letter had been forwarded to the Pokachi prosecutor’s office for a decision. 15. On 3 July 2000 investigator K. decided not to investigate the applicant’s allegations in criminal proceedings. The parties have not provided any information about this part of the inquiry. The Government stated, in particular, that the relevant files had been destroyed after having reached the time-limit of their storage in archives. 16. The applicant complained about the decision of 3 July 2000 to the superior prosecutor’s office and also challenged it before a court. 17. On 6 September 2000 the Prosecutor’s Office of the KhantyMansiyskiy Autonomous Circuit replied to the applicant that the inquiry into his allegations had been sufficient. It was considered, in particular, that no breach of domestic law arose from the fact that investigator K. had been in charge of the inquiry, because she had not been personally implicated in the alleged illtreatment. 18. On 12 January 2001 the Langepasskiy Town Court of the KhantyMansiyskiy Autonomous Circuit convicted the applicant as charged. Having noted that the applicant had committed the offence while on parole following a previous criminal conviction, the court lifted the parole and sentenced him to an aggregate prison term of fourteen years. 19. On the same date the court examined the applicant’s complaint about a lack of an effective investigation into his allegations of ill-treatment. It quashed the decision of the prosecutor’s office dispensing with criminal proceedings on the grounds that investigator K., who had taken the decision, was also an investigator in the applicant’s criminal case and could therefore be regarded as an interested party; she was therefore precluded from conducting the inquiry into the applicant’s allegations of ill-treatment. 20. The prosecutor’s office resumed the inquiry and assigned the file to Ms I., an investigator of the Pokachi Prosecutor’s Office. On 15 October 2001 Ms I. questioned A.T., who had acted as an attesting witness during the applicant’s physical examination. He explained that on that night he had been remanded in custody, and that he had been in the state of alcoholic intoxication when he was requested by the facility officers to act as an attesting witness during the applicant’s physical examination. He said that the applicant had been “anxious”, but he had not been beaten with a truncheon or otherwise ill-treated. He did not remember much about the events at issue because of the time that had elapsed since; however, he remembered that the applicant had made no complaints of having been beaten. On the same day Ms I. questioned the implicated policemen, T. and B., and they denied the allegations of having used force in general and a truncheon in particular. They admitted that there had been a police truncheon in the room, hanging on the wall, but stated that it had not been used. Ms K., the investigator of the applicant’s criminal case who had formerly conducted the inquiry, was also questioned. She stated that she had not seen any injuries and had not received any complaints from the applicant. 21. On 16 October 2001 the prosecutor’s office decided not to open a criminal investigation into the applicant’s allegations of ill-treatment. The decision referred to the statements of A.T., T., B. and K. and concluded that there was no evidence in support of the applicant’s claims. 22. On 17 October 2001 the prosecutor’s office sent the applicant a letter, attaching a copy of the above-mentioned decision. The applicant claimed that he did not receive this notification and did not know about the decision until February 2002. He therefore sent several complaints to the prosecutor’s office about their failure to comply with the court order and investigate his ill-treatment. He also requested access to the inquiry file. 23. On 25 April 2002 investigator I. replied to the applicant that she had conducted an inquiry into his allegations of ill-treatment within the statutory time-limit of ten days. She indicated that the inquiry file was with the prosecutor’s office of the Khanty-Mansiyskiy Autonomous Circuit. 24. On 22 May 2002 the applicant lodged a complaint with the Court of the Khanty-Mansiyskiy Autonomous Circuit about the failure to investigate his ill-treatment in criminal proceedings. He requested that the court find the refusal to open criminal proceedings unlawful, grant him access to the inquiry file and award him compensation for non-pecuniary damage on account of the authorities’ alleged failure to provide him redress for a violation of his Convention rights. The court returned the applicant’s complaint, stating that it fell under the jurisdiction of the Pokachi Town Court, and instructed the applicant to apply to that court under the procedure provided for by the Code of Criminal Procedure. 25. On 12 August 2002 the applicant submitted his complaint to the Pokachi Town Court and requested it to consider his complaint under the rules of civil procedure. 26. On 19 August 2002 the Court of the Khanty-Mansiyskiy Autonomous Circuit sent the applicant another reply to his complaint, advising him that his action against the decision of the prosecutor’s office had to be lodged under the rules of criminal procedure. 27. On 27 August 2002 the Pokachi Town Court returned the applicant’s complaint and indicated that he had to specify his claims and to distinguish the grounds for his request under civil procedure from those under criminal procedure. On 2 October 2002 it again refused, by letter, to accept the complaint for examination, stating that it could not be considered in civil proceedings. The applicant had to challenge the decision of the prosecutor’s office in criminal proceedings first and then, on the basis of that decision, claim damages under the civil procedure. On 26 December 2002 the same court took a formal decision refusing to accept the applicant’s complaint, citing the aforementioned grounds. 28. The applicant reformulated his complaint under the rules of criminal procedure, and on 20 January 2003 it was accepted for examination. 29. On 2 July 2004 the Pokachi Town Court examined the applicant’s complaint and decided that the decision of 16 October 2001 was lawful and well-founded. It found that the initial decision dispensing with a criminal investigation had been quashed because the investigator had been an interested party, and that in the new inquiry no shortfalls could be found. It noted that the investigator had questioned the police officers implicated, T. and B., as well as the attesting witness, all of whom had denied that the applicant had been subjected to violence or verbal assault. The court found that the prosecutor’s office had sent the applicant a copy of the decision of 16 October 2001 and rejected the applicant’s claims that he should have been informed about the course of the inquiry as lacking any basis in law. 30. The applicant appealed, claiming, inter alia, that he had not been duly informed of the decision dispensing with a criminal investigation, that he had not been given access to the inquiry file, that neither the investigator nor the court had commented on the injuries recorded in the forensic report and that the date of his first complaint to the prosecutor’s office was 27 December 1999 and not 14 February 2000, as stated in the judgment. 31. On 1 September 2004 the Court of the Khanty-Mansiyskiy Autonomous Circuit upheld the judgment of 2 July 2004. It found, in particular, that the existence of injuries, in the absence of other evidence supporting the applicant’s allegations, was not sufficient to find T. guilty of having inflicted them. The court also stated that the failure to notify the applicant of the decision did not render it unlawful, and that during the firstinstance hearing the applicant had not requested access to the inquiry file. | 1 |
train | 001-76001 | ENG | TUR | ADMISSIBILITY | 2,006 | SENCAR AND OTHERS v. TURKEY | 4 | Inadmissible | David Thór Björgvinsson | The applicants, whose names appear in the appendix, are Turkish nationals and live in Silopi. They are represented before the Court by Mr T. Elçi, a lawyer practising in Diyarbakır. The facts of the case, as submitted by the parties, may be summarised as follows. Until 14 June 1993 the applicants lived in the Selçik village in the district of Silopi in the Şırnak province, where they own property. On the night of 13 June 1993, the Gendarmerie Battalion in Görümlü, near the village of Selçik where the applicants reside, was attacked by the PKK. On 14 June 1993 early in the morning the security forces carried out an operation on the applicants’ village, forcing women, children and men to come out of their homes. They gathered them in a square outside the village. The security forces accused the villagers of assisting the PKK. They then dispersed among the houses and set them on fire. The applicants were not allowed to retrieve any belongings from their houses and were forced to evacuate the village. They moved to the Silopi District. On 30 June 1993 the applicants applied to the Silopi Magistrates’ Court for an assessment of the damage they had suffered as a result of the burning down of their homes and possessions. However, due to the extent of the damage, it was not possible to make a complete assessment of the damage caused to their possessions, neither was it possible to make any assessment of damage caused to the fields, vineyards and gardens. On 28 July 1993 an independent expert submitted his detailed damage assessment reports to the Silopi Civil Court of First Instance. In his reports, he described the nature and the amount of the damage suffered by each applicant. On an unspecified date, copies of the assessment of damage reports were given to the Ministry of Interior. The applicants repeatedly applied to the administrative authorities in Şırnak for permission to return to their village after the incident. However, the authorities refused their requests. The investigation carried out by the authorities indicated that on 13 June 1993 there was an attack to the mechanize battalion by missiles, flak and longed barrelled rifles from inside and around Selçik village. During the clash six soldiers died and thirteen wounded, the houses of the villagers were also burned down. On 14 June 1993 a search was conducted in and around the Selçik village. Concerning this incident an investigation was lodged by the Şırnak Public Prosecutor’s Office. On 12 July 1993 the public prosecutor decided that he lacked jurisdiction and sent the file to the Diyarbakır State Security Court on 20 August 1993. This investigation is still pending before this court. The official records indicated that there was no obstacle preventing the applicants from returning to their homes and possessions in their villages. Selçik village is available for resettlement from the beginning of the year of 2001. The letter of the Şırnak Governorship dated 10 July 2001 to the district administrations stated that certain villages, including the applicants were available for resettlement. However, none of the villagers applied to return to their village. They only went to crop their fields time to time. A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-...). | 0 |
train | 001-59623 | ENG | ITA | CHAMBER | 2,001 | CASE OF GRANDE ORIENTE D'ITALIA DI PALAZZO GIUSTINIANI v. ITALY | 1 | Preliminary objection rejected (victim);Violation of Art. 11;Not necessary to examine Art. 13;Not necessary to examine Art. 14+11;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings | Georg Ress | 8. The applicant association is an Italian masonic association which groups together several lodges. It has been in existence since 1805 and is affiliated to Universal Freemasonry. In Italian law the applicant association has the status of an unrecognised private-law association under Article 36 of the Civil Code. It therefore does not have legal personality. It has filed its Articles of Association with a notary (notaio) and anyone can have access to them. By Regional Law no. 34 of 5 August 1996 (“the 1996 Law”), published in the Official Gazette of 14 August of the same year, the Marches Region (“the Region”) laid down the rules to be followed for nominations and appointments to public office for which the Region was the appointing authority (Norme per le nomine e designazioni di spettanza della Regione). Before the Court the applicant association complained of the damage allegedly sustained by it as a result of the content of section 5 of the 1996 Law. Section 1 of the 1996 Law provides that the rules shall apply to all nominations and appointments by the bodies constituted according to the Region’s Statute pursuant to laws, rules, statutes and agreements to posts in “departments of public-law and private-law authorities and bodies other than the Region”. It also provides that the rules shall likewise apply to nominations to fifteen regional bodies (listed in Schedule A to the 1996 Law) and, in some cases, to other regional bodies for which the Regional Council is the appointing authority (Schedule B to the 1996 Law). Section 5 of the Law sets out the terms and conditions for submitting applications for nominations and appointments. It provides, inter alia, that candidates must not be Freemasons. It is worded as follows: “1. Applications may be submitted by regional councillors and council groups and by professional bodies, organisations and associations active in the fields concerned to the President of the Regional Council and the President of the Regional Government respectively until thirty days before the period allowed for a nomination or appointment expires. 2. Applications must be accompanied by a statement of supporting reasons and a report containing the following particulars: (a) municipality of residence, date and place of birth; (b) qualifications; (c) career to date, usual occupation, list of currently and previously held public offices or positions in majority State-owned companies and publicly registered private companies; (d) lack of conflict of interest with the office proposed; (e) declaration of non-membership of a masonic lodge; (f) declaration, signed by the candidate, accepting the public office and stating that there is nothing to debar him from office on criminal, civil or administrative grounds. 3. The declaration of acceptance signed by the candidate must be certified authentic and contain a statement by him of any grounds of incompatibility and of the absence of any grounds debarring him from applying or making it impossible for him to do so, regard being had also to section 15 of Law no. 55 of 19 March 1990 as subsequently amended.” 9. In June 1999 the first committee of the Marches Regional Council rejected a regional bill (no. 352/98) proposing amendments and additions to Law no. 34 of 1996. The bill was intended, among other things, to abolish the declaration provided for in section 5 of the 1996 Law. 10. Article 18 of the Constitution provides: “Citizens may form associations freely, without authorisation, for purposes not prohibited for individuals by the criminal law. Secret associations and associations pursuing, even indirectly, a political aim through organisations of a military nature shall be prohibited.” Law no. 17 of 25 January 1982 contains the implementing provisions for Article 18 of the Constitution with regard to secret associations and provided for the dissolution of the association called “P2 Lodge”. Section 1 lays down the criteria for regarding an association as being a secret one. Section 4 sets out the measures to be taken in respect of persons employed in the civil service or appointed to a public office who are suspected of belonging to a secret association. That section also provides that the regions shall enact regional laws for their officials and persons nominated or appointed by a region to a public office. These regional laws must respect principles laid down in the same provision. According to the information supplied to the Court by the applicant association, such laws have been enacted by the regions of Tuscany (Law no. 68 of 29 August 1983), Emilia-Romagna (Law no. 34 of 16 June 1984), Liguria (Law no. 4 of 22 August 1984), Piedmont (Law no. 65 of 24 December 1984) and Lazio (Law no. 23 of 28 February 1985). Two of these regional laws provide that persons nominated or appointed to public office must name the associations to which they belong (section 12 of the Tuscany law and section 8 of the Lazio law). The other laws lay down the penalties to be imposed on persons so nominated or appointed if it transpires that they are members of a secret association (section 7 of the Emilia-Romagna law, section 8 of the Liguria law and section 8 of the Piedmont law). The Emilia-Romagna law also contains a prohibition on nominating or appointing persons affiliated to secret associations (section 7 of the Emilia-Romagna law). | 1 |
train | 001-71208 | ENG | TUR | CHAMBER | 2,005 | CASE OF KAKOULLI v. TURKEY | 3 | Preliminary objection rejected (non-exhaustion of domestic remedies);Violations of Art. 2;No separate issue under Art. 8;No violation of Art. 14+2 or 14+8;Non-pecuniary damage - financial awards;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 9. The applicants, Chriso Kakoulli, Andreas Kakoulli, Martha Kakoulli and Kyriaki Kakoulli, were born in 1944, 1969, 1972 and 1970 respectively. The first, third and fourth applicants live in Avgorou and the second applicant lives in Paralini. The first applicant is the widow and the other applicants are the children of Petros Kyriakou Kakoulli, a Greek Cypriot who died on 13 October 1996. 10. In the early hours of 13 October 1996 Petros Kyriakou Kakoulli and his daughter’s fiancé, Panikos Hadjiathanasiou, drove to an area called Syrindjieris, situated near the Achna roundabout in the British Sovereign Base Area (SBA) of Dhekelia, to collect snails. After a time, they separated and agreed to meet up at about 7.30 a.m. to return to their village. 11. A villager from Avgorou, Georgios Mishis, who was also collecting snails on the north side of the main road, saw the victim standing in a field approximately 70 metres away from him. He also saw a Turkish soldier approximately 10 metres from Mr Kakoulli pointing his rifle at him and a second Turkish soldier approaching him. Georgios Mishis heard Mr Kakoulli ask the first soldier, in Greek, whether he spoke Greek, to which there was no response. At that moment, the two soldiers caught sight of Mr Mishis and one of them pointed a weapon at him. Mr Mishis then backed away. 12. At this moment Mr Mishis saw an SBA police patrol vehicle on the road and told the driver, Constable Pyrgou, what he had seen. Constable Pyrgou immediately reported the incident to Sergeant Serghiou of the SBA police at Ayios Nikolaos. 13. Shortly after Mr Mishis had seen Mr Kakoulli surrounded by Turkish soldiers, Panikos Hadjiathanasiou, who was searching for Mr Kakoulli, saw him at a distance of approximately 400 metres inside the territory of northern Cyprus. Panikos Hadjiathanasiou then heard the soldiers issue a command in Turkish to stop. Upon hearing these words, Mr Kakoulli remained still and raised his hands above his head. Panikos Hadjiathanasiou saw two Turkish soldiers in combat uniform drop to battle positions on the ground approximately 40 metres from the victim and aim their rifles at him. Immediately afterwards, Panikos Hadjiathanasiou heard a shot and saw Mr Kakoulli fall down. Mr Hadjiathanasiou heard a second shot immediately after the first. 14. A few minutes later, while Mr Kakoulli was still lying on the ground, Mr Hadjiathanasiou saw one of the Turkish soldiers move and fire a third shot at him from a distance of about 7 to 8 metres from where he was lying. 15. Following orders from Sergeant Serghiou of the SBA police, Constable Duru Chorekdjioglou (a Turkish-Cypriot member of the SBA police) and Constable Petros Kamaris (a Greek-Cypriot member of the SBA police) arrived at the Achna roundabout, where they met Panikos Hadjiathanasiou, who explained what had just happened. 16. Constable Duru Chorekdjioglou spoke to a Turkish lieutenant who told him that a Greek Cypriot had entered the territory of northern Cyprus and had been shot by Turkish soldiers. The officer said that the Greek Cypriot was dead. 17. The officer allowed Constable Duru Chorekdjioglou to see the body of the deceased though not to touch or examine it. Constable Duru Chorekdjioglou reported that Mr Kakoulli appeared to be dead. 18. Sergeant Engin Mustafa of the SBA police (a Turkish Cypriot), together with two Turkish soldiers, also visited the scene of the killing and saw the body. The Turkish soldiers told Sergeant Engin Mustafa that Mr Kakoulli had been shot because he had entered “their area” and had refused to obey warnings to stop. 19. Divisional Commander R.H. Weeks of the SBA police, together with Sergeant Engin Mustafa, entered northern Cyprus and spoke with a Turkish officer who told him that Turkish soldiers had shot and killed Petros Kyriakou Kakoulli because he had entered the territory of northern Cyprus and had refused to stop. 20. The same day, Superintendent Mathias Cosgrave and Inspector Richard Duggan of the Irish Civilian Police (IRCIVPOL), part of the United Nations Forces in Cyprus (UNFICYP), visited the scene, accompanied by Sergeant Engin Mustafa. They found an investigating team from the Turkish forces already present. 21. Superintendent Anastasiou, Inspector Christou, Sergeant Zonias and Constable Hadjiyasemis of the Republic of Cyprus police visited the area, although not the exact spot where the killing had occurred. 22. Sergeant Xenofontos and Constables Kapnoullas and Aristidou of the Republic of Cyprus police visited the area and prepared a draft location plan. 23. Georgios Mishis was escorted back to the scene of the incident, where he pointed out the various locations, which were then photographed by Constable Aristidou. 24. A Turkish pathologist, Dr İsmail Bundak, carried out an autopsy on the body of the deceased, Mr Kakoulli, at Famagusta General Hospital. According to the Turkish pathologist, the deceased had a wound 5 cm in diameter in his chest, 21.5 cm below his left nipple and 17 cm from the collar bone, two wounds in his back and a wound on his side in line with his right elbow. 25. Dr Bundak concluded that the death had occurred as a result of internal bleeding caused by a shot to the heart. 26. According to the report by Superintendent Cosgrave, during the removal of Mr Kakoulli’s clothes, an object fell from his left boot which was described as a type of garrotte, consisting of two black metal handles attached to a length of wire. In addition, an object described as a bayonet in a scabbard was removed from the body’s right boot. Following the autopsy, the body of Mr Kakoulli was taken to Larnaca Hospital under UN escort. 27. According to the first applicant’s statement to the Republic of Cyprus police, her husband had only a red plastic bucket with him and had no object such as a bayonet or a garrotte, or any other kind of weapon. 28. On 14 October a second autopsy was conducted in Larnaca Hospital by Dr Peter Vanezis. In his preliminary report Dr Vanezis stated that there were three sets of gunshot wounds to the body. The report stated the following: “An entry wound on the right side of the neck, just below the right ear, with an exit wound at the back of the neck. This bullet had left the body without causing any damage to vital organs. A second entry wound on the right side of the trunk and an exit wound on the right side halfway down the back. This bullet appeared to have caused soft tissue damage with minor injury to the lungs but was not fatal. A third entry wound on the left side of the trunk towards the back with a steep upward direction into the body. This bullet had exited from the left side of the front of the chest, causing a large exit wound. This wound was fatal, as it had caused severe damage to the left lung and the heart, resulting in severe internal haemorrhage.” 29. Until the second autopsy was concluded in Larnaca Hospital, IRCIVPOL had sole responsibility for the body. Before that, the body was in the sole custody of the Turkish forces. 30. On 15 January 1997 Dr Vanezis prepared a final report in Glasgow. He concluded that the second set of wounds had been inflicted by a shot fired while Mr Kakoulli had his hand raised and that the third set of wounds were consistent with a shot fired into the body while Mr Kakoulli was lying on the ground or crouching down. 31. The Government maintained that Petros Kyriakou Kakoulli had violated the ceasefire line and had entered the territory of the “Turkish Republic of Northern Cyprus” (“TRNC”). He was warned verbally and by hand gestures. However, he did not stop and continued to run towards the boundary. One of the soldiers approached him and fired warning shots in the air. Petros Kyriakou Kakoulli took no notice of this shot and consequently a second shot was fired at the ground in order to stop him. As he continued to run away, a third round was fired at him below his waist, which apparently caused the fatal wound. The Government referred to the United Nations Secretary-General’s report, which stated: “in a serious incident that occurred on 13 October 1996, a Greek Cypriot was shot three times and killed by a Turkish-Cypriot soldier after crossing the Turkish force’s ceasefire line”. 32. Neither the UN nor the British Sovereign Base authorities carried out an investigation of their own as the scene of the incident was within the territory of the “TRNC”. 33. The Government further referred to various violent incidents which had taken place in the border area and between the ceasefire lines of the two sides between August and October 1996. The United Nations SecretaryGeneral’s report, submitted to the Security Council on 10 December 1996, stated that the period under review had seen an increase in the level of violence and tension along the ceasefire lines. The tension rose in early August 1996 owing to the Greek-Cypriot demonstrations at the border area and the ceasefire lines. Violent disturbances and riots took place on 11 and 14 August 1996 in the Dherinia area and in the vicinity of Ayios Nikolaos (Güvercinlik), alongside the British SBA. During these events, two Greek Cypriots were killed. On 8 September 1996 two Turkish soldiers on sentry duty were shot with automatic weapons fired from the SBA into the territory of the “TRNC”. One of the soldiers died as a result and the other was seriously wounded. 34. The Government emphasised the fact that Petros Kyriakou Kakoulli had crossed the Turkish-Cypriot ceasefire line into the territory of the “TRNC”, in the same area where the two Turkish soldiers had been shot. There were strong reasons to believe that Mr Kakoulli, who was a retired fireman, would not have crossed into the “TRNC” territory by mistake, particularly at a location where there were signs in Turkish and Greek indicating the border. Mr Kakoulli had been in possession of a garrotte and a bayonet at the material time, which constituted a strong presumption that he had a sinister motive. His act of carrying a bucket apparently to collect snails was a cover for his real motive. 35. The death of Mr Kakoulli had not been a deliberate act, the Government asserted, but an attempt to maintain security in a highly tense environment. The incident had occurred during a period when tension at the border between the north and south of Cyprus was extremely high. Given the circumstances of the dangerous situation created by the Greek-Cypriot authorities, the Turkish soldiers had been fully justified in taking all necessary precautions and using the necessary force in order to remove the danger and threats of the ceasefire being broken and to protect the lives of others. 36. The parties submitted various documents concerning the investigation into the killing of Petros Kakoulli. These documents, in so far as they are relevant, are summarised below. 37. Mr Panikos Hadjiathanasiou is the fiancé of Mr Petros Kyriakou Kakoulli’s daughter. He accompanied Mr Kakoulli to collect snails on the day of the impugned incident. In his statements he claimed, inter alia, the following: “...After the rainfall at my village, I agreed with my father-in-law to go together this morning (13 October) to collect snails. So, today in the morning I set off with my father-in-law in my car, which I was driving. We took a bucket each in which to put snails... At approximately 6.30 a.m. we went to a point on the main Vrysoulles-Dhekelia road near a bridge. I stopped my car under some eucalyptus trees, on the left side of the main Vrysoulles-Dhekelia road, by the former Achna police station. We alighted from the vehicle, we each took our buckets and we proceeded south, towards the Avgorou side to collect snails. Because there were no snails to find, my father-in-law said that we should separate. He proceeded towards the lower side of the hill from the right, while I proceeded towards the left, intending to cover the whole lower side of the hill, and then to meet at the opposite side. The area in question is situated south of the main VrysoullesDhekelia road. We started walking and I saw my father-in-law following a route in parallel to the main road and passing the bridge that is at the bottom of the hill by the Achna roundabout. As soon he had proceeded about 20-25 metres after the bridge, I lost sight of him as I had proceeded further and the hill was in between us... Before separating, my father-in-law told me that he was intending to go by the UN observation post, which is opposite the former Achna police station. The main Vrysoulles-Dhekelia road is controlled by the British Bases. Approximately between 7.05 and 7.10 a.m., as we had agreed to return to the village, I started calling him, “Father! Father!”, but did not receive any reply. Whilst doing so I was walking towards the hill so I could have a better view and be able to see him. Whilst walking, I heard shouting in the Turkish language coming from the direction of the former Achna police station, which is in the Turkish-occupied area. On hearing the shouting, I ran towards the hill, I climbed it and I could see the surrounding area and the former Achna police station. I saw my father-in-law standing by an acacia tree at the rear of the Achna police station, facing towards the Turkish-occupied area... The distance between myself and my father-in-law was approximately 400-450 metres... He was holding his bucket with his left hand, but nothing in his right... I heard someone shouting at him something like a military command, which consisted of three words that were short and sharp in tone, and I understood the first word to be ‘DUR’. The other two words which I heard had a short interval between them but I did not understand them. On hearing those words, my father-in-law remained still; he left the bucket on the ground, and raised his hands up to the level of his head. Simultaneously, I saw in front of my father-in-law, at a distance of approximately 3040 metres, two men dressed in camouflage combat uniform. They were wearing helmets and were carrying ‘G3’-type rifles. They fell to the ground in front of him and, taking up battle position, aimed their rifles towards his chest and abdominal area. As soon as they fell to the ground, I heard a shot and saw my father-in-law kneeling on the ground and then falling down... Once he fell to the ground, I lost sight of him because of the presence of the acacia tree. Immediately afterwards I heard a second shot. Three or four minutes later, while my father-in-law was still on the ground, I saw one of the two Turkish soldiers standing up and, pointing his rifle forwards, proceeding towards the point where my father-in-law was, with his back arched. He approached within a distance of 7-8 metres of him, straightened up, aimed his rifle towards the point where my father-in-law was and fired another shot... At the time of the shootings, I saw that on the road between myself and the place where my father-in-law was shot, there were three Greek Cypriots. One of them was Georghios Mishis from Avgorou... The Turkish soldier, having fired the third shot, retreated to the point where the other soldier was lying on the ground and afterwards, both of them started walking backwards aiming their rifles towards the main road, and disappeared behind the slope at the rear of the Achna police station... I am sure that my father-in-law was shot and murdered at 7.25 a.m., because I saw my watch...” 38. The witness is a fellow villager of Petros Kyriakou Kakoulli. He stated, inter alia: “...Today at about half past five in the morning, and because of the rain during the previous night, I woke up to go and collect snails... I was alone and drove to the Syrindjieris territory situated near the Achna roundabout on the main Vrysoulles-Dhekelia road ... About six o’clock when there was daylight I was walking on the right side of the main road in the direction of the former Achna police station and started collecting snails... Whilst collecting snails I heard a noise to my rear. I turned back and saw my co-villager Petris the fireman, who is the brother in-law of Kykkos Papettas. He was collecting snails as well, holding a bucket... I continued walking up and down up to the fence of the police station and Petris must have been collecting snails in the same area. After three-quarters of an hour from the time we met with Petris, I walked back down the hill for about 2 or 3 acres from the fence of the police station. To my left in the Turkish-occupied area I then saw Petris and, further back down, about 20-30 feet away from where Petris was, a Turkish soldier with his weapon aimed at him. Petris was at that time approximately 300 metres from where I was standing. At the same time another soldier approached from the direction of the Turkish observation post and Petris asked him if he could speak Greek. I heard Petris clearly asking the latter soldier: ‘Do you know Greek?’. The soldier did not say ‘yes’ or ‘no’ to him. I then went on to the main road and stopped a car which was approaching from the direction of Vrysoulles and requested the driver to call the police... I told him to call the police because the Turks had captured one of us further down, and pointed out to him the direction where I had seen Petris and the Turkish soldiers... After that I started walking to the right down the road where the eucalyptus trees are, towards Avgorou... After about a quarter of an hour from the time I last saw Petris with the Turks I heard two shots and soon, after a few minutes, maybe five minutes, a third shot. On hearing the two shots I saw in front of me the son-in-law of Petris, namely Panikos, approaching from the direction where the water engine is or just beyond the eucalyptus trees. He said to me that the Turks had shot his father-in-law. The time I heard the third shot, I was together with Panikos and we were just getting ready, before hearing the third shot, to stand up and see if we could see Petris, but because of the third shot we sat down. The first two shots I heard were one after the other whilst the third shot was heard about two to three minutes later...” 39. The witness, who lives on the Vrysoulles refugee housing estate, was collecting snails in the same area where Petros Kyriakou Kakoulli met his death. He stated, inter alia: “...At about 7.25 a.m. I heard a shot and within a short period of time another one, coming from the east of the police station in the occupied area. Because at that time I was in a dried-out river, I could not identify what was happening at the police station... When I returned to my car I saw one young person who looked panic-stricken and told me that the Turkish troops had shot his father-in-law on the eastern side of the police station... I forgot to tell you that as I was heading towards my car I heard a third shot coming from the same direction. While I was with this person he told me he was called Panikos and that he lived in Avgorou, also that his father-in-law who was shot by the Turks was called Petros Kakoulli. While talking with Panikos I noticed that at the point where he showed me the Turks had shot his father-in-law there were two Turkish soldiers with camouflage clothing armed with rifles...” 40. The witness is a police sergeant at the SBA. On the day of the impugned incident he was on duty at the base. He stated: “...On the same day about at 8 a.m. I was on mobile patrol, dressed in uniform, in a marked police vehicle, in the Ormidia Xylophagou area when I received a message to the effect that there was a border incident around the village of Achna, where a Greek Cypriot had been shot by the Turkish army. I proceeded to the scene, along the Larnaca Famagusta main road by the Achna roundabout. My arrival time was 8.20 a.m... I proceeded about 175 metres north-west, escorted by two Turkish soldiers, where I saw the body of one male person lying face down on the ground, who seemed to be showing no signs of life. He looked to be in his fifties. He was wearing a grey shirt, jeans and wellington boots. There was a red plastic bucket with some snails inside it on the ground to the left of the lifeless person. I now know the name of the deceased to be Petros Kakoulli. I was informed by the Turkish army officer at the scene that the Turkish soldiers had shot the man in question at 7.30 a.m. the same day because he had entered their area and failed to obey when challenged...” 41. The witness is the Commander of the Dhekelia Division of the SBA Police. He stated, in so far as relevant: “...At 8.50 [on 13 October 1996], I went to the area of the alleged shooting and met with PS Engin Mustafa of the SBA Police. PS Mustafa reported to me that a man, identified as one Petros Petrou Kakoulli, had been shot dead by Turkish soldiers inside the TCA about 175 metres north of Boundary Stone 155... Together with PS Mustafa I entered the TCA and walked to a point about 175 metres to the north of Boundary Stone 155 and some 40 metres to the east of it where I saw the body of a male person laying face down on the ground with his head turned to the right. From the appearance of the body I believed him to be dead, although I was not permitted to touch the body to ascertain if there was any possibility of life. I noted that the body was of a middle-aged male, wearing a white-coloured summer shirt with light-coloured markings around the upper back area, blue denim jeans with a black leather belt and black wellington boots. Lying near the left shoulder of the body was a red-coloured plastic 2 gallon bucket that contained some snails. I could see blood stains on the edges of the shirt emerging from the front of the body as it lay on the ground. There was no sign of blood or wounds on the back of the body. I asked the Turkish NCO if he could tell me what had happened. He told me that at about 7.30 a.m. one of the sentries had seen the deceased moving on foot within the Turkish-controlled area. The sentry challenged the man but he did not stop. The sentry challenged the man a second time but he still did not stop so the sentry shot him twice. The man still managed to move a further 15 to 20 metres to the south and the sentry shot him a third time...” 42. The witness is the wife of the deceased, Mr Petros Kakoulli. She claimed that her husband had left the family house with a bucket to collect snails. She disputed the allegation that her late husband was in possession of a knife and a wire rope and stated that such an allegation must have been advanced to cover up his murder. 43. The witness, a police constable stationed at the SBA Police Station in Ayios Nikolaos, saw a middle-aged person holding a basket, collecting snails on the main road in the direction of Larnaca. This person told the witness that somebody had been arrested by the Turkish forces and asked him to take action. The witness called Sergeant Serghiou at the Ayios Nikolaos Police Station and requested him to dispatch a patrol and also to inform the relevant agencies. 44. The witness is a police sergeant stationed at the SBA Police in Ayios Nikolaos. He was on duty at the time of the killing of Petros Kakoulli. After having been informed, by Police Constable M. Pyrgou, about the arrest of a male Greek Cypriot by the Turkish soldiers, the witness instructed Police Constables P. Kamaris and D. Chorekdjioglou to proceed to the scene and to carry out inquiries and to report back. At 8.15 a.m. Mr Chorekdjioglou informed the witness that the person in question was Petros Kakoulli of Avgorou and that he had been shot dead by Turkish soldiers near Achna within the Turkish-controlled area. 45. The witness is a police constable stationed at the SBA Police in Ayios Nikolaos. He was on duty at the time of the killing of Petros Kakoulli. On the instructions of Police Sergeant Serghiou the witness went to the Achna roundabout, along with Police Constable Kamaris, to inquire into the arrest of Petros Kakoulli. He stated, in so far as relevant, the following: “...When I walked close to [Border Stone] 155 some [Turkish] soldiers shouted at me to stay away. I replied to them that I was a Turkish SBA police officer. Still they shouted at me to stay away and I then walked back to the edge of the main road and shouted at them again to ask whether the commander was present. They replied that he was not there. They promised to call me back when he arrived at the scene. At 7.55 a.m. they called me and signalled to me to cross the boundary. I walked into the Turkish-controlled area and met with the Turkish lieutenant, who refused to give me his name. I then asked him if he had seen any Greek Cypriot collecting snails in the area. He said that a Greek Cypriot had crossed the boundary into the Turkish-controlled area and had been shot dead by his soldiers. I then asked him again whether he was dead or wounded, to which he replied that he was definitely dead. Then at 8.05 a.m. the army officer showed me the deceased, who was about 150 metres within the Turkish-controlled area. I saw the body from a distance of ten metres lying on the ground in a prostrate position with the head facing west. I saw blood on the left-hand side of the body; it was pale and looked dead...” 46. The witness is a police constable stationed at the SBA Police in Ayios Nikolaos. He was on duty at the time of the killing of Petros Kakoulli. On the instructions of Police Sergeant Serghiou the witness went to the Achna roundabout, along with Police Constable Duru Chorekdjioglou, to inquire into the arrest of Petros Kakoulli. On the way to the Achna roundabout the witness met Panikos Hadjiathanasiou, who told him that his father-in-law had been shot dead by Turkish soldiers. He informed his colleagues at the Ayios Nikolaos Police Station and Dhekelia about the impugned incident. 47. The witness is a police superintendent in Nicosia. He was the head of the police squad which visited the scene of the killing of Petros Kakoulli. Following his visit the witness concluded that Mr Kakoulli had been kidnapped by armed Turkish soldiers, transferred into the Turkish-occupied areas and shot dead. He was involved in the preparation of topographical sketches and plans of the scene of the killing and attended the post-mortem examination of the deceased. 48. The witness was involved in the investigation into the killing of Petros Kakoulli. He stated that Mr Kakoulli had been shot dead by Turkish soldiers while collecting snails 40 metres inside the Turkish-occupied areas. He attended the post-mortem examination of the corpse of Mr Kakoulli at Larnaca Hospital. 49. The witness is a police inspector in the Famagusta Police Division in the village of Paralimni. He was appointed as the investigator in the case of the killing of Petros Kakoulli. He visited the scene of the killing and supervised the taking of statements in connection with the incident. With reference to the statements of Panikos Hadjiathanasiou and Georgios Mishis, the witness found that Petros Kakoulli had been shot dead by Turkish soldiers while collecting snails in the Turkish-occupied area. He noted that on 14 October 1996, approximately 27 hours after the killing, an autopsy had been carried out on the body of the victim in the presence of Turkish and United Nations officials and that a garrotte, consisting of two metal handles attached to a string of wire, and a 33-centimetre bayonet had fallen down when the boots of the deceased had been removed. 50. The witnesses are specialist photographers attached to the Criminal Investigation Division at the Famagusta Police Division. They took various photographs of the scene of the impugned incident on 14 October 1996. 51. The UNFICYP issued two press releases on 14 and 16 October 1996 concerning, respectively, the killing of Petros Kakoulli and the deaths occurring in the United Nations Buffer Zone. 52. In the press release of 14 October 1996 it expressed concern that an innocent life, namely that of Petros Kakoulli, had been lost as a result of deplorable and unnecessary force. The UNFICYP qualified the incident as a disproportionate response and stressed that lethal force should not be used by either side against persons who crossed the respective ceasefire lines or entered the United Nations Buffer Zone. It was further noted that the commander of the UNFICYP had requested the commander of the Turkish forces in Cyprus to instruct soldiers under his command not to shoot unless their own lives were threatened. 53. In the press release dated 16 October 1996 the UNFICYP noted that five deaths in as many months in the United Nations Buffer Zone or adjacent to the ceasefire lines underscored the urgent need for arrangements to avoid the recurrence of similar tragic incidents. It further pointed out that these incidents had highlighted the need to ensure that the rules of engagement applied along the ceasefire lines prevented the use of lethal force except in clear situations of self-defence. 54. Dr Peter Vanezis, from the Department of Forensic Medicine and Science at the University of Glasgow, carried out a post-mortem examination at Larnaca General Hospital on 14 October 1996 on the body of Petros Kakoulli. In his report dated 16 October 1996, in which he summarised his findings, Dr Vanezis stated: “The deceased suffered three gunshot wounds to the body as follows: One to the right side of the neck, which entered at a position just below the ear, exited at the back of the neck and did not cause any damage to any vital organs. The second entered through the right side of the trunk and exited at the back at approximately the same level and appeared to have caused soft tissue damage with some minor associated internal injury to the lung, but was not in my view fatal. The third wound was on the left side of the trunk towards the back. It entered the body and its trajectory was steeply upwards into the body at an angle of 45 degrees. It then exited from the left side of the front of the chest, causing a large exit wound. This wound was the fatal wound, causing severe damage to the left lung and the heart with consequent extensive internal bleeding. The first two wounds mentioned were from approximately the same direction and both had approximately horizontal trajectories on entering the body. The third wound was on the other side of the body and had a steep upward trajectory. The position of this wound indicates that the deceased, at the time of receiving this wound, was in a horizontal position either on the ground or crouching. The first two wounds appeared to have been fired at approximately the same time, bearing in mind that their direction and their position on the body are from the same side...” 55. The applicants provided the Court with sketch maps and photographs of the scene of the killing of Petros Kakoulli and with the photographs taken during the post-mortem examination carried out by Dr Peter Vanezis. 56. It is to be noted that Dr Vanezis’s observations concerning the deceased’s body correspond to the photos taken during the post-mortem examination. 57. Between 14 and 17 October 1996 the daily newspapers Fileleftheros, Agon, Cyprus Mail, Alithia and Simerini reported the killing of Petros Kakoulli. The aforementioned newspapers extensively covered the impugned incident and reported the details of the killing of Petros Kakoulli and the investigation conducted into the impugned incident. 58. The following documents furnished by the Government pertain to the investigation carried out by the “TRNC” authorities into the killing of Petros Kakoulli. 59. This document sets out, in chronological order, the course of action taken by the investigating authorities in relation to the killing of Petros Kakoulli. It includes statements by various witnesses, reports, and decisions by the authorities. It appears that the investigation into the death of Petros Kakoulli was mainly carried out by Inspector Ömer Tazeoğlu, who at the relevant time worked at the Legal Branch of the Gazi Magusa Police Directorate. 60. Inspector Ömer Tazeoğlu commenced his investigation immediately after he had learned about the death of Mr Kakoulli, namely at 8.45 a.m. He visited the scene of the incident along with five other police constables at 10.45 a.m. on 13 October 1996. He observed that the incident had taken place on a slope about 300 metres to the south of the guard post code-named Haşim 8, which was under the responsibility of the 2nd Infantry Company of the 6th Infantry Battalion. The area was a first-degree military prohibited area where there were warning signs. At the site on the slope a dead person was lying face down. There was a large pool of blood. 61. Having completed his preliminary investigation, Inspector Tazeoğlu established that at 6.45 a.m. on 13 October 1996 Privates Harun Avşar and Rezvan Topaloğluları of the Infantry had begun their guard duties. 10 minutes later, they had seen a person about 300 metres from the guard post inside the military prohibited area. Private Avşar was in possession of a weapon. He had approached the person in question and concluded that he was a Greek Cypriot because he spoke Greek. He had signalled to the person to stop. But the person had attempted to run away towards the border fence. Private Avşar had first fired one shot in the air, one shot at the ground and one shot at his legs. Having seen that the person in question had failed to stop, Private Avşar had aimed at him and fired and killed him. 62. According to the work schedule, Police Constable Osman Pekun took the necessary photographs of the scene of the incident. Police Sergeant Mehmet Deniz drew a plan of the location. Inspector Ömer Tazeoğlu collected five cartridges and took samples from the pool of blood. SBA police officers Engin Çelebi and Bülent Nihat and inspectors and soldiers from the Peace Force visited the location but left without doing anything, given that the incident had taken place within the boundaries of the “TRNC”. At the scene of the incident, the military doctor Ömer Gür examined the body and found two entry holes and two exit holes caused by bullets. The body was then transferred to Gazi Magusa State Hospital for an autopsy. Following the preliminary examination carried out by Dr Sadık Aslansoyu of the State Hospital, the body was put in the morgue and placed under police surveillance. 63. On 14 October 1996 the Gazi Magusa District Court issued an interim order allowing the investigating authorities to carry out a postmortem on the body of Petros Kakoulli. The same day at 9.58 a.m. a team comprising Inspector Ömer Tazeoğlu, Assistant Director H. Gurani, Police Sergeants H. Özdoğdu and H. Erkurt, Police Constable O. Pekun and Peace Force officials Major Martin Enk, Sergeant Dalle Robert, Inspector Mathias Cosgrave and Inspector Richard Duggan, as well as Dr İsmail Bundak amd Erdal Özcenk, arrived at the morgue of Gazi Magusa State Hospital. The same day at 10.30 a.m. the body was taken out of the refrigerator by the morgue official Hamza Ulusu and was placed on the post-mortem table in the presence of the aforementioned persons. As the morgue official was removing the boot from the left foot of the body, a garrotte wire (both ends of the laundry wire, which was 68 centimetres long, were attached to a 14.5 cm long iron handle) fell to the ground. The Peace Force officials examined the said object on the spot. Then the Peace Force photographer and Police Constable O. Pekun photographed the object. When the boot was removed from the right foot a bayonet with a brown handle in a scabbard was seen to have been inserted between the right side of the leg and the interior of the boot. In this instance too the Peace Force officials and Police Constable O. Pekun photographed the object. Then the boot was removed and the bayonet and its scabbard measured. The bayonet, together with its scabbard, was 33 cm long. The objects were taken as exhibits. 64. Between 10.30 a.m. and 12.30 p.m. on the same day Dr İsmail Bundak and Dr Erdal Özcenk carried out the post-mortem examination on the body in the presence of the above-mentioned persons. Twelve X-rays of the body were taken. Doctors took two 10 cc blood samples from the chest cavity of the body and placed them in two separate 10 cc containers for examination. They observed a total of four gunshot wounds; two entry wounds and two exit wounds. Police Constable Osman Pekun took fingerprints and palm prints of the deceased for examination. The autopsy examination established that the cause of death was internal bleeding as a result of shots fired by a firearm. The shots had shattered the left ventricle of the heart and the left lower lobe of the lung. Following the autopsy, the body, the photos, X-rays and the belongings of the deceased were handed over to the Peace Force officials. 65. Between 14 October 1996 and 20 March 1997 statements were taken from SBA officials, Police Constables Temel Aydın, Türkeş Ergüder, Ahmet Bulduklar, Halil Öztugay, Ahmet Ceylani and Osman Pekun, Private Mehmet Deniz and Inspector Ömer Terzioğlu. Furthermore, witness testimonies were obtained from Infantry Private Rezvan Topaloğluları, the non-commissioned officer Sergeant Ali Ogdu, Infantry Lieutenant Necmettin Ateş, Dr Ömer Gür, Dr Sadık Aslansoyu, Dr İsmail Bundak, Dr Erdal Özcenk, the chemist Hatice Kale, Chief Inspector Abdullah Iraz, Inspector Ömer Tazeoğlu and Inspector Ules Gümüsel. 66. In a letter of 3 April 1997 Mehmet Özdamar, who was at the relevant time the Deputy Director and Acting Director of the Legal Branch at the Gazi Magusa Police Directorate, submitted a detailed report about the killing of Petros Kakoulli. Mr Özdamar stated, in so far as relevant, the following: “[Petros Kakoulli], despite the presence of warning signs, secretly crossed into the TRNC territory near border stone no. 155 and advanced 200 metres inside... Infantry Private Harun Avşar first verbally warned Petros Kakoulli and asked him to stop. But the said person attempted to escape by walking away speedily. Following that, Infantry Private Harun Avşar got 10 metres closer to the victim and first fired a single warning shot into the air. When [Petros Kakoulli] continued to run away, Harun Avşar fired another warning shot to the ground. But when he again tried to escape, Harun Avşar fired a single shot in the direction of his legs and then two shots below the waist. Petros Kakoulli was stopped after being shot... During the removal of Petros Kakoulli’s boots, a garrotte wire hidden in the left boot and a 33 cm bayonet hidden inside the right boot were discovered. Both have been seized as exhibits... The ballistic examination revealed that 5 empty cartridges had been fired by a G3 infantry rifle with the serial number 259550. The comparison of the fingerprints of the victim with the fingerprints found on the bayonet which was found in his right boot showed that the fingerprints on the bayonet belonged to the victim... A charge of manslaughter can be brought against someone in the event of a criminal offence or negligence. However, as the testimonies show, Infantry Private Harun Avşar made all the necessary moves to apprehend the person but as a last resort, after giving warnings, opened fire on Petros Kakoulli and shot him. In my opinion, in the light of the existing testimonies, the incident qualifies, under Article 15 (3) (b) and Chapter 154 Article 17 of the Criminal Code, as an act of causing death which does not constitute a criminal offence...” 67. In a letter of 23 May 1997 Osman T. Naim Enginsoy, who was a Deputy Assistant Attorney-General, instructed the Director General of Police to take no further action on the case and to close it. 68. In June 1997 the police authorities decided to classify the case concerning the killing of Petros Kakoulli as “no case” and to discontinue the investigation. 69. Having completed the judicial inquest, the Gazi Magusa district judge concluded that Petros Kakoulli had died of injuries caused by shots fired by Infantry Private Harun Avşar after illegally entering the “TRNC” and failing to obey warnings to stop. 70. In his statements concerning the conclusions he had reached at the end of the investigation into the killing of Petros Kakoulli, Inspector Tazeoğlu expressed the view that Private Harun Avşar had acted in accordance with the instructions given to him. Private Avşar had given the necessary warnings and had shot and killed Petros Kakoulli because of the latter’s failure to stop. Inspector Tazeoğlu thus concluded that this was a justified killing since Private Harun Avşar had done what his duty dictated. Inspector Tazeoğlu recommended that the case should be classified as “no case”. 71. This report describes the sequence of events concerning the involvement of IRCIVPOL in the investigation into the killing of Petros Kakoulli. It appears that immediately after the killing of Mr Kakoulli, at 11.15 a.m., IRCIVPOL members including Superintendent Cosgrave and Inspector R. Duggan visited the scene of the incident. The IRCIVPOL members did not investigate the incident but merely observed the conduct of the investigation by the “TRNC” authorities from 13 June to 15 June 1996. 72. In his statements to the investigating authorities, Infantry Private Harun Avşar claimed the following, in so far as relevant, in relation to his killing of Petros Kakoulli: “...Today, on 13.10.1996, Rezvan Topaloğluları and I were on guard duty at Haşim 8... After 5-10 minutes from the time we started our shift, we – I and Rezvan Topaloğluları – saw, approximately 300 or 400 metres from our guard post, a person walking inside our territory. This person was walking in a south-north direction, in other words in the direction of a trail we describe as the patrolling trail. We did not know who this person was. As soon as I saw this person I informed Duty Officer Ali Ogdu via the wireless (radio). He told us over the wireless to continue to keep the person under observation. Then I told my companion, Infantry Private Rezvan Topaloğluları: ‘You stay here; I will go and look at this person.’ And, holding my rifle with a loaded magazine attached to it, I came down from Haşim 8 guard post and joined the trail, advancing towards the border fence... After approaching to about 50 metres from the person, I shouted and asked him what he was doing there. Without saying anything the person continued walking on the slope in the direction of the patrolling trail. Until that moment I could not firmly determine whether this person was a Turk or a Greek Cypriot. So I moved closer to him. The distance between us was about 5-6 metres. This person was high on the slope. At that moment, I sensed that the person could well be a Greek Cypriot. The look of the person was one of bad intent and unease. After that, through hand signals I asked him where he was coming from. Initially the person gave no verbal reply, but he signalled with his right hand and indicated the Turkish side and said something in Greek. But I did not understand what he said. When I was sure that the person was a Greek Cypriot, I removed the safety catch of my weapon and aimed at him. At that moment, the person, while speaking in Greek and making hand signals, started coming towards me. Faced with this situation I shouted in Turkish, telling him to stop, and with my left arm I signalled to him to stop. The person did not stop and continued walking towards me. I, for my part, stepped back a few metres and shouted at my colleague Rezvan and told him to inform the exchange about the situation... The guard Rezvan Topaloğluları heard me. Then I again turned my head towards the person. I shouted and warned the person to stop. After that he stopped walking towards me and started walking towards the border fence. I again shouted and warned him to stop. But this person continued walking away in the direction of the fence while moving his arms and hands saying something in Greek. The distance between this person and the border fence was 200 metres. Following that, I went up to the slope to have a better view of him. The person was still walking towards the border fence. I shouted again and asked him to stop. But he went on walking, waving his hands at the same time. After that the distance between the person and me was about 15 metres. At that point I fired a shot into the air. After hearing the firing of the gun the person quickened his steps. After that I turned my weapon in his direction and fired another shot towards the ground. He again failed to stop and further increased his speed. The distance between us at that moment was about 30 metres. When I realised that the person would not heed my warnings and would cross over to the Greek-Cypriot side, that is I would not be able to catch him, I decided to stop the person by shooting and wounding him. Therefore, while he was walking I aimed my gun roughly at his legs and fired. After that the person stopped momentarily. Until that moment I was not sure if my shot had found its target. Following that, and while he was in a walking position, I fired two rounds, aiming at the person. And the person was shot and fell to the ground. Naturally, the person fell on his right side. I realised that the person was shot. But I did not go near him. I thought there could be others hiding in the area. Therefore, I went up to the hilltop and, hiding behind the rock, began observing and monitoring the area. After that I did not hear any sound coming from the said person. The shooting incident took place at around 7.30 a.m. After 10-15 minutes Company Duty Officer Ali Ogdu arrived at the scene of the incident along with a team of soldiers. I told him what had happened. The soldiers took security measures in the area. As I said, I fired five rounds in this incident...” 73. At the time of the impugned incident Infantry Private Rezvan Topaloğluları was on guard duty along with Private Harun Avşar at Haşim 8 guard post. In his statements to the authorities he mentioned, in so far as relevant, the following: “...Today, on 13.10.1996 at around 6.45 a.m., the duty officer of the company, Noncommissioned Officer Ali Ogdu, drove Harun Avşar and me to the guard post and we began our guard duties there. Five to ten minutes after the start of our guard duties, we saw a person in civilian dress between our guard post and the border fence and 300 metres away from the post. Immediately after seeing this person my colleague Harun Avşar notified the situation to the exchange via the wireless. However, I am not sure who he talked to. Over the wireless he was told ‘OK, keep an eye on it’. Following that, we continued to keep the person in question under surveillance... This person was approximately 250-300 metres from the border fence inside our territory. After that my colleague told me: ‘I will go and find out who that person is. You stay here and watch...’ The person we saw was to the south of the patrolling trail inside the ‘TRNC’ territory, which was a military prohibited zone. No one is allowed to enter the area where we saw the person without permission... When we first arrived at our post no information was given to us about the presence of a person there. Therefore, we realised that that person could not be someone with permission. As a result, [Harun Avşar] left the post to find out who that person was. Harun left the post holding the G-3 infantry rifle, registered in his name, with one magazine attached to it and another one inside his belt, and directly joined the patrolling trail from the top and crossed the trail in a southerly direction and started walking in the field as if he wanted to get away from the person, but he was going to approach the person from behind. The way he was moving he would prevent the person from escaping or getting closer to the border fence. What I saw from the guard post was this: Harun got closer to the person and the distance between them was about 15 metres. First I saw that person on the slope and Harun was in the field. Then I saw Harun climbing up the slope. I do not know if there was any conversation between the person and Harun; I could not hear them from my post. At that moment, as I was watching them Harun got nearer to the person, about 10-15 metres away. Then I saw Harun Avşar turn towards the guard post and signal by hand and shout, telling me to inform the exchange. Right at that moment I understood that Harun had found out that the person was a Greek Cypriot. At that moment – the time was about 7.35 a.m. – I lifted the telephone receiver in the guard post, while watching them. I saw that the person that Harun was trying to get closer to was starting to walk speedily away and trying to escape. Naturally, that person was walking in the direction of the border fence. Then I saw Harun raise his gun into the air and fire a single shot. But that man was still walking away. This time Harun lowered his gun and aimed at the man, and in a very short period he fired four single shots, and as the man was walking he fell down. Naturally, it was not possible for me to discern how many shots Harun fired at the man and how many shots at the ground. But when the man fell down I realised that he had been shot... Harun Avşar shot that person inside the military prohibited zone...” 74. Guards on duty at Haşim 8 guard post are required to follow the instructions mentioned below, among others. Paragraph 8 of the General Instructions reads: “In the event of any danger the guard shall fully load his weapon, shall open the safety catch and if need be shall use the weapon without hesitation but in accordance with the rules of engagement.” 75. Paragraph 10 of the Special Instructions reads: “Guards shall always stop any person approaching them at night. They shall ask for a password and a signal. Unless they are sure, they shall not allow anyone to approach them.” 76. Paragraph 19 of the Special Instructions provides: “When armed or unarmed military persons enter the buffer zone or cross the confrontation line, the guard on duty shall immediately inform the company’s telephone exchange and take up position. If enemy personnel are inside the buffer zone and continue to approach after a warning is given for them to stop, they shall be aimed at and fired at. If the enemy personnel intend, after entering the buffer zone, to cross the confrontation line, the guard on duty shall not allow the removal of wounded or dead personnel from the buffer zone or inside the confrontation line. The guard shall not allow the destruction of evidence. If need be he shall take aim and open fire. No personnel, in such a situation, shall enter the buffer zone.” 77. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (“UN Force and Firearms Principles”) were adopted on 7 September 1990 at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders. Paragraph 9 of the Principles provides: “Law enforcement officials shall not use firearms against persons except in selfdefence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.” 78. Paragraph 5 of the Principles provides, inter alia, that law enforcement officials must “exercise restraint in [the] use [of force and firearms] and act in proportion to the seriousness of the offence and the legitimate objective to be achieved”. Paragraph 7 provides: “Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law”. Paragraph 11 (b) states that national rules and regulations on the use of firearms should “ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm”. 79. Paragraph 10 of the Principles reads as follows: “... law enforcement officials shall identify themselves as such and shall give a clear warning of their intent to use firearms, with sufficient time for the warnings to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.” | 1 |
train | 001-88748 | ENG | HUN | CHAMBER | 2,008 | CASE OF PATYI AND OTHERS v. HUNGARY | 3 | Violation of Art. 11;Remainder inadmissible;Non-pecuniary damage - finding of violation sufficient | András Sajó;Antonella Mularoni;Françoise Tulkens;Vladimiro Zagrebelsky | 5. The applicants are forty-eight Hungarian nationals (see Appendix). 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. The applicants were creditors, together with 40,000 other individuals, of an insolvent private company. Since they were unable to obtain their outstanding claims, they intended to hold a series of demonstrations between 7 July and 20 August 2004 in front of the Prime Minister’s private residence in Budapest. The applicant submitted photographs of the scene of the proposed events. According to these photographs, the Prime Minister’s house is situated on a two-lane road in a residential area composed of villas. Across the street from that property, between parked cars and the fence of another villa, there is a footpath parallel to which is a strip of grass which is over five metres wide. The applicant stated that the participants in the planned demonstrations intended only to occupy this pedestrian zone. 8. The first applicant, István Patyi (“the applicant”), was the main organiser of the events. He notified the Budapest Police Department as prescribed by the law. On 5 July 2004 the police prohibited the demonstrations. The applicant sought judicial review. On 8 July 2004 the Budapest Regional Court quashed the decision and remitted the case to the police. 9. In the resumed proceedings, the police again prohibited the demonstrations on 10 July 2004. The applicant sought judicial review. The Budapest Regional Court dismissed his action on 15 July 2004. 10. In the meantime, the applicant and some fifteen other private individuals – according to the applicant’s submissions, “disguising themselves as tourists” – appeared before the Prime Minister’s house. The police were also present, but since the applicant informed them that they did not intend to “demonstrate”, they were not prevented from walking in front of the Prime Minister’s house and they then left the scene undisturbed. They did not cause any hindrance or inconvenience to the traffic or other pedestrians. 11. Subsequently, the applicant notified the police of another demonstration planned for 1 November 2004 for the same reasons and at the same spot. The planned number of demonstrators was twenty. The head of the Budapest Police Department, relying on section 8 of Act no. III of 1989 on the Right of Assembly (“the Assembly Act”), prohibited the event on 28 October 2004. 12. The police were of the view that the pavement was not wide enough to secure the necessary space for the demonstrators and other pedestrians at the same time. Therefore, in order to prevent possible accidents and confrontations between the demonstrators and passers-by, it would be necessary to close half the street. They pointed out that on the street in question three bus services operated on a regular basis and that on 1 November, All Saints’ Day, the traffic was expected to be heavier since many people would visit cemeteries that day. The police, therefore, having obtained the expert opinion of the Department of Traffic Administration, held that the demonstration would cause a disproportionate hindrance to the traffic, which could not be secured by alternative means. The applicant sought judicial review. 13. On 5 November 2004 the Budapest Regional Court dismissed the applicant’s action. It established that the police decision had been in compliance with the law and in particular with Article 11 of the Convention. 14. Subsequently, the applicants intended to organise other demonstrations limited to twenty persons. On 18 November 2004 the applicant notified the police that on 30 November, 1 December, 14 December and in the afternoon of 24 December 2004 demonstrations were to take place, again in front of the Prime Minister’s house. On 19 November 2004 the head of the Budapest Police Department prohibited these events. 15. The police reiterated that the pavement was not wide enough to secure the necessary space for the demonstrators and other pedestrians at the same time. Therefore, in order to prevent possible accidents and confrontations between them, half the street would need to be closed. It pointed out that on the street in question three bus services operated on a regular basis and, in winter, the traffic was expected to be heavier since many people left for the ski resorts around Budapest via that street. It added that there was also a possibility of heavy snowfalls and that it would be difficult to secure alternative routes. 16. The police, therefore, obtaining the expert opinion of the Department of Traffic Administration, held that the demonstrations would cause a disproportionate hindrance to the traffic, in particular to the buses, which could not be secured by alternative means. 17. The applicant sought judicial review. He stated that his aim was to hold peaceful, silent demonstrations lasting only twenty minutes. The only ‘action’ planned was to stand in line in front of the Prime Minister’s house, with twenty participants. 18. On 26 November 2004 the Budapest Regional Court dismissed the applicant’s motion. It established that the police decision had been in compliance with the law and the Convention. 19. On 12 December 2004 the Budapest Public Transportation Company officially informed the applicant that on 24 December 2004 no buses would be running after 4.19 p.m. 20. The Constitution of the Republic of Hungary (Act no. 20 of 1949 as amended) provides, in so far as relevant, as follows: “The Republic of Hungary acknowledges the right to peaceful assembly and secures its free exercise.” 21. The relevant provisions of Act no. 3 of 1989 on Freedom of Assembly (“the Assembly Act”) read as follows: “(3) The exercise of freedom of assembly shall not constitute a crime or an incitement to crime; moreover, it should not result in the infringement of the rights and freedoms of others.” “The organisation of an event held in the public domain shall be notified to the competent police headquarters according to the place of the event, and in Budapest to the Budapest Police Headquarters, three days prior to the planned date of the event. The obligation to notify the police lies with the organiser of the event.” “(1) If the holding of an event subject to prior notification seriously endangers the proper functioning of the representative bodies or courts, or the circulation of traffic cannot be secured by another route, the police may ban the holding of the event at the place or time indicated in the notification, within forty-eight hours of receipt of the notification by the authority.” “(1) No appeal shall lie against the decision of the police, but the organiser may seek judicial review of the administrative decision within three days of its notification.” “(1) The police shall disperse the event if the exercise of the right to freedom of assembly contravenes subparagraph 3 of section 2 or if the participants appear at the event ... in possession of arms, or if an event subject to prior notification is held without notification, ... or despite a decision banning the event. ... (3) If an event is dispersed, the participants may seek judicial review within fifteen days with a view to the establishment of the illegality of the dispersal.” | 1 |
train | 001-57533 | ENG | GBR | CHAMBER | 1,984 | CASE OF MALONE v. THE UNITED KINGDOM | 2 | Violation of Art. 8;Not necessary to examine Art. 13;Just satisfaction reserved | C. Russo | 12. Mr. James Malone was born in 1937 and is resident in Dorking, Surrey. In 1977, he was an antique dealer. It appears that he has since ceased business as such. 13. On 22 March 1977, Mr. Malone was charged with a number of offences relating to dishonest handling of stolen goods. His trial, which took place in June and August 1978, resulted in his being acquitted on certain counts and the jury disagreeing on the rest. He was retried on the remaining charges between April and May 1979. Following a further failure by the jury to agree, he was once more formally arraigned; the prosecution offered no evidence and he was acquitted. 14. During the first trial, it emerged that details of a telephone conversation to which Mr. Malone had been a party prior to 22 March 1977 were contained in the note-book of the police officer in charge of the investigations. Counsel for the prosecution then accepted that this conversation had been intercepted on the authority of a warrant issued by the Secretary of State for the Home Department. 15. In October 1978, the applicant instituted civil proceedings in the Chancery Division of the High Court against the Metropolitan Police Commissioner, seeking, inter alia, declarations to the effect that interception, monitoring and recording of conversations on his telephone lines without his consent was unlawful, even if done pursuant to a warrant of the Secretary of State. The Solicitor General intervened in the proceedings on behalf of the Secretary of State but without being made a party. On 28 February 1979, the Vice-Chancellor, Sir Robert Megarry, dismissed the applicant’s claim (Malone v. Commissioner of Police of the Metropolis (No. 2), [1979] 2 All England Law Reports 620; also reported at [1979] 2 Weekly Law Reports 700). An account of this judgment is set out below (at paragraphs 31-36). 16. The applicant further believed that both his correspondence and his telephone calls had been intercepted for a number of years. He based his belief on delay to and signs of interference with his correspondence. In particular, he produced to the Commission bundles of envelopes which had been delivered to him either sealed with an adhesive tape of an identical kind or in an unsealed state. As to his telephone communications, he stated that he had heard unusual noises on his telephone and alleged that the police had at times been in possession of information which they could only have obtained by telephone tapping. He thought that such measures had continued since his acquittal on the charges against him. It was admitted by the Government that the single conversation about which evidence emerged at the applicant’s trial had been intercepted on behalf of the police pursuant to a warrant issued under the hand of the Secretary of State for the prevention and detection of crime. According to the Government, this interception was carried out in full conformity with the law and the relevant procedures. No disclosure was made either at the trial of the applicant or during the course of the applicant’s proceedings against the Commissioner of Police as to whether the applicant’s own telephone number had been tapped or as to whether other and, if so, what other, telephone conversations to which the applicant was a party had been intercepted. The primary reasons given for withholding this information were that disclosure would or might frustrate the purpose of telephone interceptions and might also serve to identify other sources of police information, particularly police informants, and thereby place in jeopardy the source in question. For similar reasons, the Government declined to disclose before the Commission or the Court to what extent, if at all, the applicant’s telephone calls and correspondence had been intercepted on behalf of the police authorities. It was however denied that the resealing with adhesive tape or the delivery unsealed of the envelopes produced to the Commission was attributable directly or indirectly to any interception. The Government conceded that, as the applicant was at the material time suspected by the police of being concerned in the receiving of stolen property and in particular of stolen antiques, he was one of a class of persons against whom measures of interception were liable to be employed. 17. In addition, Mr. Malone believed that his telephone had been "metered" on behalf of the police by a device which automatically records all numbers dialled. As evidence for this belief, he asserted that when he was charged in March 1977 the premises of about twenty people whom he had recently telephoned were searched by the police. The Government affirmed that the police had neither caused the applicant’s telephone calls to be metered nor undertaken the alleged or any search operations on the basis of any list of numbers obtained from metering. 18. In September 1978, the applicant requested the Post Office and the complaints department of the police to remove suspected listening devices from his telephone. The Post Office and the police both replied that they had no authority in the matter. 19. The following account is confined to the law and practice in England and Wales relating to the interception of communications on behalf of the police for the purposes of the prevention and detection of crime. The expression "interception" is used to mean the obtaining of information about the contents of a communication by post or telephone without the consent of the parties involved. 20. It has for long been the practice for the interception of postal and telephone communications in England and Wales to be carried out on the authority of a warrant issued by a Secretary of State, nowadays normally the Secretary of State for the Home Department (the Home Secretary). There is no overall statutory code governing the matter, although various statutory provisions are applicable thereto. The effect in domestic law of these provisions is the subject of some dispute in the current proceedings. Accordingly, the present summary of the facts is limited to what is undisputed, the submissions in relation to the contested aspects of these provisions being dealt with in the part of the judgment "as to the law". 21. Three official reports available to the public have described and examined the working of the system for the interception of communications. Firstly, a Committee of Privy Councillors under the chairmanship of Lord Birkett was appointed in June 1957 "to consider and report upon the exercise by the Secretary of State of the executive power to intercept communications and, in particular, under what authority, to what extent and for what purposes this power has been exercised and to what use information so obtained has been put; and to recommend whether, how and subject to what safeguards, this power should be exercised ...". The Committee’s report (hereinafter referred to as "the Birkett report") was published in October 1957 (as Command Paper 283). The Government of the day announced that they accepted the report and its recommendations, and were taking immediate steps to implement those recommendations calling for a change in procedure. Subsequent Governments, in the person of the Prime Minister or the Home Secretary, publicly reaffirmed before Parliament that the arrangements relating to the interception of communications were strictly in accordance with the procedures described and recommended in the Birkett report. Secondly, a Command Paper entitled "The Interception of Communications in Great Britain" was presented to Parliament by the then Home Secretary in April 1980 (Command Paper 7873 - hereinafter referred to as "the White Paper"). The purpose of the White Paper was to bring up to date the account given in the Birkett report. Finally, in March 1981 a report by Lord Diplock, a Lord of Appeal in Ordinary who had been appointed to monitor the relevant procedures on a continuing basis (see paragraphs 54 and 55 below), was published outlining the results of the monitoring he had carried out to date. 22. The legal basis of the practice of intercepting telephone communications was also examined by the Vice-Chancellor in his judgment in the action which the applicant brought against the Metropolitan Police Commissioner (see paragraphs 31-36 below). 23. Certain changes have occurred in the organisation of the postal and telephone services since 1957, when the Birkett Committee made its report. The Post Office, which ran both services, was then a Department of State under the direct control of a Minister (the Postmaster General). By virtue of the Post Office Act 1969, it became a public corporation with a certain independence of the Crown, though subject to various ministerial powers of supervision and control exercised at the material time by the Home Secretary. The Post Office Act 1969 was repealed in part and amended by the British Telecommunications Act 1981. That Act divided the Post Office into two corporations: the Post Office, responsible for mail, and British Telecommunications, responsible for telephones. The 1981 Act made no change of substance in relation to the law governing interceptions. For the sake of convenience, references in the present judgment are to the position as it was before the 1981 Act came into force. 24. The existence of a power vested in the Secretary of State to authorise by warrant the interception of correspondence, in the sense of detaining and opening correspondence transmitted by post, has been acknowledged from early times and its exercise has been publicly known (see the Birkett report, Part I, especially paras. 11, 17 and 39). The precise origin in law of this executive authority is obscure (ibid., para. 9). Nevertheless, although none of the Post Office statutes (of 1710, 1837, 1908 or 1953) contained clauses expressly conferring authority to intercept communications, all recognised the power as an independently existing power which it was lawful to exercise (ibid., paras. 17 and 38). 25. At the time of the Birkett report, the most recent statutory provision recognising the right of interception of a postal communication was section 58 sub-section 1 of the Post Office Act 1953, which provides: "If any officer of the Post Office, contrary to his duty, opens ... any postal packet in course of transmission by post, or wilfully detains or delays ... any such postal packet, he shall be guilty of a misdemeanour ... . Provided that nothing in this section shall extend to ... the opening, detaining or delaying of a postal packet ... in obedience to an express warrant in writing under the hand of a Secretary of State." "Postal packet" is defined in section 87 sub-section 1 of the Act as meaning: "a letter, postcard, reply postcard, newspaper, printed packet, sample packet or parcel and every packet or article transmissible by post, and includes a telegram". Section 58, which is still in force, reproduced a clause that had been on the statute book without material amendment since 1710. 26. So far as telecommunications are further concerned, it is an offence under section 45 of the Telegraph Act 1863 if an official of the Post Office "improperly divulges to any person the purport of any message". Section 11 of the Post Office (Protection) Act 1884 creates a similar offence in relation to telegrams. In addition, section 20 of the Telegraph Act 1868 makes it a criminal offence if any Post Office official "shall, contrary to his duty, disclose or in any way make known or intercept the contents or any part of the contents of any telegraphic message or any message entrusted to the [Post Office] for the purpose of transmission". These provisions are still in force. 27. It was held in a case decided in 1880 (Attorney General v. Edison Telephone Company, (1880) 6 Queen’s Bench Division 244) that a telephone conversation is a "telegraphic communication" for the purposes of the Telegraph Acts. It has not been disputed in the present proceedings that the offences under the Telegraph Acts apply to telephone conversations. 28. The power to intercept telephone messages has been exercised in England and Wales from time to time since the introduction of the telephone. Until the year 1937, the Post Office, which was at that time a Department of Government, acted upon the view that the power which the Crown exercised in intercepting telephone messages was a power possessed by any operator of telephones and was not contrary to law. Consequently, no warrants by the Secretary of State were issued and arrangements for the interception of telephone conversations were made directly between the police authorities and the Director-General of the Post Office. In 1937, the position was reviewed by the Home Secretary and the Postmaster General (the Minister then responsible for the administration of the Post Office) and it was decided, as a matter of policy, that it was undesirable that records of telephone conversations should be made by Post Office servants and disclosed to the police without the authority of the Secretary of State. The view was taken that the power which had for long been exercised to intercept postal communications on the authority of a warrant of the Secretary of State was, by its nature, wide enough to include the interception of telephone communications. Since 1937 it had accordingly been the practice of the Post Office to intercept telephone conversations only on the express warrant of the Secretary of State (see the Birkett report, paras. 40-41). The Birkett Committee considered that the power to intercept telephone communications rested upon the power plainly recognised by the Post Office statutes as existing before the enactment of the statutes (Birkett report, para. 50). It concluded (ibid., para. 51): "We are therefore of the opinion that the state of the law might fairly be expressed in this way. (a) The power to intercept letters has been exercised from the earliest times, and has been recognised in successive Acts of Parliament. (b) This power extends to telegrams. (c) It is difficult to resist the view that if there is a lawful power to intercept communications in the form of letters and telegrams, then it is wide enough to cover telephone communications as well." 29. Under the Post Office Act 1969, the "Post Office" ceased to be a Department of State and was established as a public corporation of that name with the powers, duties and functions set out in the Act. In consequence of the change of status of the Post Office and of the fact that the Post Office was no longer under the direct control of a Minister of the Crown, it became necessary to make express statutory provision in relation to the interception of communications on the authority of a warrant of the Secretary of State. By section 80 of the Act it was therefore provided as follows: "A requirement to do what is necessary to inform designated persons holding office under the Crown concerning matters and things transmitted or in course of transmission by means of postal or telecommunication services provided by the Post Office may be laid on the Post Office for the like purposes and in the like manner as, at the passing of this Act, a requirement may be laid on the Postmaster General to do what is necessary to inform such persons concerning matters and things transmitted or in course of transmission by means of such services provided by him." 30. The 1969 Act also introduced, for the first time, an express statutory defence to the offences under the Telegraph Acts mentioned above (at paragraph 26), similar to that which exists under section 58 para. 1 of the Post Office Act 1953. This was effected by paragraph 1 sub-paragraph 1 of Schedule 5 to the Act, which reads: "In any proceedings against a person in respect of an offence under section 45 of the Telegraph Act 1863 or section 11 of the Post Office (Protection) Act 1884 consisting in the improper divulging of the purport of a message or communication or an offence under section 20 of the Telegraph Act 1868 it shall be a defence for him to prove that the act constituting the offence was done in obedience to a warrant under the hand of a Secretary of State." 31. In the civil action which he brought against the Metropolitan Police Commissioner, Mr. Malone sought various relief including declarations to the following effect: - that any "tapping" (that is, interception, monitoring or recording) of conversations on his telephone lines without his consent, or disclosing the contents thereof, was unlawful even if done pursuant to a warrant of the Home Secretary; - that he had rights of property, privacy and confidentiality in respect of conversations on his telephone lines and that the above-stated tapping and disclosure were in breach of those rights; - that the tapping of his telephone lines violated Article 8 (art. 8) of the Convention. In his judgment, delivered on 28 February 1979, the Vice-Chancellor noted that he had no jurisdiction to make the declaration claimed in respect of Article 8 (art. 8) of the Convention. He made a detailed examination of the domestic law relating to telephone tapping, held in substance that the practice of tapping on behalf of the police as recounted in the Birkett report was legal and accordingly dismissed the action. 32. The Vice-Chancellor described the central issue before him as being in simple form: is telephone tapping in aid of the police in their functions relating to crime illegal? He further delimited the question as follows: "... the only form of telephone tapping that has been debated is tapping which consists of the making of recordings by Post Office officials in some part of the existing telephone system, and the making of those recordings available to police officers for the purposes of transcription and use. I am not concerned with any form of tapping that involved electronic devices which make wireless transmissions, nor with any process whereby anyone trespasses onto the premises of the subscriber or anyone else to affix tapping devices or the like. All that I am concerned with is the legality of tapping effected by means of recording telephone conversations from wires which, though connected to the premises of the subscriber, are not on them." ([1979] 2 All England Law Reports, p. 629) 33. The Vice-Chancellor held that there was no right of property (as distinct from copyright) in words transmitted along telephone lines (ibid., p. 631). As to the applicant’s remaining contentions based on privacy and confidentiality, he observed firstly that no assistance could be derived from cases dealing with other kinds of warrant. Unlike a search of premises, the process of telephone tapping on Post Office premises did not involve any act of trespass and so was not prima facie illegal (ibid., p. 640). Secondly, referring to the warrant of the Home Secretary, the Vice-Chancellor remarked that such warrant did not "purport to be issued under the authority of any statute or of the common law". The decision to introduce such warrants in 1937 seemed "plainly to have been an administrative decision not dictated or required by statute" (ibid.). He referred, however, to section 80 of the Post Office Act 1969 and Schedule 5 to the Act, on which the Solicitor General had based certain contentions summarised as follows: "Although the previous arrangements had been merely administrative, they had been set out in the Birkett report a dozen years earlier, and the section plainly referred to these arrangements; ... A warrant was not needed to make the tapping lawful: it was lawful without any warrant. But where the tapping was done under warrant ... [section 80] afforded statutory recognition of the lawfulness of the tapping." (ibid., p. 641) "In their essentials", stated the Vice-Chancellor, "these contentions seem to me to be sound." He accepted that, by the 1969 Act, "Parliament has provided a clear recognition of the warrant of the Home Secretary as having an effective function in law, both as providing a defence to certain criminal charges, and also as amounting to an effective requirement for the Post Office to do certain acts" (ibid., pp. 641-642). The Vice-Chancellor further concluded that there was in English law neither a general right of privacy nor, as the applicant had contended, a particular right of privacy to hold a telephone conversation in the privacy of one’s home without molestation (ibid., pp. 642-644). Moreover, no duty of confidentiality existed between the Post Office and the telephone subscriber; nor was there any other obligation of confidence on a person who overheard a telephone conversation, whether by means of tapping or otherwise (ibid., pp. 645-647). 34. Turning to the arguments based on the Convention, the Vice-Chancellor noted firstly that the Convention was not part of the law of England and, as such, did not confer on the applicant direct rights that could be enforced in the English courts (ibid., p. 647). He then considered the applicant’s argument that the Convention, as interpreted by the European Court in the case of Klass and Others (judgment of 6 September 1978, Series A no. 28), could be used as a guide to assist in the determination of English law on a point that was uncertain. He observed that the issues before him did not involve construing legislation enacted with the purpose of giving effect to obligations imposed by the Convention. Where Parliament had abstained from legislating on a point that was plainly suitable for legislation, it was difficult for the court to lay down new rules that would carry out the Crown’s treaty obligations, or to discover for the first time that such rules had always existed. He compared the system of safeguards considered in the Klass case with the English system, as described in the Birkett report, and concluded: "... Not a single one of these safeguards is to be found as a matter of established law in England, and only a few corresponding provisions exist as a matter of administrative procedure. It does not, of course, follow that a system with fewer or different safeguards will fail to satisfy Article 8 (art. 8) in the eyes of the European Court of Human Rights. At the same time, it is impossible to read the judgment in the Klass case without it becoming abundantly clear that a system which has no legal safeguards whatever has small chance of satisfying the requirements of that Court, whatever administrative provisions there may be. ... Even if the system [in operation in England] were to be considered adequate in its conditions, it is laid down merely as a matter of administrative procedure, so that it is unenforceable in law, and as a matter of law could at any time be altered without warning or subsequent notification. Certainly in law any ‘adequate and effective safeguards against abuse’ are wanting. In this respect English law compares most unfavourably with West German law: this is not a subject on which it is possible to feel any pride in English law. I therefore find it impossible to see how English law could be said to satisfy the requirements of the Convention, as interpreted in the Klass case, unless that law not only prohibited all telephone tapping save in suitably limited classes of case, but also laid down detailed restrictions on the exercise of the power in those limited classes." This conclusion did not, however, enable the Vice-Chancellor to decide the case in the way the applicant sought: "It may perhaps be that the common law is sufficiently fertile to achieve what is required by the first limb of [the above-stated proviso]: possible ways of expressing such a rule may be seen in what I have already said. But I see the greatest difficulty in the common law framing the safeguards required by the second limb. Various institutions or offices would have to be brought into being to exercise various defined functions. The more complex and indefinite the subject-matter the greater the difficulty in the court doing what it is really appropriate, and only appropriate, for the legislature to do. Furthermore, I find it hard to see what there is in the present case to require the English courts to struggle with such a problem. Give full rein to the Convention, and it is clear that when the object of the surveillance is the detection of crime, the question is not whether there ought to be a general prohibition of all surveillance, but in what circumstances, and subject to what conditions and restrictions, it ought to be permitted. It is those circumstances, conditions and restrictions which are at the centre of this case; and yet it is they which are the least suitable for determination by judicial decision. ... Any regulation of so complex a matter as telephone tapping is essentially a matter for Parliament, not the courts; and neither the Convention nor the Klass case can, I think, play any proper part in deciding the issue before me." (ibid., pp. 647-649) He added that "this case seems to me to make it plain that telephone tapping is a subject which cries out for legislation", and continued: "However much the protection of the public against crime demands that in proper cases the police should have the assistance of telephone tapping, I would have thought that in any civilised system of law the claims of liberty and justice would require that telephone users should have effective and independent safeguards against possible abuses. The fact that a telephone user is suspected of crime increases rather than diminishes this requirement: suspicions, however reasonably held, may sometimes prove to be wholly unfounded. If there were effective and independent safeguards, these would not only exclude some cases of excessive zeal but also, by their mere existence, provide some degree of reassurance for those who are resentful of the police or believe themselves to be persecuted." (ibid., p. 649) 35. As a final point of substance, the Vice-Chancellor dealt, in the following terms, with the applicant’s contention that as no power to tap telephones had been given by either statute or common law, the tapping was necessarily unlawful: "I have already held that, if such tapping can be carried out without committing any breach of the law, it requires no authorisation by statute or common law; it can lawfully be done simply because there is nothing to make it unlawful. Now that I have held that such tapping can indeed be carried out without committing any breach of the law, the contention necessarily fails. I may also say that the statutory recognition given to the Home Secretary’s warrant seems to me to point clearly to the same conclusion." (ibid., p. 649) 36. The Vice-Chancellor therefore held that the applicant’s claim failed in its entirety. He made the following concluding remarks as to the ambit of his decision: "Though of necessity I have discussed much, my actual decision is closely limited. It is confined to the tapping of the telephone lines of a particular person which is effected by the Post Office on Post Office premises in pursuance of a warrant of the Home Secretary in a case in which the police have just cause or excuse for requesting the tapping, in that it will assist them in performing their functions in relation to crime, whether in prevention, detection, discovering the criminals or otherwise, and in which the material obtained is used only by the police, and only for those purposes. In particular, I decide nothing on tapping effected for other purposes, or by other persons, or by other means; nothing on tapping when the information is supplied to persons other than the police; and nothing on tapping when the police use the material for purposes other than those I have mentioned. The principles involved in my decision may or may not be of some assistance in such other cases, whether by analogy or otherwise: but my actual decision is limited in the way that I have just stated." (ibid., p. 651) 37. Following the Vice-Chancellor’s judgment, the necessity for legislation concerning the interception of communications was the subject of review by the Government, and of Parliamentary discussion. On 1 April 1980, on the publication of the White Paper, the Home Secretary announced in Parliament that after carefully considering the suggestions proffered by the Vice-Chancellor in his judgment, the Government had decided not to introduce legislation. He explained the reasons for this decision in the following terms: "The interception of communications is, by definition, a practice that depends for its effectiveness and value upon being carried out in secret, and cannot therefore be subject to the normal processes of parliamentary control. Its acceptability in a democratic society depends on its being subject to ministerial control, and on the readiness of the public and their representatives in Parliament to repose their trust in the Ministers concerned to exercise that control responsibly and with a right sense of balance between the value of interception as a means of protecting order and security and the threat which it may present to the liberty of the subject. Within the necessary limits of secrecy, I and my right hon. Friends who are concerned are responsible to Parliament for our stewardship in this sphere. There would be no more sense in making such secret matters justiciable than there would be in my being obliged to reveal them in the House. If the power to intercept were to be regulated by statute, then the courts would have power to inquire into the matter and to do so, if not publicly, then at least in the presence of the complainant. This must surely limit the use of interception as a tool of investigation. The Government have come to the clear conclusion that the procedures, conditions and safeguards described in the [White] Paper ensure strict control of interception by Ministers, are a good and sufficient protection for the liberty of the subject, and would not be made significantly more effective for that purpose by being embodied in legislation. The Government have accordingly decided not to introduce legislation on these matters" (Hansard, House of Commons, 1 April 1980, cols. 205-207). He gave an assurance that "Parliament will be informed of any changes that are made in the arrangements" (ibid., col. 208). 38. In the course of the Parliamentary proceedings leading to the enactment of the British Telecommunications Act 1981, attempts were made to include in the Bill provisions which would have made it an offence to intercept mail or matters sent by public telecommunication systems except pursuant to a warrant issued under conditions which corresponded substantially to those described in the White Paper. The Government successfully opposed these moves, primarily on the grounds that secrecy, which was essential if interception was to be effective, could not be maintained if the arrangements for interception were laid down by legislation and thus became justiciable in the courts. The present arrangements and safeguards were adequate and the proposed new provisions were, in the Government’s view, unworkable and unnecessary (see, for example, the statement of the Home Secretary in the House of Commons on 1 April 1981, Hansard, cols. 334-338). The 1981 Act eventually contained a re-enactment of section 80 of the Post Office Act 1969 applicable to the Telecommunications Corporation (Schedule 3, para. 1, of the 1981 Act). Section 80 of the 1969 Act itself continues to apply to the Post Office. 39. In its report presented to Parliament in January 1981 (Command Paper 8092), the Royal Commission on Criminal Procedure, which had been appointed in 1978, also considered the possible need for legislation in this field. In the chapter entitled "Investigative powers and the rights of the citizen", the Royal Commission made the following recommendation in regard to what it termed "surreptitious surveillance" (paras. 3.56-3.60): "... [A]lthough we have no evidence that the existing controls are inadequate to prevent abuse, we think that there are strong arguments for introducing a system of statutory control on similar lines to that which we have recommended for search warrants. As with all features of police investigative procedures, the value of prescribing them in statutory form is that it brings clarity and precision to the rules; they are open to public scrutiny and to the potential of Parliamentary review. So far as surveillance devices in general are concerned this is not at present so. ... We therefore recommend that the use of surveillance devices by the police (including the interception of letters and telephone communications) should be regulated by statute." These recommendations were not adopted by the Government. 40. A few months later, the Law Commission, a permanent body set up by statute in 1965 for the purpose of promoting reform of the law, produced a report on breach of confidence (presented to Parliament in October 1981 - Command Paper 8388). This report examined, inter alia, the implications for the civil law of confidence of the acquisition of information by surveillance devices, and made various proposals for reform of the law (paras. 6.35 - 6.46). The Law Commission, however, felt that the question whether "the methods which the police ... may use to obtain information should be defined by statute" was a matter outside the scope of its report (paras. 6.43 and 6.44 in fine). No action has been taken by the Government on this report. 41. Details of the current practices followed in relation to interceptions are set out in the Government’s White Paper of 1980. The practices there summarised are essentially the same as those described and recommended in the Birkett report, and referred to in Parliamentary statements by successive Prime Ministers and Home Secretaries in 1957, 1966, 1978 and 1980. 42. The police, H.M. Customs and Excise and the Security Service may request authority for the interception of communications for the purposes of "detection of serious crime and the safeguarding of the security of the State" (paragraph 2 of the White Paper). Interception may take place only on the authority of the Secretary of State given by warrant under his own hand. In England and Wales, the power to grant such warrants is exercised by the Home Secretary or occasionally, if he is ill or absent, by another Secretary of State on his behalf (ibid.). In the case of warrants applied for by the police to assist them in the detection of crime, three conditions must be satisfied before a warrant will be issued: (a) the offence must be "really serious"; (b) normal methods of investigation must have been tried and failed or must, from the nature of things, be unlikely to succeed; (c) there must be good reason to think that an interception would be likely to lead to an arrest and a conviction. 43. As is indicated in the Birkett report (paras. 58-61), the concept of "serious crime" has varied from time to time. Changing circumstances have made some acts serious offences which were not previously so regarded; equally, some offences formerly regarded as serious enough to justify warrants for the interception of communications have ceased to be so regarded. Thus, the interception of letters believed to contain obscene or indecent matter ceased in the mid-1950s (Birkett report, para. 60); no warrants for the purpose of preventing the transmission of illegal lottery material have been issued since November 1953 (ibid., para. 59). "Serious crime" is defined in the White Paper, and subject to the addition of the concluding words has been consistently defined since September 1951 (Birkett report, para. 64), as consisting of "offences for which a man with no previous record could reasonably be expected to be sentenced to three years’ imprisonment, or offences of lesser gravity in which either a large number of people is involved or there is good reason to apprehend the use of violence" (White Paper, para. 4). In April 1982, the Home Secretary announced to Parliament that, on a recommendation made by Lord Diplock in his second report (see paragraph 55 below), the concept of a serious offence was to be extended to cover offences which would not necessarily attract a penalty of three years’ imprisonment on first conviction, but in which the financial rewards of success were very large (Hansard, House of Commons, 21 April 1982, col. 95). Handling (including receiving) stolen goods, knowing or believing them to be stolen, is an offence under section 22 of the Theft Act 1968, carrying a maximum penalty of fourteen years’ imprisonment. According to the Government, the receiving of stolen property is regarded as a very serious offence since the receiver lies at the root of much organised crime and encourages large-scale thefts (see the Birkett report, para. 103). The detection of receivers of stolen property was at the time of the Birkett report (ibid.), and remains, one of the important uses to which interception of communications is put by the police. 44. Applications for warrants must be made in writing and must contain a statement of the purpose for which interception is requested and of the facts and circumstances which support the request. Every application is submitted to the Permanent Under-Secretary of State - the senior civil servant - at the Home Office (or, in his absence, a nominated deputy), who, if he is satisfied that the application meets the required criteria, submits it to the Secretary of State for approval and signature of a warrant. In a case of exceptional urgency, if the Secretary of State is not immediately available to sign a warrant, he may be asked to give authority orally, by telephone; a warrant is signed and issued as soon as possible thereafter (White Paper, para. 9). In their submissions to the Commission and the Court, the Government supplemented as follows the information given in the White Paper. Except in cases of exceptional urgency, an application will only be considered in the Home Office if it is put forward by a senior officer of the Metropolitan Police, in practice the Assistant Commissioner (Crime), and also, in the case of another police force, by the chief officer of police concerned. Close personal consideration is given by the Secretary of State to every request for a warrant submitted to him. In the debate on the British Telecommunications Bill in April 1981, the then Home Secretary confirmed before Parliament that he did not and would not sign any warrant for interception unless he were personally satisfied that the relevant criteria were met (Hansard, House of Commons, 1 April 1981, col. 336). 45. Every warrant sets out the name and address of the recipient of mail in question or the telephone number to be monitored, together with the name and address of the subscriber. Any changes require the authority of the Secretary of State, who may delegate power to give such authority to the Permanent Under-Secretary. If both the mail and the telephone line of a person are to be intercepted, two separate warrants are required (White Paper, para. 10). 46. Every warrant is time-limited, specifying a date on which it expires if not renewed. Warrants are in the first place issued with a time-limit set at a defined date not exceeding two months from the date of issue. Warrants may be renewed only on the personal authority of the Secretary of State and may be renewed for not more than one month at a time. In each case where renewal of a warrant is sought, the police are required first to satisfy the Permanent Under-Secretary of State at the Home Office that the reasons for which the warrant was first issued are still valid and that the case for renewal is justified: a submission to the Secretary of State for authority to renew the warrant is only made if the Permanent Under-Secretary is so satisfied (White Paper, para. 11). 47. Warrants are reviewed monthly by the Secretary of State. When an interception is considered to be no longer necessary, it is immediately discontinued and the warrant is cancelled on the authority of the Permanent Under-Secretary of State at the Home Office. In addition to the monthly review of each warrant by the Secretary of State, the Metropolitan Police carry out their own review each month of all warrants arising from police applications: where an interception is deemed to be no longer necessary, instructions are issued to the Post Office to discontinue the interception forthwith and the Home Office is informed so that the warrant can be cancelled (Birkett report, paras. 72-74; White Paper, paras. 12-13). 48. In accordance with the recommendations of the Birkett report (para. 84), records are kept in the Home Office, showing in respect of each application for a warrant: (a) the ground on which the warrant is applied for; (b) a copy of the warrant issued or a note of rejection of the application; (c) the dates of any renewals of the warrant; (d) a note of any other decisions concerning the warrant; (e) the date of cancellation of the warrant (White Paper, para. 14). 49. On the issue of a warrant, the interception is effected by the Post Office. Telephone interceptions are carried out by a small staff of Post Office employees who record the conversation but do not themselves listen to it except from time to time to ensure that the apparatus is working correctly. In the case of postal communications, the Post Office makes a copy of the correspondence. As regards the interception of communications for the purpose of the detection of crime, in practice the "designated person holding office under the Crown" to whom the Post Office is required by sub-section 80 of the Post Office Act 1969 to transmit the intercepted information (see paragraph 29 above) is invariably the Commissioner of Police of the Metropolis. The product of the interception - that is, the copy of the correspondence or the tape-recording - is made available to a special unit of the Metropolitan Police who note or transcribe only such parts of the correspondence or the telephone conversation as are relevant to the investigation. When the documentary record has been made, the tape is returned to the Post Office staff, who erase the recording. The tape is subsequently re-used. The majority of recordings are erased within one week of their being taken (Birkett report, paras. 115-117; White Paper, para. 15). 50. A Consolidated Circular to Police, issued by the Home Office in 1977, contained the following paragraphs in a section headed "Supply of information by Post Office to police": "1.67 Head Postmasters and Telephone Managers have been given authority to assist the police as indicated in paragraph 1.68 below without reference to Post Office Headquarters, in circumstances where the police are seeking information (a) in the interests of justice in the investigation of a serious indictable offence; or (b) when they are acting in a case on the instructions of the Director of Public Prosecutions; or (c) when a warrant has been issued for the arrest of the offender, or the offence is such that he can be arrested without a warrant; or ... 1.68 Head Postmasters, or (in matters affecting the telecommunication service) Telephone Managers, may afford the following facilities in response to a request made by the officer locally in charge of the force at the town where the Head Postmaster is stationed ... (g) Telegrams. Telegrams may be shown to the police on the authority of the sender or addressee. Apart from this the Post Office is prepared to give authority in particular cases of serious crime where the inspection of a telegram is a matter of urgency, and will do so at once on telephonic application, by a chief officer of police or a responsible officer acting on his behalf, to the Chief Inspector, Post Office Investigation Division. ... ... 1.69 ... 1.70 As regards any matter not covered by paragraphs 1.67 and 1.68 above, if the police are in urgent need of information which the Post Office may be able to furnish in connection with a serious criminal offence, the police officer in charge of the investigation should communicate with the Duty Officer, Post Office Investigation Division who will be ready to make any necessary inquiries of other branches of the Post Office and to communicate any information which can be supplied." In May 1984, the Home Office notified chief officers of police that paragraph 1.68 (g), described as containing advice and information to the police which was "in some respects misleading", was henceforth to be regarded as deleted, with the exception of the first complete sentence. At the same time, chief officers of police were reminded that the procedures for the interception of communications were set out in the White Paper and rigorously applied in all cases. 51. The notes or transcriptions of intercepted communications are retained in the police interception unit for a period of twelve months or for as long as they may be required for the purposes of investigation. The contents of the documentary record are communicated to the officers of the appropriate police force engaged in the criminal investigation in question. When the notes or transcriptions are no longer required for the purposes of the investigation, the documentary record is destroyed (Birkett report, para. 118; White Paper, para. 15). The product of intercepted communications is used exclusively for the purpose of assisting the police to pursue their investigations: the material is not tendered in evidence, although the interception may itself lead to the obtaining of information by other means which may be tendered in evidence (Birkett report, para. 151; White Paper, para. 16). In accordance with the recommendation of the Birkett Committee (Birkett report, para. 101), information obtained by means of an interception is never disclosed to private individuals or private bodies or to courts or tribunals of any kind (White Paper, para. 17). 52. An individual whose communications have been intercepted is not informed of the fact of interception or of the information thereby obtained, even when the surveillance and the related investigations have terminated. 53. For security reasons it is the normal practice not to disclose the numbers of interceptions made (Birkett report, paras. 119-121; White Paper, paras. 24-25). However, in order to allay public concern as to the extent of interception, both the Birkett report and the White Paper gave figures for the number of warrants granted annually over the years preceding their publication. The figures in the White Paper (Appendix III) indicate that in England and Wales between 1969 and 1979 generally something over 400 telephone warrants and something under 100 postal warrants were granted annually by the Home Secretary. Paragraph 27 of the White Paper also gave the total number of Home Secretary warrants in force on 31 December for the years 1958 (237), 1968 (273) and 1978 (308). The number of telephones installed at the end of 1979 was, according to the Government, 26,428,000, as compared with 7,327,000 at the end of 1957. The Government further stated that over the period from 1958 to 1978 there was a fourfold increase in indictable crime, from 626,000 to 2,395,000. 54. When the White Paper was published on 1 April 1980, the Home Secretary announced in Parliament that the Government, whilst not proposing to introduce legislation (see paragraph 37 above), intended to appoint a senior member of the judiciary to conduct a continuous independent check so as to ensure that interception of communications was being carried out for the established purposes and in accordance with the established procedures. His terms of reference were stated to be: "to review on a continuing basis the purposes, procedures, conditions and safeguards governing the interception of communications on behalf of the police, HM Customs and Excise and the security service as set out in [the White Paper]; and to report to the Prime Minister" (Hansard, House of Commons, 1 April 1980, cols. 207-208). It was further announced that the person appointed would have the right of access to all relevant papers and the right to request additional information from the departments and organisations concerned. For the purposes of his first report, which would be published, he would examine all the arrangements set out in the White Paper; his subsequent reports on the detailed operation of the arrangements would not be published, but Parliament would be informed of any findings of a general nature and of any changes that were made in the arrangements (ibid.). 55. Lord Diplock, a Lord of Appeal in Ordinary since 1968, was appointed to carry out the review. In his first report, published in March 1981, Lord Diplock recorded, inter alia, that, on the basis of a detailed examination of apparently typical cases selected at random, he was satisfied (i) that, in each case, the information provided by the applicant authorities to the Secretary of State in support of the issue of a warrant was stated with accuracy and candour and that the procedures followed within the applicant authorities for vetting applications before submission to the Secretary of State were appropriate to detect and correct any departure from proper standards; (ii) that warrants were not applied for save in proper cases and were not continued any longer than was necessary to carry out their legitimate purpose. Lord Diplock further found from his examination of the system that all products of interception not directly relevant to the purpose for which the warrant was granted were speedily destroyed and that such material as was directly relevant to that purpose was given no wider circulation than was essential for carrying it out. In early 1982, Lord Diplock submitted his second report. As the Secretary of State informed Parliament, Lord Diplock’s general conclusion was that during the year 1981 the procedure for the interception of communications had continued to work satisfactorily and the principles set out in the White Paper had been conscientiously observed by all departments concerned. In 1982, Lord Diplock resigned his position and was succeeded by Lord Bridge of Harwich, a Lord of Appeal in Ordinary since 1980. 56. The process known as "metering" involves the use of a device called a meter check printer which registers the numbers dialled on a particular telephone and the time and duration of each call. It is a process which was designed by the Post Office for its own purposes as the corporation responsible for the provision of telephone services. Those purposes include ensuring that the subscriber is correctly charged, investigating complaints of poor quality service and checking possible abuse of the telephone service. When "metering" a telephone, the Post Office - now British Telecommunications (see paragraph 23 above) - makes use only of signals sent to itself. In the case of the Post Office, the Crown does not require the keeping of records of this kind but, if the records are kept, the Post Office may be compelled to produce them in evidence in civil or criminal cases in the ordinary way, namely by means of a subpoena duces tecum. In this respect the position of the Post Office does not differ from that of any other party holding relevant records as, for instance, a banker. Neither the police nor the Crown are empowered to direct or compel the production of the Post Office records otherwise than by the normal means. However, the Post Office do on occasions make and provide such records at the request of the police if the information is essential to police enquiries in relation to serious crime and cannot be obtained from other sources. This practice has been made public in answer to parliamentary questions on more than one occasion (see, for example, the statement by the Home Secretary to Parliament, Hansard, House of Commons, 23 February 1978, cols. 760-761). 57. Commission, Government and applicant are agreed that, at least in theory, judicial remedies are available in England and Wales, in both the civil and the criminal courts, in respect of interceptions of communications carried out unlawfully. The remedies referred to by the Government were summarised in the pleadings as follows: (i) In the event of any interception or disclosure of intercepted material effected by a Post Office employee "contrary to duty" or "improperly" and without a warrant of the Secretary of State, a criminal offence would be committed under the Telegraph Acts 1863 and 1868 and the Post Office (Protection) Act 1884 (as regards telephone interceptions) and under the Post Office Act 1953 (as regards postal interceptions) (see paragraphs 25-27 above). On complaint that communications had been unlawfully intercepted, it would be the duty of the police to investigate the matter and to initiate a prosecution if satisfied that an offence had been committed. If the police failed to prosecute, it would be open to the complainant himself to commence a private prosecution. (ii) In addition to (i) above, in a case of unlawful interception by a Post Office employee without a warrant, an individual could obtain an injunction from the domestic courts to restrain the person or persons concerned and the Post Office itself from carrying out further unlawful interception of his communications: such an injunction is available to any person who can show that a private right or interest has been interfered with by a criminal act (see, for example, Gouriet v. The Union of Post Office Workers, [1977] 3 All England Law Reports 70; Ex parte Island Records Ltd., [1978] 3 All England Law Reports 795). (iii) On the same grounds, an action would lie for an injunction to restrain the divulging or publication of the contents of intercepted communications by employees of the Post Office, otherwise than under a warrant of the Secretary of State, or to any person other than the police. Besides these remedies, unauthorised interference with mail would normally constitute the tort of trespass to (that is, wrongful interference with) chattels and so give rise to a civil action for damages. 58. The Government further pointed to the following possible non-judicial remedies: (i) In the event that the police were themselves implicated in an interception carried out without a warrant, a complaint could additionally be lodged under section 49 of the Police Act 1964, which a chief officer of police would, by the terms of the Act, be obliged to investigate and, if an offence appeared to him to have been committed, to refer to the Director of Public Prosecutions. (ii) If a complainant were able to establish merely that the police or the Secretary of State had misappreciated the facts or that there was not an adequate case for imposing an interception, the individual concerned would be able to complain directly to the Secretary of State himself or through his Member of Parliament: if a complainant were to give the Home Secretary information which suggested that the grounds on which a warrant had been issued did not in fact fall within the published criteria or were inadequate or mistaken, the Home Secretary would immediately cause it to be investigated and, if the complaint were found to be justified, would immediately cancel the warrant. (iii) Similarly, if there were non-compliance with any of the relevant administrative rules of procedure set out in the Birkett report and the White Paper, a remedy would lie through complaint to the Secretary of State who would, in a proper case, cancel or revoke a warrant and thereby terminate an interception which was being improperly carried out. According to the Government, in practice there never has been a case where a complaint in any of the three above circumstances has proved to be well-founded. | 1 |
train | 001-61291 | ENG | SWE | CHAMBER | 2,003 | CASE OF STOCKHOLMS FORSAKRINGS- OCH SKADESTANDSJURIDIK AB v. SWEDEN | 2 | Preliminary objection rejected (non-exhaustion);Violation of P1-1;No violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - financial award;Costs and expenses partial award | Gaukur Jörundsson | 9. In April 1989 the applicant instituted proceedings in the District Court (tingsrätten) of Stockholm against a forwarding agent, claiming that goods belonging to the applicant had been damaged or lost while in the care of the agent. The agent was later declared bankrupt but the bankruptcy estate of the agent declined to enter as a party to the proceedings. On 16 December 1991 the District Court gave judgment in default (tredskodom) according to which the agent – the bankruptcy debtor – was to pay the applicant 112,340 Swedish kronor (SEK) in damages and SEK 199,210 in litigation costs. No appeal was made and the judgment acquired legal force. 10. In March 1992 the applicant and the bankruptcy estate of the agent signed an agreement according to which the estate assigned to the applicant the estate’s right to compensation from an insurance company under a third party insurance which had been taken out by the agent to cover possible liabilities incurred in connection with its forwarding business. Subsequently, the applicant instituted proceedings against the insurance company in the District Court, claiming that the insurance company should pay the applicant SEK 29,648 in compensation for damaged or lost goods and SEK 199,210 for the above-mentioned litigation costs. 11. On 7 July 1995 the District Court rejected the applicant’s claims against the insurance company and ordered the applicant to pay the insurer’s litigation costs in the amount of SEK 276,760. The court found that the bankruptcy estate of the forwarding agent had not been a party to the proceedings concluded by the judgment of 16 December 1991 – which had only determined the agent’s liability vis-à-vis the applicant – and that, thus, the estate had not acquired any rights or obligations on account of that judgment. Accordingly, the estate of the agent had not been in a position to assign to the applicant any rights emanating from the third party insurance. 12. The applicant appealed to the Svea Court of Appeal (Svea hovrätt) and requested that the enforcement of the District Court’s judgment be suspended as it had not acquired legal force. On 9 August 1995 the appellate court found that there was no legal possibility to suspend the enforcement and thus rejected the applicant’s request. 13. In order to recover its litigation costs, the insurance company requested the Enforcement Office (kronofogdemyndigheten) to levy execution on the applicant’s assets. The Enforcement Office found, however, that the applicant had no seizeable assets. The insurance company then filed a bankruptcy petition against the applicant. In a decision of 19 October 1995 the District Court considered that the applicant’s appeal against the judgment of 7 July 1995 had no prospects of success and that, consequently, its liability to pay the litigation costs in question would remain unchanged. Noting further that the applicant was insolvent as it had no assets to pay the litigation costs, the court declared the applicant bankrupt and ordered it to pay the insurer’s litigation costs in the bankruptcy proceedings. 14. The declaration of bankruptcy was upheld by the Court of Appeal on 27 November 1995. However, the applicant made a further appeal to the Supreme Court (Högsta domstolen), and on 12 September 1996 that court quashed the appellate court’s decision, rejected the bankruptcy petition filed against the applicant and ordered the insurance company to pay the applicant’s litigation costs in the bankruptcy proceedings. The Supreme Court found that, by declining to enter as a party to the original damage proceedings, the bankruptcy estate of the forwarding agent had not renounced any rights it might have had vis-à-vis the insurance company under the third party insurance. Consequently, the transfer of its rights under that insurance to the applicant was in fact valid. In view of this and the complexity of other issues raised by the parties in the compensation proceedings adjudicated by the District Court on 7 July 1995, there was no basis for concluding that the applicant’s appeal against that judgment lacked prospects of success. As the inventory of the applicant company did not reveal any other important debts, the declaration of bankruptcy was entirely dependent on the applicant’s possible liability to pay the insurance company’s litigation costs in the compensation proceedings. Having found that the outcome of those proceedings was uncertain, the Supreme Court concluded that the insurer had failed to show that the applicant was insolvent. 15. Following the Supreme Court’s decision, the District Court, on 4 December 1996, fixed the fee to be paid to the official receiver who had been in charge of the applicant’s bankruptcy at SEK 5,000. The District Court further recalled that the fee was to be paid by the bankruptcy estate. In so doing, it referred to Chapter 2, Section 25 of the Bankruptcy Act (Konkurslagen, 1987:62) which provides that, following the decision by a superior court to quash a declaration of bankruptcy, the assets of the estate shall be returned to the bankruptcy debtor to the extent they are not required for the defrayal of the bankruptcy costs. The receiver’s fee is considered as a bankruptcy cost, according to Chapter 14, Section 1 of the Bankruptcy Act. 16. The applicant appealed to the Court of Appeal. It did not challenge the fee as such but claimed that liability to bear the bankruptcy costs would violate the property rights of the estate and – consequently – the applicant. The applicant invoked Article 1 of Protocol No. 1 to the Convention. 17. In a decision of 30 December 1996, the Court of Appeal stated that the District Court had only recalled that, under the relevant law, the receiver’s fee was to be paid by the bankruptcy estate. It had not ruled on the question whether the receiver’s claim for remuneration had priority over the applicant’s right to the assets. As a consequence, this question could not be examined by the Court of Appeal which, accordingly, dismissed the appeal. 18. The applicant made a further appeal to the Supreme Court. It claimed that, in referring to the above-mentioned provision of the Bankruptcy Act, the District Court had in fact determined that the bankruptcy estate – and not the State – was to defray the receiver’s fee. The use of the word “recall” rather than “decide” was, in these circumstances, irrelevant. The applicant stated further that there was no other legal remedy available for the determination of the liability to pay the fee in question. Referring to Article 6 of the Convention, the applicant therefore claimed that the Court of Appeal was obliged to determine that liability. 19. On 5 June 1997 the Supreme Court refused the applicant leave to appeal against the Court of Appeal’s decision. 20. The assets of the bankruptcy estate – SEK 1,597 according to the inventory deed – were appropriated to cover part of the receiver’s fee. The remainder of the fee was paid by the insurance company. 21. By a decision of 22 September 1997 the Court of Appeal quashed the District Court’s judgment of 7 July 1995 and referred the compensation case back to the latter court for reexamination. The appellate court found that the District Court had not examined the applicant’s claim that the rights under the third party insurance had been transferred from the forwarding agent to its bankruptcy estate at the time when the agent was declared bankrupt, rather than as a consequence of the default judgment of 16 December 1991. The District Court had also failed to consider the insurance company’s counter-claim that, under the relevant provision of the Insurance Contracts Act (Lagen om försäkringsavtal, 1927:77), it was not liable to pay any compensation as, at the time of the declaration of bankruptcy, the policy-holder, i.e. the forwarding agent, had had no claim for compensation. Thus, the District Court had made a procedural error which presumably had affected the outcome of the case and which could not be remedied by the Court of Appeal. 22. After the case had been referred back to the District Court, the insurance company conceded the applicant’s compensation claims. Consequently, on 22 January 1999, the District Court gave judgment in the applicant’s favour, ordering the insurance company to pay the compensation claimed and the applicant’s litigation costs. 23. References in this section are made to the Bankruptcy Act, unless otherwise indicated. 24. By means of bankruptcy, all creditors collectively and compulsorily take the total assets of an insolvent debtor for payment of their claims. During bankruptcy, the bankruptcy estate takes care of the debtor’s assets on behalf of the creditors (chapter 1, section 1). 25. An insolvent debtor is declared bankrupt by the District Court following his own or a creditor’s petition. As a rule, it is for the petitioner to show that the debtor is insolvent. However, if certain requirements are fulfilled, a debtor is considered insolvent unless otherwise shown (chapter 2, sections 8 and 9). In such cases, the burden of proof is placed on the debtor. Thus, unless otherwise shown, a debtor is deemed to be insolvent when, in the event of enforcement within six months before the bankruptcy petition, inter alia, it appeared that he or she did not have assets for full payment of the claim. If a creditor’s claim has been confirmed by a court, the creditor may request that the debtor be declared bankrupt even if the court’s decision has not acquired legal force. This does not apply, however, if the court has ordered that the judgment must not be enforced before it has acquired legal force (chapter 2, section 6). 26. The administration of a bankruptcy estate is managed by one or more official receivers appointed by the District Court and supervised by a section of the Enforcement Office, the Supervisory Authority in Bankruptcy (tillsynsmyndigheten i konkurs) (chapter 1, section 3, and chapter 7, sections 2 and 25). The receiver must have regard to the common rights and best interests of the creditors and shall take all necessary measures to promote an advantageous and expeditious winding-up of the estate. The receiver is obliged to notify the public prosecutor if he considers that the debtor may be suspected of certain economic crimes (chapter 7, section 16). 27. The bankruptcy costs include, inter alia, the official receiver’s fee for work performed and the reimbursement of any special costs borne by him during the performance of his assignment (chapter 14, section 1). 28. If the District Court considers, after hearing the receiver, that the assets of the bankruptcy estate do not suffice to pay the bankruptcy costs and other debts that the estate has incurred, the court shall decide to terminate the bankruptcy proceedings (chapter 10, section 1). 29. The District Court determines the receiver’s fee after having consulted the Supervisory Authority in Bankruptcy. The fee should constitute reasonable remuneration for the assignment (chapter 14, sections 4, 8 and 10). 30. The bankruptcy costs are paid out of the bankruptcy estate before other debts (chapter 14, section 2). Thus, no distribution to the creditors can take place until, first, the bankruptcy costs and, then, any other debts that the bankruptcy estate may have incurred have been paid. The State and the creditor who filed the bankruptcy petition can also be made liable for the bankruptcy costs but their liability is of a secondary nature (chapter 14, sections 2 and 3). Accordingly, if the bankruptcy proceedings are terminated in accordance with chapter 10, section 1, the creditor who filed the petition for bankruptcy is to pay the costs to the extent that they cannot be paid out of the estate. However, this liability is limited to one-tenth of a basic amount geared to the price index (basbelopp; this basic amount is regulated in the Social Insurance Act (Lagen om allmän försäkring, 1962:381)). At the time of the declaration of bankruptcy in the present case, one-tenth of the basic amount corresponded to SEK 3,570. If the amount to be paid out of the estate or by the creditor does not suffice to cover the bankruptcy costs, the remainder of the costs is to be borne by the State. 31. Bankruptcy decisions are immediately enforceable (chapter 16, section 4). Thus, following the declaration of bankruptcy of a debtor, the District Court must promptly appoint a receiver who shall start his or her work immediately, regardless of whether an appeal has been lodged against the declaration of bankruptcy. In the event of a higher court quashing the bankruptcy decision, all administrative measures are to be interrupted forthwith and the case referred back to the District Court for concluding measures. 32. In such a situation, the assets of the estate are restored to the debtor to the extent that they are not required for the defrayal of the bankruptcy costs and other costs that the estate has incurred (chapter 2, section 25). Thus, there is no exception to the estate’s liability to pay the bankruptcy costs (chapter 2, section 25, and chapter 14, sections 2 and 3). According to the preparatory works to the Bankruptcy Act (see Government Bill 1986/87:90, pp. 206-207), the creditor who filed the petition for bankruptcy should not be liable for the bankruptcy costs, as it may be difficult for the creditor to make an assessment as to the debtor’s insolvency. Instead, even if a declaration of bankruptcy is later quashed for being factually erroneous, the bankruptcy costs are paid out of the estate. The main reason for this unconditional liability is that the debtor, being aware of the liability, is expected to do the utmost in the District Court in order to avoid being declared bankrupt and, thus, not to wait until the bankruptcy case is pending before a higher court. 33. However, as shown by a decision of the Supreme Court of 6 April 1998 (see Nytt Juridiskt Arkiv 1998, p. 214 et seq.), the State may be held liable to pay the bankruptcy costs when the declaration of bankruptcy is quashed due to a grave procedural error. In that case, the District Court had summoned the debtor to its hearing in an erroneous manner. Following the hearing, at which the debtor did not appear, the debtor was declared bankrupt. After the Supreme Court had quashed the declaration of bankruptcy, the District Court, in determining the receiver’s fee, recalled that the bankruptcy costs were to be paid out of the estate. The Court of Appeal upheld the decision. The Supreme Court, however, found that the State should pay the bankruptcy costs. It considered that the rationale behind the provisions concerning the estate’s liability for bankruptcy costs had no convincing force in that case, as the debtor, on account of the erroneous service of the summons, had been deprived of his right to take part in the proceedings. 34. It follows from chapter 3, section 2 of the Tort Liability Act (Skadeståndslagen, 1972:207) that the State is liable to pay compensation for, inter alia, financial loss caused by a wrongful act or omission in connection with the exercise of public authority. 35. Anyone who wishes to claim compensation from the State for financial loss, which he considers to have been caused by a wrongful decision taken by a court or an administrative State authority, can proceed in two different ways: He or she may either petition the Chancellor of Justice (Justitiekanslern) in accordance with Section 3 of the Ordinance on the Administration of Claims for Damages against the State (Förordningen om handläggning av skadeståndsanspråk mot staten, 1995:1301, or bring a civil action against the State in the ordinary courts. No appeal lies against a decision of the Chancellor of Justice. However, if the claim is rejected, the claimant still has the possibility to institute civil proceedings in the courts. 36. In a judgment of 21 November 1994 (see Nytt Juridiskt Arkiv 1994, p. 654 et seq.), the Supreme Court examined whether the State was liable to pay damages on account of an appellate court’s allegedly incorrect assessment of legal and evidentiary issues in connection with its examination of an application for provisional attachment (kvarstad). The Supreme Court made the following general observation: “When, as in the present case, legal and evidentiary issues are concerned, it is not sufficient for a liability to damages that a court has made an assessment that may be called into question. Considerations on such issues may vary to such an extent that it is rather rare that one can speak about culpa or, in other words, a wrongful act or omission within the meaning of chapter 3, section 2 of the Tort Liability Act. Only manifestly erroneous assessments can be considered as culpable.” | 1 |
train | 001-5290 | ENG | NOR | ADMISSIBILITY | 2,000 | DRIEMAN AND OTHERS v. NORWAY | 4 | Inadmissible | null | The application was lodged by four applicants, namely Mr Geert Drieman and Mr Albert Kuiken, both Dutch nationals, Ms Felicity Jane Arnold Crush, a British national, and Mr Kevin Dennis Bell, a national of the United States of America. They were born in 1950, 1948, 1963 and 1962 respectively. They are represented before the Court by Mr Menno T. Kamminga, professor of law. The facts of the case, as described mainly in the judgments of the national courts, may be summarised as follows. In July 1994 Greenpeace conducted, with two of its vessels MS Solo and MS Sirius, registered in the Netherlands, and fast rubber dinghies stationed on board the ships, a campaign against Norwegian whaling in the exclusive economic zone south-west of Egersund. The first applicant was Director of the Greenpeace Foundation in the Netherlands, and formally in charge as campaign leader on board the Solo as from 14 July 1994. The other three applicants were respectively captain, deckhand and assistantengineer on board that vessel. For a month they followed the movements and catching activities of a whaling ship, the Senet. According to its captain, the campaign had had as a consequence that the hunt was prolonged by a fortnight. The Senet was the only vessel pursuing whales in the area in question on 20 and 23 July 1994, the dates on which the incidents giving rise to the present case occurred. The Solo arrived in the area where the Senet was hunting in the afternoon of 20 July 1994, just after the Sirius had been put under arrest by the Coastguard (kystvakten). Later in the afternoon a whale was shot from the Senet. While it was lying on deck being cut up, a new whale was observed. The Senet then manned the harpoon gun and followed the whale. This was observed by the applicants on board the Solo. Shortly thereafter, a dinghy was launched from the Solo and positioned in front of the bows of the Senet where it drove in zigzag and otherwise consistently manoeuvred towards the last place where the whale had been seen on the surface. The Coastguard forced the dinghy away, and the Solo therefore launched another one with the third and fourth applicants on board, together with a camera man from a German television company. The Coastguard seized the second dinghy immediately but the third and fourth applicants were allowed to board the Solo again. They then launched a third dinghy (this time without the cameraman) on the other side of the Solo, unhindered by the Coastguard. The third applicant was navigating and she manoeuvred the dinghy up to the starboard side of the Senet, then alongside until it was positioned across the bows of the ship. The distance to the Senet during these manoeuvres varied from 5-6 to 15-20 metres. The third and fourth applicants kept the dinghy in position in front of the bows and in so doing forced the Senet to change course. The noise of the dinghy's engine was such as to frighten the whale away. On the morning of 23 July 1994, the second applicant, the Solo's captain, acting on the instructions given by the first applicant as the responsible campaign leader, manoeuvred the Solo in such a way as to force the Senet to change course when chasing a whale which it had observed. Moreover, the Solo's water canons were used in a manner impeding visibility from the Senet and thereby shielding the whale. The intended purpose and effect of these measures was to prevent the Senet from shooting the whale. Following the above incidents the 4 applicants were arrested and were held in detention on remand for 2 days before being released. After hearings on 6 and 9 September 1994, the Dalane District Court (herredsrett), by judgments of 20 September 1994, convicted the applicants, under Sections 14 (2) (1) and 53 (1) of the Sea-Water Fisheries Act 1983 (Saltvannsfiskeloven - Act of 3 June 1983 No. 40) and a Royal Decree of 15 July 1994, for having obstructed lawful whaling. It sentenced the first and second applicants to pay a fine of respectively NOK 25,000 and 20,000, or 40 days’ imprisonment in default. Moreover, under Articles 35 (2) and 37 C of the Penal Code, it ordered the confiscation of a dinghy belonging to the first applicant. The third and fourth applicants were each sentenced to pay a fine of NOK 10,000, or 15 days’ imprisonment in default. The second applicant then appealed on points of law and sentencing, while the other applicants sought to obtain a new trial before the High Court (lagmannsretten), or alternatively to appeal on points of law and sentencing to the Supreme Court (Høyesterett). The first applicant also challenged the confiscation order. The Supreme Court's Appeals Selection Committee (kjæremålsutvalg) refused the request for a new trial but allowed a joint appeal on points of law and sentencing, as well as the appeal against confiscation. By judgment of 4 March 1996 the Supreme Court upheld the applicants' convictions but limited the sentences to the fines imposed. It also upheld the confiscation of the dinghy. In upholding the applicants' convictions, the Supreme Court observed that it was satisfied that the measures had a legal basis in Sections 14 and 53 of the Sea-Water Fisheries Act, as extended by the Royal Decree of 15 July 1994. This was not prevented by Article 65 of the 1982 United Nations Convention on the Law of the Sea, which did not contain a general prohibition on whaling. Nor was it prevented by the moratorium in 1982 for all whaling or the moratorium in 1985 to classify minke whale as a threatened species, decided by the International Whaling Commission established under the 1946 International Convention for the Regulation of Whaling. In accordance with Article V no. 3 of the Convention, Norway had protested and exempted itself from these decisions by way of reservation, as the District Court noted, on the ground that there was no scientific basis for upholding a total ban. The Supreme Court further considered whether the convictions were compatible with Articles 10 and 11 of the Convention. While leaving open whether the acts concerned, in particular those by the first and second applicants, could be regarded as falling within the notions of freedom of expression in Article 10 or freedom of peaceful assembly in Article 11, the Supreme Court found that the conditions for restricting these freedoms under the second paragraphs of these provisions had been fulfilled. Firstly, it was satisfied that the requirement of lawfulness had been fulfilled, as the interference not only had a legal basis but the law in question was also accessible and foreseeable. The Royal Decree of 15 July 1994 had in fact been aimed at the specific campaign conducted by Greenpeace; the matter had attracted media attention and, according to the findings of fact made by the District Court, the applicants had been aware of the amendments in question. Even if they had not, one could have expected them to acquaint themselves beforehand with the relevant legislation, under which the proscribed conduct was illegal even before the decree. Moreover, the measure had been necessary in a democratic society in order to protect the rights of others. Greenpeace had demonstrated against whaling over a long period with a large amount of media attention, but its freedom to demonstrate had not been impaired by the disputed measures which related to 2 isolated incidents where attempts had been made to protect the whalers' lawful exercise of their right to catch whales. As regards sentencing the Supreme Court recalled that, under Section 53 (3) of the Sea-Water Fisheries Act, prison sentences should not apply to offences committed by foreign vessels in the exclusive economic zone, and that, under Article 73 (3) of the 1982 United Nations Convention on the Law of the Sea, prison sentences should not be imposed for contraventions of fishery legislation. It further observed that Norway had not ratified this Convention. Nonetheless, having regard to the preparatory work for Section 53 (3) of the Sea-Water Fisheries Act, which referred to the provision of the Law of the Sea Convention, the Supreme Court quashed the sentences in so far as they imposed imprisonment in default of the payment of the fines. As regards the confiscation of the dinghy belonging to the first applicant, the Supreme Court recalled that this had been used by the third and fourth applicants in connection with the acts leading to their arrest. On two occasions they had, by the manner in which they had manoeuvred the dinghy in front of the Senet, hindered the exercise of lawful whaling. Although a special provision on confiscation was contained in Section 54 of the Sea-Water Fisheries Act, the Supreme Court was satisfied that Article 35 and 37 C of the Penal Code were applicable. The confiscation was also justified in the interests of ensuring the effective enforcement of Section 14 of the Sea-Water Fisheries Act. According to Section 14 of the Sea-Water Fisheries Act, vessels in a fishing zone must not manoeuvre so as to damage or needlessly endanger catching gear or reduce catching opportunities. This provision applies to all vessels, not only fishing and catching vessels. Under Section 53, Chapter X, a person who by intent or negligence violates the provisions of the Act may be liable to fines and, in the event of a previous conviction under the Act or aggravating circumstances, up to 6 months' imprisonment. Section 54, Chapter X, authorises the confiscation of, inter alia, vessels used in violating the provisions of the Act. General provisions on confiscation of objects used in the perpetration of crime are contained, inter alia, in Articles 35 of the Penal Code. Under Article 37 C such confiscation may be effected with regard to the possessions of foreigners who are not resident in Norway if it is deemed reasonable. Pursuant to the Royal Decree of 15 July 1994, Section 14 and Chapter X of the SeaWater and Fisheries Act should apply to sealing and whaling activities and the provisions in, inter alia, Sections 53 and 54 in Chapter X of the Act should, as appropriate, apply to all activities other than fishing. According to Section 3 of the Sea-Water and Fisheries Act, its provisions do not affect the right of navigation in the exclusive economic zone under the Norwegian Economic Zone Act 1976, and are subject to the limitations which follow from public international law and agreements with other States. In the proceedings the applicants referred to the following provisions of the Convention on the Law of the Sea, which entered into force in 1994 and which were ratified by Norway in 1996: Article 56 Rights, jurisdiction and duties of the coastal State in the exclusive economic zone "1. In the exclusive economic zone, the coastal State has: (a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds; (b) jurisdiction as provided for in the relevant provisions of this Convention with regard to: (i) the establishment and use of artificial islands, installations and structures; (ii) marine scientific research; (iii) the protection and preservation of the marine environment; (c) other rights and duties provided for in this Convention." Article 58 Rights and duties of other States in the exclusive economic zone "1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and use of airspace and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention." Article 65 Marine mammals “Nothing in this Part restricts the right of a coastal State or the competence of an international organisation, as appropriate, to prohibit, limit or regulate the exploitation of marine mammals more strictly than provided for in this Part. States shall co-operate with a view to the conservation of marine mammals and in the case of cetaceans shall work in particular through the appropriate international organisations for their conservation, management and study.” Article 73 Enforcement of laws and regulations of the coastal State “1. The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention. 2. Arrested vessels and their crews shall be promptly released upon the posting of a reasonable bond or other security. 3. Coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment. 4. In cases of arrest or detention of foreign vessels the coastal State shall promptly notify the Flag State, through appropriate channels, of the action taken and of any penalties subsequently imposed.” Article 97 Penal jurisdiction in matters of collision or any other incident of navigation “1. In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national. 2. In disciplinary matters, the State which has issued a master's certificate or a certificate of competence or licence shall alone be competent, after due legal process, to pronounce the withdrawal of such certificates, even if the holder is not a national of the State which issued them. 3. No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the Flag State.” | 0 |
train | 001-61020 | ENG | ISL | CHAMBER | 2,003 | CASE OF PETUR THOR SIGURÐSSON v. ICELAND | 1 | Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses (Convention proceedings) - claim dismissed | David Thór Björgvinsson;Gaukur Jörundsson;Georg Ress | 8. The applicant is an Icelandic national, born in 1954. He is a practising lawyer and lives in Reykjavik, Iceland. 9. The applicant instituted proceedings against the National Bank of Iceland, claiming compensation under the law of torts, on the grounds that one of the Bank’s legally trained employees had made an incorrect declaration in 1992 which was instrumental in the Supreme Court’s finding that a certain claim was no longer enforceable. As the District Court found for the defendant bank, the applicant, by a summons of 31 May 1996, instituted appeal proceedings before the Supreme Court. 10. In the course of the proceedings before the Supreme Court the applicant was given various dates between 10 July and 30 October 1996 within which to complete his submissions and the respondent Bank was given until 6 November 1996 to submit its reply. Subsequently the hearing was scheduled to open on 14 April 1997. Meanwhile, sometime between early March and early April 1997, the case was included in the Supreme Court’s docket. 11. By a judgment of 25 April 1997, the Supreme Court, by three votes to two, rejected the applicant’s claim. The minority found that the applicant’s claim should be upheld and that the National Bank was liable to pay him ISK 8,746,319 Icelandic krónur (ISK) in compensation, plus default interest from 30 August 1993. 12. One of the three judges forming the majority was Mrs Justice Guðrún Erlendsdóttir. The applicant submitted that after the delivery of the Supreme Court’s judgment, it came to light that Mrs Justice Guðrún Erlendsdóttir and her husband, a Supreme Court lawyer, had a financial relationship with the National Bank of such a nature as to disqualify her from sitting in the applicant’s case. 13. In the spring of 1996 Mr Örn Clausen, husband of Mrs Justice Guðrún Erlendsdóttir, had sought a solution to certain financial problems arising from the inability of a debtor, Mr Edvard Lövdal, to pay certain debts with respect to which Mr Örn Clausen was one of the guarantors, and the inability of other guarantors to honour the guarantee. In early May 1996 twenty-one creditors, one of which was the National Bank, possessed claims under the guarantees amounting to approximately ISK 50,000,000. This included a claim of approximately ISK 16,000,000 by the National Bank. Another large creditor was the Savings Banks’ Hedge Fund which, on behalf of the S-Þingeyinga Savings Bank (Sparisjóður Suður-Þingeyinga – “the Savings Bank”), held a claim of approximately ISK 17,500,000. 14. In order to solve these problems Mr Örn Clausen attempted to reach a settlement with each of the creditors. An economic consultant company, Ráð, agreed to examine his financial situation and to look into the possibilities of obtaining full settlement against partial payment, starting with the two largest creditors and thereafter opening negotiations with the smaller ones, to be completed within six months. A settlement request made by the company to the National Bank’s lawyer on 15 April 1996, included the following observations: “... Mr Örn Clausen has informed us that he had, for the sake of friendship, provided guarantees with respect to Mr Lövdahl’s debts, as they have been friends for decades. He also informs us that he owns no property, and that he will foreseeably have to answer for guarantees on account of Mr Lövdahl in an amount of approximately ISK 49,550,000. His other liabilities amount to approximately ISK 10,000,000 around ISK 8,000,000 of which are taxes. Mr Örn Clausen’s wife owns [two] real properties ... [These] are owned by her separately under their marriage agreement dating from 1967. She has declared her readiness to use their net value by mortgage or sale for settling the debts, provided that Mr Örn Clausen is released from his personal guarantees and that his bankruptcy is avoided. We consequently ask you to recommend to your client, the National Bank, acceptance of 25% in final settlement of the total debt to which Mr Örn Clausen must answer as surety. This would release him from his surety liability. The payment would be made simultaneously with the signature of an agreement to this effect.” 15. On 30 May 1996, in order to obtain funds to pay the creditors, the judge’s husband Mr Örn Clausen issued four debt certificates to Landsbréf hf, Verðbréfamarkaður Landsbankans (Landsbréf, the Securities Market of the National Bank, a financial institution owned by the National Bank), totalling approximately ISK 13,600,000. The debts were secured on two properties owned by Mrs Justice Guðrún Erlendsdóttir, namely the couple’s main residence and one apartment in which her husband had his law office. 16. On 4 June 1996 Landsbréf sold the above four debt certificates to Eignarhaldsfélag Alþýðubankans (People’s Bank Holding Company – “the EFA”), a company specialising in high-risk investments. Ever since, the four debt certificates have been in that company’s ownership. 17. On 4 June 1996, in accordance with a settlement agreement of the same date between the National Bank and Mr Örn Clausen, he paid approximately ISK 4,370,000, of which ISK 3,677,195 were towards his debts to the National Bank and the remainder covering his lawyer’s fees. Moreover, under the terms of the settlement agreement with the bank, he was released from ISK 11,031,584 of debts originating in his guarantees for Mr Edvard Lövdal’s debts, which amounted to ISK 14,708,779. The above settlement was in conformity with a decision taken on 3 June 1996 by the National Bank’s Governing Board. 18. As regards the state of Mr Örn Clausen’s debts vis-à-vis the National Bank, the Government relied on the following information provided on 4 March 2002 by the head of the bank’s legal department: “The National Bank of Iceland hereby confirms that a settlement agreement was concluded with Mr Örn Clausen on 6 June 1996 concerning his undertakings to guarantee the payment of debts to the National Bank, by which the Bank cancelled 75% of its claims against Mr Örn Clausen against a final payment of 25%. We confirm that the Bank did not extend a new credit to Mr Örn Clausen for the said 25%. On 4 June 1996 Mr Örn Clausen’s total debts to the Bank amounted to ISK 17,298,940; his debts that did not come under the settlement agreement were a note issued 12 September 1991 in the amount of ISK 2,090,161.10, and a suretyship obligation for payment of a loan originally in the amount of ISK 500,000, which was not in arrears (remaining amount as at 31 December 1996: ISK 195,656). Mr Örn Clausen’s total debts on 25 April 1997 were a note issued 12 September 1991, in the amount of ISK 2,394,028.60, and a suretyship obligation for payment of a loan originally in the amount of ISK 500,000, which was not in arrears (remaining amount as at 31 December 1997 ISK 27,777).” 19. Under an agreement concluded on 6 June 1996 the Savings Bank too decided to cancel 75% of its claim against a final payment of 25% by Mr Örn Clausen. 20. The fact that the two largest creditors had accepted the settlement arrangements described above was of significant help in Mr Örn Clausen’s efforts to obtain settlement agreements with other creditors, all or most of whom accepted debt cancellation against partial payment. 21. The applicant submitted that there was evidence that on 4 June 1996 the debts of the husband of Mrs Justice Guðrún Erlendsdóttir towards the National Bank amounted to more than ISK 31,000,000. Moreover, in April 1997, at the time when the Supreme Court gave its judgment, the debts in question apparently amounted to approximately ISK 29,000,000. 22. The applicant lodged two petitions to the Supreme Court requesting the reopening of the proceedings in his case against the National Bank on the ground of Mrs Justice Guðrún Erlendsdóttir’s alleged lack of impartiality. 23. The first petition was submitted to the Supreme Court on 9 June 1997. The Supreme Court, sitting as a full court, unanimously rejected it on 10 July 1997. Its decision reads: “In support of his assertion relating to the disqualification of Supreme Court Judge Guðrún Erlendsdóttir, the petitioner refers to four debt certificates issued to the name of Landsbréf, which are secured by mortgage upon two real estates owned by the judge. By reason of the National Bank’s ownership of Landsbréf, the petitioner considers that this situation disqualified the judge from adjudicating the case. The secured debts in question amount to a total of ISK 13,600,000 which, as stated in the certificates, corresponds to approximately 55% of the total assessed sale price of the properties. The certificates were issued in May 1996 for a period of twenty-five years. The petitioner does not maintain that the certificates are in arrears. It is shown from the information provided by the lawyer for the National Bank that the debt certificates are not, and were not at the time when the case was being considered by the Supreme Court, in the ownership of Landsbréf, the National Bank or any [other] company linked to the Bank. Mortgages on the said properties referred to in the petition, which now have been struck out of the records, and secure debts due to other parties are deemed irrelevant here. Although the above-mentioned letter of [the applicant] does not refer to the particular statutory provisions authorising the reopening of proceedings, it is to be assumed that the petition is based on section 169 of the Civil Procedure Act, Law no. 91/1991. The petitioner has not referred to any new fact or adduced any new evidence having a bearing on the merits of the case, cf. section 169(1), subparagraphs (a) and (b) of Law no. 91/1991. In the light of the above consideration concerning the said mortgages, none of the conditions which provide the petitioner with a reason to believe that the said judge was not impartial and therefore disqualified from adjudicating the case have been fulfilled, cf. section 6, subsections (1) and (9), of the Supreme Court Act, Law no. 75/1973; section 5, subsection (g) of Law no. 91/1991, Article 70 of the Constitution of the Republic of Iceland (no. 33/1944), cf. section 8 of Constitutional Act no. 97/1995, and Article 6 of the European Convention on Human Rights, cf. Law no. 62/1994. Accordingly, since the legal conditions for granting the petitioner’s request for reopening of the proceedings have not been fulfilled, the request is rejected.” 24. The applicant submitted that, after the Supreme Court had given its decision of 10 July 1997 in the first revision case, he realised that Mrs Justice Guðrún Erlendsdóttir’s husband had additional financial ties with the National Bank. During the period from 1988 to 1991 he had assumed large-scale financial obligations vis-à-vis the bank and for years his debts to the bank had been seriously in arrears. According to the applicant, although this could not be affirmed with certainty, it was possible that the National Bank had released Mrs Justice Guðrún Erlendsdóttir’s husband from a debt of over ISK 11,000,000. 25. On 23 October 1997 the applicant filed a new petition with the Supreme Court, asking for the reopening of his compensation case. The Supreme Court rejected the petition on 20 November 1997 on the ground that, under the relevant provisions of the Civil Procedure Act, a party may apply only once for re-examination of a case. 26. At the material time of the present case a general rule on the disqualification of judges was contained in Article 5 § g of the 1991 Code of Civil Procedure, which read: “A judge ... is disqualified from handling a case if: ... g. Other facts or conditions are at hand which are capable of casting doubt on his impartiality on reasonable grounds.” The Government have further pointed to a provision in section 6(9) of the Act 1973 on the Supreme Court of Iceland (Act no. 75:1973), which provides: “A judge of the Supreme Court shall withdraw if: ... 9. His attitude to a party or to the matter in dispute is such as to present a risk that he will not be able to examine the case in an impartial manner.” Section 7(2) of that Law provides that the court shall decide in plenary session whether a judge is prevented on grounds of lack of impartiality from participating in a given case. It is open to the parties to challenge the participation of a judge on such grounds. 27. Subsequent to the events at issue in the present case, a new Law on the Judiciary was enacted in 1998 (Law no. 15/1998), which in section 18(4) contains the following provision aimed at codifying a practice that applied at the time of the case: “A request by a judge not to be assigned to deal with a particular case may be granted by reason of the judge’s relationship to the subject matter, the parties, their non-legal representative or their lawyer, even if the judge cannot be deemed to be disqualified from handling the case, provided that the judge’s request is duly reasoned and another judge of the court is available.” | 1 |
train | 001-118276 | ENG | SRB | CHAMBER | 2,013 | CASE OF ZORICA JOVANOVIĆ v. SERBIA | 1 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Respondent State to take measures of a general character (Article 46-2 - Changes of regulations;Legislative amendments);Non-pecuniary damage - award | Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen | 5. The applicant was born in 1953 and lives in Batočina. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 28 October 1983 the applicant gave birth to a healthy baby boy in the Ćuprija Medical Centre (“the ĆMC”), a State-run hospital. 8. Between 28 and 30 October 1983, while still in the ĆMC, the applicant had regular contact with her son. 9. On 30 October 1983 the applicant was informed by the doctors that both she and her son would be discharged the next day. 10. The applicant was with her son until approximately 11 p.m. on 30 October, when he was taken to a separate room for newborn babies. This was standard procedure and the applicant’s son had experienced no medical problems up to that point. 11. On 31 October 1983, at around 6.30 a.m., the duty doctor informed the applicant that “her baby ha[d] died”. Upon hearing this, the applicant immediately ran down the corridor towards the room where her son had spent the night. She was physically restrained by two orderlies, however. A nurse even tried to inject her with a sedative, but the applicant successfully resisted the attempt. Ultimately, having no other option and being in a state of shock, the applicant checked out of the ĆMC. Her relatives were subsequently told that the autopsy of the infant would be performed in Belgrade, which was why his body could not yet be released to the parents. The applicant and her family remained confused as to why the autopsy would have to be carried out in Belgrade, as this was clearly a departure from the ĆMC’s normal practice. 12. From 2001, and particularly from 2002, the Serbian media started reporting extensively on numerous cases similar to the applicant’s (see, for example, http://www.kradjabeba.org, accessed on 29 January 2013). 13. On 24 October 2002 the applicant sent a request to the ĆMC, seeking all relevant documentation relating to her son’s death. 14. On 12 November 2002 the applicant was informed by the ĆMC that her son had died on 31 October 1983, at 7.15 a.m., and that his death had occurred from an unknown cause. The ĆMC maintained that no other information was available because its archives had been flooded in the meantime and many documents had been destroyed. 15. On 22 November 2002, in response to the applicant’s request, the Municipality of Ćuprija informed her that her son’s birth had been registered in the municipal records but that his death had not. 16. On 10 January 2003 the applicant’s husband (the child’s father) lodged a criminal complaint with the Ćuprija municipal public prosecutor’s office against the medical staff of the ĆMC, whom the applicant deemed responsible for “her son’s abduction”. 17. On 15 October 2003 the Ćuprija municipal public prosecutor’s office rejected the complaint as unsubstantiated, since “there was evidence that [the applicant’s] son had died on 31 October 1983”. No further reasoning was offered and there was no indication as to whether any preliminary investigation had been carried out. 18. In March 2004 the Municipality of Ćuprija reaffirmed the content of its letter of 22 November 2002. 19. On 29 April 2004 the ĆMC provided the applicant with its internal records in support of its letter dated 12 November 2002. 20. On 19 September 2007 the Municipality of Ćuprija confirmed that the death of the applicant’s son had never been formally registered. 21. On 28 December 2007 the Municipality of Ćuprija provided the applicant with copies of her son’s birth certificate, in response to her earlier demand, together with the ĆMC’s request for registration of the birth. 22. The body of the applicant’s son was never released to the applicant or her family. Nor were they ever provided with an autopsy report or informed as to when and where he was allegedly buried. 23. Between 12 June 2009 and 20 July 2011 the Kragujevac Clinical Centre regularly treated the applicant for, inter alia, various depression-related symptoms dating back to 1999 and especially 2001. 24. At a meeting organised by the Ministry of Health on 17 June 2003 on the burial of newborn babies who had died in hospital it was decided, inter alia, that the bodies could only be released to the parents if the latter signed a special form designed for this purpose. 25. In response to a specific request sent to them by the State-run funeral company (JKP Pogrebne usluge) on 17 October 2003, all Belgrade-based public health-care institutions also agreed, inter alia, to implement a procedure whereby a special declaration would have to be signed (a) by the parents, or other family members, stating that they had been informed of the death by the hospital and that they would personally be making the funeral arrangements, or (b) by a legal entity, or its representative, to the effect that it would be making these arrangements because others had refused or were unable to do so. In the absence of such declarations, the State-run funeral company would refuse to collect the bodies from the hospitals. 26. In 2005 hundreds of parents in the same situation as that of the applicant, namely, whose newborn babies had “gone missing” following their alleged deaths in hospital wards, especially in the 1970s, 1980s and 1990s, applied to the Serbian Parliament seeking redress. 27. On 14 July 2006 Parliament formally adopted a report prepared by the Investigating Committee established for this purpose. The findings of this report concluded, inter alia, that (a) there had been serious shortcomings in the applicable legislation at the relevant time and in the procedures before various State bodies and health authorities; (b) the situation justified the parents’ doubts or concerns as to what had really happened to their children; (c) no criminal redress could now be effective in view of the applicable limitation periods (see paragraph 34 below); and (d) a concerted effort on the part of all government bodies, as well as changes to the relevant legislation, were therefore necessary in order to provide the parents with adequate redress. 28. On 16 April 2010 the local media reported that the President of the Serbian Parliament had stated that a parliamentary working group was about to be formed in order to prepare new legislation aimed at providing redress to the parents of the “missing babies”. 29. Following an extensive investigation into the issue, the Ombudsman found, inter alia, that (a) at the relevant time, there were no coherent procedures and/or statutory regulations as to what should happen in situations where a newborn baby died in hospital; (b) the prevailing medical opinion was that parents should be spared the mental pain of having to bury their newborn babies, which was why it was quite possible that certain couples were deliberately deprived of the opportunity to do so; (c) any autopsy reports were usually incomplete, inconclusive, and of highly dubious veracity; (d) it could not therefore be ruled out that the babies in question were indeed removed from their families unlawfully; (e) turning to more recent times, the government response between 2006 and 2010 had itself been inadequate; and (f) the parents therefore remained entitled to know the truth about the real fate of their children, which could only be arrived at through the enactment of a lex specialis. 30. In response to the findings and recommendations of the Parliamentary Report of 14 July 2006 (see paragraphs 26-27 above), a working group was set up by Parliament on 5 May 2010 (see paragraph 28 above). Its task was to assess the situation and propose any appropriate changes to the legislation. 31. On 28 December 2010 the working group submitted its report to Parliament. Following a detailed analysis of the current, already amended, legislation, it concluded that no changes were necessary except as regards the collection and use of medical data, but that a new piece of legislation concerning this issue was already being prepared (nacrt Zakona o evidencijama u oblasti zdravstva). The working group specifically noted, inter alia, that Article 34 of the Constitution made it impossible to extend the limitation period for criminal prosecution in respect of crimes committed in the past or, indeed, to introduce new, more serious, criminal offences and/or harsher penalties applicable to crimes committed in the past (see paragraph 32 below). The existing Criminal Code already envisaged several criminal offences of relevance to the issue, however, and the new Health Care Act set out a detailed procedure making it impossible for parents to have their newborn babies unlawfully removed from hospital wards (see paragraphs 35 and 41 below). 32. Article 34 of the Constitution reads as follows: “No one shall be convicted on account of any act which did not constitute a criminal offence under the law or any other regulation based on the law at the time when it was committed. Nor shall a penalty be imposed which was not prescribed for the act at the time. The penalties shall be determined pursuant to the legislation in force at the time when the act was committed, save where subsequent legislation is more lenient for the perpetrator. Criminal offences and penalties shall be laid down by the law.” 33. Article 116 provided, inter alia, that anyone who had unlawfully detained or abducted a minor child from his or her parents was liable to a prison sentence of between one and ten years. 34. Articles 95 and 96 provided, inter alia, that prosecution of the crime defined in Article 116 of the Criminal Code of the Socialist Republic of Serbia became time-barred where more than twenty years had elapsed since the commission of the crime. 35. Under Articles 191, 192, 388 and 389, various forms of child abduction and human trafficking, including for the purposes of adoption, are defined as a crime. 36. Articles 199 and 200 provide, inter alia, that anyone who has suffered fear, physical pain or, indeed, mental anguish as a consequence of a breach of his or her “personal rights” (prava ličnosti) shall be entitled, depending on their duration and intensity, to sue for financial compensation in the civil courts and, in addition, to request other forms of redress “which may be capable” of affording adequate non-pecuniary satisfaction. 37. Article 376 §§ 1 and 2 provide that a claim based on the above-mentioned provisions may be brought within three years of the date on which the injured party learnt of the damage in question and identified the person responsible, but that such a claim must in any event be lodged within a maximum of five years of the event itself. 38. Article 377 § 1 further provides that if the damage in issue has been caused as a result of the commission of a criminal offence, the civil limitation period may be extended so as to correspond to the applicable criminal statute of limitations. 39. On 4 June 1998 the Supreme Court (Rev. 251/98) held that civil limitation periods concerning various forms of non-pecuniary damage (see paragraphs 36-38 above) would not start running until the situation complained of had come to an end (kada su pojedini vidovi neimovinske štete dobili oblik konačnog stanja). 40. On 21 April 2004 the Supreme Court (Rev. 229/04) further held that “personal rights” within the meaning of the Obligations Act included, inter alia, the right to respect for family life. 41. Articles 219 to 223 provide, inter alia, details as regards the determination of the time and cause of death of a newborn baby while still in hospital. Specifically, the hospital will inform the family as soon as possible and provide them with access to the body. An autopsy is carried out and a biological sample stored for any future purposes. The police are informed if no cause of death has been established, and the relevant municipal authorities are informed in all circumstances. | 1 |
train | 001-71451 | ENG | RUS | CHAMBER | 2,005 | CASE OF SKOROBOGATOVA v. RUSSIA | 4 | Violation of Art. 6-1 (length of proceedings);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed | Christos Rozakis | 4. The applicant was born in 1956 and lives in Luchegorsk. 5. In September 1995 the applicant lodged an action before the Severo-Evenkiyskiy District Court of the Magadan Region against the head of the local administration, a transport company and a private individual for compensation for damage. 6. The Severo-Evenkiyskiy District Court disallowed the action because it should have been lodged before the Magadan Town Court which had territorial jurisdiction over it. 7. On 1 November 1995 the applicant lodged the action before the Magadan Town Court. She asked the court to examine her claim in her absence, as she lived in Khabarovsk. 8. As the applicant’s claim had not been examined from 1995 to 1998, she complained to various officials about the court’s inactivity. 9. On 16 August 1998 the Deputy President of the Magadan Town Court informed the applicant that it was impossible to expedite the proceedings because the judges were overburdened with cases. 10. On 4 March 1999 the applicant increased her claim. 11. A hearing was fixed for 8 April 1999 and adjourned due to the defendants’ absence. 12. On 28 July 1999 the Magadan Town Court dismissed the applicant’s action. 13. On 24 August 1999 a copy of the judgment was sent to the applicant. 14. On 14 October 1999 the applicant appealed against the judgment of 28 July 1999. 15. On 1 November 1999 the Magadan Town Court stayed the appeal proceedings and requested the applicant to submit by 30 November 1999 three copies of her statement of appeal and to pay RUR 5 in a court fee. 16. On 30 November 1999 the judgment of 28 July 1999 became final because the applicant had not paid the fee. 17. On 16 December 1999 the Magadan Town Court returned the statement of appeal. 18. On 7 June 2000 the Presidium of the Magdan Regional Court, by way of supervisory review, quashed the judgment of 28 July 1999 and remitted the case for a new examination. 19. On 20 June 2000 the case-file was sent to the town court. 20. On 10 July 2000 the judge M. was assigned to the case. 21. On 13 September 2000 the case was transferred to the judge D. 22. Of six hearings listed between 19 October 2000 and 27 February 2001, four hearings were adjourned. Two hearings were adjourned due to the applicant’s absence. The other hearings were adjourned because the parties did not attend, although the applicant repeatedly asked the court to hold hearings in her absence. 23. In February 2001 the applicant moved from Khabarovsk to the Primorye Region. She submits that promptly after the move she advised by post the Magadan Town Court of her new address. 24. On 10 April 2001 the Magadan Town Court requested the applicant to submit additional documents. It appears that the instructions were successfully fulfilled by the applicant. 25. On 14 June 2001 the Magadan Town Court, in the applicant’s absence, dismissed her action. 26. On 17 July 2001 the registry of the Magadan Town Court sent a copy of the judgment to the applicant’s old address in Khabarovsk. 27. On 14 March 2002 the applicant complained to the Magadan Regional Court about the town court’s inactivity in her case. 28. On 2 April 2002 the President of the Magadan Regional Court replied by a letter that the case had been decided on 14 June 2001. The President also acknowledged that, although the applicant had advised the court of her new address, on 17 July 2001 a copy of the judgment had been mistakenly sent to the applicant’s previous address. 29. On 1 April 2002 the registry of the town court sent a copy of the judgment of 14 June 2001 to the applicant’s address in Khabarovsk. 30. On 11 September 2002 the President of the Magadan Regional Court informed the applicant that a copy of the 14 June 2001 judgment had been twice sent to the applicant’s address in Khabarovsk and that the Magadan Town Court was told to send a copy of the judgment to her current address in Primorye. 31. On 12 September 2002 the Magadan Town Court sent a copy of the judgment of 14 June 2001 to the applicant’s address in Primorye. She received it on 18 September 2002. 32. On 3 October 2002 the applicant requested the Magadan Regional Court to extend the time-limit for lodging an appeal against the judgment of 14 June 2001. The request enclosed a statement of appeal. 33. On 21 October 2001 the Magadan Town Court extended the time-limit and accepted the applicant’s statement of appeal. 34. On 5 November 2002 the Magadan Regional Court, in the applicant’s absence, upheld the judgment of 14 June 2001. 35. On 16 December 2002 a copy of the judgment of 5 November 2002 was sent to the applicant. | 1 |
train | 001-89291 | ENG | SVK | CHAMBER | 2,008 | CASE OF BIC v. SLOVAKIA | 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, Mr Jozef Bič, is a Slovakian national who was born in 1953 and lives in Košice. 5. On 17 May 1999 the applicant filed an action with the Košice I District Court. He challenged the validity of several legal acts relating to the purchase and subsequent donation of a flat in which he had earlier lived with his former wife. 6. On 19 May 1999 the judge invited the defendants to submit their comments on the action. The applicant was invited to pay the court fee. Two defendants submitted their comments in June and July 1999 respectively. 7. On 27 August 1999 the judge asked the applicant to pay a supplement to the court fee. She also requested files from a different court. The applicant paid the sum due on 8 September 1999. 8. On 7 October 1999 the third defendant submitted comments on the action. 9. A hearing was held on 28 March 2000. The case was adjourned. 10. On 2 May 2000 the court heard the parties. The court admitted a further defendant to the proceedings. That defendant submitted observations on the applicant’s action on 25 May 2000. 11. On 14 July 2000 the case was adjourned as two defendants had to be summoned. The same defendants failed to appear on 26 September 2000. The court imposed a disciplinary fine on one of them as he had failed to excuse his absence. 12. On 24 October 2000 the case was again adjourned due to the absence of the second defendant. It was not established that the summons had been duly served. On 31 October 2000 that defendant informed the court of her new address in the Czech Republic. 13. On 3 December 2001 the judge requested that the second defendant be heard by a Czech court. On 27 February 2002 the Ministry of Justice of the Czech Republic informed the District Court that the defendant resided at her address in Košice (Slovakia) at that time. 14. On 30 April 2002 the District Court dismissed the applicant’s action. 15. The applicant appealed on 30 May 2002. 16. On 7 June 2002 the District Court judge invited the applicant to pay the fee for the appellate proceedings. She also invited the defendants to comment on the appeal. The defendants replied between 20 June 2002 and 11 July 2002. 17. In the meantime, on 19 June 2002, the applicant asked for an exemption from the obligation to pay court fees. On 2 July 2002 the District Court granted the request. 18. The appeal was submitted to the Košice Regional Court on 16 July 2002. 19. The Regional Court held hearings on 10 October 2002 and 7 November 2002. On the latter date it quashed the first-instance judgment. The file was returned to the District Court on 16 December 2002. 20. At the judge’s request of 18 December 2002 the applicant specified his claim on 9 January 2003. 21. On 20 March 2003 the District Court again dismissed the applicant’s action. 22. The applicant appealed on 2 May 2003 and the file was transferred to the Regional Court on 4 July 2003. 23. On 1 March 2004 the Regional Court scheduled a hearing for 18 March, which was later postponed until 22 April 2004. 24. On 22 April 2004 the Regional Court upheld the District Court’s decision on the merits. It quashed the part of the decision as regards costs and remitted the case to the District Court. 25. On 3 June 2004 the file was transferred to the District Court which issued its decision on costs on 28 July 2004. 26. Two of the defendants appealed and the case file was transferred to the Regional Court on 7 October 2004. 27. On 29 December 2004 the Regional Court upheld the District Court’s ruling on costs. The decision was served on the applicant’s lawyer on 2 February 2005, and thus became final. 28. The applicant filed a complaint with the Constitutional Court alleging a violation of Article 6 § 1 of the Convention in that there had been unjustified delays in the proceedings before the District Court. 29. On 11 June 2003 the Constitutional Court found that the District Court had violated the applicant’s right to a hearing without unjustified delay. The Constitutional Court held that the case was not complex and that by his conduct the applicant had not contributed to the length of the proceedings. As to the conduct of the District Court, the Constitutional Court found that it had remained inactive without any justification from 31 October 2000 to 3 December 2001, that is for approximately 13 months. 30. The Constitutional Court noted that the applicant had claimed 80,000 Slovakian in this respect. | 1 |
train | 001-23070 | ENG | HRV | ADMISSIBILITY | 2,003 | OMEROVIC v. CROATIA | 4 | Inadmissible | Christos Rozakis | The applicant, Mr Mehmedalija Omerović, is a Croatian citizen who was born in 1945 and lives in Gračanica, Bosnia and Herzegovina. The respondent Government are represented by their Agent, Ms Lidija Lukina-Karajković. The facts of the case, as submitted by the parties, may be summarised as follows. On 2 December 1987 the applicant brought a civil action for damages with the Podravska Slatina Municipal Court (Općinski sud u Podravskoj Slatini), against the Podravska Slatina Municipality, A. K. and the insurance company C. On 14 December 1987 the applicant’s son entered the proceedings as the second plaintiff. Before the period to be examined by the Court (the Convention entered into force in respect of Croatia on 5 November 1997) the Supreme Court (Vrhovni sud Republike Hrvatske) transferred the case to the Virovitica Municipal Court (Općinski sud u Virovitici), at the applicant’s request. The first instance court adjourned two hearings due to the applicant’s absence and held one hearing. On several occasions the applicant asked the court to stay the proceedings because the criminal proceedings against I.S., relevant for the case in question, were still pending. On 23 April 1998 the first instance court asked the Donji Miholjac Municipal Court (Općinski sud u Donjem Miholjcu) about the state of the criminal proceedings against I.S. On 15 May 1998 the Donji Miholjac Municipal Court informed the Virovitica Municipal Court that the proceedings in question had been terminated because the statutory limitation had expired. On 1 June 1998 the Virovitica Municipal Court requested the criminal case file against I.S. from the Donji Miholjac Municipal Court. On 4 June 1998 the case file was submitted. On 3 and 17 February 1999 the Virovitica Municipal Court asked two different Public Prosecutor’s Offices for information about the criminal case file against I.S. On 12 March 1999 the Slatina Municipality Public Prosecutor’s Office (Općinsko državno odvjetništvo u Slatini) informed the court that all proceedings against I.S. had been terminated due to the expiration of the statutory limitation. At the next hearing before the Virovitica Municipal Court on 15 April 1999 the court stayed the proceedings (mirovanje postupka) because the applicant did not appear. On 28 April the applicant and his son asked the court to be exempted from the payment of the costs of the proceedings. On 29 April 1999 the applicant’s son filed an appeal against the decision to stay the proceedings. On 12 May 1999 the Virovitica Municipal Court held a hearing and exempted the applicant and his son from paying the costs of the proceedings. The case file was forwarded to the appellate court upon the appeal of 28 April 1999. On 3 June 1999 the appellate court rejected the appeal as being lodged by an unauthorised person. On 26 July 1999 the applicant asked the first instance court to proceed with his case. On 28 January 2000 the court asked the applicant to clarify his claim and submit relevant medical and other documentation. On 20 March 2000 the applicant filed additional submissions. On 24 March 2000 the court dismissed the applicant’s claim as incomprehensible and because the applicant had failed to submit the relevant documents. On 11 and 15 May 2000 the applicant and his son respectively appealed against the above decision. On 30 November 2000 the Bjelovar County Court (Županijski sud u Bjelovaru) rejected both appeals. Both the applicant and his son filed a request for revision with the Supreme Court on 2 and 11 January 2001 respectively. On 21 November 2001 the Supreme Court granted the request and quashed the first and appellate decisions and remitted the case for a re-trial to the Virovitica Municipal Court. It appears that the proceedings are presently pending before the court of first instance. The relevant parts of Section 63 of the Constitutional Act on the Constitutional Court (entered into force on 15 March 2002, published in the Official Gazette no. 49 of 3 May 2002 - hereinafter “the 2002 Constitutional Act on the Constitutional Court” - Ustavni zakon o Ustavnom sudu Republike Hrvatske iz 2002) read as follows: (1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant’s rights and obligations or a criminal charge against him ... (2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits... (3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request for its payment. | 0 |
train | 001-112021 | ENG | UKR | CHAMBER | 2,012 | CASE OF GOLOVAN v. UKRAINE | 3 | Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home;Respect for private life);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award | Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger | 6. The applicants are spouses. They were born in 1968 and 1965 respectively and live in Donetsk. The first applicant is a lawyer practising in Ukraine. He is the President of the law firm Pravis, subsequently renamed Golovan and Partners. 7. The applicants are the co-owners of a flat which, at the material time, was used by the first applicant as his office. The deed of ownership was issued in the name of the second applicant. 8. In February and April 2005 the first applicant entered into legal services agreements with a company, K. Under those agreements K. transferred to the first applicant certain documents concerning its commercial activity. 9. On 4 April 2005 the investigator of the Slovyansk Tax Office instituted criminal proceedings against the officials of company K. for alleged tax evasion and forgery of documents. 10. On 19 April 2005 the investigator issued a search warrant for K.’s documents in the office of the first applicant. The warrant was approved by the Prosecutor of Kramatorsk. In the reasoning part of the search warrant the investigator noted that it had been established in the course of pre-trial investigation that a number of bookkeeping, tax accounting and other documents had been stored at the first applicant’s law office. 11. The warrant authorised the search and seizure of the following material: “contractual documents, bookkeeping documents, primary and summary accounting documents, tax accounting and other documents which concern the relationships between [K.] and [company D.] as regards the delivery of electricity by the latter to the former company in the period from 1 January 2001 to date; decisions and other procedural documents issued in the same period by the commercial courts when dealing with disputes between the two companies.” 12. On 5 May 2005 the investigator, the tax police officers, and two attesting witnesses arrived at the first applicant’s office to carry out the search. The first applicant objected to the search. He stated that the flat was private property and, accordingly, any search of it could be carried out only on the basis of a court decision, as required by Article 177 of the Code of Criminal Procedure. He further stated that the documents requested by the investigator had been entrusted to him by K. in his capacity as the company’s lawyer and, by virtue of section 10 of the Bar Act, could not be seized without his consent. 13. The investigator ignored the first applicant’s objections and commenced the search. In the course of the search a number of K.’s documents, including some dated before 2001, were seized. 14. The two attesting witnesses countersigned the search report compiled by the investigator. The witnesses were born in 1984 and at the relevant time were studying at the Donbas Machinery Building Academy. Subsequently, in the course of “pre-investigation” enquiries, the two witnesses confirmed that the first applicant repeatedly informed the investigator that the searched premises were the individuals’ private property. 15. On 6 May 2005 the seized documents were attached to the criminal case file as material evidence. 16. On 2 August 2005 the decision of 4 April 2005 instituting criminal proceedings against the officials of company K. was quashed as unfounded. 17. On 6 and 11 May 2005 the applicants complained to several prosecutors’ offices at various levels about the search of their premises. They requested that criminal proceedings be instituted against those who had carried out the search. 18. On 25 May and 8 July 2005, 23 February, 4 April and 25 August 2006, 23 March and 15 June 2007, 28 March, 5 September and 3 October 2008, 20 April 2009, 19 March, 9 April and 9 August 2010 and 4 March 2011 the prosecutor’s offices adopted decisions refusing to open criminal proceedings against the investigator and the police officers involved in the search. According to those decisions there was no indication that criminal offences under Articles 162, 364, 365, and 397 of the Criminal Code had been committed. The latest decision specified in particular that at the time of the search the flat had been used as business premises, while the documents had been seized as evidence in the criminal case and therefore could not be covered by the lawyer-client privilege. 19. All those decisions were quashed as unfounded, either by the supervising prosecutor or by the court. In quashing the impugned decisions the supervising authorities relied on the provisions of the Code of Criminal Procedure requiring preliminary court authorisation for the search of an individual’s premises and on those of the Bar Act safeguarding the professional secrecy afforded to lawyers. 20. In particular, on 27 December 2011 the Voroshylovskyy District Court of Donetsk, quashing the prosecutor’s decision of 4 March 2011 refusing to open criminal proceedings, found that the prosecutor’s office had failed to take into account the fact that the searched flat was owned by private individuals and that, pursuant to domestic legislation, any search of it could be carried out only on the basis of a court decision. Besides, the materials of the enquiries suggested that the seized documents had been entrusted to the first applicant in the course of his activity as a lawyer and had been covered by lawyer-client privilege. The court therefore concluded that the search and the seizure of documents had been carried out unlawfully. The court remitted the case for additional “pre-investigation” enquiries, for the adoption of the proper decision under Article 97 of the Code of Criminal Procedure. 21. On 23 January 2012 the Court of Appeal upheld that decision of the first-instance court, adding that the investigative authorities had not yet examined whether the investigator had seized documents which had no relevance to the criminal case against the officials of company K. 22. Article 30 of the Constitution provides: “Everyone shall be guaranteed the inviolability of his or her dwelling. Any entry into, examination of or search in the dwelling or other possession of a person shall not be permitted other than pursuant to a reasoned court decision. In urgent cases connected with the rescuing of human life and preservation of property or with the direct pursuit of criminal suspects, the law may provide for a different procedure for entering into, examining or searching in the dwelling or other possession of a person.” 23. Article 162 of the Code provides: “1. Unlawful entry into, examination of or searches in a dwelling or other possession of a person, unlawful eviction or any other actions violating the inviolability of a citizen’s home – shall be punishable by a fine of fifty to one hundred times the amount of the non-taxable minimum-level income or by up to two years’ correctional labour, or by a restriction of liberty for up to three years. 2. The same acts, if committed by officials... – shall be punishable by imprisonment for two to five years.” 24. Article 364 of the Code, as worded at the relevant time, provided: “1. Abuse of power or office, namely intentional use, for financial gain or with other personal interest or in the interest of third persons, by an official of his/her power or office against the interest of the service, if it has caused serious damage to State or public interests or to lawful interests, rights and freedoms of natural or legal persons, – shall be punishable by up to two years’ correctional labour or by up to six months’ detention or by a restriction of liberty for up to three years, with a prohibition for up to three years on the holding of certain posts or the performance of certain activities. ... 2. The same acts, if they have caused grave consequences, – shall be punishable ... 3. Acts as described in paragraphs 1 or 2 of this Article, if committed by law-enforcement officers, – shall be punishable by imprisonment of between five and twelve years, with a prohibition of up to three years on holding certain posts or performing certain activities, and with confiscation of property.” 25. Article 365 § 1 of the Code, as worded at the relevant time, provided: “The exceeding of power or office, namely the intentional commission of acts by an official which go manifestly beyond the scope of the rights and powers vested in him or her and which cause serious damage to the State or public interest or to the lawful interests, rights and freedoms of natural or legal persons – shall be punishable by up to two years’ correctional labour or by restriction of liberty for up to five years, or by imprisonment for between two and five years, with a prohibition for up to three years on the holding of certain posts or the performance of certain activities.” 26. Article 397 of the Code provides: “1. Any obstruction of defence counsel or another representative in the course of his/her lawful activities in providing legal assistance, or a violation of the lawful guarantees of his/her activities and professional secrecy – shall be punishable by a fine of one hundred to two hundred times the amount of the non-taxable minimum-level income or by up to two years’ correctional labour, or by up to six months’ detention, or by a restriction of liberty for up to three years. 2. The same acts, if committed by officials in the performance of their duties – shall be punishable by a fine of three hundred to five hundred times the amount of the non-taxable minimum-level income or a restriction of liberty for up to three years with a prohibition of up to three years on the holding of certain posts or the performance of certain activities.” 27. Article 4 of the Code provides: “The court, the prosecutor, the investigator or the body of inquiry must, to the extent that it is within their power to do so, institute criminal proceedings in every case where evidence of a crime has been identified, take all necessary measures provided by law to establish whether a crime has been committed, identify the perpetrators, and punish them.” 28. Under Article 28 of the Code, a person who has sustained damage as a result of a criminal offence can lodge a civil claim against an accused at any stage of criminal proceedings before the beginning of the consideration of the case on the merits by a court. A civil claimant in criminal proceedings shall be exempt from the court fee for the lodging of a civil claim. 29. The relevant parts of Article 97 of the Code provide: “A prosecutor, investigator, body of inquiry or judge is obliged to accept applications or communications regarding crimes which have been committed or planned, including in cases that are outside its competence. Following an application or communication in respect of a crime, the prosecutor, investigator, body of inquiry or judge is obliged, within a three-day time-limit, to adopt one of the following decisions: (1) to institute criminal proceedings; (2) to refuse to institute criminal proceedings; (3) to remit the application or communication for further examination according to jurisdiction. ... In the event that it is necessary to examine the information or communication in respect of a crime before initiating criminal proceedings, such an examination shall be conducted by a prosecutor, investigator or body of inquiry, within a time-limit of ten days, by obtaining statements from individual citizens or officials or by requesting the necessary documents. ...” 30. Article 114 of the Code provides that in the course of the investigation the investigator shall make all the decisions on his own as regards the direction of the investigation and the investigative actions that should be taken, except in cases where the law requires approval by the court or the prosecutor. 31. Article 127 of the Code provides, inter alia, that in the course of the search at least two witnesses should be present. The witnesses should be unbiased. The witnesses cannot be chosen from among the victims, their relatives, the relatives of the suspect or the accused or officers of the body of inquiry or investigation. 32. Article 177 of the Code provides: “... A search in a person’s home and other possession may be conducted only on the basis of a reasoned court decision, except for urgent cases. ... A court decision authorising the search is not subject to appeal. A refusal by the court to allow a search may be appealed against by the prosecutor within three days. In urgent cases connected with the rescuing of human life and preservation of property or with the direct pursuit of criminal suspects, the search may be performed without a court decision. The search report shall state the reasons for its performance without a court decision. Within twenty-four hours the investigator shall refer a copy of the search report to the prosecutor. ” 33. Article 236-1 of the Code provides: “Complaints against a decision of a body of inquiry, investigator, or prosecutor refusing to open criminal proceedings shall be lodged with the district (city) court ... by the person whose interests are affected, or by a representative of that person, ... within seven days of receipt of the decision or of information from the prosecutor that he refused to quash the decision.” 34. Article 236-2 of the Code provides: “Complaints against a decision of a prosecutor, investigator or body of inquiry refusing to open criminal proceedings shall be examined by a single judge within ten days of the arrival of the case file at the court. The judge shall request relevant materials on which the refusal to initiate criminal proceedings was based, examine them and inform the prosecutor and the complainant of the date on which it will be examined. If necessary a judge shall hear explanations from the person who lodged the complaint. A verbatim record of the hearing shall be drawn up. ... a judge shall take one of the following decisions: 1) to quash the decision refusing to open criminal proceedings and return the case file materials for additional [“pre-investigation”] enquiries; 2) to reject the complaint. A judge’s decision in this regard may be appealed against before the court of appeal within seven days of its adoption, by a prosecutor or a complainant. ...” 35. Section 10 of the Act provides that documents relating to a lawyer’s professional activity may not be examined, divulged or seized without the lawyer’s consent. | 1 |
train | 001-93892 | ENG | RUS | ADMISSIBILITY | 2,009 | ALSHEV v. RUSSIA | 4 | Inadmissible | Peer Lorenzen | The applicant, Mr Sergey Aleksandrovich Alshev, is a Russian national who was born in 1971 and lives in Zlatoust. He was represented before the Court by Ms O. Gorina, a lawyer practising in Chelyabinsk. The Russian Government (“the Government”) were 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. On 30 June 2004 the applicant was arrested. On the same day he was charged with murder. On 2 July 2004 he appeared before the Chebarkulskiy Town Court, where Judge G. ordered his detention pending trial. On 10 August 2004 the Chelyabinsk Regional Court rejected the applicant’s appeal and upheld the decision of 2 July 2004. In November 2004 the applicant learned that by Decree no. 775 of 26 June 2001, the President of the Russian Federation had appointed Judge G. to the Miassky Town Court. No further decree had been issued transferring him to the Chebarkulskiy Town Court. The applicant immediately lodged a complaint to the Chelyabinsk Regional Prosecutor’s Office challenging the lawfulness of the decision of 2 July 2004. On 22 December 2004 the Prosecutor’s Office replied that the impugned decision had been fully lawful. The Government provided the Court with a copy of a decree, issued on 5 August 2003 by the President of the Chebarkulskiy Town Court, according to which the duties of a temporarily absent judge of that court were to be performed by Judge G. with effect from 4 August 2003. Article 47 “1. No one may be deprived of the right to have his or her case considered by the court and judge on which cognisance of the case is conferred by law.” Article 128 “..2. Judges of ... the federal courts shall be appointed by the President of the Russian Federation according to the rules laid down by federal law...” Section 27 “... In the event of the temporary absence of a judge of a district (town) court, his duties shall be performed by a judge of the nearest district (town) court by decision of the President of a higher court...” In Decision no. 303-O-O of 19 April 2007, the Constitutional Court held as follows: “According to Article 47 of the Constitution of the Russian Federation (part 1), no one may be deprived of the right to have his or her case considered by the court and judge on which cognisance of the case is conferred by law... The legislator, in exercising legal regulation in the judicial sphere in order to secure the right of citizens and associations to judicial protection within a reasonable time, has the power to determine the organisational and procedural arrangements for the district (town) courts, including the arrangements for replacing temporarily absent judges. The Law on organisation of the courts in the RSFSR provides that in the event of the temporary absence of a judge of a district (town) court, his duties shall be performed by a judge of the nearest district (town) court, the arrangements for his replacement being made by decision of the President of a higher court. Therefore, the impugned provision, being aimed at securing the smooth operation of justice in the event of the temporary absence of a judge, does not impair any constitutional right of the applicant in his specific case. ...The principles of independence and irremovability of judges guaranteed by the Constitution of the Russian Federation are not violated by Section 27 of the Federal Law on organisation of the courts in the RSFSR, as the fact that the duties of a temporarily absent judge of a district (town) court are performed by a judge of the nearest district (town) court does not amount to the transfer of a judge to another position or another court. A judge preserves his powers, office, position and grade for the whole period of his activity within a judicial body...” | 0 |
train | 001-106427 | ENG | RUS | CHAMBER | 2,011 | CASE OF ALIM v. RUSSIA | 3 | No violation of Art. 5-1-f;Violation of Art. 8 (in case of expulsion from Russia);Remainder inadmissible;Non-pecuniary damage - award | Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen | 4. The applicant was born in 1981 and lives in the Krasnodar region. 5. According to the applicant, in 1995 he signed a contract with a Russian football club as a football player, obtained a Russian visa and settled in Russia. Later on, he gave up football because of an injury and entered (some time between 1998 and 2002) a higher educational institution in Krasnodar. 6. It appears that since 2003 or 2004 the applicant has been living in the Krasnodar region with a Russian national, Ms A., as common-law husband and wife. The applicant has been lawfully resident in Russia at least since 20 October 2004. In April 2005 Ms A. gave birth to a son. The applicant formally acknowledged paternity. The boy was given the applicant’s last name and patronymic. 7. On 20 June 2006 the applicant was expelled from the University because of his failure to attend classes. It appears that on 9 September 2006 the document authorising his stay in Russia (apparently a student visa) was revoked. 8. According to the applicant, he applied to a private firm for assistance in obtaining or renewing his visa. It is alleged that an employee of this firm handed over the applicant’s passport to the local Federal Security Office. 9. On 25 October 2006 Ms A. gave birth to a daughter. Although for unspecified reasons the applicant did not formally register paternity, he never contested it and the girl has his first name as a patronymic. 10. On 3 November 2006 the applicant was arrested by officers of the Russian Federal Migration Service (“FMS”). On the same day the Oktyabrskiy District Court of Krasnodar found the applicant guilty of the administrative offence of violating the residence regulations for foreign nationals (see paragraph 26 below) and imposed on him a fine of 1,500 Russian roubles (RUB). The applicant was then released. He did not appeal against this court decision and paid the fine. 11. As the applicant had no valid authorisation to remain in the country he was provided with a transit visa valid from 7 to 16 November 2006, to enable him to leave Russia. However, he did not leave the country, because, as he explained, his wife had recently given birth to their second child and he had to take care of their first child. 12. The applicant stated that between 1 and 10 January 2007 he could not make any arrangements to regularise his residence status due to the closure of public offices during the public holidays in Russia. 13. On 11 January 2007 the applicant was subjected to an identity check by FMS officers. As he had no valid document, the officers arrested him and took him to the FMS premises, where they drew up an administrative offence report concerning a violation of residence regulations for foreigners (see paragraphs 26 and 33 below). The report reads as follows: “[The applicant] was subjected to an identity check and could not provide evidence of his compliance with the requirement of temporary registration for a period longer than three days of residence... I have been informed of my procedural rights, including the right to have access to the record and other materials, the right to legal assistance...Court proceedings, which may result in an administrative arrest or administrative removal from Russia, should be carried out in the presence of the person concerned...[the applicant’s signature] The person’s explanations: {in handwriting in the Russian language} I did not have enough time to renew my registration status.” 14. According to the applicant, after his arrest he asked in vain to see a lawyer and an interpreter. Having drawn up the report, the FMS officers told the applicant where he should sign it, which he did. One of them wrote down the applicant’s oral explanations (see above). In the applicant’s submission, his language skills were at the time limited: although he could speak and understand some Russian, he had no writing skills. 15. Later the same day the applicant was taken to the Leninskiy District Court of Krasnodar. The court held a hearing, at which, however, no lawyer or interpreter was designated to assist the applicant. According to the applicant, he was unable to make oral submissions to the court concerning his family status. The District Court judgment reads as follows: “[The applicant] had arrived in Krasnodar in November 2004, for educational purposes. During an identity check on 11 January 2007 at his place of his residence it emerged that he had had offence report, the court considers that [the applicant] violated the residence regulations for foreign nationals and thus committed an offence under Article 18.8 of the Code of Administrative Offences.” The court sentenced the applicant to a fine in the amount of twenty times the minimum wage (RUB 2,000). The court also ordered the administrative removal of the applicant from Russia, and that he be detained until removal in a special detention facility situated in the village of Kopanskoy. 16. On 22 January 2007 a lawyer appealed on behalf of the applicant against the first-instance judgment, requesting that the administrative removal be annulled. He argued that the administrative offence report was unlawful, as the applicant had not been provided with an interpreter at the FMS. He also mentioned that the removal would affect his client’s family life, arguing as follows: “The court failed to examine the entirety of the relevant circumstances...Since 2003 [the applicant] has been living with a Russian national, A., and has two children, born in 2005 and 2006...These circumstances show that he has a family life...The court did not provide reasons for applying a subsidiary penalty of administrative removal in respect of [the applicant] and did not take account of the matters relating to his family life in Russia. Nor did the court assess the fact that administrative removal would prevent [the applicant] for five years from obtaining permission for temporary residence in Russia. The court should have provided reasons for considering that removal was the only way of striking a fair balance between the private and public interests at stake.” 17. On 24 January 2007 the Krasnodar Regional Court dismissed the appeal and upheld the first-instance judgment. Apparently, no oral hearing had been held. The appeal court stated as follows: “The argument relating to the existence of a relationship with A. cannot be considered as a ground for residence in Russia without valid permission issued by the competent authority. In addition, [the applicant] had already been fined for a similar offence, whilst no administrative removal had been ordered. Taking account of all circumstances, including [the applicant’s] personality and both mitigating and aggravating circumstances, it should be concluded that the first-instance court issued a lawful decision.” The appeal court further stated that, according to the administrative report, the applicant had been informed of his rights but had not asked for an interpreter and had made a handwritten note in Russian on the report. 18. The applicant’s lawyer continued to complain about the measure of administrative removal against his client. On 2 March 2007 the Regional Prosecutor’s Office informed the lawyer that the removal was lawful. On or around 14 March 2007 the applicant lodged an application for supervisory review in respect of the court decisions of 11 and 24 January 2007. On 2 April 2007 the Regional Court informed the lawyer that his complaint had been examined by way of supervisory review and that no violations had been found. 19. On an unspecified date, the applicant lodged an application for supervisory review before the Supreme Court of Russia. On 4 May 2007 a judge of the Supreme Court rejected it. He stated that the absence of an interpreter could not serve as a reason for quashing the decision, that the applicant had not registered a marriage with Ms A. and that the defence had not provided the district court or the supervisory-review court with evidence confirming that the applicant was the father of the two children. 20. According to the applicant, the FMS officers repeatedly told him that the State authorities had no funds to pay for his expulsion and told him to return to Cameroon at his own expense. According to the Government, since the applicant’s national passport had expired on 6 June 2007 it was necessary to make arrangements to renew it. 21. By a letter of 6 July 2007 the Regional Prosecutor’s Office informed Ms A. that the removal order could not be enforced because no funds had been allocated for this purpose in the federal budget and the applicant’s passport had expired. It was noted that arrangements were being made by the Embassy of Cameroon to issue a departure certificate and travel documents to the applicant. On 9 July 2007 the Embassy issued a travel document. Apparently, Ms A. purchased for the applicant a train ticket to Moscow. 22. The applicant was released on 16 July 2007. In March 2011 the applicant’s lawyer submitted to the Court a letter from the applicant. In that letter the applicant stated that after his release he had been living with his family in the Krasnodar Region; he had to be discreet because he did not want to be arrested and because the order of administrative removal against him remained enforceable; he could no longer regularise his stay in Russia; he could not work or initiate any administrative procedures concerning marriage or paternity. By April 2011 the removal measure had not been enforced in respect of the applicant. 23. From 11 January to 16 July 2007 the applicant was detained in Kopanskoy detention facility. 24. According to the applicant, during his detention he was kept in a metal trailer. In winter the temperature in the trailer was at times as low as 5 degrees Celsius, while in summer it was very hot inside. The applicant was provided with food once a day. He was obliged to do unpaid physical work. His state of health deteriorated significantly, to the extent that an ambulance was called for him on several occasions. 25. According to the Government, in the living quarters of the detention centre each detainee was provided with an individual bed, bedding and bedside table. The living quarters provided access to water and electricity. A shower room was made available to detainees. Each detainee was afforded three square metres of floor space. Each unit had its own heating system. The applicant was provided with the requisite medical assistance. For instance, on 24 April 2007 he was admitted to hospital because of an abdominal contusion. The applicant received visits from his lawyer, Ms A. and other persons, who supplied him with food and clothes. No detainee was required to work in the detention facility. 26. Article 18.8 (1) of the Code, in its version in force in January 2007, concerned the following violations of residence regulations by foreign nationals: absence of documents confirming the right to reside in Russia and non-observance of the registration procedure or residence procedure. The above violations were punishable by a fine with or without administrative removal from Russia. 27. A deportation order is enforced by transferring the person concerned to the authorities of a foreign State or by the voluntary departure of this person under the supervision of the deporting authority (Article 32.10 § 1). A court is empowered to detain the person concerned until his actual deportation (Article 32.10 § 5). The detainee should be kept at the place assigned for this purpose or in specialised detention facilities, which should have appropriate sanitary conditions and prevent voluntary departure (Articles 27.3 and 27.6 of the Code). The detainee should be fed and given medical assistance in compliance with the rules adopted by the Government. 28. In ruling no. 6-П of 17 February 1998 the Constitutional Court held, with reference to Article 22 of the Russian Constitution, that detention of a person to be removed from Russia for more than forty-eight hours required a court decision, which should establish that detention is indispensable for enforcing the removal; the court should assess the lawfulness and reasons for detention; detention for an indefinite period of time would be unacceptable since it would be capable of amounting to a separate form of punishment, which is not prescribed by the Constitution. 29. Article 31.9 of the CAO provided, at the time, that a decision imposing an administrative penalty could not be enforced after the expiry of a one-year period since the date on which this decision had become final. This period could be suspended if the defendant had impeded or was impeding enforcement proceedings. 30. Section 5 of the Act provides that a foreigner should leave Russia after the expiry of the authorised period, except when on the date of expiry he has already obtained an authorisation for extension or renewal, or when his application for extension and the relevant documents have been accepted for processing. A deportee should bear the cost of his or her deportation unless he has no means (section 31 § 5 of the Act). The deportee should be detained under a court order in a specialised detention facility until deportation (section 31 § 9). 31. Section 7 § 1 (3) of the Act provides that a temporary residence permit could not be issued to a foreigner who had been deported from Russia within the previous five years. 32. In decision no. 86-АД05-2 of 7 December 2005, the Supreme Court of Russia considered that it was incumbent on a national court to examine whether enforcement of a deportation order was compatible with Article 8 of the Convention. Given that section 7 of the Foreigners Act prevented a deportee from claiming a temporary residence permit for five years, “a serious issue [could] arise as to an interference with [the persons’] right for respect of their family life”. In another decision, the Supreme Court varied its reasoning, stating that enforcement of a deportation order “results in the violation of fundamental family ties and impedes the family’s reunification” (decision no. 18-АД05-13 of 24 January 2006). The Supreme Court subsequently considered that a deportation order should be based on considerations which confirm the necessity of such a measure “as the only possible way of ensuring a fair balance between public and private interests” (decision no. 86-АД06-1 of 29 March 2006). 33. Until 15 January 2007 the Foreigners Act contained provisions concerning registration of foreigners. Foreigners had to apply for “registration” within three days of arrival in Russia (sections 20 and 21). 34. Under section 27 of the Act re-entry should be refused to a foreign national for five years of the date on which he or she has been previously subject to administrative removal from Russia. 35. Article 47 of the Family Code provides that the rights and obligations of parents and their children are based on their descent/parentage, which has been lawfully established. Paternity of a person who is not married to the child’s mother should be established by a joint declaration to a competent authority or in court proceedings (Articles 48 and 49). 36. As confirmed by the Constitutional Court (decision no. 26-O of 17 May 1995), Russian law does not recognise “unregistered marriage”, which does not entail any legal consequences. | 1 |
train | 001-59996 | ENG | DEU | CHAMBER | 2,001 | CASE OF P.S. v. GERMANY | 3 | Violation of Art. 6-1+6-3-d | Ireneu Cabral Barreto | 8. In the late evening of 29 April 1993, the father of S., born in 1985, laid a criminal information against the applicant, alleging that the applicant, her private music teacher, had sexually abused S. during an individual music lesson that afternoon. S. and her mother were questioned at the local police office on the afternoon of 30 April 1993. S. was heard by a police officer and confirmed her father’s statements. S.’s mother stated that S. had been very disturbed after her music lesson and that she had later confided in her mother. 9. On 10 January 1994 the Künzelsau District Court, sitting with a single judge, convicted the applicant of having committed the offence of sexual abuse of a child in concurrence with the offence of sexual abuse of a charge. He was sentenced to seven months’ imprisonment on probation. In establishing the relevant facts, the court relied on the statements made by the mother concerning her daughter’s account of the relevant events, her behaviour after the music lesson on 29 April 1993 and her character in general, and also on the evidence given by the police officer who had questioned S. shortly after the offence in April 1993. The court dismissed the applicant’s request for a psychological expert opinion regarding the credibility of S.’s statements on the ground of the court’s own professional experience, acquired as a judge in family matters, in evaluating statements made by children. Moreover, the court observed that it had not been reasonable to hear S. herself, as, according to her mother, she had meanwhile repressed her recollection of the event in question and would seriously suffer if reminded thereof. If S. were to be examined, this would not contribute to a further clarification of the facts, but seriously impair her personal development. 10. The applicant appealed to the Heilbronn Regional Court, requesting his acquittal. In the appeal proceedings, he was assisted by counsel. 11. On 17 March 1995 the Heilbronn Regional Court dismissed the applicant’s appeal against his conviction of sexual abuse of a child, but set aside the conviction of sexual abuse of a charge. The sentence to seven months’ imprisonment on probation was upheld. The Regional Court noted that the applicant had denied having sexually abused S. It found that his guilt could be established on the basis of the evidence before it, i.e. the statements made by S.’s mother and the police officer as well as a psychological expert opinion on the question of S.’s credibility, ordered in the context of the appeal proceedings. In her report of November 1994, the expert, who had questioned S. in October 1994, confirmed that S.’s statements were credible. The Regional Court considered that the absence of S.’s testimony in court constituted a serious shortcoming in the taking of evidence. In this respect, it noted that the parents had refused to bring their daughter to court on account of the risk that her state of health would deteriorate as she suffered from neurodermatitis. According to the Regional Court, the parents’ refusal was understandable. In this respect, the Regional Court had regard to a medical certificate confirming the parents’ statements and the findings of the psychological expert that S.’s state of health would most likely deteriorate again if she were to be heard anew on the event in question. Taking into account that S.’s statements had been reported by her mother and by the police officer and that an expert opinion on her credibility had been prepared, the Regional Court, considering the rather trivial nature of the charge and the sentence at stake, reached the conclusion that S. was to be regarded as a witness out of reach. 12. On 2 August 1995 the Stuttgart Court of Appeal dismissed the applicant’s appeal on points of law. 13. On 18 January 1996 the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint, leaving open the question whether the complaint had been lodged in time. 14. The conduct of trial proceedings is governed by sections 226 to 275 of the Code of Criminal Procedure (Strafprozessordnung). 15. As regards the taking of evidence, section 244(2) provides that the court shall, proprio motu, extend the taking of evidence to all facts and evidence important for the decision in order to determine the truth. A request for the taking of evidence may be refused under the statutory conditions of section 244(3) to (6). Pursuant to section 244(3), second sentence, an application may, inter alia, be refused if the evidence is unavailable. | 1 |
train | 001-80803 | ENG | RUS | ADMISSIBILITY | 2,007 | PLOTNIKOV v. RUSSIA | 4 | Inadmissible | Christos Rozakis | The applicant, Mr Sergey Yuriyevich Plotnikov, is a Russian national who was born in 1972 and lives in the town of Chelyabinsk. He was represented before the Court by Mrs O. Preobrazhenskaya, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. On 9 August 1999 the applicant was arrested on charges of murder, theft and deliberate destruction of property. From the very outset of the investigation he refused to testify or cooperate with the authorities. On 4 September 2000 the Chelyabinsk Regional Court held its first hearing on this case. The bench was composed of Judge Zh. and two lay assessors, T. and Ch. The applicant submitted that at one of the hearings his counsel had failed to appear, but the trial court had refused his request to adjourn the hearing. He also submitted that oral evidence given by some prosecution witnesses during the trial had not been properly recorded in the minutes and that he unsuccessfully requested the Regional Court to accept his mother as his counsel. By judgment of 15 September 2000 the court convicted the applicant of aggravated murder and theft and sentenced him to nineteen years’ imprisonment. The applicant submitted that the court had used his refusal to testify to support the findings about his guilt. The applicant appealed against the judgment to the Supreme Court. In his appeal, he complained, among other things, that lay assessor T. had not complied with the domestic rules in respect of lay assessors. On 20 August 2001 the Supreme Court applied an amnesty law as regards some of the charges and reduced the applicant’s sentence to eighteen years of imprisonment. It appears that the court did not examine the applicant’s complaint about the lay assessors and the allegedly unlawful composition of the bench. The Supreme Court decision was served on the applicant on 8 October 2001. On 10 January 2002 the applicant requested the Regional Court to provide him with information about the composition of the court that had tried his case, and in particular, the list of lay judges and the record of their participation in the trials at the material time. However, he received no response. On 2 November 2001 and 7 May 2002 the applicant lodged a complaint with the Constitutional Court. In this complaint he alleged that the court composition in his case had been unlawful. By decision of 10 October 2002 the Constitutional Court rejected the complaint. On 25 September 2005 the applicant lodged a request for supervisory review with the Supreme Court of Russia. He maintained, among other things, that the court composition in his criminal case had been unlawful. On 12 January 2006 a judge of the Supreme Court of Russia examined the applicant’s request and took a decision to initiate supervisory review proceedings in the case. By a decision of 22 February 2006 the Presidium of the Supreme Court examined the arguments of the applicant’s appeal. It found that the participation of lay assessor T. in the proceedings was unlawful. Accordingly, the court quashed the applicant’s conviction and remitted the case for a fresh examination in the first instance. By judgment of 24 July 2006 the Regional Court, sitting in a new composition, freshly examined the applicant’s criminal case and convicted him of aggravated murder. The applicant was sentenced to thirteen years and four months of imprisonment. For a summary of the relevant domestic law provisions, see Posokhov v. Russia, no. 63486/00, ECHR 2003IV, and Fedotova v. Russia (dec.), no. 73225/01, 1 April 2004. | 0 |
train | 001-89340 | ENG | RUS | CHAMBER | 2,008 | CASE OF MAGAMADOVA AND ISKHANOVA v. RUSSIA | 4 | Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life);Violation of Article 13+5 - Right to an effective remedy (Article 5 - Right to liberty and security);Violation of Article 13+3 - Right to an effective remedy (Article 3 - Prohibition of torture) | Anatoly Kovler;Christos Rozakis;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 4. The applicants were born in 1964 and 1958 respectively. They live in the village of Mesker-Yurt, Shali District, in the Chechen Republic. 5. The first applicant was married to Mr Viskhadzhi Shatayevich Magamadov, born in 1962; they are the parents of five children. The second applicant was married to Mr Khaskhan Shakhtamirovich Mezhiyev, born in 1963; they are the parents of three children. At the material time the two couples lived in neighbouring houses in Mesker-Yurt. 6. Between 13 and 14 November 2002 Khaskhan Mezhiyev stayed overnight at Viskhadzhi Magamadov’s home. The men slept in the main house. The first applicant, her children and her brother-in-law slept in an annexe to the Magamadovs’ family house. 7. At 5 a.m. on 14 November 2002 the first applicant woke up and heard the sound of gates opening. Shortly after that a group of unknown armed men entered her room. They wore camouflage uniforms and body armour; some of them wore masks. They did not identify themselves. The first applicant believed that they were servicemen of the Russian federal troops because they had Slavic features and spoke Russian without any accent. One of the servicemen shouted at the first applicant, using swearwords freely. The men examined the room where the first applicant, her children and brother-in-law slept and, having realised that there were no adult men in it, left. The first applicant looked out of the window and noticed in the courtyard about ten servicemen surrounding the main house. 8. In the meantime Viskhadzhi Magamadov, a practising Muslim, was performing his prayer in the main house. The servicemen entered his room and pushed him down to the floor. Then they forced Viskhadzhi Magamadov and Khaskhan Mezhiyev out to the courtyard and ordered them to run barefoot towards two armoured personnel carriers (“APCs”) parked nearby. The APCs’ registration numbers were covered with mud. 9. The first applicant tried to follow her husband but the servicemen blocked her way. Eventually she went out of the annexe to the courtyard. 10. The servicemen threw Viskhadzhi Magamadov and Khaskhan Mezhiyev on the ground and hit them with rifle butts. Then they put the two men into the APCs and drove away. 11. When the first applicant entered the main house, she discovered that there had been a search as there was a mess in the house and the floor was covered with scattered sugar. 12. The applicants have had no news of Viskhadzhi Magamadov and Khaskhan Mezhiyev since 14 November 2002. 13. The Government disagreed with the applicants’ account of events. They argued that the second applicant had not witnessed her husband’s abduction and concluded that it was doubtful that the kidnapping had taken place at all. 14. Shortly after the events of 14 November 2002 the applicants started to search for their husbands. They repeatedly contacted various official bodies, both in person and in writing, informing them that their husbands had been apprehended on the night of 13 to 14 November 2002 and trying to establish the whereabouts and fate of those missing. In particular, they applied to the prosecutors’ offices at different levels, the Ministry of the Interior of the Chechen Republic, the Plenipotentiary Representative of the Russian President in the Southern Federal Circuit, the Federal Security Service (“FSB”), the Russian Ombudsman and the Russian State Duma, describing in detail the circumstances of their husbands’ abduction. In their efforts the applicants were assisted by the SRJI. The official bodies forwarded the majority of the complaints to the prosecutors’ offices for investigation. 15. On 22 November 2002 the Shali district prosecutor’s office (“the district prosecutor’s office”) instituted an investigation into the disappearance of Viskhadzhi Magamadov and Khaskhan Mezhiyev under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The case file was given the number 59263. The decision read as follows: “At about 5 a.m. on 15 November 2002 unidentified armed men wearing camouflage uniforms [who had arrived] in two APCs surrounded the house at 28 Shkolnaya Street in the village of Mesker-Yurt and seized [Mr] Mezhiyev and [Mr] Magomadov. After that [Mr Mezhiyev and Mr Magomadov] were placed in the APCs and taken away in an unknown direction.” 16. On 22 January 2003 the district prosecutor’s office stayed the investigation in case no. 59263 for failure to identify those responsible. The second applicant was informed of the suspension by letter of 29 January 2003. 17. On 26 March 2003 the military prosecutor of military unit no. 20116 (“the unit prosecutor’s office”) informed the applicants that military personnel had not been implicated in Viskhadzhi Magamadov and Khaskhan Mezhiyev’s abduction. 18. On 6 April 2003 the applicants requested the prosecutor’s office of the Chechen Republic and the district prosecutor’s office to resume the investigation and to admit them to the proceedings as victims. On 11 April 2003 the district prosecutor’s office replied that their application concerning the search for their husbands “apprehended by unidentified servicemen of law enforcement bodies of the Russian Federation” had been included in the investigation file in case no. 59263 and stated that the applicants would be informed of any progress in the investigation. 19. On 7 July 2003 the prosecutor’s office of the Chechen Republic quashed the decision of 22 January 2003 on suspension of the investigation, reopened the proceedings in case no. 59263, ordered that the district prosecutor’s office take all requisite investigative measures to resolve the crime and informed the applicants accordingly. 20. On 15 July 2003 the Main Military Prosecutor’s Office forwarded the second applicant’s letter to the prosecutor’s office of the Chechen Republic. 21. On 1 August 2003 the prosecutor’s office of the Chechen Republic sent letters identical to the one of 7 July 2003 to each of the applicants. 22. On 4, 11 and 18 August 2003 the prosecutor’s office of the Chechen Republic forwarded the second applicant’s letters to the district prosecutor’s office. 23. On 15 August 2003 the Department of the FSB of the Chechen Republic informed the first applicant that her husband had not been detained by FSB officers, that he had not been suspected of any crimes and that the FSB was taking the necessary steps to establish his whereabouts and to identify those responsible for his disappearance. 24. On 23 August 2003 the Ministry of the Interior of the Chechen Republic forwarded the second applicant’s letter to the Shali district department of the interior (“ROVD”) and ordered the facts complained of to be verified and procedural steps taken if necessary. 25. On 1 September 2003 the district prosecutor’s office informed the applicants that the investigation into their husbands’ kidnapping was in progress. 26. On 20 September 2003 the military prosecutor’s office of the United Group Alignment (“the UGA prosecutor’s office”) forwarded the first applicant’s complaint to the unit prosecutor’s office and ordered it to conduct an inquiry. 27. On 20 January 2004 the prosecutor’s office of the Chechen Republic informed the applicants that “on 26 October 2003 the investigation in the criminal case [had been] suspended pursuant to Article 208 § 1 of the Russian Code of Criminal Procedure (due to failure to identify the alleged perpetrators)” and that “[o]n 20 October 2003 the prosecutor’s office of the Chechen Republic [had] resumed the investigation and investigative measures aimed at identification of the perpetrators and establishment of [the applicants’] relatives whereabouts [were] being taken”. 28. On 14 February 2004 the district prosecutor’s office informed the first applicant that the investigation had been resumed on 2 February 2004 and that investigative measures were being taken. 29. On 28 April 2004 the district prosecutor’s office informed the first applicant that the investigation in case no. 59263 was under way. 30. On 20 May 2004 the UGA prosecutor’s office informed the unit prosecutor’s office that its letter of 20 September 2003 remained unanswered, forwarded a copy of the first applicant’s complaint for the second time and ordered an inquiry. 31. On 4 June 2004 the prosecutor’s office of the Chechen Republic forwarded a complaint lodged on behalf of the second applicant by Civic Assistance, a regional NGO based in Moscow, to the district prosecutor’s office. 32. On 11 August 2004 the prosecutor’s office of the Chechen Republic informed the second applicant that her complaint lodged with Civic Assistance had been included in the investigation file in case no. 59263 and that investigative measures were being taken to establish her husband’s whereabouts. 33. On 5 November 2004 the prosecutor’s office of the Chechen Republic forwarded to the district prosecutor’s office a complaint lodged by the SRJI on behalf of the applicants for examination and requested that case no. 59263 be investigated more energetically. 34. On 6 July 2005 the unit prosecutor’s office informed the first applicant that they had no information on her husband’s whereabouts. 35. On 8 and 11 July 2005 the prosecutor’s office of the Chechen Republic forwarded the first applicant’s requests for assistance in the search for her husband to the district prosecutor’s office. 36. On 22 August 2005 the district prosecutor’s office informed the second applicant that the investigation in case no. 59263 had been suspended on 2 March 2005. 37. On 27 August 2005 the UGA prosecutor’s office informed the second applicant that she should send her further queries to the district prosecutor’s office or to the prosecutor’s office of the Chechen Republic. 38. On 15 September 2005 the district prosecutor’s office informed the first applicant that the investigation had been suspended. 39. On 8 November 2005 the SRJI requested an update on the progress in the investigation in case no. 59263 from the prosecutor’s office of the Chechen Republic. In reply they were informed that the prosecutor’s office of the Chechen Republic had resumed the investigation on 28 October 2005. 40. On 9 November 2005 the district prosecutor’s office informed the applicants that the investigation had been suspended on 30 October 2005. 41. On 19 January 2006 the prosecutor’s office of the Chechen Republic informed the second applicant that she had been granted victim status and questioned on 22 November 2002 and that the investigation had been suspended. 42. On 15 November 2002 the second applicant complained to the district prosecutor’s office of her husband’s kidnapping by unknown men. 43. On 22 November 2002 the district prosecutor’s office instituted an investigation of Viskhadzhi Magamadov and Khaskhan Mezhiyev’s abduction under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The case file was assigned number 59263. On the same date the second applicant was granted victim status and questioned. She submitted that her husband had gone to his neighbour’s home and then been taken away by unidentified armed men in two APCs. 44. On 27 November 2002 the district prosecutor’s office sent requests for information to the ROVD, the department of the FSB of the Shali district, a military prosecutor’s office, the military commander of the Shali district, the information centre of the Ministry of the Interior of the Chechen Republic, the remand prisons in the Chechen Republic and operational and search bureau no. 2 (“ORB-2”). In reply they were informed that the police, the FSB and the military had not carried out any operations in respect of Viskhadzhi Magamadov and Khaskhan Mezhiyev, that the two men had not been arrested or detained and that the State agencies had no information on the whereabouts of the missing men. 45. On 10 December 2002 the district prosecutor’s office granted the first applicant victim status in case no. 59263 and questioned her. The first applicant submitted that her husband had been unemployed. In the evening of 14 November 2002 Khaskhan Mezhiyev had come to visit her husband. At about 5 a.m. on 15 November 2002 the first applicant had been awakened by noise coming from the courtyard and seen armed men in camouflage uniforms, some of whom had worn masks. The men had entered the house in which her husband and Khaskhan Mezhiyev had been sleeping, taken them outside and brought them to the APC. 46. On 22 January 2003 the investigation was suspended for failure to identify those responsible. 47. On 2 February 2004 the district prosecutor’s office resumed the investigation in case no. 59263 and informed the applicants accordingly. 48. At some point the investigation was suspended. It was resumed on 30 September 2005 and again suspended on 30 October 2005. 49. On 23 July 2006 the district prosecutor’s office refused to institute a criminal investigation into the first applicant’s allegations that the armed men who had kidnapped her husband had sprayed an unknown fluid in her face for the reason that the first applicant had sustained no bodily injuries. 50. The district prosecutor’s office questioned a number of witnesses. Neither the witnesses nor the victims alleged that Viskhadzhi Magamadov and Khaskhan Mezhiyev had been beaten at the time of their abduction. 51. The Government submitted that the investigating authorities had sent a number of queries to various State bodies and had taken other unspecified investigative measures. 52. The investigation failed to establish the whereabouts of Viskhadzhi Magamadov and Khaskhan Mezhiyev. The investigating authorities sent requests for information to the competent State agencies and took other steps to have the crime resolved. The investigation found no evidence to support the involvement of servicemen of the military or law enforcement agencies in the crime. 53. On 15 May 2007 the district prosecutor’s office resumed the investigation in case no. 59263 and informed the applicants accordingly. 54. The Government further submitted that the progress in the investigation was being supervised by the Prosecutor General’s Office. According to the Government, the applicants had been duly informed of all decisions taken during the investigation. 55. Despite specific requests by the Court the Government did not disclose most of the contents of the investigation file in case no. 59263, providing only copies of decisions to suspend and resume the investigation and to grant victim status, as well as of several consequent notifications to the relatives. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings. 56. Article 125 of the Russian Code of Criminal Procedure 2002 (“the CCP”) provides that the decision of an investigator or prosecutor to dispense with or terminate criminal proceedings, and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a district court, which is empowered to examine the lawfulness and grounds of the impugned decisions. 57. Article 161 of the CCP establishes the rule that data from the preliminary investigation cannot be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of the participants in criminal proceedings without their permission. | 1 |
train | 001-71537 | ENG | GBR | ADMISSIBILITY | 2,005 | DONNAN v. THE UNITED KINGDOM | 4 | Inadmissible | Josep Casadevall;Nicolas Bratza | The applicant, Mr Barry Donnan, is a British national who was born on 29 May 1971 and lives in Kilwinning, Scotland In 1993 the applicant was discharged from the army with post traumatic stress disorder (“PTSD”). Thereafter, he was involved in a legal dispute with the Ministry of Defence. On 28 March 2002 and 4 April 2002 he took part in protests concerning PTSD in Edinburgh. The first protest passed without incident. However, during the second protest he was arrested. He alleged that he was not informed of the reason for his arrest at the time. The authorities, however, alleged that he was informed that he was being arrested for breach of the peace. According to a subsequent police complaint report there was an independent witness who confirmed the police’s account. In any case, he was taken to St Leonard’s Police Office, where his particulars were taken, he was fingerprinted, photographed and DNA samples were taken. After approximately forty minutes he was released from custody and a case alleging ‘Breach of the Peace’ was submitted to the Procurator Fiscal. The Procurator Fiscal subsequently decided to discontinue the case. In December 2002 the applicant was visited at his home by two officers from Strathclyde Police on an unrelated matter. During the visit the applicant had sight of a document he describes as his “criminal record”. On examining this document, he claims that he observed that the case relating to the incident in April in Edinburgh was recorded even though no court proceedings had ever taken place. Sections 6 and 8 of the Human Rights Act 1998 (“the 1998 Act”) provide (in so far as relevant): “(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right... (3) In this section "public authority" includes- (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament... 8. (1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. (2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings. (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and (b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made. (4) In determining- (a) whether to award damages, or (b) the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention... (6) In this section- "court" includes a tribunal; "damages" means damages for an unlawful act of a public authority; and "unlawful" means unlawful under section 6(1).” The English courts have relied on section 8 of the 1998 Act to make awards of damages (see R v Enfield London Borough Council ex p Bernard [2003] HRLR 4). | 0 |
train | 001-60606 | ENG | RUS | CHAMBER | 2,002 | CASE OF KALASHNIKOV v. RUSSIA | 1 | Violation of Art. 3;Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings | Nicolas Bratza | 11. The applicant was born in 1955 and lives in Moscow. At the material time he was the president of the North East Commercial Bank (Северо – Восточный Акционерный Банк). 12. On 8 February 1995 criminal proceedings were initiated against the applicant, the details of which are set out under sub-heading B below. On 29 June 1995 the applicant was taken into custody and, by a judgment of the Magadan City Court (Магаданский городской суд) of 3 August 1999, he was convicted of embezzlement and sentenced to a term of imprisonment. 13. From 29 June 1995 to 20 October 1999 the applicant was kept in the detention facility IZ-47/1 in the city of Magadan (Investigatory Isolation Ward No. 1 (СИЗО-1)). On 20 October 1999 he was sent to serve his sentence, following the City Court judgment of 3 August 1999, to the penitentiary establishment AV-261/3 in the village of Talaya. On 9 December 1999 he was transferred back to the detention facility in Magadan where he stayed until his release on 26 June 2000. 1) The applicant's submissions on the facts 14. As regards the first period of his detention in the Magadan detention facility, the applicant alleged that he had been kept in a cell measuring 17 square meters (“m²”) where there were 8 bunk beds. However, it nearly always held 24 inmates; only rarely did the number fall to 18. As there were three men to every bunk, the inmates slept taking turns. The others would lie or sit on the floor or cardboard boxes waiting for their turn. It was impossible to sleep properly as the television was on around the clock and, during the day, there was much commotion in the cell. The light in the cell was never turned off. 15. The lavatory pan in the corner of the cell offered no privacy. A partition separated it from a wash stand, but not from the living area and dining table. The lavatory pan was elevated from the floor by half a meter while the partition measured 1,1 meters in height. Therefore, the person using the toilet was in the view of both his cellmates and a prison guard observing the inmates through a peep-hole in the door. The inmates had to eat their meals in the cell at a dining table which was only a meter away from the toilet. The meals were of poor quality. 16. The cell, which had no ventilation, was stiflingly hot in summer and very cold in winter. Because of the poor quality of the air in the cell, a window had to remain open all the time. Being surrounded by heavy smokers, the applicant was forced to become a passive smoker. The applicant claims that he was never given proper bedding, dishes or kitchen utensils. He only received a quilted mattress and a thin flannel blanket from the administration, and had to borrow kitchenware from cell-mates who had received these items from relatives. 17. The cells of the detention facility were overrun with cockroaches and ants, but no attempt was made to exterminate them. The only sanitary precaution taken was that once a week the guards gave the inmates a litre of chloride disinfectant for the lavatory. 18. He contracted a variety of skin diseases and fungal infections, losing his toenails and some of his fingernails. During the trial from 11 November 1996 to 23 April 1997 and from 15 April 1999 to 3 August 1999, a recess was ordered so that he could be treated for scabies. On six occasions detainees, with tuberculosis and syphilis were placed in his cell and he received prophylactic antibiotic injections. 19. The applicant submitted that he could only take a walk outside his cell one hour per day and that usually he was only able to take a hot shower twice a month. 20. Finally, the applicant stated that, following his transfer back to the same facility on 9 December 1999, the detention conditions had not materially improved. He was not provided with proper bedding, towels or kitchenware. There was no treatment available for his skin disease due to a lack of proper medication. His cell was still overrun with cockroaches and there had been no anti-infestation treatment for 5 years. However, in March-April 2000 the number of inmates in his 8-bed cell was reduced to 11. 2) The Government's submissions on the facts 21. The Government claimed that the applicant's cell measured 20,8 m². The applicant had a separate sleeping berth, bedding, kitchen utensils and access to health care. The cell was designed for 8 inmates. In connection with the general overcrowding of the detention facility, each bed in the cells was used by 2 or 3 inmates. In the applicant's cell there were 11 or more inmates at any given time. Normally the number of inmates was 14. The beds were used in turn by several prisoners on the basis of eight hour shifts of sleep per prisoner. All inmates were provided with wadded mattresses, cotton blankets and sheets. 22. The applicant's cell was equipped with a sanitary unit, including a lavatory pan and a wash stand. The lavatory pan was situated in the corner of the cell and was separated from the dwelling place by a partition - 1,1 meters high - ensuring privacy. Such standards have been set by the “Directives on Planning and Constructing Pre-Trial Detention Facilities of the USSR Ministry of the Interior”, approved on 25 January 1971. The Government submitted photographs to the Court showing the applicant's cell, which the applicant claimed had been improved slightly since the beginning of his detention. The Government also provided a video recording of the facilities after the applicant's release and their major renovation. 23. The cell had windows providing fresh air and daylight. There was no possibility to equip the cell with a ventilation system. In hot weather a window of the cell door could be opened for better ventilation. Inmates also had the opportunity to have compact fans delivered to them by relatives. 24. There was a television in the cell which belonged to the applicant who could control when to switch it on or off. Programmes were only transmitted during part of the day in the region. 25. On 11 February 1998 an inmate in the applicant's cell was diagnosed with syphilis. The inmate was immediately removed to a separate cell and underwent a complete course of treatment for the disease. The other inmates, including the applicant, who had shared the cell with this person, were subjected to appropriate preventive treatment on 26 February 1998 and to serological control measures. This was done pursuant to the “Guidelines on Medical Care for Persons Held in Pre-Trial Detention Facilities and Correctional Labour Institutions of the USSR Ministry of the Interior”, approved on 17 November 1989. In January 1999 one of the blocks in the detention facility was closed for repairs and the detainees were transferred to vacant places in other cells. The detainees who were moved to the applicant's cell stayed there for a week and some of them were ill with tuberculosis. However, in the opinion of the medical personnel, the latter did not present a danger to other inmates as these persons were undergoing out-patient medical treatment. On 2 June 1999, an inmate who was observed to have residual tuberculosis was placed in the applicant's cell. The inmate underwent the relapse prevention treatment for a period of two months. As he did not suffer from tuberculosis in its open form, there was no danger of its transmission to other inmates. The applicant underwent repeated fluorographic examinations which showed no abnormality of his thorax. On 15 June 1999, an inmate who was undergoing treatment for syphilis was placed in the applicant's cell. Medical examinations performed subsequently showed negative results. Blood tests which were performed in this connection on the applicant also revealed negative results. 26. The applicant was systematically examined by the medical personnel and he received medical assistance from a dermatologist, therapeutist and stomatologist. When the applicant was diagnosed with different diseases (neurocirulatory dystonia, scabies and fungal infection) he received immediate medical care. There were recesses announced during the trial in order to provide medical treatment for the applicant. 27. The applicant could shower every 7 days and was permitted to walk outside his cell for up to 2 hours a day. 28. Finally, the Government submitted that, in order to prevent the appearance of infectious diseases, pre-trial detention facilities take prophylactic disinfection measures to secure the timely extermination of pathogenic micro-organisms, arthoropoda and rodents, pursuant to the above-mentioned ministerial guidelines of 1989. It was conceded, however, that the infestation of detention facilities with insects was a problem. 3) Medical records and an expert report 29. According to the applicant's medical records, he had scabies in December 1996, allergic dermatitis in July and August 1997, a fungal infection on his feet in June 1999, a fungal infection on his finger nail in August 1999, mycosis in September 1999 and a fungal infection on his feet, hands and groin in October 1999. The records also state that the applicant received treatment for these medical conditions. 30. A report by medical experts issued in July 1999 stated that the applicant was suffering from neurocirculatory dystonia, astheno-neurotic syndrome, chronic gastroduodenitis, a fungal infection on his feet, hands and groin and mycosis. 31. On 8 February 1995 the applicant became a suspect in the embezzlement of his bank's funds and was subjected to a preventive measure in the form of a ban on leaving a specified place. The criminal case was assigned the number 48529. 32. On 17 February 1995 he was formally charged with misappropriating 2,050,000 shares of another company. 33. On 29 June 1995, by an order of the investigator, which was approved by the prosecutor, the applicant was arrested and placed in detention on remand on the ground that he had obstructed the establishment of the truth in the criminal proceedings. In particular, it was stated in the order, with references to concrete instances, that the applicant had refused to turn over certain bank documents necessary for the investigation, he had brought pressure to bear on witnesses and had tampered with documents. The order also referred to the seriousness of the offence with which the applicant was charged. The applicant's detention was subsequently extended by the competent prosecutor on unspecified dates. 34. On 4 July 1995, 31 August 1995 and 26 September 1995, the applicant's defence lawyer filed applications for release from custody with the Magadan City Court, which rejected them on 14 July 1995, 9 September 1995 and 4 November 1995, respectively. 35. The applicant contends that from August 1995 until November 1995 no investigative activity took place as the two investigators in charge of the case were on holiday, and the person to whom the case was temporarily assigned undertook no action. 36. On 14 December 1995 the applicant was charged with 8 additional counts relating to the embezzlement of his bank's funds. 37. On 6 February 1996 the preliminary investigation of the charges against the applicant was terminated and the case was sent to the Magadan City Court. 38. On 1 March 1996 the applicant filed with the City Court a request for his release from custody, which was refused on 27 March 1996. 39. On the same day the City Court decided to remit the case to the Magadan Regional Prosecutor for further investigation. The latter filed an appeal against the decision with the Magadan Regional Court (Магаданский областной суд) which, on 29 April 1996, rejected it. 40. Following an additional investigation as of 15 May 1996, the Regional Prosecutor remitted the case to the City Court on 19 June 1996. 41. In the meantime, on 16 May 1996, the applicant filed an application for release from custody with the City Court in which he stated that he was being held in poor conditions and that his health had deteriorated. His application for release was refused on 26 May 1996. On 23 June 1996 the applicant filed another request for release. 42. On 11 November 1996 the City Court began its examination of the applicant's case. On the same day it rejected his request for release filed on 23 June 1996. 43. At the hearing on 27 December 1996 the applicant asked the City Court to release him from custody on medical grounds. He stated that there were 21 inmates in his cell with just 8 beds; there was no ventilation in the cell where everybody smoked; the television was constantly blaring and he had contracted scabies. Upon receiving a medical certificate confirming the existence of the disease, the City Court adjourned the hearing until 14 January 1997. It refused to release the applicant from custody on the grounds of the seriousness of the offence with which he was charged and the danger of his obstructing the establishment of the truth while at liberty. 44. The examination of the applicant's case by the City Court lasted until 23 April 1997. On 7 May 1997 the case was adjourned due to the removal from office of the presiding judge for improper conduct unrelated to the applicant's case. 45. On 15 June 1997 the applicant filed another request for release, referring to the poor conditions in which he was being detained. 46. In July 1997 the applicant's case was assigned to another judge who scheduled a hearing for 8 August 1997. On that day the hearing was postponed because the defence lawyer could not attend for health reasons. The applicant's request for release was rejected on the grounds of the seriousness of the offence with which he was charged and the danger of his obstructing the establishment of the truth in the criminal case. The applicant's further request for release from custody filed on 21 September 1997 was refused on 21 October 1997. 47. On 22 October 1997 the applicant complained to the Magadan Regional Court about his case, asking for its transfer from the City Court to the Regional Court. He also submitted a complaint to the Supreme Court of Russia (Верховный Суд Российской Федерации) which forwarded it to the Magadan Regional Court for examination. By letters of 31 October 1997 and 25 November 1997, the Regional Court informed the applicant that there was no reason for it to assume jurisdiction and suggested he turn to the City Court with any questions relating to his case. It also requested the City Court to take measures for the examination of the applicant's case. 48. On 21 November 1997 he made complaints to different authorities, in particular the Office of the President of the Russian Federation, the Magadan City Court, the High Qualification Board of Judges (Высшая квалификационная коллегия судей Российской Федерации) – a body dealing with questions of professional competence – and the Prosecutor General. In his complaints, he submitted, inter alia, that he was being held in appalling conditions without any decision on the substance of the charges, that he had contracted various skin diseases, that his toenails had fallen off and that he was suffering from a heart condition. 49. By letter of 5 February 1998, the president of the Magadan City Court informed the applicant that the court would resume its consideration of his case before 1 July 1998, referring to its complexity and the heavy workload of the judges. 50. On 11 February 1998 the Magadan Regional Court forwarded to the City Court 11 complaints made by the applicant, which it had received from the Prosecutor General, the Supreme Court and other authorities. 51. On 23 February 1998 the applicant commenced a hunger strike with a view to drawing the attention of the authorities to his lengthy detention and the absence of court hearings, which he continued until 17 March 1998. 52. On 1 March 1998 the applicant complained about his case to the Office of the President of Russia and to a parliamentary committee of the State Duma, requesting their assistance in the transfer of his case to the Magadan Regional Court. 53. On 3 March 1998 the Department of Justice of the Magadan Region, in response to the applicant's complaint addressed to the Ministry of Justice of Russia, stated that the court would be able to deal with his case in the second half of 1998. 54. Meanwhile, the applicant lodged a request with the Constitutional Court (Конституционный Суд Российской Федерации) to review the constitutionality of the provisions of Articles 223-1 and 239 of the Code of Criminal Procedure concerning time-limits for the start of trials. By letter of 10 March 1998, the Constitutional Court informed the applicant that, since the impugned provisions did not lay down any time-limits with regard to the length of detention while a case is being considered by the courts, his request could not be considered. 55. The applicant also complained to the High Qualification Board of Judges about the delay in the consideration of his case which, by letter of 30 March 1998, asked the Magadan Regional Court to investigate the matter. 56. On 2 April 1998 the applicant filed a complaint with the Supreme Court about the delay in setting the date for his trial, in which he also referred to his poor conditions of detention. A copy of his complaint was sent to other authorities. All his complaints were forwarded by the addressee institutions to the Magadan City Court for examination. 57. On 13 April 1998 the Magadan Regional Court informed the applicant that the City Court had been requested to take measures for the consideration of his case. It also stated that the case was to be tried by the City Court and that the Regional Court could only act as a court of cassation. 58. On 25 May 1998 the applicant filed a petition with the City Court asking for his case to be transferred to the Regional Court for trial. By decision of the president of the Regional Court of 28 May 1998, the applicant's case was transferred to the Khasynskiy District Court (Хасынский районный суд) in order to expedite the proceedings. 59. On 11 June 1998 the applicant complained about the delay in starting court hearings to the High Qualification Board of Judges. 60. On 16 June 1998 the applicant filed a request for release from custody with the Khasynskiy District Court in which he stated that his health had deteriorated as a result of the overcrowding and the poor conditions in his cell in the detention facility. On the same day, he sent an application to the Khasynskiy District Court asking it to transfer his case to the Magadan Regional Court. He submitted that the transfer of his case to the Khasynskiy District Court was unlawful and that its distance from the city of Magadan would hamper an objective and fair examination of his case. 61. On 1 July 1998 the applicant complained to the Regional Court that the Khasynskiy District Court had not yet set a hearing date and asked it to speed up the proceedings. 62. On 3 July 1998 the case was remitted to the Magadan City Court as the applicant had expressed his disagreement with its transfer to the Khasynskiy District Court. 63. On 8 July 1998 the applicant received a letter from the Regional Court informing him that there were no grounds for it to act as a court of first instance or to assume jurisdiction in the case. The next day the applicant requested the City Court to release him, referring to the poor conditions of detention. 64. On 31 July 1998 the applicant complained to the High Qualification Board of Judges about the prolonged failure of the City Court to examine his case. On 19 August 1998 his complaint was transmitted to the Magadan Regional Court with a request to provide information both on the complaint and on the work of the City Court. On 27 August 1998 the Regional Court forwarded the applicant's complaint to the City Court. The applicant also submitted a complaint to the Magadan Regional Court about the delay in starting the trial hearings, which on 11 August 1998 transmitted the complaint to the City Court. 65. On 7 September 1998 the applicant filed another complaint with the High Qualification Board of Judges stating that all his previous complaints had been sent by the Magadan Regional Court to the City Court without any measures being taken. On 23 September 1998 the applicant's complaint was forwarded to the Magadan Regional Court with a reminder about the request for information on the reasons for the prolonged delay in examining the applicant's case. On 7 September 1998 the applicant also submitted a complaint about the delay in the proceedings to the Supreme Court. On 5 October 1998 the applicant submitted further complaints to the Regional and High Qualification Boards of Judges. 66. On 13 November 1998 the City Court set the hearing date for 28 January 1999. 67. On 25 November 1998 the applicant complained to the High Qualification Board of Judges about the actions of the President of the Magadan City Court, apparently requesting the institution of criminal proceedings against him. On 22 December 1998 the complaint was forwarded for examination to the president of the Magadan Regional Court with a request to submit a report to the competent Qualification Board in case the applicant's allegations proved substantiated. On 16 December 1998 the Magadan Regional Court forwarded another complaint by the applicant to the City Court. 68. On 18 January 1999 the applicant submitted to the City Court a request for release from custody. 69. On 28 January 1999 the Magadan City Court decided to send the applicant's case back to the prosecutor for further investigation due to the violation of procedural norms by the investigative authorities. These violations consisted of an incomplete presentation of the case materials to the accused at the end of the preliminary investigation, as well as an imprecise recording of file documents. The court refused the applicant's request for release having regard to the gravity of the charges against him and the danger of his obstructing the establisment of the truth while at liberty. The applicant lodged an appeal against the refusal with the Magadan Regional Court which, on 15 March 1999, dismissed it. The Regional Court however revoked the decision to send the case back to the investigative authorities as unfounded and ordered the City Court to proceed with the trial. In a separate decision, issued on the same day, it considered the lengthy delay unjustifiable in view of the fact that the case was not particularly complex, and requested the City Court to inform it within one month of the measures taken. 70. On 17 March 1999 the applicant submitted to the City Court another request for release from custody. On the same day he complained to the High Qualification Board of Judges about his lengthy detention without a court judgment. Five days later, the applicant submitted a similar complaint to the Regional Qualification Board of Judges. On 5 April 1999 the applicant filed another complaint with the High Qualification Board of Judges about the prolonged delay in the proceedings. 71. On 15 April 1999 the City Court resumed its examination of the applicant's case. At the hearing on 20 April 1999 the prosecutor requested that, in view of the length of the applicant's detention, a psychiatric evaluation of the applicant be carried out in order to determine the state of his mental health. The City Court granted this request and adjourned the hearing until 30 April 1999. 72. At the hearing on 30 April 1999 the applicant unsuccessfully applied for release from custody. He submitted that he was suffering from a lack of sleep. In his cell there were 18 inmates who had to sleep in shifts. He further argued that he could not obstruct the establishment of the truth in his case as all the investigative measures had already been taken. The prosecutor participating in the hearing asked the City Court to request the administration of the detention facility in which the applicant was being held to provide the applicant with conditions allowing normal sleep and rest during the court hearings. The prosecutor further stated that he would submit a similar request to the prosecutor in charge of supervising detention facilities. The applicant submits that subsequently the competent prosecutor came to his cell, acknowledged that the conditions were poor, but stated that the situation in other cells in the detention facility was no better and that there was no money to improve the conditions. 73. At the hearing on 8 June 1999 the applicant requested his release. He stated that in his cell, where there were 18 inmates, he could not prepare himself adequately to testify before the trial court. He further submitted that he had contracted scabies twice and that his bed sheets were not changed. The applicant's request was rejected. 74. At the hearing on 16 June 1999 the applicant filed another request for release, referring to the conditions of his detention. He submitted that he had a fungal infection and that his body was covered with sores caused by bites from bugs infesting his bed. He was sharing his bed with two other inmates. Inmates could shower once every two weeks. The atmosphere in the cell was stifling as everybody smoked. He was feeling unwell and suffering from a heart condition. His weight had dropped from 96 kg to 67 kg. He further submitted that he could not obstruct the examination of his case if released. The City Court decided not to examine the request because it was apparently made outside the context of the hearing. 75. On 22 June 1999 the High Qualification Board of Judges removed the president of the Magadan City Court from office, as well as the president of the Regional Court and his two deputies, due to the delay in examining the applicant's case. 76. At the hearing before the City Court on 23 June 1999, the applicant stated that he was feeling unwell and that he could not participate. The court ordered a medical examination of the applicant by a commission of experts in order to determine whether his state of health allowed him to take part in the proceedings and whether he should be hospitalised. In their conclusions issued on an unspecified date in July 1999, the experts found that the applicant was suffering from a number of medical conditions (see paragraph 30 above). They considered that the treatment of these conditions did not require hospitalisation and that the applicant could remain in the detention facility. They also considered that the applicant's state of health allowed him to attend the court hearings and to give testimony. 77. At the hearing on 15 July 1999, the applicant requested the trial court to release him from custody. He stated that the court had nearly concluded the examination of the evidence and that he could not obstruct the establishment of the truth. His request was refused. 78. In another ruling issued on the same day, the City Court noted that, in the period from 15 April until 15 July 1999, it had examined more than 30 applications submitted by the applicant, including repetitive applications on previously rejected motions. It noted that the applicant had stated that he would testify only if his applications were granted and considered that such a position amounted to a deliberate attempt to delay the proceedings. 79. The City Court heard 9 of the 29 witnesses who were to be summoned before it. The testimonies of 12 absent witnesses, which had been given during the pre-trial investigation, were read out in open court. 80. By a judgment of 3 August 1999, the City Court found the applicant guilty on one count and acquitted him on two of the counts contained in the indictment, which had preferred 9 separate charges. It sentenced him to 5 years and 6 months' imprisonment in a correctional colony with a general regime, his term running from 29 June 1995. The City Court considered that the preliminary investigation had been of poor quality and that the investigators had unjustifiably attempted to increase the number of counts in the indictment. It also found an infringement of procedural norms consisting, inter alia, of shortcomings in the presentation in due form of the relevant documents to the court. These shortcomings had had to be corrected at the trial, which had caused a delay. The court noted that, in the course of the investigation, there had been a lack of proper procedural supervision by those in charge of the investigation and the prosecutor's office of the Magadan Region. In a separate ruling on the same day, the City Court decided to send part of the indictment back to the prosecutor for an additional investigation. The applicant appealed against the ruling to the Supreme Court, which on 30 September 1999 found the decision lawful. 81. The City Court judgment of 3 August 1999 was open to appeal to the Regional Court within 7 days of its pronouncement. The applicant did not file an appeal in cassation as he considered that the Regional Court had contributed to his conviction and thus that an appeal had no prospects of success. On 11 August 1999 the judgment of the City Court entered into force. 82. On 11 August 1999 the applicant submitted to the director of the detention facility where he was being held a request to transfer him to the logistical services team in the same facility to serve his sentence. 83. On 25 October 1999 the applicant lodged an extraordinary appeal with the President of the Supreme Court of Russia for a review of the City Court judgment. On 11 November 1999 the appeal was dismissed. On 30 November 1999 the applicant filed another extraordinary appeal with the Supreme Court, which rejected it on 9 June 2000. 84. On 24 September 1999, in the continuing criminal proceedings, the preventive custody measure was replaced by a ban on leaving a specified place. However, he remained in custody, serving his original sentence. 85. On 29 September 1999 the proceedings concerning the remainder of the charges were terminated on the ground that the acts committed by the applicant did not constitute a criminal offence. On 30 September 1999, however, a new charge relating to the misappropriation of property in his capacity as the bank's president was brought against the applicant. 86. On 19 October 1999, upon completion of the preliminary investigation, the competent prosecutor approved the bill of indictment and sent the case to the Magadan City Court for trial. The bill of indictment bore the original case no. 48529 and stated that the proceedings in that case had been initiated on 8 February 1995. The applicant's trial started on 20 December 1999. By a judgment of 31 March 2000 the City Court acquitted the applicant of the new charge. 87. On 26 June 2000 the applicant was released from prison following an amnesty declared on 26 May 2000. “Until criminal-procedural legislation of the Russian Federation has been brought into line with the provisions of this Constitution, the previous procedure for the arrest, detention and keeping in custody of persons suspected of committing a crime shall apply.” “No one may be arrested otherwise than on the basis of a judicial decision or a prosecutor's order.” “When there are sufficient grounds for believing that an accused person may evade an inquiry, preliminary investigation or trial or will obstruct the establishment of the truth in a criminal case or will engage in criminal activity, as well as in order to secure the execution of a sentence, the person conducting the inquiry, the investigator, the prosecutor and the court may apply one of the following preventive measures in respect of the accused: a written undertaking not to leave a specified place, a personal guarantee or a guarantee by a public organisation, or placement in custody.” Article 92 : Order and decision on the application of a preventive measure “On the application of a preventive measure a person conducting an inquiry, an investigator and a prosecutor shall make a reasoned order, and a court shall give a reasoned decision specifying the criminal offence which the individual concerned is suspected of having committed, as well as the grounds for choosing the preventive measure applied. The order or decision shall be notified to the person concerned, to whom at the same time the procedure for appealing against the application of the preventive measure shall be explained. A copy of the order or decision on the application of the preventive measure shall be immediately handed to the person concerned.” “Placement in custody as a preventive measure shall be done in accordance with the requirements of Article 11 of this Code concerning criminal offences for which the law prescribes a penalty in the form of deprivation of freedom for a period of more than one year. In exceptional cases, this preventive measure may be applied in criminal matters for which a penalty in the form of deprivation of freedom for a period of less than one year is prescribed by law.” “A period of detention during the investigation of offences in criminal cases may not last longer than two months. This time-limit may be extended by up to three months by a district or municipal prosecutor ... if it is impossible to complete the investigation and there are no grounds for altering the preventive measure. A further extension of up to six months from the day of placement in custody may be effected only in cases of special complexity by a prosecutor of a constituent part of the Russian Federation ... An extension of the time-limit for such detention beyond six months shall be permissible in exceptional cases and solely in respect of persons accused of committing serious or very serious criminal offences. Such an extension shall be effected by a deputy of the Prosecutor General of the Russian Federation (up to one year) and by the Prosecutor General of the Russian Federation (up to 18 months). No further extension of the time-limit shall be permissible, and the accused held in custody shall be releasable immediately. The documents of a completed investigation in a criminal case shall be produced for consultation by the accused and his defence counsel not later than one month before the expiry of the maximum time-limit for remand in custody, as prescribed in the second paragraph of the present Article. In the event of the accused being unable to consult the case documents before the expiry of the maximum time-limit for remand in custody, the Prosecutor General of the Russian Federation, [or] a prosecutor of a constituent part of the Russian Federation ... may, not later than five days before the expiry of the maximum time-limit for remand in custody, apply to the judge of the “oblast”, “krai” or comparable court for an extension of this time-limit. Not later than five days from the day of receipt of the application, the judge must take one of the following decisions: 1. to extend the time-limit for remand in custody until the accused and his counsel have consulted the case documents and the case has been referred to the trial court by the prosecutor but, anyway, for not more than six months; 2. to reject the prosecutor's application and to release the person concerned from custody. Under the same procedure, the time-limit for remand in custody may be extended, if necessary, to accede to a request by the accused or his counsel to pursue the preliminary investigation further. An extension of the time-limit for remand in custody in accordance with the present Article is subject to appeal to a court and to judicial review of its legality and justification under the procedure provided for in Articles 220¹ and 220² of the present Code.” Article 101: Cancellation or modification of a preventive measure The cancellation or modification, by the person conducting the inquiry or by the investigator, of a preventive measure chosen on the prosecutor's instructions shall be permissible only with the prosecutor's approval.” “If the accused is kept in custody, the question of setting a date for a court hearing must be decided no later than 14 days from the seizure of the court.” “The examination of a case before the court must start no later than 14 days from the fixing of a hearing date.” According to Article 21 of this Law, applications and complaints of suspects and accused persons to State agencies, bodies of local self-government and non-governmental organisations are sent through the administration of the detention facility. Applications and complaints addressed to a public prosecutor, a court or other State agencies supervising detention facilities for suspects and accused persons are not subject to censorship and will be forwarded to the addressee in a sealed envelope no later than the next working day. 91. The instrument of ratification of the Convention deposited by the Russian Federation on 5 May 1998 contains the following reservation: “In accordance with Article 64 of the Convention, the Russian Federation declares that the provisions of Article 5 paragraphs 3 and 4 shall not prevent ... the temporary application, sanctioned by the second paragraph of point 6 of Section Two of the 1993 Constitution of the Russian Federation, of the procedure for the arrest, holding in custody and detention of persons suspected of having committed a criminal offence, established by Article 11 paragraph 1, Article 89 paragraph 1, Articles 90, 92, 96, 961, 96-2, 97, 101 and 122 of the RSFSR Code of Criminal Procedure of 27 October 1960, with subsequent amendments and additions.” | 1 |
train | 001-105779 | ENG | SVK | ADMISSIBILITY | 2,011 | MIHAL v. SLOVAKIA | 3 | Inadmissible | Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria | 1. The applicant, Mr Karol Mihal, is a Slovak national who was born in 1954 and lives in Malá Ida. He was represented before the Court by Ms I. Rajtáková, a lawyer practising in Košice. 2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant is a judicial enforcement officer (súdny exekútor). In this capacity, he acted on behalf of a number of creditors, with a view to enforcing their claims. The relevant details concerning the enforcement proceedings in question are set out in the Appendix to this decision. 4. In all instances the commencement of the enforcement proceedings was authorised by judicial decisions and the enforcement proceedings were eventually discontinued on the grounds specified below. 5. At the same time, for various reasons that are also specified below, the courts ruled that the applicant was wholly or partly not entitled to remuneration (odmena), refund of costs (náhrada hotových výdavkov) and compensation for lost time (náhrada za stratu času). 6. In the enforcement proceedings referred to under numbers 1 to 9 in the Appendix, the applicant acted on behalf of two individuals, the Social Security Administration (Sociálna poisťovňa) and other corporate creditors for the enforcement of their claims against corporate debtors and two individuals. 7. All of these enforcement proceedings were discontinued on the ground that, without legal successors, the corporate debtors had been struck out of the Commercial Register (Obchodný register), whereby they legally ceased to exist, and the individual debtors had died. 8. In the context of these enforcement proceedings, the applicant requested that, in the circumstances, his compensation be paid by the creditors. In particular, the applicant claimed remuneration in amounts ranging from some 24 to 1,060 euros (EUR), plus VAT, and a refund of his costs ranging from some EUR 3 to 55, in the total net amount of some EUR 700. 9. When dealing with the applicant’s claims, the courts applied Article 203 of the Judicial Enforcement Code (Law no. 233/1995 Coll., as in force until 31 January 2002) (see paragraph 38 in “Relevant domestic law and practice” below), pursuant to which it was at the courts’ discretion to order a creditor to pay the enforcement costs in the event of a discontinuation of the enforcement proceedings, taking into account whether the creditor could have envisaged the discontinuation of the proceedings. 10. In all of the proceedings in issue the courts dismissed the applicant’s claims, finding that the creditors could not have envisaged the discontinuation of the proceedings. Furthermore, it was noted by the Constitutional Court in some of those proceedings that the applicant’s status as a judicial enforcement officer placed him in a privileged position as regards the power to enforce adjudicated claims and that this privilege outweighed expenses such as those he had incurred in the present case(s). 11. In the enforcement proceedings referred to under numbers 10 to 13 in the Appendix, the applicant acted on behalf of corporate creditors enforcing their claims against corporate debtors. 12. All of these enforcement proceedings were discontinued on the ground that both the creditors and the debtors had been struck out of the Commercial Register without a legal successor. 13. In the context of these enforcement proceedings, the applicant requested that his compensation be paid by the State. In particular, the applicant claimed remuneration in amounts ranging from some EUR 40 to 230, plus VAT, and a refund of his costs ranging from some EUR 3 to 90. In the proceedings referred to under number 10 in the Appendix, the applicant also claimed some EUR 25 by way of compensation for the time spent travelling in connection with the enforcement. In total, the applicant made some EUR 475 worth of net claim. 14. The courts dismissed the applicant’s claims, finding that, as the parties no longer existed, they could not be ordered to pay the applicant’s costs. At the same time, there was no legislative basis for the applicant’s costs to be born by the State. 15. In the enforcement proceedings referred to under numbers 14 and 15 in the Appendix, the applicant acted on behalf of corporate creditors, enforcing their claims against a corporate debtor and an individual debtor. 16. These enforcement proceedings were discontinued on the ground that the corporate debtor had been struck out of the Commercial Register and the individual debtor had died, without legal successors. 17. In the circumstances, the applicant requested that his remuneration be paid by the creditors. As to its amount, the applicant applied a statutory hourly fee for each hour spent on the individual enforcement steps that he had taken, including the hours commenced but not completed. 18. The courts allowed the applicant’s claims as to the substance. However, as to the scope, the courts calculated the actual time spent on all the enforcement steps together, and applied the hourly rate to that total. 19. In the enforcement proceedings referred to under number 15 of the Appendix, the calculation method referred to in the precedent paragraph was applied by the Košice Regional Court on 31 January 2008 when, following an appeal by the creditor, it overturned the firstinstance decision of the Spišská Nová Ves District Court that had relied on the calculation method advocated by the applicant. 20. In the decision of 31 January 2008, the Regional Court relied, inter alia, on a previous judgment of the Supreme Court (Najvyšší súd)) dated 28 May 2007 (see paragraph 50 in “Relevant domestic law and practice” below). 21. The applicant challenged the decision of 31 January 2008 by way of a complaint under Article 127 of the Constitution arguing, among other things, that that decision was contrary to an even earlier decision of the Supreme Court of 28 April 2006 (see paragraph 49 in “Relevant domestic law and practice” below). 22. On 5 November 2008 the Constitutional Court declared the complaint inadmissible as manifestly ill-founded. It held that it was neither a court of appeal nor a court responsible for harmonising case-law of the ordinary courts, the latter task falling within the remit of the Supreme Court. The Constitutional Court also found that the interpretation of the relevant law by the Regional Court was one possible interpretation and that it was not vitiated by any unfairness, irregularity or constitutionally relevant arbitrariness. 23. In the enforcement proceedings referred to under number 16 of the Appendix, the applicant acted on behalf of an individual, enforcing his claim against a corporate debtor. The enforcement proceedings were discontinued on the ground that the debtor did not even have sufficient assets to cover the costs of the enforcement proceedings. 24. In the circumstances, the applicant claimed that his costs be covered by the creditor. In particular, the applicant claimed remuneration in the amount of some EUR 70, plus VAT, and a refund of his costs in the amount of some EUR 9. 25. Ordinary courts at two levels of jurisdiction examined the applicant’s claim under the law as applicable at that time (see paragraphs 9 above and 38 below) and concluded that the creditor could not have envisaged that the debtor would become destitute. There was therefore no basis for ordering him to cover the applicant’s costs and neither was there any legal basis for the applicant’s costs to be born by the State. Therefore, in the circumstances, the order for costs was made against the defendant. 26. Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) provides: “1. The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash such decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order such authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation. 3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to the person whose rights under paragraph 1 have been violated.” 27. According to the established case-law of the Constitutional Court, neither Article 127 nor any other provision of the Constitution provides a basis for individuals to challenge legislation for being incompatible with the Constitution or international instruments, including the Convention (see, for example, decision of 7 November 2007, file no. IV. ÚS 287/07). 28. The statutory basis for enforcement of adjudicated claims is laid down in Articles 251 et seq. of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended – “CCP”). 29. Until 31 August 2005, if a judgment debtor failed to comply with his or her adjudicated obligation, the creditor had two essentially equipollent options of seeking enforcement, by a court under the CCP and by a judicial enforcement officer under the Judicial Enforcement Code. 30. With effect from 1 September 2005 Article 251 and other related provisions of the CCP were amended by Law no. 341/2005 Coll. in that, apart from some exceptions that are not relevant to the present case, enforcement of adjudicated claims is to take place under the Judicial Enforcement Code. 31. The status of judicial enforcement officers and the procedures for enforcement by judicial enforcement officers are governed by the Judicial Enforcement Code (Law no. 233/1995 Coll., as amended). 32. Under Article 10 § 1, in order to be appointed a judicial enforcement officer, an individual has to have (a) unrestricted legal capacity to act, (b) obtained a law degree, (c) a faultless criminal record, (d) completed at least three years of enforcement training, (e) passed a professional exam. 33. Judicial enforcement officers are appointed by the Minister of Justice (“the Minister”) (Article 11 § 1) upon their own request and further to recommendation of the Slovak Chamber of Judicial Enforcement Officers (Slovenská komora exekútorov – “the Chamber”) (Article 11 § 2). 34. Under Article 13, upon appointment, a judicial enforcement officer makes the following solemn declaration in front of the Minister: “I promise on my conscience and civic honour that I shall follow the Constitution of the Slovak Republic and other Acts of Parliament, as well as other generally binding statues and I shall apply them as a judicial enforcement officer according to my best knowledge and conscience, in carrying out enforcements I shall proceed independently, impartially and fairly and I shall respect confidentiality in respect of all facts that I learn in connection with carrying out activities under the Judicial Enforcement Code”. 35. Under Article 57 § 1 (g), the enforcement court is to discontinue enforcement proceedings if it has declared the enforcement improper (neprípustná) on other grounds for which it cannot be carried out. 36. In respect of enforcement carried out under the Code, the judicial enforcement officer is entitled to remuneration, a refund of costs and compensation for lost time. Should the judicial enforcement officer be liable to pay value-added tax, the compensation should be increased by the amount of that tax (Article 196). 37. The expenses listed in Article 196 are to be born by the debtor (Article 197 § 1). The judicial enforcement officer can, however, request the creditor to make an appropriate advance payment for remuneration and costs (Article 197 § 2). As a general rule, should the creditor fail to make the advance payment within the time-limit specified by the enforcement officer, on the latter’s request the enforcement court may discontinue the proceedings (Article 31 § 1). 38. Under Article 203, as in force until 31 January 2002, in the event of discontinuation of enforcement proceedings, the court could order that the costs of the enforcement be paid by the creditor. In resolving that matter, the court was to take into account which costs had been necessary for ensuring efficient enforcement as well as whether the creditor could have envisaged the ground for the discontinuation, if exercising due diligence. 39. On 1 February 2002 an amendment (Law no. 32/2002 Coll.) entered into force, pursuant to which, if the creditor causes the discontinuation of the enforcement proceedings, the court can order him or her to cover the necessary costs of the enforcement (amended Article 203 § 1). 40. The amended Article 203 § 1 implies a possibility, not a duty, for the court to make an order for costs against the creditor. Such an order presupposes an analysis of procedural responsibility (zavinenie) for the discontinuation. The provision confers discretion on the part of the court based on an assessment of the actions of the creditor and the degree and seriousness of the creditor’s responsibility should it be established (a decision by the Constitutional Court of 23 March 2005 in a case no. I. ÚS 48/05). 41. Should the enforcement be discontinued on the ground that the debtor does not have sufficient property to cover the costs of the enforcement, such costs are to be born by the creditor (amended Article 203 § 2). 42. In a decision of 5 November 2008, in an unrelated but similar case brought by the applicant under no. I. ÚS 377/08, the Constitutional Court held that the mere fact that both the creditor and the debtor had ceased legally to exist and that they could accordingly no longer be ordered to pay the enforcement costs could not have the consequence of the costs being born by the State. This was so because in none of its provisions did the Judicial Enforcement Code provide for a possibility or statutory modalities from which one could infer a transfer of the duty to pay the enforcement costs to the State. 43. Articles 219 et seq. govern the disciplinary liability of judicial enforcement officers. This liability pertains to disciplinary offences (disciplinárne previnenie) and serious disciplinary offences (závažné disciplinárne previnenie). 44. The former consists of culpable breach of duties in the course of carrying out a judicial enforcement officer’s activities, breach of the solemn declaration, acting in a way which compromises the dignity of the officer’s role and carrying on an activity that is incompatible with the role of a judicial enforcement officer despite a previous request not to do so (Article 220 § 1). 45. An action envisaged in Article 220 § 2 becomes a serious disciplinary offence if its harmfulness is increased on account of the nature of the breached duty, the manner in which it has been breached, the degree of culpability, repetition of the breach or other aggravating circumstances. 46. Pursuant to Article 221, disciplinary offences are punishable by reprimand (paragraph 1 (a)), written reprimand (paragraphs 1 (b) and 2 (a), a fine of up to EUR 3,310 (paragraphs 1 (c) and 2 (b)) and stripping of office (paragraph 2 (c)). 47. Details concerning compensation of judicial enforcement officers are laid down in Decree of the Ministry of Justice no. 288/1995 Coll., as amended, on Remuneration and Compensation of Judicial Enforcement Officers. 48. In the event of discontinuation of enforcement proceedings, the remuneration of the judicial enforcement officer for carrying out the enforcement was to be determined on the basis of the number of hours purposefully spent on the enforcement. The basic rate was SKK 200 per each commenced hour (section 14(1)(a) and (2), as in force at the relevant time). 49. In a judgment of 28 April 2006, following an extraordinary appeal on points of law (mimoriadne dovolanie) by the Prosecutor General in an unrelated case, no. 2MCdo 16/2005, the Supreme Court held that the remuneration under section 14(1)(a) and (2) of the Decree should be calculated on the basis of the enforcement steps taken and the time spent on such individual steps, including any hour commenced. The adding up of the exact time spent on individual enforcement steps, taken together, was contrary to the applicable rules. A similar interpretation was adopted by the Košice Regional Court in decisions of 23 and 30 March 2007 on the applicant’s appeals in unrelated cases nos. 2CoE 113/2006 and 5CoE 74/2006. 50. In a judgment of 28 May 2007, following an extraordinary appeal on points of law by the Prosecutor General in an unrelated case, no. 1MCdo 7/2006, the Supreme Court held that the remuneration of a judicial enforcement officer under section 14(1)(a) and (2) of the Decree should be calculated on the basis of the real time spent on the enforcement steps taken, added up. This interpretation was upheld by the Supreme Court in a decision of 4 March 2009 on an extraordinary appeal on points of law by the Prosecutor General in an unrelated case no. 5MCdo 6/2008. | 0 |
train | 001-61900 | ENG | AND | CHAMBER | 2,004 | CASE OF PLA AND PUNCERNAU v. ANDORRA | 1 | Preliminary objection rejected (ratione materiae);Violation of Art. 14+8;Not necessary to examine Art. 8;Just satisfaction reserved | Nicolas Bratza | 10. The first applicant, Mr Antoni Pla Puncernau, who was born in 1966, is the adopted son of the second applicant, Mrs Roser Puncernau Pedro. The second applicant was the first applicant’s supervisor, as Mr Pla Puncernau is mentally handicapped. They both lived in Andorra. She died when the proceedings were still pending before the Court. 11. In 1949 Mrs Carolina Pujol Oller, the widow of Francesc Pla Guash, died leaving three children: Francesc-Xavier, Carolina and Sara. She had made a will before a notary in 1939. Under the seventh clause of her will, she settled her estate on her son, Francesc-Xavier, as tenant for life. Should he be unable to inherit, the estate was to pass to his sister, Carolina, and if she was also unable to inherit, it was to pass to Sara’s son, Josep Antoni Serra Pla. 12. The testatrix indicated that Francesc-Xavier, the beneficiary and life tenant under her will, was to transfer the estate to a son or grandson of a lawful and canonical marriage. To that effect she had inserted the following clause in her will: “The future heir to the estate must leave it to a son or grandson of a lawful and canonical marriage ...” (“El qui arribi a ésser hereu haurà forçosament de transmetre l’herència a un fill o net de legítim i canònic matrimoni ...)”. Should those conditions not be met, the testatrix had stipulated that the children and grandchildren of the remaindermen under the settlement would be entitled to her estate. 13. The beneficiary under the will, Francesc-Xavier, contracted canonical marriage to the second applicant, Roser Puncernau Pedro. By deed drawn up on 11 November 1969 before a notary in La Coruña (Spain), they adopted a child, Antoni, in accordance with the procedure for full adoption. They subsequently adopted a second child. 14. In 1995 Francesc-Xavier Pla Pujol made a will in which he left 300,506 euros (EUR) to his son, Antoni (the first applicant), and EUR 180,303 to his daughter. He named his wife, Roser (the second applicant), sole heir to the remainder of his estate. In a codicil of 3 July 1995, Francesc-Xavier Pla Pujol left the assets he had inherited under his mother’s will to his wife for life and to his adopted son, Antoni, as remainderman. The assets in question consisted of real estate. On 12 November 1996 Francesc-Xavier Pla Pujol died. The codicil was opened on 27 November 1996. 15. Accordingly, the only potential heirs to the estate under the will are the applicants, Antoni Pla Puncernau and his mother, and two sisters, Carolina and Immaculada Serra Areny, who are the great-grandchildren of the testatrix. 16. On 17 July 1997 Carolina and Immaculada Serra Areny brought proceedings in the Tribunal des Batlles of Andorra to have the codicil of 3 July 1995 declared null and void and seeking an order requiring the applicants, as defendants in the proceedings, to return to the plaintiffs all the assets of the estate of Carolina Pujol Oller, their great-grandmother, and to pay them damages for unlawful possession of the assets. 17. In a judgment delivered on 14 October 1999, after hearing submissions from both sides, the Civil Division of the Tribunal des Batlles of Andorra dismissed the action for the following reasons: “ ... III. Both parties agree that it is the contents of the will that determine the testatrix’s intention at the time of making it, so that the will has to be interpreted in accordance with that intention, which is to be inferred from the words used in the will (Digest 50, 16, 219). Since 1941 it has been apparent from the case-law of the Andorran courts (judgment of the Judge of Appeals dated 3 February 1941) that ‘on both a partially intestate and a testate succession it is principally the testator’s intention that must be taken into account, as can be inferred from many provisions of Roman and canon law ...’ IV. In her will dated 12 October 1939, the testatrix stipulated that ... ‘The future heir to the estate must leave it to a son or grandson of a lawful and canonical marriage ...’ [‘El qui arribi a ésser hereu haurà forçosament de transmetre l’herència a un fill o net de legítim i canònic matrimoni ...’]. In doing so, the will in question set up a family settlement si sine liberis decesserit. An analysis of this type of settlement shows that the purpose is to secure and preserve the estate by keeping it in the settlor’s family. V. In interpreting the contents of the will in question, account has to be taken, as has previously been stated, of the testatrix’s intention in the light of the words used and the actual nature of the society in which she lived. When the will was made, the Constitution had not been enacted and there was no ordinary statute or other relevant analogous provisions. Consequently, for the purposes of interpreting the wording in the will reference has to be made to customary law, the ius commune, deriving from the influence of Roman law as amended by canon law, and to the relevant case-law of the Andorran courts ... Foreign legislation, case-law and legal theory cannot apply in the present case. The Corpus Iuris provided for the institution of adoption and included in the word ‘child’, children born out of wedlock and adopted children ... by providing for two forms of adoption: one undertaken under the authority of a princep and the other before a judge. The procedure followed in the first case was to ask the adoptive parent if he sought to take the adopted child as his legitimate child and to ask the adopted child if he consented. It was also stipulated that ‘a consanguineous relationship is not instituted by deed but by birth or solemn adoption’ (Diocletian and Maximianus, Codi 4, 19, 13). Furthermore, ‘the father-child bond is not created by mere declarations or false assertions, even if both parties consent, but only by lawful marriage or solemn adoption’ (Diocletian and Maximianus, Codi 4, 19, 14) ... Consequently, according to the Roman concept of adoption, the adopted child leaves his family of origin and terminates all legal connection with it. On doing so he becomes the son of the adoptive parent’s family and, as such, takes the family name and above all acquires inheritance rights. This institution has essentially been used for inheritance purposes. Subsequently, two forms of adoption became available: full adoption and simple adoption [menys plena], the sole purpose of the latter being to safeguard the adopted child’s rights over the adoptive parent’s estate. Full adoption is based on the idea that adoption must replace or imitate biological filiation. ... VI. ... If account is taken of the fact that adoption is a legal institution whose purpose is to enable childless couples to have children ... At that time adoption therefore already satisfied a need, with the adopted child being regarded as a legitimate child. That approach was subsequently confirmed by the Constitution and by statute. It cannot therefore be said that, by inserting that clause, the testatrix intended to prevent adopted or non-biological children from inheriting her estate. If that had been her intention, she would have made express provision for it. Accordingly, the codicil made by the late heir, Francesc-Xavier Pla Pujol, is compatible with the deceased Carolina Pujol Oller’s will and cannot be declared null ...” 18. The Serra Areny sisters appealed to the High Court of Justice of Andorra. In a judgment delivered on 18 May 2000, after hearing submissions from both sides, the High Court set the lower court’s judgment aside. It allowed the appeal, set aside the codicil of 3 July 1995, declared that the appellants were the legitimate heirs to their great-grandmother’s estate and ordered the applicants to return the property in question. The grounds for the court’s judgment were as follows: “II. ... Accordingly, the fundamental question to be resolved in the instant case is whether a child who has been adopted in accordance with the procedure for full adoption can be regarded as a child of a lawful and canonical marriage, as required by the testatrix ... III. This question has to be resolved in accordance with the legal rules on the relationship of adopted children to their adoptive parents that were in force in 1939 and 1949, that is, between the time when Mrs Carolina Pujol i Oller made her will and the date of her death. A will becomes a legal deed from the date on which it is made in accordance with the statutory formalities. Accordingly, in interpreting the testamentary dispositions, regard must be had in the instant case to the legal position of adopted children in the social and family conditions existing in 1939 when the will was made and possibly in 1949 when the testatrix died ... Legal commentators with first-hand experience of Andorran life stress that adoption is practically unheard of in Andorra (Brutails: ‘Andorran customs’, p. 122). That assertion is borne out by all the Andorran case-law reports, in which there is no reference to adoption. This silence on the subject is perfectly understandable, moreover, given that the provisions of Roman law on adoption could not easily be transposed to Andorran families living in the first half of the twentieth century for the following reasons: since the nineteenth century it could be regarded as an institution that had become obsolete and, to a certain extent, unnecessary given that the main purpose – to appoint a successor or heir – had been achieved in the Principality of Andorra through the institution of heretament (agreement, specific to Catalan law, on the succession of a living person), introduced by customary law. In that social and family context, it is difficult to sustain the proposition that, in setting up a family settlement in case her heir should die without leaving offspring of a lawful and canonical marriage, the testatrix was also referring to adopted children, given that, at the time, adoption was not an established institution in the Principality of Andorra. The fact that in the instant case the adoptive parents were married to each other does not make their adopted child a legitimate child or a child born of the marriage. The distinction according to whether a child was born in or out of wedlock is relevant only to illegitimate children ... with regard to adopted children, the distinction according to whether a child was born in or out of wedlock does not apply. Accordingly, a child adopted by a couple is an adopted child and not a legitimate child or a child of the marriage. Furthermore, the notarially recorded deed of adoption was drawn up in Spain in accordance with the Spanish procedure for full adoption ... The Law of 24 April 1958, amending the Civil Code, is applicable to the conditions and general effects of full adoption. Under that Law, the act of adopting a child gave him or her the status of the adoptive father/mother’s child, but did not give the child family status with regard to the adoptive parents’ family. Under Article 174-VII of the Spanish Civil Code, adoption created a filial tie between the adoptive parent, the adopted child and his or her legitimate descendants, but not with the adoptive parent’s family. Moreover, the inheritance rights were also limited in the present case: the deed of adoption referred to the relevant 1960 Catalan legislation, that is, a compilation of 1960 Catalan civil law. Article 248 provided that on an intestate succession adopted children were entitled to inherit only from their adoptive father or mother and not from the rest of their adoptive parents’ family. That rule reflected the idea that adoption created only a filial status and not a family status. IV. Accordingly, from a legal standpoint, the adopted children of persons on whom an estate was settled by their father or mother were unconnected with the family circle with regard to the beneficiary’s ascendants. That approach can largely be explained by the minimal impact of adoption on the social and family consciousness in Andorra, both at the time when the will was made and when the testatrix died. The testatrix’s presumed intention has to be established in the light of the circumstances existing at the time of her death. The adopted children of her legitimate son or of the marriage were unconnected with the family circle both from a legal and a sociological point of view. The purpose of a family settlement si sine liberis decesserit under Catalan law is to keep the family estate in the legitimate or married family and Catalan legal tradition has always favoured the exclusion of adopted children from such family settlements ... Thus, in order for adopted children to inherit under this type of settlement, there must be no doubt as to the testatrix’s intention to depart from the usual nature of this institution. In the instant case, the expression ‘offspring of a lawful and canonical marriage’, which appears in the 1939 will, does not suffice to infer that the testatrix intended to depart from the usual meaning given to family settlements si sine liberis decesserit under the Catalan and Andorran law of succession. V. It is apparent from the foregoing that, although the law in force when the child was actually adopted allowed adopted children to inherit from their adoptive parents on an intestate succession (code 8, 48, 10), those rights cannot extend to a testate succession, where the main factor is the testator’s intention. Accordingly, any doubt as to the scope of the expression ‘offspring of a lawful and canonical marriage’ falls away when the testatrix’s intention is analysed in the light of the social, family and legal conditions in which she lived. In the present case, nothing militates in favour of including the life tenant’s adopted children, given the minimal impact of adoption on Andorran family and inheritance law, the adopted child’s status as the adoptive parents’ child (son) but not as a member of the parents’ family, the purpose traditionally ascribed to family settlements under Catalan law, and Catalan and Andorran legal tradition.” 19. The applicants lodged an application with the High Court of Justice to have the proceedings set aside. They submitted that the latter had breached the principle of equality before the law enshrined in Article 6 of the Andorran Constitution and that they had breached Article 10 (right to judicial protection and to a fair trial) of the Andorran Constitution. In a decision of 28 June 2000, the High Court of Justice dismissed their application as ill-founded. 20. The applicants lodged an empara appeal with the Constitutional Court against the decisions of the High Court of Justice. They alleged a violation of Article 13 § 3 (principle of children’s equality before the law regardless of filiation) and Article 10 (right to judicial protection and a fair trial) of the Andorran Constitution. In a decision of 13 October 2000, the Constitutional Court declared their appeal inadmissible for the following reasons: “... It seems clear that the judgment of the High Court of Justice is limited to clarifying and determining, that is, interpreting, a specific point concerning the testatrix’s intention, as expressed in her will in the form of a family settlement in favour of a child or grandson of a lawful and canonical marriage. The High Court of Justice does not at any point suggest that there is general discrimination against, or inequality between, children according to whether they are biological or adopted. Such an assertion would evidently amount to a flagrant breach of Article 13 § 3 of the Constitution and would also be contrary to the prevailing legal opinion according to which legal systems must always be interpreted, which is that all children are equal, irrespective of their origin. However, as submitted in substance by State Counsel, ‘discrimination against adopted children as compared to biological children does not in the instant case derive from an act of the public authorities, that is, from the judgment of the Civil Division of the High Court of Justice, but from the intention of the testatrix or settlor regarding who should inherit under her will’ in accordance with the principle of freedom to make testamentary dispositions, which is a concrete manifestation of the general principle of civil liberty. In its judgment, the High Court of Justice confined itself to interpreting a testamentary disposition. It did so from the legal standpoint it considered adequate and in accordance with its unfettered discretion, seeing that the interpretation of legal instruments is a question of fact which, as such, falls under the jurisdiction of the ordinary courts. ...” 21. The applicants lodged an appeal (recurso de súplica) with the Constitutional Court, which dismissed it on 17 November 2000. 22. Articles 6, 13 and 14 of the Andorran Constitution of 14 March 1993 provide: “1. Everyone is equal before the law. No one may be discriminated against on grounds of birth, race, sex, origin, religion, opinions or any other personal or social condition. 2. The public authorities shall create the conditions necessary to give full effect to the principles of equality and freedom.” “1. The civil status of persons and forms of marriage shall be regulated by law. Canonical marriages are recognised as having civil effects. ... 3. Both spouses have the same rights and duties. All children are equal before the law, regardless of their filiation.” “Everyone has the right to respect for their privacy, honour and image. Everyone is entitled to legal protection from unlawful interference with their private and family life.” 23. Section 24 of the Special Law (qualificada) of 21 March 1996 on the adoption and protection of minors in distress provides: “... Adopted children have the same rights and obligations within the adoptive family as legitimate children.” | 1 |
train | 001-81910 | ENG | RUS | CHAMBER | 2,007 | CASE OF CHEPELEV v. RUSSIA | 3 | No violation of Art. 8;No violation of P7-5 | Christos Rozakis | 6. The applicant was born in 1972 and lives in Uglich, Yaroslav Region. 7. On 22 December 1993 the applicant's wife gave birth to a daughter A. 8. In October 1995 the applicant moved from the City of Murmansk to Uglich in the Yaroslav Region to live with his parents. 9. In May 1996 the applicant's wife, still residing in Murmansk, began living together with another man, S.A., and in September 1996 brought divorce proceedings against the applicant. 10. On 12 November 1996 the competent court dissolved the marriage and awarded custody of their daughter to the mother. 11. On 21 February 1997 the applicant's former wife married S.A. On 14 December 1998 they had a child together. 12. At the end of 1998 or in the beginning of 1999 S.A. instituted proceedings before the Lenin District Court of the City of Murmansk (Ленинский районный суд г. Мурманска) seeking adoption of A. The court invited the applicant to join the proceedings as a third party and to submit his views on the matter. 13. In his reply to the adoption request, filed on 8 January 1999, the applicant stated that he was strongly opposed to the adoption. The child already had a father whom she knew. On three occasions he had sent money to support her and telegrams for holidays. Due to the distance of Uglich from Murmansk, as well as financial problems, he could not travel often to Murmansk to visit his daughter. After he had left Murmansk, he had seen her in January 1996. Furthermore, his former wife and mother-in-law had expressed their displeasure at his contacts with his daughter. 14. By a judgment of 9 March 1999 the District Court allowed S.A.'s application. The court observed: “[S.A.] has lodged with the court an adoption request. In the reasons for his request, he stated that the underage child [A.], born on 22 December 1993, is living in Murmansk ... [S.A.] has been married to the child's mother, [O.A.] since 21 February 1997. They have one child from that marriage – a daughter ... who was born on 14 December 1998. The child's father, [the applicant], has not lived with the child since September 1995. He lives in Uglich, in the Yaroslavl region. Since that time he has not participated in the child's upbringing or provided financial support. Since February 1997 the child's upbringing and financial support have been provided by [S.A.]. The child considers him her father, and is not aware of any other father. [S.A.] requested authorisation to adopt the girl, who was to be assigned the first name [A.] and the patronymic [S.], and to be registered as her father. He is aware of the consequences of adoption and the requirements made of an adoptive father. At the court hearing, [S.A] spoke in support of his requests. He asked for authorisation to adopt [the child] without her father's consent, inasmuch as, without good reason, the latter was not providing for her upbringing or financial support. Throughout the entire period in issue, her father had sent a few telegrams with greetings, and in December 1997 he had sent 1,000 roubles, which he borrowed from his wife while travelling to Uglich. [S.A.] considers that adoption would be in the child's interests. [O.A.] supported the adoption request. She explained that [the applicant] has not brought up the child since September 1995, and had left for his parents' home when the child was not yet two years old. He had left her with the child in Murmansk. He had not, and did not, provide financial support. He had sent 1,000 roubles, which he had borrowed when visiting Murmansk in 1996. She had not prevented [the applicant] from meeting the child or being involved in her upbringing. The child knew the applicant as her real father, and a father-child relationship had developed between them. She considers that adoption would be in the child's interest. A third party, the Leninsky Education Department, also supported the [adoption] request. It considers that adoption would be in the child's interest.” 15. The court held: “Having heard the parties and witness statements, examined the written evidence in the case and heard the opinion of the prosecutor, who proposed that the application be granted, the court finds the application to be lawful and deserving of being granted. Under Article 124 of the Family Code, adoption is allowed in respect of minors and only if it is in their best interest, taking account of the possibilities for securing their full physical, mental, spiritual and moral development. Under Article 130 of the Family Code, parental consent for adoption is not required where, for reasons deemed inadequate by the court, the parents have not been living together with the child for more than six months and have failed to take care of and support him or her. In the course of the judicial investigation, it was established that [A.] was born to [O.A.] and [the applicant] on 22 December 1993. At that time the parents were married to each other. In September 1995 [the applicant] decided to move his permanent residence to his parents' home in Uglich, Yaroslavl region. He did not take his wife and child with him. [O.A.] remained alone with the child in Murmansk. In September 1996 she applied to the court for a divorce. On 12 November 1996 the marriage was dissolved. The mother did not apply for maintenance payments for the child. From May 1996 [O.A. and S.A.] lived together as though married. Since that time, [S.A.] has in effect been responsible for the child's upbringing and has also supported her financially. The child calls him father, and considers him to be her father; she does not know her real father. On 21 February 1997 [O.A. and S.A.] married. [They] subsequently changed the child's surname to [A.] so that the entire family would have the same surname. November 1997: [the applicant] did not agree to changing the child's surname; a statement from him to this effect is held in her personal file at the Education Department. [O.A. and S.A.] have a child from their marriage - a daughter ..., who was born on 14 December 1998. The report on the child's living conditions states that the ... family lives in a comfortable three-roomed flat, and that all conditions have been met for the child's upbringing. She has a separate bedroom. She calls [S.A.] father. [S.A.] is described positively, and is healthy and responsible; he has not been deprived of his parental rights. The description of [S.A.] ascribes him positive personal qualities. There are no contra-indications to adoption of the child on the basis of his health. He has not previously been deprived of his parental rights. He is aware of the child's state of health. The salary report makes it clear that the applicant earns 1,700-2,000 roubles per month. From the statements of [O.A. and S.A.] it is clear that the family is financially provided for. The court has not established circumstances that would prevent the child's adoption by [S.A.] under Articles 127 and 128 of the Family Code. In November 1998 the Education Department sent [the applicant] a letter, informing him that the question of his child's adoption was being decided. [The applicant] did not submit a reply to that letter. [The applicant] was invited by the court to join the case as a third party. He was ordered to submit an opinion on the [adoption] request. [The applicant] expressed his disagreement with the child's adoption, on the ground that she had a father. He had provided financial assistance to the child insofar as he was able and had sent telegrams for holidays and festivals. He had seen the child in January 1996. He could not see her more frequently since he lived in Uglich. In the course of the judicial investigation, witnesses who were acquainted with the Chepelev family were questioned. Witnesses [L.] and [K.] explained that in September 1995 [the applicant] suddenly moved to his parents' home in Uglich. He did not take his wife and child with him. He left her with the child. She was obliged to work in order to support herself and the child. He did not provide financial assistance. Since 1996 [S.A.] in effect supported the child and brought her up. [The applicant] had not been in Murmansk since 1995. The child called [S.A.] father. She and [S.A.] had developed a father-daughter relationship. [The applicant] submitted receipts for money payments: December 1997 - 1,000,000 roubles; December 1998 - 250 roubles; 8 May, unknown year - 2,000 roubles. [O.A.] denies that 2,000 roubles were received. Receipts for the sending of holiday and festive telegrams were also submitted. In addition, in January 1996, [the applicant], having come to Murmansk on business, met the child; [O.A.] does not dispute this. [The applicant] did not participate in any other way in the child's life. [The applicant] was not prevented from communicating with his child. [The applicant's] arguments to the effect that [O.A.] and her mother had prevented him communicating with the child have not been confirmed. [O.A.'s] mother lives outside the Murmansk region. Having analysed the evidence set out above, the court concludes that [the applicant] failed to participate in his daughter's upbringing for more than six months and without good reason. In the court's opinion, 3,250 roubles as maintenance payments for a period of more than three years was insufficient for the child's upkeep. Equally, financial assistance for the child was not in itself enough. It was essential that the child's father communicated with the girl, brought her up, taught her something and took responsibility for her physical, spiritual and moral development. This was the main purpose of the parent's role. [The applicant] has not fulfilled his responsibilities with regard to the child's upbringing. [The applicant's] responsibilities have been assumed by [S.A.]. At present the child does not know her biological father. She considers [S.A.] to be her father. In the court's opinion, even although he lived outside the [Murmansk] region, [the applicant] had an opportunity to contribute to the child's upbringing in some way: he could have taken the child for the summer, or simply to stay with her for a while, or he could have sent various presents, etc. If the child's mother had prevented him communicating with the child, he would have been entitled to protect his parental rights. However, [the applicant] did not attempt to take part in the child's upbringing. In such circumstances, the court is obliged to conclude that [the applicant], without good reason, failed to participate in the child's upbringing for more than six months, and that therefore the adoption may be authorised without his agreement. With regard to the [adoption] request, it is appropriate to grant it, in that adoption of the child would be in her best interest, bearing in mind that [S.A.] is able and willing to secure the girl's upbringing and development in full.” 16. In the operative part of the judgment the court ordered: “- to agree to the adoption by [S.A.] of the underage child [A.], with conferment of the patronymic [S.] and to register the adopter as the father of the adopted child; - to leave the child's surname, first name and date and place of birth without change; - to maintain the mother's judicial relationship with the child. ...” 17. The applicant appealed against the District Court's judgment. The Murmansk Regional Court (Мурманский областной суд) dismissed the appeal and upheld the lower court's judgment on 19 May 1999. The Regional Court held: “[The applicant] appealed against the [district court's] judgment, requesting that it be set aside and that the matter be sent for a fresh examination. He referred to the court's violation of the standards of substantive law, and alleged that the court had not believed his arguments and had not taken them into consideration. Having listened to [S.A.], who asked that the [district] court's judgment be left unchanged, the prosecutor's conclusions, proposing that the appeal be dismissed, and having re-examined the evidence in the case and weighed up the appeal arguments, the bench finds the [district] court's judgment to be lawful and well-founded. The [district] court correctly identified the circumstances having legal significance and, on the basis of the established facts, reached the correct conclusion about the parties' mutual relations. In authorising the requests ..., the court correctly applied Article 124 of the Family Code (“children whose adoption is authorised”) and acted in the underage child's best interests. Convincing reasons are cited in the judgment in confirmation of the conclusions that [S.A.] is able to guarantee the child the conditions necessary for her full physical, psychological and spiritual development. The bench considers legally unfounded the appellant's arguments regarding the application to his daughter of the adoption procedure set out in the Family Code, which concerns children who have been left without parental care, as [A.] did not fall into that category of children. The appellant's arguments are based on an incorrect interpretation of the law. In accordance with Article 130 of the Family Code, the [district] court also examined the reasons why the appellant “does not live jointly with the child and has neglected her upbringing and maintenance for more than six months”, and found them to be inadequate. The reasons for the [district] court's conclusions are provided and confirmed by the evidence. The court evaluated the latter in accordance with the requirements of Article 56 of the Code of Civil Procedure. [The applicant] did not submit persuasive evidence to the first-instance court in support of his objections to the request. In addition, the statements made to the appeal court by [V.] and [the applicant] do not meet the requirements laid down for evidence in civil proceedings. Having failed to find grounds in the appeal arguments that would enable it to set aside the [district] court's judgment, and pursuant to Article 305 of the Code of Civil Procedure, the bench decides: to leave unchanged the judgment of the Leninsky District Court, Murmansk, dated 9 March 1999, and to dismiss the appeal submitted by [the applicant].” 18. On 22 March 2000 a judge of the Supreme Court rejected the applicant's request for leave to file an extraordinary appeal. 19. According to Article 124(2) of the Family Code, adoption is allowed in respect of minors and only if it is in the best interest of the child, taking account of the possibilities to secure the child's full physical, mental, spiritual and moral development. 20. Article 130 of the Family Code provides that parental consent for adoption is not necessary if, for reasons deemed inadequate by the court, the parents have not been living together with the child for more than six months and have failed to take care of and support him or her. | 0 |
train | 001-57963 | ENG | AUT | CHAMBER | 1,995 | CASE OF PRAMSTALLER v. AUSTRIA | 2 | Violation of Art. 6-1 (access);Not necessary to examine Art. 6-1 (publicly);Damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | John Freeland | 8. Mr Johann Pramstaller lives at Debant, near Lienz. 9. On 17 March 1987 Nußdorf-Debant municipal council granted Mr Pramstaller planning permission for the construction of new commercial premises, subject to various detailed conditions: two groceries should be built, each with appropriate commercial and sanitary amenities and separate entrances; and a dividing wall was to be erected between the two shops. At a later stage the applicant informed the council that he was envisaging opening a supermarket on the premises, whereupon the council drew his attention to the specifications in the planning permission, which allowed only for two different smaller shops to be built, with separate entrances and divided by a party wall. They further warned the applicant that failure to comply with these specifications would result in the works being immediately halted. 10. On 23 July 1987 the council ordered the applicant to suspend the works. An inspection of the site had shown that, contrary to the terms of the planning permission, only one larger shop was being built instead of the two smaller ones. The applicant had thus disregarded several conditions of the planning permission. 11. On 10 November 1987 the Lienz district authority (Bezirkshauptmannschaft) served a "sentence order" (Straferkenntnis) on the applicant pursuant to sections 53(1)(a) and 53(2) of the Tyrol Building Regulations Act (Tiroler Bauordnung - see paragraph 15 below). According to the order, it had been established that the applicant had not only failed to erect the party wall as well as certain amenities, but had also opened an additional entrance, considerably enlarged the premises, built an additional wall and created one large shop instead of the two smaller ones originally planned. In so doing, the applicant had carried out works without planning permission. Mr Pramstaller was ordered to pay a fine of 50,000 Austrian schillings (ATS) with fifty days' imprisonment in default of payment, plus costs. An appeal by him to the Tyrol regional government (Amt der Landesregierung) was dismissed on 22 March 1988 on the ground, among others, that the works carried out by the applicant not only failed to comply with the permission granted but were in part illegal. 12. Mr Pramstaller then applied to the Constitutional Court (Verfassungsgerichtshof), alleging, inter alia, a violation of Article 6 (art. 6) of the Convention in that he had not been able to bring his case, or have an oral hearing held, before a tribunal which conformed with that provision (art. 6). On 16 September 1988 the Constitutional Court declined to accept the case for adjudication under Article 144 para. 2 of the Federal Constitution (Bundes- Verfassungsgesetz - see paragraph 18 below) as raising questions concerning the application of ordinary law (einfaches Gesetz); in so far as the complaint did raise issues of constitutional law, the Constitutional Court found that the application did not have sufficient prospects of success. 13. The applicant then requested to have his case transferred to the Administrative Court (Verwaltungsgerichtshof), with which grounds of appeal against the administrative authorities' decision were subsequently lodged. 14. On 14 September 1989 the applicant's appeal was dismissed by the Administrative Court pursuant to section 42(1) of the Administrative Court Act (Verwaltungsgerichtshofsgesetz - see paragraph 22 below). With regard to the complaints concerning Article 6 (art. 6) of the Convention, the court pointed out that the Administrative Criminal Justice Act (Verwaltungsstrafgesetz) did not confer a general right to a hearing before the administrative authorities. Only in special circumstances was a hearing to be held. The Administrative Court then dealt with the remaining complaints as follows: "The applicant further submitted that the impugned decision dealt only with the obligation, noted in the decision at first instance, to obtain permission not to erect the dividing wall, and not with the obligation to obtain permission for the other - in his view minimal - failures to comply with the plan. But as, he maintained, the question whether these other failures to comply with the plan might lead to the applicant's being punished was of importance if the failure to erect the wall was not punishable, the reasoning was inadequate. This submission is inaccurate, because the respondent authority did in fact, as it was entitled to do, take it for granted that planning permission was necessary for all the measures mentioned in the original decision. The major building works undertaken by the applicant were, as the file shows, not covered by permission from the planning authorities. There was also clearly a consistent intention to go ahead and build in disregard of the planning regulations. The applicant further overlooks that, quite apart from the principle that planning permission was necessary for such a building project, permission could never have been given for a shopping centre such as was built in the instant case, having regard to the provision in section 16(b) of the Tyrol Town and Country Planning Act, which was declared constitutional by the Constitutional Court in a decision (B 816/86) of 2 March 1988. During the planning-application proceedings Mr Pramstaller acted as the applicant for planning permission and as the owner of the land and the building on it. The [Z.] firm put itself forward as the future user of the building. The applicant never disputed during the administrative criminal proceedings that he was the person for whom the building was being constructed and that he was thus liable in administrative criminal law. His submission that the dividing wall was not built not on his orders but on those of the [Z.] firm that was using the commercial premises can therefore not exonerate him as he bore the responsibility for accepting and carrying out the orders of the future occupier. The suggestion set out for the first time in the statement of facts in the supplementary application that the building was being constructed for another firm is a new submission that is inadmissible in administrative proceedings by virtue of section 41(1) of the Administrative Court Act. It was further submitted that the suspension of the building works that had been ordered had made it impossible to erect the dividing wall, although this could have been done without substantial expenditure even after the building work had stopped, so that there had been no negligence. This submission likewise cannot assist the applicant. As the evidence and the applicant's submission clearly show, there had been no intention to build the dividing wall even before building work was suspended; on the contrary, the applicant deliberately refrained from doing so in order to secure a review of section 16(b) of the Tyrol Town and Country Planning Act by the Constitutional Court. Furthermore, at the time when the building works were suspended, there were other important failures to comply with the planning permission for which approval would have been needed (see in the statement of facts the details of the findings made by the authority on 6 July 1987 during an inspection of the works). The subsequent suspension of building work is accordingly of no legal significance in the present context. The respondent authority also rightly noted that the very fact of the repeatedly expressed intention not to erect the dividing wall and to maintain the building in issue in a state that did not comply with the planning permission and for which no approval had been given showed that there had been culpable intent. Similarly, as the respondent authority rightly recognised, the theoretical possibility that the Constitutional Court might declare section 16(b) of the Tyrol Town and Country Planning Act unconstitutional cannot be prayed in aid as a mitigating circumstance. Contrary to the applicant's submissions, this purpose could have been achieved other than through failing to comply with the planning permission by not erecting the dividing wall and carrying out unauthorised works. It was open to the applicant at the outset to make an application for planning permission to build large-scale commercial premises, a shopping centre, and in this way challenge section 16(b) of the Tyrol Town and Country Planning Act in the Constitutional Court. The submission on this point therefore fails. As to the submission that, contrary to what was stated in the impugned decision, the authority (municipal council) had agreed to the dividing wall not being built after a report had been made by a fire-safety expert, the applicant is referred to the evidence given by the chairman of the municipal council and to the note for the file made by him on the day of the meeting, from which it is quite clear that there was disagreement between the participants over the question whether authorisation was needed not to build the dividing wall and that the applicant was expressly warned by the municipal council that under section 31 of the Tyrol Building Regulations Act read together with section 16(b) of the Tyrol Town and Country Planning Act, a building scheme that was altered in this way could not be authorised. The applicant is mistaken in suggesting that the statement made by the legal representative of the [Z.] firm, who was also present at the meeting, constitutes a ground for excluding his guilt. From the observations filed by counsel for the applicant on the evidence given by the chairman of the municipal council it appears that the whole question of suspending the building works and the issue of the constitutionality of section 16(b) of the Tyrol Town and Country Planning Act were discussed and the possibility of challenging that provision in the Constitutional Court envisaged. The municipal council was allegedly made aware of this 'outcome of the negotiations'. The applicant himself, however, states in his application that there was disagreement among those taking part in the discussions as to the question of the need for authorisation not to build the dividing wall, with the municipal council assuming that such authorisation was necessary whereas the representative of the [Z.] firm assumed it was sufficient merely to report the fact. The applicant thus himself admits that, contrary to later statements in the application and in the observations on the evidence given by the chairman of the municipal council, no agreement was reached between the municipal council and the applicant, so that the assumption that there was a ground here for excluding the applicant's guilt is invalid on this ground alone. Nor can the Administrative Court find that the respondent authority committed any significant procedural irregularities in this respect in the reasons given for the impugned decision. The submission on this point is accordingly unfounded. The respondent authority dealt at length and accurately with the grounds for the assessment of punishment and with the assessment of punishment in general, so that it cannot be criticised in this respect either. ..." 15. Section 53(1)(a) of the Tyrol Building Regulations Act (Tiroler Landesbauordnung) 1978 provides: "It shall be an administrative offence (Verwaltungsübertretung) (a) to carry out without planning permission a building project that requires planning permission ..." Section 53(2) provides: "The administrative offences set out in paragraph 1 shall be punishable with a fine not exceeding ATS 100,000 or with imprisonment for up to three months ..." 16. Section 25 of the same Act provides: "The authorities' permission is required in the following cases: (a) new building, extensions and conversions; and (b) alterations to buildings or parts of buildings in so far as they affect the building's structural soundness, its safety in the event of fire, its plumbing or its external aspect ..." 17. Article 90 para. 1 of the Federal Constitution (Bundes-Verfassungsgesetz) provides: "Hearings by trial courts in civil and criminal cases shall be oral and public. Exceptions may be prescribed by law." 18. By Article 144 para. 1 of the Federal Constitution, the Constitutional Court, when an application (Beschwerde) is made to it, has to determine whether an administrative decision (Bescheid) has infringed a right guaranteed by the Constitution or has applied regulations (Verordnung) contrary to the law, a law contrary to the Constitution or an international treaty incompatible with Austrian law. Article 144 para. 2 provides: "Up to the time of the hearing the Constitutional Court may by means of a decision (Beschluß) decline to accept a case for adjudication if it does not have sufficient prospects of success or if it cannot be expected that the judgment will clarify an issue of constitutional law. The court may not decline to accept for adjudication a case excluded from the jurisdiction of the Administrative Court by Article 133." 19. By Article 130 para. 1 of the Federal Constitution, the Administrative Court has jurisdiction to hear, inter alia, applications alleging that an administrative decision is unlawful. 20. Section 39(1) of the Administrative Court Act provides that at the end of the preliminary proceedings (Vorverfahren) the Administrative Court must hold a hearing where the applicant makes a request to that effect. Section 39(2) reads as follows: "Notwithstanding a party's application under subsection (1), the Administrative Court may decide not to hold a hearing where 1. the proceedings must be stayed (section 33) or the application dismissed (section 34); 2. the impugned decision must be quashed as unlawful because the respondent authority lacked jurisdiction (section 42(2)(2)); 3. the impugned decision must be quashed as unlawful on account of a breach of procedural rules (section 42(2)(3)); 4. the impugned decision must be quashed because its content is unlawful according to the established case-law of the Administrative Court; 5. neither the respondent authority nor any other party before the court has filed pleadings in reply and the impugned decision is to be quashed; 6. it is apparent to the court from the pleadings of the parties to the proceedings before it and from the files relating to the earlier administrative proceedings that a hearing is not likely to clarify the case further." Sub-paragraphs 1 to 3 of section 39(2) were in force in 1958; sub-paragraphs 4 and 5 were inserted in 1964 and sub-paragraph 6 in 1982. 21. Section 41(1) of the Administrative Court Act provides: "In so far as the Administrative Court does not find any unlawfulness deriving from the respondent authority's lack of jurisdiction or from breaches of procedural rules (section 42(2)(2) and (3)) ..., it must examine the impugned decision on the basis of the facts found by the respondent authority and with reference to the complaints put forward ... If it considers that reasons which have not yet been notified to one of the parties might be decisive for ruling on [one of these complaints] ..., it must hear the parties on this point and adjourn the proceedings if necessary." 22. Section 42(1) of the same Act states that, save as otherwise provided, the Administrative Court must either dismiss an application as ill-founded or quash the impugned decision. By section 42(2): "The Administrative Court shall quash the impugned decision if it is unlawful 1. by reason of its content, [or] 2. because the respondent authority lacked jurisdiction, [or] 3. on account of a breach of procedural rules, in that (a) the respondent authority has made findings of fact which are, in an important respect, contradicted by the case file, or (b) the facts require further investigation on an important point, or (c) procedural rules have been disregarded, compliance with which could have led to a different decision by the respondent authority." 23. If the Administrative Court quashes the impugned decision, "the administrative authorities [are] under a duty ... to take immediate steps, using the legal means available to them, to bring about in the specific case the legal situation which corresponds to the Administrative Court's view of the law (Rechtsanschauung)" (section 63(1)). 24. In a judgment of 14 October 1987 (G 181/86) the Constitutional Court held: "From the fact that it has been necessary to extend the reservation in respect of Article 5 (art. 5) of the Convention to cover the procedural safeguards of Article 6 (art. 6) of the Convention, because of the connection between those two provisions (art. 5, art. 6), it follows that, conversely, the limited review (die (bloß) nachprüfende Kontrolle) carried out by the Administrative Court or the Constitutional Court is insufficient in respect of criminal penalties within the meaning of the Convention that are not covered by the reservation." 25. Pursuant to Article 129 of the Federal Constitution, administrative courts called "independent administrative tribunals" (Unabhängige Verwaltungssenate) were set up in the Länder with effect from 1 January 1991. The functions of these tribunals include determining both the factual and the legal issues arising in cases concerning administrative offences (Verwaltungsübertretungen). 26. The instrument of ratification of the Convention deposited by the Austrian Government on 3 September 1958 contains, inter alia, a reservation worded as follows: "The provisions of Article 5 (art. 5) of the Convention shall be so applied that there shall be no interference with the measures for the deprivation of liberty prescribed in the laws on administrative procedure, BGBl [Federal Official Gazette] No. 172/1950, subject to review by the Administrative Court or the Constitutional Court as provided for in the Austrian Federal Constitution." | 1 |
train | 001-5595 | ENG | HRV | ADMISSIBILITY | 2,000 | LAZAREVIC v. CROATIA | 4 | Inadmissible | Georg Ress | The applicant is a Croatian citizen of Serbian origin, born in 1940 and living in Rijeka, Croatia. He is represented before the Court by Mr Dragan Jovanić, a lawyer practising in Rijeka (Croatia). The respondent Government are represented by their Agent, Ms Lidija Lukina-Karajković. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant served in the Yugoslav People’s Army and in 1991 retired from service. His military pension was assessed to 85% of his average wage, according to his rank and years of service and was paid from the Federal Pension Fund. The payments terminated in December 1991, following the dissolution of the Federal Republic of Yugoslavia. Two separate proceedings took place, in respect of the decrease in the applicant’s military pension. Firstly, on 31 December 1992, the Croatian Social Security Fund, Rijeka Office, assessed the applicant’s pension, as from 1 October 1992, at 63,22 % of the amount he had received until December 1991. The applicant appealed against that decision and, after his appeal was dismissed, instituted administrative proceedings with the Administrative Court, which dismissed the applicant’s claim on 18 November 1993. On 4 June 1994 the applicant lodged a constitutional complaint. On 3 March 1999 the Constitutional Court dismissed the applicant’s complaint. Secondly, the applicant lodged a constitutional claim challenging the constitutionality of the Act incorporating into Croatian law the former federal law regulating the pension insurance for military personnel (the Yugoslav Military Pensions Act) enacted in 1991 and altered several times in 1991 and 1992. On 4 February 1998 the Constitutional Court terminated those proceedings due to the enactment of new laws regulating the same matter. | 0 |
train | 001-103161 | ENG | POL | CHAMBER | 2,011 | CASE OF LESIAK v. POLAND | 4 | Violation of Art. 8;No violation of Art. 5-3 | Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano | 5. The applicant was born in 1964 and lives in Zabrze. 6. On 27 April 2006 the applicant was remanded in custody by an order of the Katowice District Court on suspicion of having committed money laundering while acting in an organised criminal gang. 7. The applicant appealed. On 31 May 2006 the Katowice Regional Court upheld the decision to remand her in custody. 8. Shortly after her arrival in Lubliniec Detention Centre, the applicant was examined by the prison doctor. She informed him that she did not suffer from any illnesses and that she was not taking any special medication. 9. On 2 June 2006 the applicant complained to the prison doctor of pain in the chest area. The doctor diagnosed vegetative neurosis and prescribed the appropriate medication. 10. On 24 July 2006 the Katowice District Court extended the applicant's detention, referring to the need to conduct further investigations. This decision was upheld by the Regional Court on 30 August 2006. 11. On 28 July 2006 the applicant again complained of chest pain and was placed under observation. On 1, 13 and 20 September 2006 she reported the same symptoms and was prescribed medication. 12. On 11 September 2006 the District Court again extended the applicant's detention. It referred to the likelihood of a severe sentence of imprisonment being imposed on the applicant. It also relied on the risk that the applicant might tamper with evidence, given the nature of the charges against her and the fact that she had acted in concert with the co-accused. This decision was upheld by the Katowice Regional Court on 11 October 2006. 13. The applicant submits that in September 2006 she discovered a lump in her breast during a self-examination. She informed the prison doctor on 27 October 2006. The prison doctor confirmed that there was a lump in the applicant's left breast and sent her to the Breast Disease Clinic in Zabrze. During the consultation, which took place on 12 December 2006, a doctor confirmed the existence of the lump and ordered that she undergo a mammography. 14. The applicant's detention was subsequently extended on 7 December 2006. The District Court referred to the reasons previously given. 15. The mammography was performed on 11 January 2007. 16. On 16 January 2007 the Katowice Regional Prosecutor refused the applicant's motion for a change of the preventive measure. He considered that according to a cardiologist's opinion the applicant could be kept in detention pending trial. He also stressed that an expert oncologist had been asked to prepare an opinion on the applicant's state of health. 17. The applicant subsequently again asked for a change of the preventive measure. On 7 February 2007 the prosecutor considered that since he had not yet received the expert oncologist's opinion he could not decide on the applicant's release. However, he stressed that, according to the information provided by the expert, the applicant could, if necessary, be operated on in the surgical ward of the prison hospital. 18. The expert oncologist submitted his opinion on 16 February 2007. He stated that the lump should be removed and sent for a histopathological examination. He confirmed that the operation could be performed in the surgical ward of the prison hospital. Referring to the opinion, on 27 February 2007 the prosecutor dismissed the applicant's motion for a change of the preventive measure. 19. On 1 March 2007 the District Court extended the applicant's detention, referring to the reasons previously given. 20. On 15 March 2007 the applicant underwent surgery in the prison hospital. She had the lump removed from her breast. 21. The applicant's detention was subsequently extended on 25 April 2007, 25 July 2007 and 3 August 2007. The applicant's appeals against those decisions were dismissed. 22. Meanwhile, on 9 July 2007 the prosecutor considered that there was no reason for the applicant to be released and that she could be treated in the prison hospital. 23. On 26 July 2007 an act of indictment was filed with the Katowice Regional Court. The applicant was charged with money laundering committed while acting in an organised criminal gang. The indictment concerned fifteen co-accused. 24. On 23 November 2007 the Katowice Regional Court ordered the applicant's release on bail (20,000 Polish zlotys). The court held that keeping the applicant in custody was no longer necessary to ensure the proper course of the proceedings. 25. It would appear that the criminal proceedings against the applicant are pending. 26. At the time of lodging her application with the Court the applicant had been detained in the course of criminal proceedings against her. 27. On 3 May 2007 the Registry of the Court received the applicant's first letter, an application form dated 20 April 2007. The envelope bears a handwritten note reading “censored on 25 April 2007” (ocenzurowano ....) and an illegible signature. It also bears a stamp reading “Lubliniec prison” (Zakład Karny w Lublińcu). 28. On 30 August 2006 the Katowice Regional Prosecutor informed the applicant that her family could visit her every three weeks. 29. On 19 March 2007 the applicant was again informed by the Katowice Regional Prosecutor that her children could visit her every three weeks. 30. During the investigation, and subsequently once the trial had started, the applicant's children visited the applicant on average every three weeks. 31. The relevant domestic law and practice concerning the imposition of pre-trial detention (tymczasowe aresztowanie), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are set out in the Court's judgments in the cases of Gołek v. Poland (no. 31330/02, §§ 27-33, 25 April 2006) and Celejewski v. Poland (no. 17584/04, §§ 22-23, 4 May 2006). | 1 |
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