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train | 001-5344 | ENG | GRC | ADMISSIBILITY | 2,000 | MOUSHOURI v. GREECE | 4 | Inadmissible | null | The applicant is a Greek national, born in 1949 and living in Varkiza in Attika. She is represented before the Court by Mr M. Angelopoulos, a lawyer practising in Athens. The facts of the case, as submitted by the parties, may be summarised as follows. On 5 October 1990 the applicant filed a suit against the X Club before the single-member first instance civil court (monomeles protodikio) of Athens about unfair dismissal submitting, inter alia, that her compensation had not been calculated correctly. The case was heard on 14 January 1991. On 21 March 1991 the court found in favour of the applicant declaring her dismissal null and void and ordering the defendant to pay her 630,000 drachmas, by way of salary arrears, and part of her costs and expenses. The applicant served the decision on the X Club on 28 May 1991. On 28 June 1991 the X Club appealed. The appeal was heard on 29 October 1991. On 26 November 1991 the Court of Appeal (Efetio) of Athens upheld the appeal and considered that there was no unfair dismissal. According to the court, the applicant had changed duties before her dismissal; as a result, the X Club, when calculating her compensation, was not obliged to take into consideration a special allowance attaching to her previous duties. On 9 April 1992 the applicant appealed in cassation. A hearing was fixed for 30 March 1993. On 22 February 1993 the applicant submitted additional grounds of appeal. On 11 March 1993 the judge rapporteur submitted his report. On 30 March 1993 the court decided to adjourn the examination of the appeal at the parties’ request. The appeal was heard on 22 February 1994. On 31 March 1994 the Court of Cassation (Arios Pagos) quashed the judgment of the Court of Appeal considering that the latter had ignored some evidentiary material. The case was sent back to the Court of Appeal for re-examination. On 25 April 1994 the applicant asked the Court of Appeal to fix a hearing. The case was due to be heard on 7 June 1994 but the lawyers were on strike. On 20 June 1994 the applicant asked the court to fix a new hearing date. On 15 November 1994 the court adjourned the examination of the case. On 10 January 1995 the applicant’s case was heard by the Court of Appeal, composed of different judges from those that had issued the judgment of 26 November 1991. On 13 February 1995 the Court of Appeal found in favour of the X Club considering that the applicant had accepted that she had changed duties before her dismissal and that she was not entitled to the special allowance. Although the applicant was entitled to another allowance, the X Club had not acted in bad faith in failing to take the latter into consideration when calculating her compensation. As a result, although the applicant could claim additional compensation, her dismissal was not null and void. On 26 April 1995 the applicant appealed in cassation for the second time. The Court of Cassation heard the appeal on 26 September 1995 and on 21 November 1995 it quashed again the judgment of the Court of Appeal on the ground that its reasoning was contradictory, vague and inadequate. The case was sent back to the Court of Appeal for re-examination. On 12 December 1995 the applicant asked the Court of Appeal to fix a hearing. The Court of Appeal heard the appeal on 13 February 1996 and on 21 May 1996 it found again in favour of the X Club because the applicant, prior to her dismissal, had accepted that she should not be receiving any of the allowances in question. On 12 September 1996 the applicant appealed in cassation for a third time. The Court of Cassation heard the appeal on 18 February 1997 and dismissed it on 24 June 1997. The text of the jugement was finalised on 2 July 1997. It was signed by the President on 22 August 1997. The X Club served the judgment on the applicant on 12 September 1997. | 0 |
train | 001-98297 | ENG | HRV | ADMISSIBILITY | 2,010 | DRLJAN v. CROATIA | 4 | Inadmissible | Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | The applicant, Mr Željko Drljan, is a Croatian national who was born in 1960 and is currently serving a prison term in Lepoglava State Prison. He was represented before the Court by Ms S. Oluški Radaković, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. The facts of the case, as submitted by the parties, may be summarised as follows. On an unspecified date an indictment was brought against the applicant in the Sisak County Court (Županijski sud u Sisku) on charges of murder and attempted murder. The applicant was placed in pre-trial detention in Croatia and was legally represented by a lawyer from Croatia. On an unspecified date Mrs G.B., a lawyer practising in Kragujevac, Serbia, was also appointed by the authorities to represent the applicant. All witnesses gave evidence before the Kragujevac County Court in Serbia (Okružni sud u Kragujevcu) in the presence of Mrs G.B. In a judgment of the Sisak County Court of 6 November 2006 the applicant was found guilty of murder and attempted murder and sentenced to twenty-one years’ imprisonment. In the proceedings the trial court heard evidence from medical and ballistic experts and read the statements of ten witnesses who had given evidence before the Kragujevac County Court. The relevant part of the judgment reads: “Under Article 331 § 1(1) of the Code of Criminal Procedure this court has decided to read the evidence given before an investigating judge of the Kragujevac County Court, Serbia and Montenegro, by the witnesses D.G., R.G., G.P., R.M., O.M., D.K., D.G., R.M., J.S., R.P. and the injured party T.M., because these witnesses live in the territory of Serbia and Montenegro and, although properly summoned, failed to appear at the hearing, and because summonses for the witnesses D.K. , G.P. and R.P. could not be served on them.” The first-instance judgment was upheld by the Supreme Court of Croatia (Vrhovni sud Republike Hrvatske) on 31 January and 24 April 2007. On 21 June 2007 the applicant lodged a constitutional complaint concerning the grounds for his detention, the quality of his legal representation and the assessment of the facts by the national courts. The applicant’s constitutional complaint was declared inadmissible on 29 November 2007 on the grounds that it was incomplete because the applicant had failed to cite the exact provisions of the Constitution which he deemed to have been violated in the criminal proceedings against him. The relevant part of the Croatian Constitution (Ustav Republike Hrvatske, Official Gazette no. 41/2001 of 7 May 2001) reads as follows: “In the determination of ... any criminal charge against him or her ... a suspect, defendant and accused person have the right to ... question ... prosecution witnesses ...” 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: “1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, a body of local and regional self-government, or a legal person with public authority, which has determined his or her rights and obligations, or a suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: constitutional right) ... 2. If there is provision for another legal remedy in respect of a violation of the constitutional rights [complained of], a constitutional complaint may be lodged only after that remedy has been exhausted. ...” | 0 |
train | 001-113553 | ENG | POL | CHAMBER | 2,012 | CASE OF PŁACZKOWSKA v. POLAND | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property) | David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva | 5. The applicant was born in 1959 and lives in Mielec. 6. The applicant is a single mother of two children. Prior to her application for an early-retirement pension she had been employed from 1977 until 29 June 2001 and paid social security contributions to the State. 7. On 28 December 2000 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an earlyretirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the so-called “EWK” pension. 8. Along with her application for a pension, the applicant submitted, among other documents concerning her daughter’s health condition, a medical certificate issued by a specialist medical centre on 21 December 2000. The certificate stated that the child (born in 1988) suffered from epilepsy and other medical conditions and was in need of her parent’s constant care. 9. On 19 June 2001 the Rzeszów Social Security Board (“the SSB”) issued a decision granting the applicant the right to an earlyretirement pension as of 1 June 2001 in the net amount of 742, 86 Polish zlotys (PLN). 10. On 23 August 2002 Rzeszów Social Security Board asked the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s daughter required the permanent care of a parent. On 19 September 2002 the doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care. 11. On 25 September 2002 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant. By virtue of one decision, the payment of the applicant’s pension was discontinued with immediate effect. By virtue of the other decision, the Board reopened the proceedings, revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an early-retirement pension under the scheme provided for by the 1989 Ordinance. 12. The applicant appealed against the respective decisions divesting her of the right to an early-retirement pension. She submitted that she should receive the benefit because her child required constant care, as confirmed by the medical certificate attached to the applicant’s original application for a pension. Moreover, the applicant alleged that the revocation of her retirement pension was contrary to the principle of vested rights. 13. On 18 December 2003 the Tarnobrzeg Regional Court (Sąd Okręgowy) dismissed the appeal. The Regional Court concluded on the basis of the evidence that the applicant’s child did not require her mother’s permanent care since her health condition did not significantly impair her bodily functions. The domestic court held that the applicant had been rightfully divested of her right to a pension under the scheme provided by the 1989 Ordinance as she did not satisfy the requirement of necessary permanent care. 14. The applicant further appealed against the first-instance judgment. 15. On 16 April 2004 the Rzeszów Court of Appeal (Sąd Apelacyjny) dismissed the appeal. 16. On 17 September 2004 the Supreme Court (Sąd Najwyższy) refused to entertain the cassation appeal lodged by the applicant. 17. Following the social security proceedings the applicant was not ordered to return her earlyretirement benefits paid by the Social Security Board, despite the revocation of her right to an earlyretirement pension. 18. The applicant submitted that after the revocation of the EWK pension she opened a small business in 2004 but it did not generate any income. For many years she had been unsuccessfully looking for a job but received no unemployment or other benefits from the State. 19. The Government submitted that between July 2004 and October 2006 the applicant had registered as selfemployed (dzialanosc gospodarcza). They did not specify whether the applicant’s business generated any income. Afterwards, in 2007 she received unemployment benefit for six months in the amount of PLN 3,800 and since 6 April 2009 she has been employed. The Government also stated that the applicant had been receiving childsupport payment in the amount of PLN 300. 20. In addition, the Government submitted information as regards the various types of social benefits available in Poland. However, they did not specify which of those benefits, if any, were available in the applicant’s situation. 21. Under the relevant laws currently in force, it appears that the applicant will qualify for a regular retirement pension in 2019. 22. Some 130 applications arising from a similar fact pattern have been brought to the Court. The majority of the applicants form the Association of Victims of the SSB (Stowarzyszenie Osób Poszkodowanych przez ZUS) (“the Association”), an organisation monitoring the practices of the Social Security Board in Poland, in particular in the Podkarpacki region. 23. Out of all applications lodged with the Court, about twenty-four applicants decided not to lodge a cassation appeal against the judgment of the Court of Appeal given in their case. 24. One hundredandfour applicants lodged cassation appeals against the final judgments given in their cases. The Supreme Court entertained and dismissed on the merits fifteen appeals. In eightyone applications the Supreme Court refused to entertain cassation appeals on the ground that they did not raise any important legal issues or require the Supreme Court to give a new interpretation to legal provisions which raised serious doubts or gave rise to ambiguity in the jurisprudence of the domestic courts. In the remaining eight cases cassation appeals were rejected for failure to comply with various procedural requirements. 25. The legal provisions applicable at the material time and questions of practice are set out in the judgment in the case of Moskal v. Poland, no. 10373/05, § 3134, 15 September 2009. 26. The social security scheme for farmers is regulated by the Farmers’ Social Security Act of 20 December 1990 (“the 1990 Act”; ustawa o ubezpieczeniu społecznym rolników). 27. The reopening of the proceedings concerning the earlyretirement pension is regulated in section 114 (1) of the Law of 13 October 1998 on the system of social insurance (Ustawa o systemie ubezpieczeń społecznych), which at the relevant time read as follows: “The right to benefits or the amount of benefits will be reassessed upon application by the person concerned or, ex officio, if, after the validation of the decision concerning benefits, new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right to benefits or on their amount are discovered.” On 1 July 2004 a new subparagraph 114 (1) a was added, which reads as follows: “Section 1 shall apply respectively, if, after the validation of the decision it is discovered that the evidence that had been submitted did not give the right to a pension, disability pension or its amount.” 28. A party to civil proceedings could, at the material time, lodge a cassation appeal with the Supreme Court against a judicial decision of a secondinstance court. A party had to be represented by an advocate or a legal adviser. 29. Article 3931 of the Code of Civil Procedure as applicable at the material time listed the grounds on which a cassation appeal could be lodged. It read as follows: “The cassation appeal may be based on the following grounds: 1) a breach of substantive law as a result of its erroneous interpretation or wrongful application; 2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.” 30. Pursuant to Article 393¹³ the Supreme Court, having allowed a cassation appeal, could quash the challenged judgment in its entirety or in part and remit the case for re-examination. Where the Supreme Court failed to find nonconformity with the law, it dismissed the cassation appeal. According to Article 39315 if the cassation appeal was wellfounded the Supreme Court could also amend the impugned judgment and adjudicate on the merits. 31. On 22 June 1999 the Ombudsman made an application to the Constitutional Court, asking for section 186 § 3 of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund (Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych) (“the 1998 Law”) to be declared unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. More specifically, the Ombudsman submitted that the introduction of an agelimit in respect of persons taking care of a child, which in essence amounted to a deprivation of the right to a benefit, constituted a violation of the principle of equality set forth in Article 32 § 1 of the Constitution. 32. On 4 January 2000 the Constitutional Court (K18/99) declared the impugned section 186 § 3 of the 1998 Law unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. The Constitutional Court reiterated among other things the constitutional principle of acquired rights which guarantees particularly strong protection for the right to receive social welfare benefits. 33. On 10 February 2011 the Ombudsman made an application to the Constitutional Court, asking for section 114 (1)(a) of the 1998 Law to be declared unconstitutional in so far as it allowed the SSB to reopen ex officio proceedings relating to the grant of a pension or a disability pension on the basis of a new assessment of evidence which had already been submitted. 34. On 28 February 2012 the Constitutional Court (K5/11) declared the impugned section 114 (1)(a) of the 1998 Law unconstitutional in so far as it allowed the SSB to reopen such proceedings following a new assessment of evidence which had already been submitted. | 1 |
train | 001-94321 | ENG | GBR | ADMISSIBILITY | 2,009 | LOWE v. THE UNITED KINGDOM | 3 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | The applicant, Mr Paul Lowe, is a British national who was born in 1967 and is currently detained in HMP Ranby. . Between 1998 and 27 February 2000, the major crime unit of the Merseyside Police carried out a surveillance operation (Operation Kingsway) into a suspected conspiracy to supply heroin and ecstasy. The operation involved surveillance from fixed and mobile observation points which were recorded over radio link and logged. Details of telephone calls were also gathered. Some observations were photographed. The conspiracy involved repeated imports of large quantities of heroin. From July 1999 onwards, the heroin was imported into the United Kingdom via the Channel Tunnel by Mr F. and taken to the house of Mr E., at 107 Upper Parliament Street, Liverpool. The final delivery with an estimated street value of GBP 1.3 million was seized by police at 107 Parliament Street on 27 February 2000. The prosecution case was that the applicant was a central figure in the conspiracy and acted as the controller and director of operations. The case against the applicant was almost entirely circumstantial and was based on the observations gathered in Operation Kingsway. The applicant was first interviewed in the presence of his solicitor at 12.50 p.m. on 28 February 2000. He was cautioned and asked about his presence at 107 Upper Parliament Street on 27 February 2000. He was also advised that his own home had been searched and was questioned about items recovered during the search, including the sum of GBP 24,270 in cash. He was told that it was believed that he associated with named individuals who were also suspected of participating in the conspiracy. He made no comment, save to say that the cash belonged to a member of his family and that he did not wish to disclose the identity of that person “at this moment”. He indicated that his refusal to comment was the result of the “lack of disclosure”. The interview lasted for 12 minutes. Later that same day, at 6.42 p.m., the applicant was questioned a second time. He was cautioned again. The details of the police observations from Operation Kingsway starting from July 1998 were put to him and he either made no comment or was silent in response to questions put. At 7.27 p.m., the interview was continued under caution. Every observation relating to the 15 and 16 November 1999 was put to the applicant. The applicant remained silent on all matters. At 8.16 p.m. the interview was continued under caution. The applicant was asked specifically about police observations from 30 and 31 January and 1 February 2000. He did not answer any questions. He was also asked about a passport in another name bearing his photograph. He did not make any comment. The applicant was tried before the Crown Court. In July 2000, prior to the commencement of the trial, the applicant served on the prosecution and the court a detailed defence statement. In October 2000, at the trial itself, he gave detailed evidence in his defence regarding the large sums of money found at his home and his movements as observed during Operation Kingsway. In particular, the applicant claimed that he was involved in the buying and selling of stolen cars, and that this explained the movements recorded by the police. In relation to his failure to make any comment during the police interviews, the applicant explained that he was shocked by the circumstances of his arrest; that he was acting on legal advice; and that he had not wished to incriminate others involved in the buying and selling of stolen cars. The prosecution intimated that they intended to invite the trial judge in due course to make an adverse inferences direction to the jury regarding the applicant’s silence during the police interviews. The applicant sought to have the defence statement made in July 2000 put before the jury at his trial in order to show that he had set out his defence some time before the trial. The trial judge refused the application noting that the applicant had given detailed evidence in court and had therefore had the opportunity to present his case to the jury. In his summing up to the jury, the judge noted that a number of the defendants, including the applicant, had declined to answer questions when interviewed by the police. The judge reminded the jury that the applicant was cautioned before the interviews, the terms of the caution being that he did not need to say anything but that it might harm his defence if he did not mention something when questioned on which he later sought to rely in court. The judge further noted that the defendants had subsequently, as part of their defence, relied on certain facts which they admitted they had not mentioned when questioned. In relation to the applicant, he gave one example of such a fact. He concluded with the following general direction: “Members of the jury, since these defendants did not mention facts on which they now rely in support of their defences when they were interviewed, then as they were told, it may harm their defence ... ... [T]hey were told that it may harm their defences because you ... may draw such inferences as appear proper from their failure to mention the facts concerned when they were interviewed when you are deciding whether they are guilty as charged. However ... you may draw inferences of that kind only in certain circumstances that I want to make clear to you. First of all, before you could draw such an inference you would have to conclude that quite independently of any such inference the prosecution’s case against the defendant concerned was sufficiently compelling to call for an answer by him. Secondly ... you would have to conclude that the fact that you are considering, the fact which he did not mention but has relied on now, was something that he could reasonably have been expected to mention at that time. Thirdly, you would have to conclude that the defendant had no answer [at] that time, and has since made up his account or has tailored his account to fit the prosecution’s case, or indeed done both. If those are your conclusions ... but only if those are your conclusions, then you may, if you think it is right and fair to do so, take into account the silence of the defendant concerned when deciding whether his evidence about [the] facts concerned [is] true. But ... that silence must not be the only basis or indeed the main basis of any verdict of guilty that you may return. ... [T]he defence invites you not to draw any adverse inferences from their silence for a variety of reasons ... In Mr Lowe’s case ... he said, ‘I didn’t answer questions but amongst my reasons are that I was shocked by the circumstances of my arrest and I was acting on legal advice’ ... If ... you think that the various matters raised ... by the defendants, or any of them, amounts to a reason why you should not draw any inference from the silence of the defendant concerned, then do not do so. But otherwise, subject to the direction that I have given you, you may do so.” The judge advised the jury that the fact that a defendant had received legal advice not to answer questions did not mean that the jury were automatically prevented from drawing any adverse inferences from the defendant’s silence at interview. However, the judge emphasised the importance of legal advice and its relevance in considering whether the defendant’s silence at interview was justified, provided that the jury were satisfied that the defendant in question had received such legal advice. He directed as follows: “The fact that a defendant receives legal advice not to answer questions does not mean that you are automatically prevented from drawing any adverse inferences from that defendant’s silence. But legal advice is obviously a matter of importance and is something [to] which you should have due regard in deciding whether you do in fact draw adverse inferences. You will first, of course, have to decide whether you accept that the defendant ... did in fact receive or may have received legal advice not to answer questions or certain of them. Obviously, if you do not believe that ... then the question of legal advice does not arise at all. But if you do accept that the defendant ... received legal advice to remain silent, then you should consider whether in the circumstance that the defendant found himself in, including indeed the nature of the advice that he was given, it was reasonable for him to act on the advice that he was given. Or whether, having been told that his silence might harm his defence, he could reasonably have been expected to decide for himself to say then what he has now said in court.” Following discussion of the position as regards legal advice, the judge reminded the jury of the position in the following terms: “All of this is subject to the general direction that I have already given to you, and you will recall that as part of that direction I have told you that adverse inferences only become a possibility if the only sensible reason for the silence of the defendant concerned was that he had no answer at the time of the interview to the questions that were being asked, and has made up his account since or tailored it to fit the prosecution’s case or has done both.” The judge then went through the applicant’s interviews in detail with the jury, pointing out that in relation to the sum of GBP 24,270 found at his home, the applicant had subsequently admitted telling a lie when he claimed that the money belonged to a member of his family. The judge further highlighted that the applicant had not, during interview, mentioned his involvement in buying and selling stolen cars and reminded the jury that, subject to the general direction he had given, they could draw adverse inferences from his silence if they thought it right to do so.. He summarised the reasons given by the applicant for his failure to answer questions during interview and directed the jury as follows: “If you think that those matters or any of them amount to a reason not to draw adverse inferences from his silence then do not do so. Otherwise, subject to the reference which I gave you earlier, you may do so if you think it right and fair to do so.” On 4 December 2000, the applicant was convicted by the jury of conspiracy to supply Class A drugs. On 5 February 2001, the applicant was sentenced to 24 years’ imprisonment. The applicant appealed to the Court of Appeal arguing, inter alia, that the judge should not have given a direction to the jury on the drawing of adverse inference from silence in his case. His appeal was dismissed on 30 October 2003. On 30 June 2006, the Criminal Cases Review Commission referred the applicant’s case to the Court of Appeal on the ground that the trial judge’s summing up in relation to adverse inferences was deficient when compared with the Judicial Studies Board guidelines. In particular, the trial judge had failed to identify the precise facts in respect of which adverse inferences could be drawn; he had left the impression that an adverse inference could be drawn from the mere fact that the applicant had remained silent at interview (rather than from his failure to mention a fact on which he had subsequently sought to rely at trial); and the judge had failed to clarify that if the jury believed the applicant’s reason for his silence, they could not draw an adverse inference. On 12 March 2007, the Court of Appeal dismissed the appeal. In relation to the general direction to the jury, the court considered (at paragraph 12) that: “...save for the fact that the judge did not give a clear direction in accordance with the judgment of the Court of Human Rights in Condron, no fair criticism can be made of the directions he gave. He made it abundantly plain to the jury that they had to identify facts which were not mentioned in interview but which were relied upon subsequently by a defendant and in other respects he accurately directed them as to the circumstances in which any adverse inference could be drawn.” It later noted (at paragraph 14) that: “...The mere fact ... that [the trial judge] did not list each of the facts [upon which the applicant relied at trial] themselves does not in our view derogate in any way from the overall direction which he gave which adequately identified the parts of the appellant’s case which consisted of the fact upon which he relied which was not mentioned in interview ... [T]he way the judge did identify the facts could in no way be described as amounting to a misdirection.” As regards the trial judge’s summing up in relation to the applicant’s silence during the police interview and his reasons for that silence, the court found: “[Counsel for the defence] can rightly criticise that part of the summing-up, firstly for failing to state that the appellant was under no obligation to answer any questions: he had a right to silence. Secondly, in our view he can criticise properly the fact that the judge appears to have been indicating to the jury that silence in interview could in itself entitle the jury to draw adverse inferences beyond the issues which he had in fact specifically identified ...” However, the court took into account the fact that no criticism had been made of the judge’s summing up at the time and that, when the trial and summing up took place, the “attitude of the courts to the proper way to sum up in relation to this aspect of trials was developing”. It considered that the correct approach was to assess whether, having regard to the jury’s verdict on the direction as given, the jury would have been bound to convict if a proper direction had been given. If the answer was in the affirmative, then the verdict was safe. Finally the court referred to the earlier Court of Appeal judgment which had found the evidence against the applicant to be overwhelming and concluded that the criticisms “have the air of ex post facto criticisms which should not result in this appeal being allowed”. On 22 February 2008, the applicant appeared before the Magistrates’ Court in respect of his non-payment of a confiscation order imposed following his conviction. The sum outstanding was GBP 42,800, composed of GBP 19,500 in “hidden assets” and GBP 23,300 in interest on that sum. A term of imprisonment of one year, one month and 23 days was imposed, in default of payment, which represented one day’s imprisonment for every GBP 110 outstanding. Section 34 of the Criminal Justice and Public Order Act 1994 provides that: “(1) Where in any proceedings against a person for an offence, evidence is given that the accused– (a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; ... being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies. (2) Where this subsection applies ... (d) the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper. (3) Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention. ...” Section 38(3) provides that: “A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2) ...” A number of domestic cases have considered the application of section 34 in practice. In R. v Cowan ([1996] 1 Criminal Appeal Reports 1), Lord Taylor CJ set out five “essentials” when making a direction on adverse inferences: “We consider that the specimen direction is in general terms a sound guide. It may be necessary to adapt it to the particular circumstances of an individual case. But there are certain essentials which we would highlight: 1. The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is. 2. It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice. 3. An inference from failure to give evidence cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act. 4. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant’s silence. 5. If despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination, they may draw an adverse inference.” Subsequently, in R. v. Argent ([1997] Criminal Appeal Reports 27), Lord Bingham CJ added a sixth condition that had to be met before section 34 of the 1994 Act would allow inferences to be drawn: “The sixth condition is that the appellant failed to mention a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when questioned. The time referred to is the time of questioning, and account must be taken of all the relevant circumstances existing at the time. The courts should not construe the expression ‘in the circumstances’ restrictively: matters such as the time of day, the defendant’s age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice are all part of the relevant circumstances; and those are only examples of things which may be relevant ... Like so many other questions in criminal trials this is a question to be resolved by the jury in the exercise of their collective common-sense, experience and understanding of human nature. Sometimes they may conclude that it was reasonable for the defendant to have held his peace for a host of reasons, such as he was ... worried at committing himself without legal advice, acting on legal advice, or some other reason accepted by the jury.” Guidance as to the direction which the judge should give the jury in respect of section 35 of the Criminal Justice and Public Order Act 1994 is provided by the Judicial Studies Board, which provides specimen directions. The present specimen direction on section 34 is based on the five ‘essentials’ listed in R. v Cowan, as applied in subsequent section 34 cases before the domestic courts, including R v. Argent, and by this Court in John Murray v. the United Kingdom, 8 February 1996, Reports of Judgments and Decisions 1996I and Condron v. the United Kingdom, no. 35718/97, ECHR 2000V). The Judicial Studies Board specimen direction, which was last amended in December 2004, prior to the applicant’s second appeal, provides as follows (the sections in bold indicate substantive differences from the version of the guidelines in force at the time of the applicant’s trial): “1. Before his interview(s) the defendant was cautioned ... He was first told that he need not say anything. It was therefore his right to remain silent. However, he was also told that it might harm his defence if he did not mention when questioned something which he later relied on in court; and that anything he did say might be given in evidence. 2. As part of his defence, the defendant has relied upon (here specify the facts to which this direction applies - see Note 10). But [the prosecution say][he admits] that he failed to mention these facts when he was interviewed about the offence(s). [If you are sure that is so, this/This] failure may count against him. This is because you may draw the conclusion ... from his failure that he [had no answer then/had no answer that he then believed would stand up to scrutiny/has since invented his account/has since tailored his account to fit the prosecution’s case/(here refer to any other reasonable inferences contended for ... )]. If you do draw that conclusion, you must not convict him wholly or mainly on the strength of it ...; but you may take it into account as some additional support for the prosecution’s case ... and when deciding whether his [evidence/case] about these facts is true. 3. However, you may draw such a conclusion against him only if you think it is a fair and proper conclusion, and you are satisfied about three things: first, that when he was interviewed he could reasonably have been expected to mention the facts on which he now relies; second, that the only sensible explanation for his failure to do so is that he had no answer at the time or none that would stand up to scrutiny ... ; third, that apart from his failure to mention those facts, the prosecution’s case against him is so strong that it clearly calls for an answer by him ... 4. (Add, if appropriate:) The defence invite you not to draw any conclusion from the defendant’s silence, on the basis of the following evidence (here set out the evidence ... ). If you [accept this evidence and] think this amounts to a reason why you should not draw any conclusion from his silence, do not do so. Otherwise, subject to what I have said, you may do so.” | 0 |
train | 001-58234 | ENG | SVK | CHAMBER | 1,998 | CASE OF LAUKO v. SLOVAKIA | 3 | Violation of Art. 6-1;Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | R. Pekkanen | 8. The applicant was born in 1953 and lives in Považská Bystrica, Slovakia. 9. In June 1992 he requested, pursuant to newly adopted legislation, that a flat in which he lived and which was located in a block of flats in Dubnica nad Váhom, Slovakia should be sold to him. 10. The applicant alleged that his neighbours and other individuals subsequently disturbed him by their noisy behaviour, mockery and threats. On several occasions the door and windows of his flat and his letter box were damaged. The applicant considers that the purpose of those interferences was to dissuade him from buying the flat. 11. On several occasions the applicant asked the police department in Dubnica nad Váhom to investigate the disturbances and to prosecute the persons responsible. He cited, inter alia, family B. The police informed him that the facts he had complained of could not be established and that accordingly the investigation of his complaints had been closed. On 15 April 1994 the police department, acting pursuant to section 63 of the 1990 Minor Offences Act, notified the Dubnica nad Váhom local office (Obvodný úrad) about the complaints brought by the applicant (see paragraph 31 below). 12. On 11 May 1994 the local office found that the applicant had committed a minor offence (priestupok) under section 49(1)(d) of the Minor Offences Act in that without justification he had accused family B. of causing a nuisance. The decision was based on the evidence submitted by the police department in Dubnica nad Váhom and on the facts which were established in the course of the proceedings before the local office. 13. The applicant was fined 300 Slovakian korunas (SKK) and ordered to pay SKK 150 in respect of the costs of the proceedings. The decision of the local office was signed by the head of its legal department. The applicant appealed against that decision to the Považská Bystrica district office (Okresný úrad). 14. On 28 July 1994 the district office dismissed the appeal and upheld the decision of the local office. The applicant's case was examined by the legal department of the district office which rejected his appeal in a decision signed by the head of that department. 15. On 16 August 1994 the applicant brought a complaint before the Constitutional Court (Ústavný súd). In his submissions to that court he alleged, inter alia, a violation of Article 6 of the Convention in that there had been no fair and public hearing in his case and that the administrative authorities dealing with it had not been impartial. 16. On 24 November 1994 the Constitutional Court dismissed the applicant’s complaint as being manifestly ill-founded. It held, inter alia: “A minor offence is characterised, in general, by a wrongful breach of law or legal obligations in different spheres of public administration which represents a minor danger to the society. Because of its character, a minor offence is not subject to examination by a court... In accordance with the Minor Offences Act, the examination of minor offences falls within the competence of administrative authorities. Pursuant to section 83 of the Minor Offences Act, in conjunction with Articles 244 et seq. of the Code of Civil Procedure, the lawfulness of administrative organs' decisions on minor offences can be reviewed by courts only in cases where a fine exceeding SKK 2,000 has been imposed, the exercise of a certain activity has been prohibited for a period exceeding six months or an object of a value exceeding SKK 2,000 has been confiscated. The aforesaid provision of the special Act governing minor offences is fully binding also on the Constitutional Court of the Slovak Republic.” 17. On 2 July 1997 the Constitutional Court rejected the applicant's request for the review of its decision of 24 November 1994. 18. Article 46 § 2 of the Constitution guarantees to everyone who claims to have been denied his rights as a result of a decision made by a public administrative authority the right to appeal to a court of law and have the legality of the decision reviewed, unless otherwise provided by law. The review of decisions on matters of fundamental rights and freedoms may not be excluded from the jurisdiction of courts of law. 19. Article 121 entitles the government to grant pardons in matters concerning minor offences. 20. Pursuant to Article 127 the Constitutional Court decides on complaints concerning final decisions made by, inter alia, local government authorities and local self-governing bodies in cases concerning violations of the fundamental rights and freedoms of citizens, unless the protection of such rights falls under the jurisdiction of another court. 21. At the time of the offence the legislation read as follows. 22. Section 1 of the Minor Offences Act defines its purpose in the following terms: “Administrative authorities of the Slovak Republic and municipal organs shall encourage citizens to respect legal rules and the rights of other citizens. They shall ensure, in particular, that citizens do not impede the conduct of the administration ... and contravene public order and civic propriety.” 23. Section 2(1) provides the following definition of a minor offence: “A minor offence is a wrongful act which interferes with or causes danger to the public interest and is expressly classified as a minor offence in this Act or another law, unless such an act represents a separate administrative offence punishable under special legal rules or a criminal offence.” 24. Section 11 entitles the competent authorities to impose sanctions (sankcie) on the perpetrators of minor offences. It reads as follows: “(1) The following sanctions may be imposed for a minor offence: (a) reprimand, (b) fine, (c) prohibition to exercise a certain activity, (d) confiscation of an object. (2) A sanction can be imposed either separately or in combination with another sanction; a reprimand cannot be combined with a fine. (3) It is permissible to decide not to impose a sanction if the mere fact that the minor offence was examined is sufficient to reform its perpetrator.” 25. Section 12(1), as relevant, provides: “When determining the type and amount of the sanction, the seriousness of the minor offence and, in particular, the way and the circumstances in which it was committed, its consequences, the degree of guilt, the motive and the character of the perpetrator including whether or not he or she has already been punished for the same act in ... disciplinary proceedings should be taken into account.” 26. Section 49 of the Act governs minor offences against civic propriety. Pursuant to section 49(1)(d) a minor offence is committed by a person who deliberately offends against civic propriety by threat of bodily harm, by causing minor bodily injury, by unjustifiably accusing another person of a minor offence, by annoyances or other rude behaviour. Under section 49(2) such a minor offence is punishable with a maximum fine of SKK 3,000. 27. According to section 51 the proceedings concerning minor offences are governed, unless otherwise provided, by the Administrative Proceedings Act. 28. Section 52 provides that the following administrative authorities are entitled to examine minor offences: (i) local offices, (ii) police authorities if a minor offence was committed in breach of the generally binding legal rules relating to the security of road traffic and (iii) other organs of State administration if a special law so provides. 29. Pursuant to section 58(4)(b) cases involving minor offences against civic propriety, which are directed against the security of persons, are investigated by the police authorities subordinated to the Ministry of the Interior. 30. Section 59(1) provides that minor offences are to be investigated either on the basis of an investigation carried out by the competent police authority or upon a notification submitted by an individual, an organisation or an authority. 31. Under section 63(1) the police authority should submit to the competent administrative organ a report on the outcome of its investigation of a case. Such a report ought to comprise, inter alia, a description of the relevant facts and specify which minor offence they are alleged to constitute. 32. Section 73 reads as follows: “(1) A citizen is accused of a minor offence as soon as the administrative authority has taken the first procedural step against him or her. Such a person shall be considered innocent until his or her guilt has been established by a final decision. (2) A person accused of a minor offence has the right to comment on all facts that are imputed to him or her as well as on the evidence related to these facts, to present facts and evidence in his or her defence, make submissions and have recourse to remedies. He or she cannot be forced to make statements or to plead guilty.” 33. Section 77, as relevant, provides: “The operative part of a decision by which an accused of a minor offence is found guilty shall comprise also the description of the act including the place and time when the minor offence was committed, the finding of guilt, the type and amount of the sanction or, as the case may be, the decision not to impose a sanction...” 34. According to section 83(1) decisions on minor offences imposing a fine exceeding SKK 2,000, prohibiting the exercise of a certain activity for a period exceeding six months or confiscating an object having a value exceeding SKK 2,000 can be reviewed by the courts. In such cases the provisions of Articles 244 et seq. of the Code of Civil Procedure on administrative jurisdiction are applied. 35. Section 1(1) of Law no. 472/1990 on the Organisation of Local State Administration, as amended, empowers district offices and local offices to carry out local administration falling within the competence of the State. The exercise of local administration by the aforesaid authorities is managed and controlled by the government. 36. Under section 6(1) the head of a local office is appointed and dismissed by the head of a district office. 37. According to section 8(1) the head of a district office is appointed by the government on the proposal of the Ministry of the Interior. 38. The officers of local and district offices are subordinated to the heads of those offices and their contracts of employment are governed, as in the case of other salaried employees, by the provisions of the Labour Code. 39. In 1996 this Law was repealed and replaced by Law no. 222/1996 on the Organisation of Local State Administration. 40. Under the terms of Article 135 § 1 of the Code of Civil Procedure civil courts are bound, inter alia, by the decisions of the competent authorities that a criminal offence, a minor offence or another administrative offence punishable under special rules has been committed. 41. Article 3 § 1 of the Criminal Code defines a criminal offence as an act which is dangerous to society and whose characteristics are laid down in the Criminal Code. However, according to Article 3 § 2, an act whose dangerousness is negligible is not a criminal offence even if it has its attributes. 42. According to Article 3 § 4 the degree of dangerousness of an act is determined, in particular, by the importance of the protected interest affected by that act, by the circumstances and the way in which the act was committed and its consequences as well as by the character of its perpetrator, the degree of his guilt and his motives. 43. The Criminal Code refers to repressive measures imposed for committing a criminal offence as penalties (tresty). | 1 |
train | 001-22811 | ENG | SWE | ADMISSIBILITY | 2,002 | X v. SWEDEN | 2 | Inadmissible | Nicolas Bratza | The applicant is an Algerian national, who was born in 1974. He was represented before the Court by Ms L. Isaksson, a lawyer practising in Umeå. The respondent Government were represented by Ms I. Kalmerborn, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant arrived in Sweden at the end of May 2000. Allegedly, he intended to apply for asylum immediately and, as he only speaks his mother tongue, he went to his brother in Stockholm to seek his assistance. The brother was ill and unable to help him, however, so he left for Umeå where, apparently, some friends of his live. He arrived in Umeå on 9 June and allegedly intended to file his asylum application on Tuesday 13 June, after the Whitsun weekend. However, during the weekend, on Monday 12 June, he assaulted a Moroccan national and was arrested and detained by the police. Initially, he presented a false French passport but, eventually, he disclosed his true identity and requested asylum. On 16 June 2000 the District Court (tingsrätten) of Umeå decided to detain the applicant on suspicion of assault. By a judgment of 6 July 2000 the District Court convicted the applicant for assault and use of a false document (brukande av falsk urkund) and sentenced him to two months' imprisonment. Following his release from prison on 22 July 2000 the applicant was taken into custody in accordance with a decision of the National Migration Board (Migrationsverket) of 12 June 2000, as there was a risk that he would otherwise disappear. The applicant was moved to the Board's custody premises at Carlslund. In his asylum application, the applicant stated that, following the completion of his military service in 1996, he had returned to his home town. After a few months he had been approached by members of the organisation GIA (Groupe Islamique Armé) who had threatened his life and told him that he had to work for the organisation. Between 1996 and 1999 he had regularly transported GIA members in his minibus and also delivered oil and gas to the GIA. On several occasions, GIA members had visited him in his home and threatened to kill him and his family should he not cooperate. Towards the end of 1999 the Algerian police had also been looking for him at his home. He had never sought the help of the police for fear of reprisals from the GIA and the police who, allegedly, would not have believed that he had been forced to help the GIA. Following the visit by the police, the applicant had got scared and left for Algiers where his sister lived. Someone had helped him out of the country; he had travelled to Frankfurt, Germany by plane and from there to Poland by truck. He had stayed in Poland for several months and eventually travelled to Sweden by boat. Allegedly, he had not left Algeria earlier, as he had been unable to make up his mind and had not known where to go. Moreover, had it not been for the threats from the GIA, he would not have left the country. According to his parents in Algeria, the GIA and the police had come to look for him several times after his escape. However, he had never been politically active and had not had any difficulties with the Algerian police or other authorities. On 9 August 2000 the National Migration Board rejected the asylum application and ordered the applicant's expulsion from Sweden. It also decided that the applicant should remain in custody. The Board noted that the general situation in Algeria was no longer such as to constitute a reason for granting asylum. As regards the applicant's personal situation, the Board did not find the applicant's allegations credible. It noted that he had not applied for asylum until he was arrested by the police, two weeks after his arrival in Sweden, although the alleged reason for his travelling to Sweden was to seek asylum. Even when arrested he first lied about his true identity. The Board therefore considered that the applicant could not have thought that his need for protection was particularly great. The Board also found it peculiar that he had worked for the GIA under threats to his life for as long a period as three years without having tried to escape. Allegedly, as he had a valid Algerian passport and had completed his military service he should have been able to leave Algeria without any difficulties at an earlier date. As an alternative, he could have left for Algiers to live with his sister. For these reasons, the Board concluded that it was not plausible that, upon return to Algeria, the applicant would be subjected to treatment contrary to Article 3 of the Convention. On 14 September 2000 the Aliens Appeals Board (Utlänningsnämnden), agreeing with the reasons given by the Migration Board, upheld the above decision. It decided also that the applicant should remain in custody. The Appeals Board had at its disposal an “incident report”, dated 12 September, from the Carlslund custody, according to which the applicant had tried to hurt himself in custody. He was given medication and put under constant surveillance. According to another “incident report” of 14 September 2000 the applicant, on that date, after having been informed of the Appeals Board's decision, had collapsed in violent spasms and had again tried to hurt himself by banging his head against the floor. The responsible physician, Dr Meischner, a specialist in general medicine, concluded that the applicant was panic-stricken. As there was a great risk that the applicant would suffer from another similar attack and as the Carlslund custody did not have the necessary resources, Dr Meischner considered that further custody at Carlslund was inappropriate. As the applicant could not be considered mentally ill, he could not be admitted to a psychiatric ward. Instead, Dr Meischner recommended that the applicant be moved to the detention centre at Kronoberg which had sufficient personnel and medical resources to take care of him. Accordingly, the applicant was moved to that detention centre in the evening of 14 September. At Kronoberg the applicant was examined, at the request of his lawyer, by Dr Søndergaard, a specialist in psychiatry from the Centre for Torture and Trauma Survivors (Centrum för tortyr- och traumaskadade; “CTD”) in Stockholm. According to the opinion of Dr Søndergaard, issued on 15 September 2000, the applicant feared that the GIA would kill him if he were returned to Algeria. His fear was based on previous threats to him and his family. On account of that fear, he was unable to communicate properly with other people and had reduced bodily functions. Dr Søndergaard concluded that the applicant was, most likely, seriously ill due to a lengthy state of fear, that he had reacted like a person facing execution and that the risk of a suicide attempt was very serious. Thus, he should be taken to a psychiatric ward for further examination. On 19 September 2000 a new application for asylum, based on the new medical information, was lodged with the Aliens Appeals Board. The same day the Board decided not to suspend the enforcement of the expulsion order. By a judgment of 20 September 2000 the County Administrative Court (länsrätten) in Stockholm rejected the applicant's appeal against the Aliens Appeals Board's decision not to release him from custody. On 20 September 2000, following the Court's indication under Rule 39 of the Rules of Court, the National Migration Board stayed the execution of the expulsion order and released the applicant from custody. On 21 September 2000 the applicant was taken to hospital and was then transferred to a psychiatric ward. On 26 September 2000 Dr Søndergaard from the CTD again examined the applicant. According to his medical certificate, issued the same day, the applicant was feeling fairly well and safe and was able to give a detailed account of his situation. The applicant showed no signs of depression and did not meet all the criteria for a post-traumatic stress syndrome. According to Dr Søndergaard, the applicant's status at the time of the earlier examination, at Kronoberg, could only be seen as an expression of great fear reasonably based on his previous experiences. The detention at Kronoberg and the threat of expulsion from Sweden had involved a serious risk of a lasting impairment of the applicant's health and also a risk of a suicide attempt. The new application for asylum is still pending before the Aliens Appeals Board. | 0 |
train | 001-60395 | ENG | LTU | CHAMBER | 2,002 | CASE OF BIRUTIS AND OTHERS v. LITHUANIA | 3 | Violation of Art. 6-3-d;Violation of Art. 6-1 | Georg Ress | 11. The applicants, while completing their sentences in the Pravieniškės Prison, were suspected of participating in a riot that took place in the prison on 15 January 1997. 21 detainees, including the applicants, were accused of causing or taking part in the riot. 12. The third applicant was released from prison after completing his original sentence on 14 February 1997. He was arrested on 25 June 1997 in the context of the proceedings for riot. The first and the second applicants were still completing their original sentences throughout these proceedings. 13. During the pre-trial investigation two witnesses were examined on behalf of the third applicant. During the trial one witness was called by the Kaunas Regional Court on the third applicant’s behalf. The first and second applicants called no witnesses. 14. On 3 November 1997 the Kaunas Regional Court convicted all the defendants in the case, including the applicants. The court found that the first and the second applicants had organised the riot and that they had also committed affray. They were sentenced to ten years’ imprisonment. The third applicant was found guilty of having actively taken part in the riot and sentenced to six years’ imprisonment. 15. In establishing the first applicant’s guilt, the court referred to the statements of 17 anonymous witnesses who were mostly other detainees. These statements had been recorded by the prosecution during the pre-trial investigation. The secret witnesses testified that the first applicant had organised the riot. The court further referred to the statements at the pre-trial investigation of three co-accused, J, S and T, confirming the first applicant’s guilt. The Regional Court noted that J, S and T had subsequently changed their testimony, alleging inter alia that prosecutors had forced them to inculpate the first applicant. However, the court considered that the initial statements of J, S and T had been valid, and that they had only changed their evidence upon intimidation by the other defendants. The court also took account of the statements given during the trial by a complainant, a detainee belonging to “a lower caste among prisoners”. The latter had testified that the first applicant had assaulted him on 15 January 1997. The court further noted the evidence given at the trial by five members of the prison staff, alleging that the first applicant had organised the riot. The Regional Court found that on the day of the riot the first applicant had been under the influence of alcohol. In concluding that the first applicant was guilty of riot and affray, the court also mentioned indirect evidence: on-site inspection records, material evidence and expert examinations. 16. In finding the second applicant guilty, the Regional Court referred to the statements by 19 anonymous witnesses recorded by the prosecution during the pre-trial investigation. The anonymous statements testified that the second applicant had also been an organiser of the riot. As was the case with the first applicant, the court rejected the later statements of J, S and T, finding that their original testimonies given during the pre-trial investigation had constituted sufficient grounds for establishing the second applicant’s guilt. The court also took account of the statements delivered at the trial by two complainants who were detainees belonging to “a lower caste among prisoners”. The latter had alleged that on 15 January 1997 the second applicant had beaten other detainees, attacked members of the prison staff and barricaded the prison. Evidence along the same lines was given by six members of the prison staff summoned during the trial. The Regional Court found that during the riot the second applicant had been under the influence of alcohol. The court also noted that the second applicant’s guilt in committing riot and affray was indirectly proved by on-site inspection records, material evidence and expert examinations. 17. As to the grounds for the third applicant’s guilt, the Regional Court referred solely to the statements by six anonymous witnesses recorded by the prosecution during the pre-trial investigation. 18. The Regional Court concluded that the first and the second applicants had been the apparent organisers of the riot of 15 January 1997, that they had been drunk, and that they had “induced detainees of lower castes to get involved in the offence”. The court also ruled that “the level of participation in the crime by [the third applicant] had been lower”. 19. The applicants appealed, stating that they had not committed the offences alleged, that the statements of anonymous witnesses had been invalid, that the secret evidence had not been scrutinised either by the defendants or the court, and that the Kaunas Regional Court had ignored certain evidence given during the pre-trial investigation by other detainees. In their opinion, almost 300 inmates had taken part in the events of 15 January 1997. The applicants stated they had been victimised by the prison administration who had encouraged anonymous testimonies by other detainees, promising them favourable treatment. Furthermore, the “secret witnesses” had themselves allegedly taken part in the riot and had collaborated with the authorities in order to avoid prosecution. The prosecution also appealed against the first instance judgment, requesting more severe sentences. 20. On 29 April 1998 the Court of Appeal dismissed the appeals, finding that the Regional Court had properly established the applicants’ guilt and imposed the correct sentences. It held that domestic criminal procedure permitted the first instance court to take account of evidence given by secret witnesses at the stage of pre-trial investigation, without summoning those witnesses to the trial. 21. The applicants lodged a cassation appeal with the Supreme Court, complaining inter alia that the lower courts had not clarified the alleged controversy over the anonymous testimonies. 22. On 20 October 1998 the Supreme Court rejected the appeals, finding that the lower courts had properly decided the case. It noted that the first and the second applicants had been convicted not only on the basis of the anonymous testimonies, but also by reference to the statements of the complainants and the prison staff. The Supreme Court found that the third applicant had basically been convicted by reference to the statements of anonymous witnesses. However, in the view of the cassation court, those statements had been consistent and supplementary to other evidence confirming his guilt. No procedural irregularities were found in connection with the courts’ refusal to examine the anonymous witnesses. 23. Pursuant to Article 156-1 § 1 of the Code of Criminal Procedure (Baudžiamojo proceso kodeksas), in cases pertaining to serious offences a prosecutor or investigator is entitled to keep the identity of a witness secret with a view to ensuring that person’s safety. Under paragraph 2 of this Article, at the stage of pre-trial investigation no one is entitled to have access to the personal details of the anonymous witness except the prosecutor or the investigator. Paragraph 3 provides that any data on the anonymous witness are a State secret. Only prosecutors, investigators and judges are entitled to have access to the personal details of that person. Article 118-1 § 1 of the Code provides that the identity of an anonymous witness is classified under a code name. The data on the witness are kept in a special investigative record, which is separate from the case-file. Pursuant to Article 317-1 § 1 of the Code, where the identity of a witness is secret, a court may dispense with hearing that person by reading out the anonymous statement at a trial hearing. Paragraphs 2 and 3 provide a possibility for the court, of its own motion, to question the anonymous witness in the absence of the parties. Paragraph 4 of the Article states that the court may also question the witness in the parties’ presence at a non-public hearing. In such a case, the court must create acoustic and visual obstacles to prevent the parties from establishing the identity of the secret witness. Article 265 of the Code provides that a defendant at the trial has equal rights to adduce and contest evidence, and that the trial is conducted by way of an adversarial procedure. Article 267 § 5 specifies that the defendant has the right to take part in the examination of all evidence, and to question witnesses, experts and other persons in order to state his case at the trial, let alone in cases provided for in Article 317-1 of the Code. 24. Article 31 of the Constitution (Konstitucija) guarantees the right to a fair trial and lists specific defence rights. On 19 September 2000 the Constitutional Court held that Articles 267 § 5 and 317-1 of the Code of Criminal Procedure, to the extent that they did not guarantee the right of the defendant to question anonymous witnesses while preserving the secrecy of their identity, unjustifiably limited the defendant’s defence rights in breach of Article 31 of the Constitution. | 1 |
train | 001-98315 | ENG | DEU | ADMISSIBILITY | 2,010 | ANNEN (II) v. GERMANY | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Mr Klaus Günter Annen, is a German national who was born in 1951 and lives in Weinheim. He was represented before the Court by Mr L. Lennartz, a lawyer practising in Euskirchen. On 16 October 2001 the applicant distributed pamphlets to passers-by near gynaecologist Dr K.’s medical practice. The front page contained inter alia the following text: “Stop unlawful abortions in Dr. K.’s medical practice” („Stoppt rechtswidrige Abtreibungen in der Praxis Dr. K.“) indicating the physician’s full name and address. It further contained the following sentences: “Did you know that unlawful abortions are performed in H. in Dr. K.’s practice?” („Wussten Sie schon, dass in H. in der Praxis von Dr. K. rechtswidrige Abtreibungen durchgeführt werden?”) The verso contained the sentence: “Please support our struggle against the unpunished killing of unborn children” (“Bitte, helfen sie uns im Kampf gegen die straflose Tötung ungeborener Kinder.”) Dr K., who performed abortions in accordance with the legal conditions laid down in Article 218a §§ 1 and 2 of the Criminal Code (see relevant domestic law, below), raised an action for an injunction. He alleged that the applicant’s statement was incorrect, as he performed abortions exclusively within the legal framework. On 19 October 2001 the Heilbronn Regional Court (Landgericht), by way of an interim injunction, ordered the applicant to desist from further asserting or disseminating the allegation that Dr. K. performed unlawful abortions (rechtswidrige Abtreibungen). This interim injunction was confirmed by the Stuttgart Court of Appeal (Oberlandesgericht) on 8 May 2002. The applicant alleged that the impugned statement was correct. Relying on the Federal Constitutional Court’s case-law, he pointed out that abortions which were performed under Article 218a § 1 following obligatory counselling, but without medical indication as required by Article 218a § 2, where unjustified and thus unlawful. He further asserted that his statement was covered by his right to freedom of expression. On 12 March 2003 the Heilbronn Regional Court confirmed the injunction in the main proceedings. Basing its decision on Article 823 in conjunction with Article 1004 of the Civil Code, that court considered that the applicant’s statement, seen from the point of view of an unbiased and knowledgeable public, contained the allegation that the abortions were performed outside the legal conditions of Article 218a of the Criminal Code and were thus subject to criminal prosecution. It could not be expected from the average reader to draw the distinction between the act of abortion which was justified under Article 218a § 2 of the Criminal Code and the act of abortion which was merely exempt from prosecution under Article 218a § 1 of the Criminal Code. Seen from a layman’s point of view, only those acts of abortions were considered “unlawful” which did not comply with either of the prerequisites laid down in Article 218a of the Criminal Code. The applicant could not rely on the allegation that the impugned statement was true. Having regard to the fact that the pamphlet was not addressed to lawyers, but to laypersons, it was not decisive whether the statement was true from a strictly judicial point of view. The Regional Court did not find it necessary to establish whether the impugned statement had to be regarded as a statement of facts or whether it also contained a value judgment. In any event, the physician’s interest in the protection of his personality rights prevailed over the applicant’s right to freedom of expression. The Regional Court conceded that the impugned statement could be regarded as a contribution to the debate on questions of public interest which merited special protection under the right to freedom of expression. However, in the present case the infringement on the physician’s personality rights was so severe that it prevailed over the applicant’s right to freedom of expression. The statement did not only concern his professional, but also his personal reputation. On the other hand, the applicant could have easily clarified that the abortions performed by the physician were not subject to criminal liability. The Regional Court finally noted that the physician, who had not actively participated in the public debate on abortion, had not given him any reason to attack him as a private person. On 18 September 2002 the Stuttgart Court of Appeal rejected the applicant’s appeal. That court confirmed the Regional Court’s finding that the applicant’s statement, seen from the point of view of an “average reader”, contained the accusation that the doctor performed abortions without respecting the legal provisions. Further to the Regional Court’s findings, the Court of Appeal considered that the applicant’s statements were suited adversely to affect the physician’s professional activities by deterring potential clients. On 1 April 2003 the Federal Court of Justice (Bundesgerichtshof) refused to allow the applicant’s appeal. That court did not consider it necessary to establish whether the interpretation given to the applicant’s statement by the lower courts had been correct. In any event, the applicant had singled out the physician, who had been performing his professional activities within the legal framework, and had produced a “pillory effect” (“Prangerwirkung”). The entailing violation of the physician’s personality rights was so severe that the applicant’s right to freedom of expression had to cede. On 24 May 2006 the Federal Constitutional Court, sitting as a panel of three judges, refused to accept the applicant’s complaint for adjudication. That court considered that the interpretation attributed to the applicant’s statement by the District Court and the Court of Appeal was not necessarily the only possible one. It noted that the Karlsruhe Court of Appeal had considered in a similar case that the impugned statement did not contain the allegation that the abortions performed were subject to criminal liability. Even accepting the statement’s ambiguity, the Constitutional Court considered that the interpretation given by the domestic courts was to be taken into account. The relevant passages read as follows: “In contrast to the examination of penal or civil law sanctions for a statement which has already been made, when a claim for an injunction to desist from uttering an ambiguous statement in the future is examined, the court has to chose among several possible interpretations the one which violates [the plaintiff’s] personality rights or, if this is the case with several interpretations, the one which more seriously violates personality rights. In the present case, this is the interpretation given by the civil courts, and not the interpretation favoured by the complainant with reference to the Karlsruhe Court of Appeal’s decision, according to which the statement referred to the distinction between criminal justification and exemption from criminal liability of different kinds of abortions under Article 218a of the Criminal Code. The complainant’s right to freedom of expression is not violated by the request to clarify the content of his statement with regard to further dissemination in order to avoid a conviction to desist from uttering the statement and in the interest of the plaintiff’s personality rights. There are no indications that the applicant could not reasonably be expected to clarify that the abortions performed in Dr K.’s practice are not subject to criminal liability by using unambiguous words also on the pamphlet’s front page.” The Federal Constitutional Court further confirmed the civil court’s finding that the allegation that the physician performed unlawful and thus punishable abortions was untrue, as the physician undisputedly performed abortions within the legal framework. The court further considered that the civil courts had correctly weighed the conflicting interests, that is to say the applicant’s right to freedom of expression and the physician’s personality rights. With regard to the scope of the applicant’s right to freedom of expression, the Constitutional Court found as follows: “The impugned decisions cannot be understood as preventing the complainant from publicly militating against the exemption from criminal liability and against the performance of abortions and from employing polemic or exaggerated terms. The present case concerned statements which were directed against one single person and infringed that person’s personality rights. It follows that that the physician’s interests, insofar as they were in conflict with the right to freedom of expression, had to be taken into account.” The Federal Constitutional Court further considered that there was no objection from a constitutional point of view against taking into account a so-called “pillory effect” derived from singling out one person, as long as the courts adequately weighed the conflicting interests. The Federal Constitutional Court observed that the plaintiff had been identified by his full name and address as a person performing unlawful acts. This constituted a serious violation of his personality rights. Furthermore, the plaintiff had not given the applicant any reason to single him out. This decision was served on the applicant’s counsel on 22 June 2006. On 24 April 2002 the applicant walked up and down the street in front of Dr. K.’s medical practice, carrying a poster with the text “abortion kills unborn children” (“Abtreibung tötet ungeborene Kinder”) on the front and “You shall not kill. Also applies to doctors” (“Du sollst nicht töten. Gilt auch für Ärzte”) on the back. He also addressed passers-by and the physician’s presumed patients. Dr. K. lodged a request for an injunction with the Heilbronn Regional Court, alleging that the applicant’s behaviour unsettled and deterred his patients and thus seriously disturbed the proper functioning of his medical practice. On 10 April 2003 the Heilbronn Regional Court, basing its decision on Article 823 in conjunction with Article 1004 of the Civil Code, ordered the applicant to desist from addressing patients and passers-by in a specified area in front of Dr. K.’s medical practice and from pointing out that Dr. K. performed abortions. The Regional Court considered that the applicant’s behaviours disturbed the physician in the performance of his professional activities, which were protected as part of his personality rights. Insofar as the applicant relied on his right to freedom of expression, a fair balance had to be struck between the conflicting interests. The Regional Court observed that the applicant, by addressing presumed patients in the area of the physician’s practice and by drawing public attention to the latter’s activities, considerably disturbed the very sensitive relationship between the physician and his patients. This could not only lead to economical disadvantages, but also damaged the physician’s reputation. The Regional Court further considered that the applicant’s right to freedom of expression entitled him publicly to criticise physicians performing abortions. However, the means the applicant employed in order to express his criticism in the direct vicinity of this specific physician’s premises exceeded the acceptable limit. The financial losses the physician had to envisage as a result of the applicant’s behaviour were disproportionate. On 17 September 2003 the Stuttgart Court of Appeal rejected the applicant’s appeal. The Court of Appeal confirmed that the applicant’s behaviour was likely to deter the physician’s current and potential future patients. While conceding that the applicant had the right publicly to criticise the performance of abortions, the means employed by him had been disproportionate. The Court of Appeal further considered that Dr. K., who had not called for any public attention, had been singled out by the applicant in order to exemplify a general problem, thus producing a “pillory effect”. The Court of Appeal further considered that the applicant had acted with the intention to disturb the physician’s relationship to his patients and to cause financial damage. On 30 March 2004 the Federal Court of Justice granted the applicant leave to lodge an appeal on points of law. On 7 December 2004 the Federal Court of Justice dismissed the applicant’s appeal on points of law. That court confirmed the Court of Appeal’s finding that, under the circumstances of this particular case, the physician’s personality rights prevailed over the applicant’s right to freedom of expression. Further to the Court of Appeal’s considerations, the Federal Court of Justice pointed out that the physician’s activities were lawful and enjoyed protection under the constitutional right to freedom to exercise his profession. In this context, the court emphasised the important role which the legislator had attributed to the gynaecologists both in the protection of the unborn life and in the protection of the health of the women concerned. It was essential that the relationship of trust between the physician and his patients was not disturbed by the intrusion of external parties. The applicant’s actions adversely affected the plaintiff’s activities in an unacceptable way. On 24 May 2006 the Federal Constitutional Court, sitting as a panel of three judges, refused to accept the applicant’s constitutional complaint for adjudication as being ill-founded, as it did not find fault with the Federal Court of Justice’s decision. This decision was served on the applicant’s counsel on 22 June 2006. The relevant provisions of the criminal code read as follows: Section 218 Abortion “(1) Whosoever terminates a pregnancy shall be liable to imprisonment of not more than three years or a fine. Acts the effects of which occur before the conclusion of the nidation shall not be deemed to be an abortion within the meaning of this law. (2) In especially serious cases the penalty shall be imprisonment from six months to five years. An especially serious case typically occurs if the offender acts against the will of the pregnant woman; or through gross negligence causes a risk of death or serious injury to the pregnant woman. (3) If the act is committed by the pregnant woman the penalty shall be imprisonment of not more than one year or a fine. (4) The attempt shall be punishable. The pregnant woman shall not be liable for attempt.” Section 218a Exception to liability for abortion “(1) The offence under section 218 shall not be deemed fulfilled if the pregnant woman requests the termination of the pregnancy and demonstrates to the physician by certificate pursuant to section 219 (2) 2nd sentence that she obtained counselling at least three days before the operation; the termination of the pregnancy is performed by a physician; and not more than twelve weeks have elapsed since conception. (2) The termination of pregnancy performed by a physician with the consent of the pregnant woman shall not be unlawful if, considering the present and future living conditions of the pregnant woman, the termination of the pregnancy is medically necessary to avert a danger to the life or the danger of grave injury to the physical or mental health of the pregnant woman and if the danger cannot reasonably be averted in another way from her point of view.” The Federal Constitutional Court, in its leading judgment (BVerfGE 88, 203), accepted in the end abortions being performed by physicians after the pregnant woman having obtained counsel by a third person, and developed a rather singular approach by qualifying certain acts of abortion as unlawful, but not punishable. Abortions which are performed without the establishment of a medical indication must not be treated as being justified (not unlawful) (Schwangerschaftsabbrüche, die ohne Feststellung einer Indikation nach der Beratungsregelung vorgenommen werden, dürfen nicht für gerechtfertigt (nicht rechtswidrig) erklärt werden). However, abortions performed by a physician within twelve weeks after conception and following obligatory counselling are considered to be unlawful, but are exempt from criminal liability. | 0 |
train | 001-23755 | ENG | DNK | ADMISSIBILITY | 2,004 | HIDA v. DENMARK | 4 | Inadmissible | Christos Rozakis | The applicant, Muhammad Hida, born in 1974, is a national of Serbia and Montenegro of Roma origin, who lives in Gram, Denmark. He is represented before the Court by Erik Støttrup Thomsen. The applicant, his spouse according to gypsy traditions, and their son entered Denmark on 19 February 2001 without any travel/identification papers, and requested asylum. In support thereof the applicant explained that on two occasions in June and December 1999 members of the Kosovo Liberation Army had beaten him, and eventually driven him and his family out of his hometown, Gjilane in Kosovo. From 25 December 1999 until 15 February 2001 they lived in Bujanovac, Serbia. Also, he maintained that in general being of Roma origin, he had been subjected to persecution and harassment by various persons since 1995. On 6 February 2002 the Aliens Authorities (Udlændingestyrelsen) refused to grant the applicant asylum. On appeal, the decision was upheld on 26 September 2002 by the Refugee Board (Flygtningenævnet). Both instances noted that the statement of events made by the applicant and his spouse respectively had been divergent. However, even accepting the applicant’s statements as facts, they found that the harassment and incidents referred to failed to attain the minimum level of severity in order to fall within the notion of persecution set out in section 7 of the Aliens Act (Udlændingeloven). Also, reiterating that the applicant had never been politically active, and noting the improvement of the security situation in Kosovo, they found that no concrete danger existed that the applicant would be subjected to persecution, if returned. Finally, reiterating that the applicant and his family had lived without any problems in Serbia, he was referred to reside elsewhere in the Federal Republic of Yugoslavia in case he did not wish to return to the Province of Kosovo. The applicant was ordered to leave the country immediately. On 20 September 2002 the applicant requested that the Ministry of Refugee, Immigration and Integration Affairs (Ministeriet for Flygtninge, Indvandrere og Integration) grant him a residence permit on humanitarian grounds pursuant to section 9 b of the Aliens Act. In support thereof he maintained inter alia that his son suffered from asthma and bronchitis and had undergone surgery in Denmark. His request was refused on 7 April 2003 by the Ministry of Refugee, Immigration and Integration Affairs finding that the applicant did not suffer from a very serious physical or mental illness, which could justify the granting of a residence permit on humanitarian grounds. On 29 January 2003, referring to the general security situation in Kosovo, the applicant requested that the asylum proceedings be reopened. This was refused on 12 May 2003 by the Refugee Board. The applicant was ordered to leave the country immediately. By letter of 20 May 2003 the Danish National Commissioner of Police (Rigspolitichefen) informed the applicant that the time limit for leaving Denmark was overdue. In June 2003 the applicant and his family were moved to an immigration centre in Sandholm. It appears that there the applicant is provided with food, shelter and medical care, whereas he no longer receives a monthly payment to purchase necessities. The Aliens Act and Kosovars in Denmark. According to information provided by the Government, in the summer of 1999 Denmark evacuated a total of 2,855 Kosovars, which were selected together with UNHCR. The applicant in the present case was not among those evacuees. He entered Denmark himself in February 2001. A “Kosovo Emergency Act” of April 1999 created the legal basis at domestic level for receiving displaced persons from Kosovo with a need for temporary protection. The Act was repealed in 2000. At the same time a provision was inserted in the Aliens Act introducing the possibility of granting a residence permit to distressed persons from the Kosovo Province assumed to need temporary protection (now section 9 e (1)). A precondition for obtaining a residence permit under this provision is that the person in question must be assumed to need temporary protection in Denmark and formerly held a residence permit pursuant to the “Kosovo Emergency Act” or has been registered as an asylum-seeker before 30 April 1999. The assessment whether applicants are eligible for a residence permit under section 9 e (1) of the Aliens Act is made on the basis of UNHCR recommendations. Thus, in accordance with the UNHCR recommendations it is possible to issue residence permits under section 9 e (1) to persons - who formerly held a residence permit under the Kosovo Emergency Act or who applied for asylum before 30 April 1999 – and who can be referred to one of the categories of “chronically ill persons whose conditions requires specialised medical intervention of a type not yet available in Kosovo”; “Persons with severe and chronic mental illness whose conditions requires specialised medical intervention of a type not yet available in Kosovo”; “Severely handicapped persons (including their caregivers) whose wellbeing depends on a specialised support system not yet available in Kosovo”; “Unaccompanied elderly persons who have no relatives or any other form of societal support in Kosovo”; and “ Separated children without relatives or caregivers in Kosovo, and for whom it is found not to be in the best interest to return to Kosovo”. App1ications for a residence permit under section 9 e (1) of the Aliens Act are determined in the first instance by the Aliens Authorities and in the second instance by the Ministry of Refugee, Immigration and Integration Affairs. The applicant in the present case is not covered by section 9 1 (e) of the Aliens Act because he never held a residence permit under the “Kosovo Emergency Act” and he entered Denmark after 30 April 1999. However - like asylum-seekers from other countries – he had the possibility of applying for asylum pursuant to section 7 of the Aliens Act; for a residence permit on humanitarian grounds pursuant to section 9 b of the Act; or for a residence permit due to extraordinary circumstances pursuant to section 9 c of the Act. Asylum is granted to aliens, who satisfy the conditions of the Geneva Convention. Applications for asylum are determined in the first instance by the Aliens Authorities and in the second instance by the Refugee Board, which is an independent quasi-judicial body that is not subject to any instructions from the Danish Government. Thus, the Ministry of Refugee, Immigration and Integration Affairs has no authority to decide applications for asylum. UNHCR Recommendations are included in the background material of the asylum authorities in connection with the determination of concrete asylum cases. The granting of a residence permit on humanitarian grounds pursuant to section 9 b of the Act is a discretionary decision, which according to practice may be granted to persons who do not satisfy the conditions of the Geneva Convention, but who is suffering from very severe physical or mental illness (unless the possibility of receiving the requisite medical assistance exists in the applicant’s country of origin). Applications for a residence permit on humanitarian grounds cf. section 9 b (1) are determined by the Ministry of Refugee, Immigration and Integration Affairs. A residence permit may be granted pursuant to section 9 c of the Aliens Act on a discretionary basis, if due to extraordinary circumstances, there are strong grounds for granting such. App1ications for a residence permit under this section of the Act are determined in the first instance by the Aliens Authorities and in the second instance by the Ministry of Refugee, Immigration and Integration Affairs. According to the Aliens Act an alien whose application for a residence permit for Denmark has been refused must leave the country. Furthermore, under the Act it is possible to provide financial assistance if the person in question returns without undue delay voluntary. In connection with the forced return of aliens from the Kosovo Province, UNMIK (United Nations Interim Administration Mission in Kosovo) is the relevant partner. In every case there is a close dialogue between the Danish National Commissioner of Police and UNMIK. Firstly the Danish National Commissioner of Police notifies UNMIK about the return to Kosovo of Kosovars whose applications for a residence permit in Denmark have been refused. Such notifications state the time of the individual’s departure from Kosovo and entry into Denmark and inform of decisions made by the Danish authorities and the individual’s personal situation, including his or her home town in Kosovo, the languages mastered by the individual and where his or her family members are staying. It also appears from the notification if the individual has been expelled due to crime. The notifications also state particulars on the individual’s health status. This notification procedure was first established at a meeting held in Kosovo from 24 to 26 July 2000 between officials of the Danish National Commissioner of Police, the Aliens Authorities and UNMIK. The notification procedure was confirmed and expanded at a meeting in Kosovo on 22 January 2003 between a delegation of high officials from the immigration authorities and UNMIK, who agreed that UNMIK will be provided with extended information, especially concerning the mental status of Kosovars who are non-voluntarily sent back to Kosovo in order to support UNMIK in its efforts to solve its task. Such information will be available to UNMIK by offering the Kosovars in question a voluntary medical status report prior to the return to Kosovo. The Danish National Commissioner of Police has presented to UNMIK a number of Kosovars whose applications for a residence permit in Denmark have been refused for which reason they have had to leave Denmark. In some cases UNMIK objected to the return of the persons in question. In such situations the Danish National Commissioner of Police has suspended the return until further notice. In the present case, the Danish National Commissioner of Police has not yet contacted UNMIK because the forced return of the applicant has not been planned yet. Normally a forced return takes quite some time, not less than two or three months. Relevant international materials With regard to the current security situation in Kosovo, the following statements/ findings are of particular relevance: The Secretary General on the United Nations Interim Administration Mission in Kosovo stated in his report of 14 April 2003 covering the activities of UNMIK and the developments in Kosovo, Serbia, and Montenegro among other things that given the continued violence, harassment and discrimination faced by minorities, achieving sustainable minority returns to Kosovo was difficult, time-consuming and resource-intensive; In his report of 26 June 2003 he stated inter alia that incidents of violence and crimes against minorities continued to be a cause for concern within Kosovo; In his report of 15 October 2003 he stated inter alia that despite setbacks resulting from recent violent incidents involving Kosovo Serb victims, the overall rate of returns continued to accelerate during the reporting period. Over 2,200 displaced persons had returned so far that year to areas where they were a minority (including 1,016 Kosovo Serb, 693 Roma/ Ashkaelia /Egyptians, 242 Bosnians, 74 Gorani and 239 Kosovo Albanians). Funding expected from several major donors had been provided in Kosovo and work on a number of returns projects had begun in earnest, including the return of Kosovo Serbs to Podgorce (Gnjilane region) and Zhupa Valley (Prizren region), and Roma/ Ashkaelia/Egyptian returns to Magura (Pristinia region) and Pristina town. The heightened level of security within the Kosovo Serb and other minority communities had not resulted in the cancelling of any returns project, but it had led to numerous postponements of returns activities, at a stage in the season where such delays may mean that returns are not possible until next spring. It was also considered likely to have a dampening effect on individuals’ return. The Tenth Assessment of the Situation of Ethnic Minorities in Kosovo of March 2003, conducted jointly by OSCE and the UNHCR, stated that minorities continue to face varying degrees of harassment, intimidation and provocation, as well as limited freedom of movement, and that considering the overall situation described in the report, the changes noted during the reporting period were not yet fundamental enough to conclude that conditions would exist for large scale return of ethnic minorities in the near future, underscoring the continuing need for international protection for members of ethnic communities, in particular Kosovo Serbs, Roma, Ashkaelia and Egyptians; The UNHCR Position Paper on the continued Protection Needs of individuals from Kosovo of January 2003 stated that especially Kosovo Serbs and Roma, but also Ashkaelia and Egyptians should continue to benefit from international protection in countries of asylum. UNHCR stressed that return of these minorities should take place on a strictly voluntary basis and be based on fully informed individual decisions. Any such voluntary return movements should be properly coordinated, and re-integration should be supported through assistance to ensure sustainability. Kosovo Serb, Roma, Ashkaelia and Egyptian individuals or families should not be forced or induced to return to Kosovo. The First Vice-President of the Advisory Committee on the Framework Convention for the Protection of National Minorities, recommended in his mission report of March 2003 “Roma Returns to Serbia and Montenegro” for the Council of Europe, inter alia that Roma asylum seeker/returnees (from Western Europe), who fled Kosovo, should not be returned to Kosovo unless they wish to return and they are advised by UNMIK and UNCHR that it is safe for them personally to return to their homes, and In its report of 29 April 2003 - Serbia and Montenegro (Kosovo) “Prisoners in our own homes”: Amnesty International’s concerns for the human rights of minorities in Kosovo - Amnesty International urged inter alia host countries not to end international protection for all minority refugees from Kosovo and ensure that refugees still in need of protection were not subject in any way to pressure or inducement to “voluntarily return”. Amnesty International considered that the forcible return of members of minority groups to Kosovo would be a violation of the principle of non-refoulement and place minority individuals at risk. It follows from a “Memorandum of Understanding” between the Federal Minister of the Interior of Germany and the Special Representative of the Secretary-General of the United Nations for Kosovo of 31 March 2003 that approximately 33,000 members of ethnic minorities from Kosovo are required to leave Germany. It was agreed that certain members of specific ethnic minority groups were no longer in need of international protection and could therefore be returned to Kosovo, as from April 2003. In the first year Germany would return up to 1000 persons. This figure would include members of the Turkish, Bosnian, Gorani and Torbesh minority communities, as well as Ashkaelia and Egyptian minorities. As to the latter two groups of minorities, they would be returned depending on the results of an individualised screening process performed by UNMIK. Members of the Serb and Roma communities would not be returned in 2003. | 0 |
train | 001-120080 | ENG | NLD | ADMISSIBILITY | 2,013 | LOHUIS AND OTHERS v. THE NETHERLANDS | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria | 1. The applicants are Netherlands nationals resident in the Netherlands. They are represented by Mr A.B. Lever, a lawyer practising in Apeldoorn. A list of the applicants is set out in the appendix. 3. From the 1980s onwards the Netherlands, in common with other European Union countries, introduced measures aimed at limiting the quantity of dung, or faecal matter, produced by certain animals including pigs. This initially involved a system of “dung production quotas”. 4. On 1 September 1998 the Pig Farming Restructuring Act (Wet herstructurering varkenshouderij) entered into force. 5. The Pig Farming Restructuring Act, according to its preamble, was enacted with a view to implementing European Union Council Directive 91/676/EEC concerning the protection of waters against pollution caused by nitrates from agricultural sources, and also in order to preserve amenity, the quality of the environment and the health and well-being of animals. 6. The Pig Farming Restructuring Act transformed “dung production quotas” into a maximum number of pigs per farm – the so-called “pig entitlement” (varkensrecht). Pig entitlements (except in so far as they concerned breeding sows, which were treated as a special category) were transferable, within certain (especially territorial) limits (sections 16-17 of the Pig Farming Restructuring Act) and subject to the lapse of a variable proportion of the entitlement upon transfer (section 18 of the Pig Farming Restructuring Act); they could not, however, be used as collateral (section 22). 7. The pig entitlement was calculated in each case by reducing the average number of pigs held on the farm in 1996 or, in certain cases, 1995 by 10% (sections 6 and 7 of the Pig Farming Restructuring Act). A further reduction by 15% was foreseen with effect from 1 January 2000 (section 31 of the Pig Farming Restructuring Act). It was the actual number of pigs kept in those years that was decisive; any “latent capacity” (latente ruimte), that is the difference between the number of pigs a farmer would have been allowed to keep at the relevant time and the number actually kept, was lost. 8. Provision for special cases of hardship was made in the Pig Farming Restructuring (Hardship) Decree (Besluit hardheidsgevallen herstructurering varkenshouderij); such cases included, among others, farms which – as determined by precise formulae – had, for specific reasons (a farmer’s ill-health not among them), been working significantly below the capacity allowed them in 1995 and 1996 by the dung production quota legislation then in force. 9. The Pig Farming Restructuring Act and the Pig Farming Restructuring (Hardship) Decree were repealed with effect from 1 January 2006. 10. The applicants are, or were at the relevant time, pig farmers resident and farming in the Netherlands. 11. The applicants Lohuis and Lohuis-Voshaar, who ran a farm as a partnership (maatschap), were farming at considerably less than full capacity in 1995 and 1996 owing to ill-health. They ended up losing over 30% of their original pig entitlements as “latent capacity”, in addition to the 25% total reduction prescribed by the Pig Farming Restructuring Act. They have since given up farming. 12. The applicant Van Gerwe farmed at two locations, on one of which he was building a new pig shed in 1995; farming began there in 1996. Thanks to a clause beneficial to him in the Pig Farming Restructuring (Hardship) Decree he lost only 5% of his entitlements for that location as “latent capacity”. For the other location he lost the full 25%. 13. The applicant Schutte lost the full 25% of his 1995-1996 entitlement plus 5% as “latent capacity”. He also stated that he had run into financial difficulties as a result of the uncertainty facing pig farming in the late 1990s, which had forced him to sell off some of his land and purchase pig entitlements from elsewhere. 14. The applicant Van den Heuvel lost the full 25% of his former entitlements, plus a claimed 30% as “latent capacity”. 15. On 26 June 1998 the applicants, together with other pig farmers and a non-governmental organisation set up to further the interests of pig farmers (hereafter “the original plaintiffs”), brought a civil action in tort against the State before the Regional Court (arrondissementsrechtbank) of The Hague, arguing among other things that the new legislation constituted a “deprivation of possessions” within the meaning of Article 1 of Protocol No. 1. 16. On 23 December 1998 the Regional Court gave judgment holding, as relevant to the case, that pig entitlements constituted “possessions”, and that depriving the applicants thereof without any compensation constituted a tort as long as adequate arrangements for compensation were not made. The Pig Farming Restructuring (Hardship) Decree was not sufficient to mend matters since it could merely limit the damage, not compensate for it. 17. The State appealed to the Court of Appeal (gerechtshof) of The Hague. The original plaintiffs lodged a cross-appeal. 18. On 20 January 2000 the Court of Appeal gave judgment holding that the measures complained of constituted not a “deprivation” of possessions but a “control” of their use. It accepted the necessity of measures to be taken, and also the proportionality of the first reduction of the pig entitlements by 10%. The second reduction by an additional 15%, however, it found disproportionate. It therefore held that section 31 of the Pig Farming Restructuring Act should not be put into effect as regards the original plaintiffs, dismissing their claims for the remainder. 19. A number of the original plaintiffs, including the applicants, lodged an appeal on points of law to the Supreme Court (Hoge Raad). The State lodged a cross-appeal. 20. On 16 November 2001 the Supreme Court delivered a judgment (LJN (Landelijk Jurisprudentie Nummer, National Jurisprudence Number) AD5493) quashing the judgment of the Court of Appeal. As relevant to the case before the Court, it found that Article 1 of Protocol No. 1 was applicable and that there had been an interference with the applicants’ right to the peaceful enjoyment of their possessions. However, there was no “de facto expropriation” as the applicants argued. On this point, the Supreme Court held as follows: “6.1.3. According to the case-law of [the European Court of Human Rights], in cases where there is no formal expropriation there is a deprivation within the meaning of the second sentence of Article 1 of Protocol No. 1 if it concerns a ‘de facto expropriation’ (see Sporrong and Lönnroth v. Sweden, 23 September 1982, § 63, Series A no. 52, Nederlandse Jurisprudentie (Netherlands Law Reports, NJ) 1988, no. 290, and Fredin v. Sweden (no. 1), 18 February 1991, § 42, Series A no. 192). According to the case-law of [the European Court of Human Rights] cited in the advisory opinion of the Acting Procurator General ... it is, in the case of a (partial) withdrawal of a licence, or of a restriction of a different kind of the rights flowing from the licence, not the licence itself that constitutes the nexus (aanknopingspunt) for the protection of property, but the enterprise exploited with that licence. In line with this, whenever – as in the cases in issue in the present proceedings – the contested Government measure purports to restrict certain enterprise activities (bedrijfsactiviteiten) in pursuance of goals such as those pursued by the quota arrangement of the Pig Farming Restructuring Act (...), then in answering the question whether that measure constitutes a ‘de facto expropriation’ the effects of that measure on the affected enterprise as a whole must be examined (...). The circumstance that the legislative arrangements (regelingen) involved provide for (limited) transferability of dung production quotas and pig entitlements does not deprive these legislative arrangements of the character of a restriction imposed on the exploitation of the enterprise (aan de bedrijfsvoering opgelegde beperking).” The Supreme Court went on to hold that the new legislation constituted a “control of use” of the applicants’ possessions. The legislature had not, in principle, overstepped its “margin of appreciation”. It had to be recognised, however, that the interests of the individual pig farmers among the plaintiffs deserved protection: in particular, a “fair balance” had to be found in each case, implying a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”. The case was remitted to a different Court of Appeal, that of Arnhem, which would have to review the individual cases of the pig farmers party to the proceedings. The instruction to the Arnhem Court of Appeal was phrased as follows: “7.3 It follows [from the above] that the second paragraph of Article 1 of Protocol No. 1 does not, in principle, constitute a basis for not applying the Pig Farming Restructuring Act in respect of those pig farmers who have been affected by the impugned measures only as concerns dung production quotas or pig entitlements allotted them by law and which they have not acquired for a consideration in any other way. However, after remittal it will have to be examined whether the impugned measures under the Pig Farming Restructuring Act constitute an ‘individual and excessive burden’ for one or more of the [individual] appellants [i.e. not including the non-governmental organisation aforementioned] owing to specific facts and circumstances not applicable to all pig farmers, and whether the relevant provisions of the Pig Farming Restructuring Act should not be left unimplemented in their respect, at least as long as no provision is made for adequate financial compensation. This may be the case, in particular – but not exclusively –, if a pig farmer’s dung production quota or pig entitlement, obtained for a consideration, is affected, it being of particular importance to what extent the State has created expectations finding their expression in, for example, the price for which the rights in issue were obtained. As mentioned, such problems have been provided for in part by the Pig Farming Restructuring (Hardship) Decree. The [individual] appellants have however stated that this Decree does not apply to them. 7.4. In so doing it will be possible also to take into consideration facts and developments in the field of legislation that have occurred subsequent to the judgment of the Court of Appeal. After remittal the parties will be able to expand and adapt their positions accordingly.” 21. The applicants lodged an application with the Court on 13 May 2002, complaining that the new legislation did not constitute a “control of the use of property” within the meaning of Article 1 of Protocol No. 1 but a “deprivation of possessions” without any form of compensation. 22. On 8 April 2004 the Court, sitting as a Committee of three judges (former Article 27 § 1 of the Convention), declared that application (no. 18689/02) inadmissible. It found that domestic remedies had not been exhausted as required by Article 35 § 1 of the Convention, since, after the case had been remitted by the Supreme Court to the Court of Appeal of Arnhem, the proceedings had not yet been pursued to a final decision. 23. After the Court’s decision of inadmissibility, proceedings were resumed in the Court of Appeal of Arnhem on the basis of the Supreme Court’s remittal judgment of 16 November 2001. 24. The Arnhem Court of Appeal gave an interlocutory judgment on 29 August 2006. It found, as relevant to the case before the Court, that both the Court of Appeal of The Hague and the Supreme Court had dismissed the suggestion that the applicants’ pig entitlements were “possessions” within the meaning of Article 1 of Protocol No. 1 of which they had been deprived. Referring to the judgment of a Chamber of this Court (J.A. Pye (Oxford) Ltd v. the United Kingdom, no. 44302/02, § 46, 15 November 2005), it held that it had nonetheless to consider whether a “reasonable relationship of proportionality” existed regardless of whether the interference with the applicants’ rights was to be seen as a “deprivation” of possessions or as “control” of their use. 25. Faced with the need to consider the applicants’ cases individually, it came to the provisional conclusion that the applicant Lohuis had been disproportionately affected. He had lost no less than 34% of his pre-existing rights, his “latent capacity”, in addition to the 25% total reduction under the Pig Farming Restructuring Act; this had rendered an investment in a new pig shed made in 1993, worth 60,000 Netherlands guilders (NLG), useless. In the case of the applicant Van den Heuvel there was a dispute as to the actual extent and value of the “latent capacity” actually lost. The claims of the applicants Schutte and Van Gerwe, whose loss of “latent capacity” was minimal, would have to be dismissed in their entirety. The proceedings were adjourned so that the loss suffered by the applicants Lohuis and Van den Heuvel could be established. 26. In a second interlocutory judgment, delivered on 3 July 2007, the Arnhem Court of Appeal found it established that the applicant Lohuis had suffered a disproportionate loss in that he had lost his 34% “latent capacity”, for which he had received no compensation. It also found it established that the applicant Van den Heuvel had lost “latent capacity” in an amount of 25% of his former entitlement. However, he had obtained this “latent capacity” by taking over dung production quotas attached to land which he had purchased; hereafter, the discussion centred on whether he had paid a consideration for these quotas or not. It adjourned the proceedings to hear any witnesses brought forward by the parties and obtain a report by an expert. 27. The Arnhem Court of Appeal delivered its final judgment on 17 November 2009, after having heard witnesses and taken cognisance of a report by an expert. It found that the applicant Van den Heuvel had lost “latent capacity” in an amount of 25%, but had been able largely to set off his loss against capacity tied to the land which he had purchased. With respect to the 25% reduction provided for by the Pig Farming Restructuring Act, he was affected no worse than any other pig farmer; he could therefore not be said to have been made to bear an “individual and excessive burden”. 28. The Arnhem Court of Appeal quashed the judgment of the Regional Court. It held that the State had committed a tort in respect of the applicants Lohuis and Lohuis-Voshaar and was therefore liable for any damage thereby caused, the amount of which would need to be assessed and settled in due course. It dismissed the other applicants’ appeals. 29. The State lodged an appeal on points of law against the Court of Appeal’s judgment. 30. The applicants Lohuis and Lohuis-Voshaar lodged a cross-appeal. The other applicants did not, having been advised by counsel that an appeal lodged by them had no prospects of success. 31. The applicants Lohuis and Lohuis-Voshaar argued that the Court of Appeal ought, on reflection, to have given favourable consideration to their argument that they had suffered a “deprivation of possessions” within the meaning of Article 1 of Protocol No. 1. 32. The Supreme Court gave judgment on 2 September 2011. It dismissed the State’s appeal and the cross-appeal by the applicants Lohuis and Lohuis-Voshaar in their entirety. In dismissing the latter, it referred to its own judgment of 16 November 2001, which was binding on the Court of Appeal. 33. The Netherlands Civil Code (Burgerlijk Wetboek) defines “property” (goederen) as “all things and all other proprietary rights (vermogensrechten)” (Article 3:1). “Proprietary rights” within the meaning of that Article are “rights which, either separately or together with another right, are transferable, or which purport to give the person entitled (rechthebbende) material benefit, or which are obtained in exchange for present or future material benefit” (Article 3:6). Article 3:228 provides that all transferable property can be encumbered (i.e. as collateral) with a pledge (pandrecht) or a mortgage (hypotheek). | 0 |
train | 001-23240 | ENG | CZE | ADMISSIBILITY | 2,003 | HARRACH v. THE CZECH REPUBLIC | 4 | Inadmissible | null | The applicant, Mr Ernst Leonhard Harrach, is a Czech and Austrian national. He was born in 1920 and lives in Bruck an der Leitha (Austria). He is represented before the Court by Mr P. Hrdina, a lawyer practising in Prague, and by Mr J. Eltz, a lawyer practising in Vienna. Johann Harrach, the applicant’s cousin, owned real estate in former Czechoslovakia. On 28 December 1941 he made a will appointing his son Ferdinand his universal heir and the applicant his testamentary substitute. Johann Harrach died on 12 May 1945. As his son did not acquire the estate, it became hereditas iacens (a “dormant” inheritance; ležící pozůstalost; ruhender Nachlaβ). The property was confiscated on 21 June 1945 under President Beneš Decree no. 12/1945. Stephanie Harrach, Johann Harrach’s widow, requested that the property be excluded from the confiscation, as her husband had been loyal to the Czechoslovak State during the German occupation. Her request was rejected by the Hradec Králové District National Committee (okresní národní výbor) on 11 December 1946. The National Land Committee (zemský národní výbor) upheld this decision on 31 March 1947. On 25 August 1961 Ferdinand Harrach died. As a result, the right to take over the hereditas iacens passed to the applicant. On 24 January 1993 the applicant lodged a claim for restitution of the property which had been confiscated from Johann Harrach. On 16 March 1999 the Tábor District Land Office (okresní pozemkový úřad) held that the applicant was the owner of part of the property. It found that Johann Harrach had died as an Austrian national and that the Ministry of Agriculture (ministerstvo zemědělství) had subsequently ordered the confiscation of his property under President Beneš Decree no. 12/1945. The Land Office’s decision stated that the confiscation proceedings had been held in respect of the hereditas iacens which had been considered under the Civil Code 1811 as being formally possessed by the deceased person until acquired by an heir. The Land Office established that the confiscation could have been effective only after a final administrative decision had been taken and that the confiscation proceedings should have been held subsequent to the ex officio inheritance proceedings, in which the heirs could have lodged their inheritance applications in order to acquire the estate. It held that confiscation proceedings could not have been conducted against the hereditas iacens and that there had never been any proceedings concerning the applicant’s inheritance. It concluded, with reference to the Land Ownership Act, that the property had been transferred to the State unlawfully and that the applicant’s property rights had been infringed during the period covered by that legislation. On 22 October 1999 the Hradec Králové Regional Court (krajský soud), upon the defendant’s appeal, quashed the Land Office’s decision and remitted the case to the administrative authority, on the ground that the Land Office had insufficiently established the facts of the case. The court considered, in particular, that the Land Office had failed to examine the date on which the confiscation of the property had taken place. That issue was relevant for establishing whether the applicant’s case ought to be examined under the Restitution Act 1992. The court established that the Land Office’s legal opinion that the confiscation had been null and void was not supported by the evidence adduced. In the Regional Court’s view, the confiscation proceedings ended with the former National Land Committee’s decision of 31 March 1947, and thus fell outside the period laid down in section 4 of the Land Ownership Act. The court noted that the restitution requirements set out in section 6 of the Land Ownership Act could be fulfilled, provided that the relevant chronological requirement was satisfied. The decision further stated that the Land Office had failed to establish whether any proprietary wrong had in fact been caused to the applicant and, if so, whether it had been caused within the relevant period. The court did not share the Land Office’s opinion that (i) the confiscation proceedings had been held by authorities which lacked power to deal with the case contrary to President Beneš Decree no. 12/1945, and that (ii) the final decision on confiscation had not become effective. The court further found, contrary to the view expressed by the Land Office, that the relevant provisions of the Civil Code 1811 had not excluded confiscation of the hereditas iacens. In the meantime, on 6 September 1999, the Tábor District Land Office found that the applicant was the owner of the other part of the property claimed by him. It held that the confiscation proceedings had been conducted against the deceased owner, and that under the Civil Code 1811 the hereditas iacens had been considered as being in the possession of the testator until acquired by an heir. Accordingly, the confiscation of Johann Harrach’s property had been null and void, and the State had acquired the property illegally. The Land Office concluded that the applicant had suffered a proprietary wrong within a period covered by the Land Ownership Act, and that his restitution claim fell within the scope of section 6(1) of that Act. On 23 February 2000 the České Budějovice Regional Court, upon the defendant’s appeal, quashed this decision and remitted the case to the Land Office for further consideration. The court held that the main reasons for which the property of Johann Harrach had been confiscated were that he had opted for German nationality and the German language as his mother tongue in 1939, that he had been active in associations having German professional or other interests, that he had acquired, on 27 September 1939, a German passport indicating that he was a German national, that he had become a member of a German political party (Sudetendeutschen Partei) on 28 August 1939, and that he had joined the Nazi political party NSDAP (Nationalsozialistische Deutsche Arbeiterpartei) on 1 November 1942. The court established that the property had been transferred to the State by operation of President Beneš Decree no. 12/1945 on 23 June 1945, and that the subsequent decisions on confiscation had only had a declaratory character. The court found that the applicant’s case fell outside the scope of the Land Ownership Act which covered exclusively the period between 25 February 1948 and 1 January 1990. It rejected the Land Office’s argument that the legislation in force in former Czechoslovakia had not provided for the confiscation of the hereditas iacens. With reference to Articles 547 and 819 of the Civil Code 1811, the court noted that the proprietary nature of inheritance rights allowed their confiscation pursuant to President Beneš Decree no. 12/1945. It also noted, with reference to a decision of the Czech Constitutional Court of 2 November 1999, that the hereditas iacens was to be understood as a legal person sui generis. The court added that Johann Harrach had been represented by a guardian in the confiscation proceedings. The court finally stated that, even assuming that the confiscation could be deemed null and void, the State would have acquired the property without any legal title outside the relevant period prescribed by the Land Ownership Act, as the confiscation proceedings had terminated in 1947. It ordered the Land Office to examine whether Johann Harrach satisfied the conditions for the restitution of property laid down in the Restitution Act 1992. The applicant lodged a constitutional appeal (ústavní stížnost) which was rejected as being premature by the Constitutional Court (Ústavní soud) on 7 June 2000. On 5 June 2000 the Tábor District Land Office, after having joined the cases, decided that the applicant was not the owner of the estate. The Land Office, being bound by the judgments of the Hradec Králové Regional Court and the České Budějovice Regional Court, held that the property had been confiscated lawfully and that the confiscation fell outside the relevant period specified in the Land Ownership Act. The Land Office also held that the original owner had not satisfied the conditions for the restitution of property fixed by the Restitution Act 1992 as he had become a German citizen on 27 September 1939 and had not re-acquired Czechoslovak citizenship. The Land Office stated that the applicant had neither acquired the estate from Johann Harrach, as provided for in section 2 of the Restitution Act 1992, nor had they kinship as specified in section 2 § 3 of that Act. On 9 August 2000 the Supreme Court held that the applicant’s appeal against the Tábor District Office’s decision of 5 June 2000 was to be considered by the České Budějovice Regional Court. On 25 October 2000 the České Budějovice Regional Court upheld the administrative decision. In addition to the reasons set out therein, the court held that, pursuant to Articles 710 and 819 of the Civil Code 1811, an heir had acquired property upon a court decision and that an estate had been considered as being in the possession of the testator until delivered to an heir by a decision of a court of law. The Regional Court also held that, since the inheritance in the form of a hereditas iacens was in general of a proprietary character, it could have been subject to confiscation under the President Beneš Decrees. The property in the form of a hereditas iacens was a legal person sui generis with legal capacity. As a result, it could have been confiscated after the original owner’s death, provided that it had not yet been transferred to an heir in inheritance proceedings. On 8 March 2001 the Constitutional Court, endorsing the reasons given in the Regional Court’s judgment of 25 October 2000, and referring to its decision no. II ÚS 170/96, rejected as being manifestly ill-founded the applicant’s second constitutional appeal, in which he claimed a violation of his right to a fair hearing and his right to the peaceful enjoyment of possessions. The Land Ownership Act governs, inter alia, the restitution of certain agricultural and other property defined in section 1 which was assigned or transferred to the State or other legal persons between 25 February 1948 and 1 January 1990. Section 6(1) lists the acts giving rise to a restitution claim. The persons entitled to claim restitution (“rightful claimants”) are set out in section 4. Under section 4(1), any natural person who is a citizen of the Czech and Slovak Federal Republic and who lost property which once formed his or her agricultural homestead in the aforementioned period, in one of the ways set out in section 6(1), is entitled to claim restitution. The entitled persons are the original owners of the property or, where the original owner is dead, the owner’s heirs or next of kin in a specified order (section 4(2)). By section 4(2), restitution can be claimed by natural persons who are citizens of the Czech and Slovak Federal Republic and are at the same time, in order of precedence, a) testamentary heirs who acquired the whole of the estate, b) testamentary heirs who acquired part of the estate, c) children and spouses, d) parents, or e) brothers and sisters or their spouses and children. Section 5 provides that the persons obliged to restore property include the State and any legal person possessing the property at the date when the Act entered into force. This Act constitutes a lex specialis in relation to the Land Ownership Act. Section 2(1) provides that any natural person who is a citizen of the Czech and Slovak Federal Republic, who lost his or her property under Presidential Decrees nos. 12/1945 and 108/1945, and who was loyal to the Czechoslovak State and re-acquired Czechoslovak citizenship either under Acts nos. 245/1948, 194/1949 and 34/1953 or Act no. 33/1945, is entitled to claim restitution of any of his or her property which passed into State ownership in the circumstances referred to in the Land Ownership Act. Section 2(3) provides that where such a person died or was declared to be presumed dead before the time-limit set out in Section 11a, restitution can be claimed by natural persons who are citizens of the Czech and Slovak Federal Republic and are at the same time, in order of precedence, a) testamentary heirs who acquired the whole of the estate in inheritance proceedings, b) testamentary heirs who acquired part of the estate, c) children or spouses, d) parents, or e) brothers or sisters or their children. Article 547 provides for the concept of hereditas iacens, which exists from the moment of the owner’s death until a heir accepts the estate. Hereditas iacens is based on the notion that, during this period, an estate is considered to be formally owned by the deceased. By Article 819, a person who has been declared heir by a decision of a court of law on his or her application, and who has fulfilled his or her obligations, receives the estate, thus putting an end to the inheritance proceedings. The Civil Code 1811 was repealed at the end of 1950, whereupon the legal concept of hereditas iacens ceased to be valid in Czechoslovakia. The decree provides for expropriation, with immediate effect and without compensation, of agricultural property for the purposes of programmed land reform. It concerns agricultural property, including buildings and movable goods, owned by persons of German and Hungarian origin irrespective of their citizenship status. For the purposes of the land reform, section 1(1) provides, with immediate effect and without compensation, that the property of the following persons shall be confiscated: a) persons of German and Hungarian origin irrespective of their citizenship, and b) traitors and enemies of the State. Section 1(2) provides that the property of persons of German and Hungarian origin who were active in the battle for the liberation of Czechoslovakia is eligible for exemption from confiscation. Section 1(3) provides that decisions as to whether the property referred to in section 1(2) is exempt from confiscation shall be taken by the National District Committees. Section 2(1) defines persons of German or Hungarian origin as being those who, in any census after 1929, declared themselves to be of German or Hungarian origin, or who became members of national groups, formations or political parties made up of persons of German or Hungarian origin. That case concerned a claim for the restitution of property which had been confiscated, in the form of an hereditas iacens, under President Beneš Decree no. 12/1945. The applicants claimed a violation of their property rights, alleging that their father had been the principal heir and they had been his substitutes in succession. The Constitutional Court stated that, pursuant to the Civil Code 1811, an heir had had the right either to accept or reject the hereditas iacens; however, an hereditas iacens could only have passed to an heir by virtue of a court decision. It established that, as the hereditas iacens in question had not been considered by the national courts in inheritance proceedings, the plaintiffs’ inheritance title to the property had been irrelevant for the purposes of the restitution proceedings. The court further stated that the property claimed had been confiscated pursuant to President Beneš Decree no. 12/1945 on 23 June 1945, and that the subsequent administrative decisions on confiscation had only been declaratory. It noted that the national courts had rightly applied the Restitution Act 1992 instead of the Land Ownership Act on the facts of the case, as the former was a lex specialis. The Constitutional Court concluded that only the owner of the confiscated property had to comply with the conditions for restitution of property laid down in the Restitution Act 1992 (i.e. to show that he or she was a Czech citizen, that the property had been confiscated under President Beneš Decree no. 12/1945, and that he or she was loyal to the Czechoslovak State and had acquired Czech citizenship). The Constitutional Court held that, as the original owner had not satisfied those conditions and the plaintiffs’ father had not acquired the hereditas iacens, and thus had never owned the property, the plaintiffs were not entitled to claim its restitution. | 0 |
train | 001-86233 | ENG | GBR | CHAMBER | 2,008 | CASE OF McCANN v. THE UNITED KINGDOM | 1 | Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award | Giovanni Bonello;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä | 6. The applicant was born in 1968 and lives in Birmingham. The facts of the case as submitted by the parties are as follows. 7. In July 1998 the applicant and his wife became joint tenants of a three-bedroom family house owned by Birmingham City Council (“the local authority”). They were also secure tenants under the provisions of the Housing Act 1985 (see paragraph 20 below). 8. The marriage broke down early in 2001 and the applicant’s wife moved out of the house with the two children. On 5 April 2001, following a contested hearing at which the applicant was not represented, the court made a three-month non-molestation order and an ouster order requiring the applicant to leave the house, which he did. Mrs McCann and the children moved back into the house, but moved out again when on 14 April the applicant turned up at the house, used a crowbar to force entry and allegedly assaulted Mrs McCann and her friend. Criminal proceedings were brought against the applicant following this incident, but resulted in an acquittal when no evidence was put forward. 9. On 18 April 2001 Mrs McCann submitted to the local authority an application to be rehoused on grounds of domestic violence. On 8 August 2001 she returned the keys to the local authority with a note saying that she was giving up the tenancy. She and the children moved into another council house which had been allocated to them in accordance with the local authority’s domestic violence policy. The local authority visited the house and found that most of the fixtures had been removed so that in excess of 15,000 pounds sterling would be required to make it habitable. Thereafter, as far as the local authority was concerned, the property was uninhabited. 10. In November 2001 the applicant returned to the house and did a considerable amount of work to renovate it. His relationship with Mrs McCann improved and she supported his application for an exchange of accommodation with another local-authority tenant, as the three-bedroom house was too big for him but he still required a home in the area so that his children could visit. 11. That application, dated 4 January 2002, was completed at the local-authority housing office. On the same day, a housing officer, having realised that the property was not in fact empty, and having taken legal advice, visited Mrs McCann and asked her to close the tenancy by signing a notice to quit. The County Court judge who heard the local authority’s claim for possession found as a fact that Mrs McCann was not advised and had no understanding that the notice to quit would have the effect of extinguishing the applicant’s right to live in the house or exchange it for another localauthority property (see paragraph 19 below). Approximately one week later Mrs McCann wrote to the local authority seeking to withdraw the notice to quit, but it nonetheless remained effective. 12. The applicant was informed that the tenancy had come to an end, and he was given notice to vacate. On 11 June 2002 the local authority’s Allocations Officer Review Panel decided, inter alia, that in accordance with the domestic violence policy, the applicant would not be granted the right to accede to the former tenancy of the house and that, in any event, the applicant, who had no dependants living with him, would not qualify for a dwelling originally allocated to a qualifying family which had been rehoused. 13. On 11 October 2002 the local authority brought possession proceedings against the applicant in the County Court, which he defended on the basis that it was contrary to his right to respect for his home under Article 8 of the Convention to be evicted on the basis of the notice to quit. 14. In his judgment of 15 April 2003, the County Court judge held that under the common law and Housing Act (see paragraphs 19-20 below), the applicant had no defence to the authority’s claim for possession. Under Article 8 of the Convention, however, he cited previous case-law which held that in such cases, generally, the interest of the local authority as landlord and of other persons in need of social housing had been taken into account by the applicable common law and legislation, and that, provided that the local authority had acted lawfully, it was not open to a court to put aside a claim for possession, except in exceptional circumstances where it appeared that the former tenant’s Article 8 rights had not been properly considered. He noted the circumstances in which Mrs McCann had signed the notice to quit and observed that, if she had not been induced to sign it, the local authority would have had to apply for a possession order under section 84 of the Housing Act 1985 (see paragraph 20 below). It would then have been open to the applicant to seek to persuade the court that it would not be reasonable to grant the order; he and Mrs McCann could have given evidence regarding the alleged domestic violence; and he could in addition have raised such issues as his own housing needs and the need to provide accommodation for the children when they visited. In the circumstances, the judge held that the local authority had not acted as required by Article 8 § 2 of the Convention and he dismissed the claim for possession. 15. The authority’s appeal to the Court of Appeal was adjourned pending the outcome of proceedings before the House of Lords in London Borough of Harrow v. Qazi [2003] UKHL 43 (see paragraphs 22-25 below). On 9 December 2003 Lord Justice Mummery gave the judgment of the Court of Appeal in the present case, holding as follows: “ ... Article 8 is not available as a defence to the possession proceedings, even though the premises in question were the ‘home’ of the occupant for the purposes of the Article. The Council acted lawfully and within its powers in obtaining the notice to quit, which had the effect of terminating the secure tenancy. There was no dispute but that the tenancy had been brought to an end by [the applicant’s wife’s] notice to quit. Under ordinary domestic law the Council had an unqualified right to immediate possession on proof that the tenancy of the premises had been brought to an end. The statutory procedure in section 82 of the 1985 Act, which is available to a localauthority landlord for terminating a secure tenancy, does not apply to a case where the secure tenancy has been terminated by the tenant’s notice to quit. That notice to quit was effective, even though the notice was signed without appreciating the consequences for the occupier of the premises. This is not a ‘wholly exceptional’ case where, for example, something has happened since the service of the notice to quit, which has fundamentally altered the rights and wrongs of the proposed eviction and the Council might be required to justify its claim to override the Article 8 right (see Qazi at paragraph 79 [paragraph 24 below]).” 16. The applicant applied for judicial review of the local authority’s decision of 4 January 2002 to procure a notice to quit from his wife, and of its decision of 11 June 2002 to issue possession proceedings. The application was refused on 23 September 2004. The judge found, inter alia, that the local authority had acted within its powers in seeking, through the wife’s notice to quit, to formalise the situation as regards the tenancy and that its decision to apply its domestic violence policy where domestic violence had been established by the existence of a non-molestation injunction and ouster clause was neither unlawful nor outside the range of decisions properly open to the local authority in all the circumstances. He concluded: “I agree ... that the Court of Appeal effectively decided the relevant issues between Mr McCann and the Council and that this application is an attempt to resurrect them a second time. The Council is entitled to possession and this application for judicial review fails. ... As for the generality, whether or not a decision can be challenged as a matter of law does not mean that it is not appropriate for a public authority to be as open as it can be. There is no reason why the Council’s policy should not be absolutely explicit, spelling out that the consequence of an application for rehousing will be a requirement to give notice to quit of the existing tenancy which will affect the rights of the remaining tenant or occupier and thereafter providing notice to that person. In that way, clarity will prevail and some of the concerns that have been expressed in this case avoided.” 17. Permission to appeal to the Court of Appeal was refused on 9 December 2004. 18. The applicant was evicted from the house on 22 March 2005. 19. In common law, where a valid notice to quit is given by one joint tenant, it has the effect of bringing the joint tenancy to an end, whether or not the other joint tenant knew of or consented to the service of the notice to quit (Hammersmith and Fulham London Borough Council v. Monk [1992] 1 All ER 1). Once a tenancy has been validly brought to an end, a former tenant remaining in the property is in law a trespasser and the landlord has a right to immediate possession. 20. By section 82 of the Housing Act 1985, a secure tenant of a local authority or other public authority, such as the applicant, has security of tenure. Under section 84(1) of the Act, a court shall not make an order for possession of a dwelling house let under a secure tenancy except on one or more of the grounds set out in Schedule 2 to the Act. Ground 2(a) of Schedule 2 gives a ground of possession where a couple live in a dwelling-house, one or both is a tenant, one partner has left because of violence or threats of violence by the other, and the court is satisfied that that partner who has left is unlikely to return. Section 84(2) provides that the court shall not make an order for possession on one of these grounds “unless it considers it reasonable to make an order”. 21. According to Birmingham City Council’s Allocations Policy Manual (§ 30.8): “1. Where a relationship has broken down the tenant who is leaving the property must be asked to sign a relinquishing form. This has the effect of closing the ‘whole’ tenancy. 2. If the property remains suitable for the family left, [a new] tenancy can be granted. 3. If the property is not suitable (e.g. too large), the tenant should be offered alternative accommodation ...” However, where there has been domestic violence, the Allocations Policy provides (§ 3.7.1): “Domestic violence is included in the Department’s revised Conditions of Tenancy as a breach of the tenancy agreement. Action will be taken [against those] who have been found to have subjected another person to domestic violence. This could include perpetrators losing their home or being classed as intentionally homeless.” It would be open to a person who has been made homeless following an allegation of domestic violence to challenge the truth of the allegation and claim that he has been made unintentionally homeless and that the local authority has a statutory duty to rehouse him. 22. London Borough of Harrow v. Qazi [2003] UKHL 43 similarly concerned the making of a possession order in respect of a council house held under a joint tenancy of a husband and wife. The marriage broke down and the joint tenancy came to an end when Mrs Qazi served a notice to quit. Mr Qazi was refused a sole tenancy by the local authority, but he nonetheless remained in occupation with his new family, and sought to resist possession proceedings on the ground that they constituted an interference with the right to respect for his home under Article 8 of the Convention. 23. The House of Lords were unanimous in holding that, despite the fact that the tenancy had come to an end, the property continued to be Mr Qazi’s home and Article 8 was therefore engaged. However, the majority (Lords Hope of Craighead, Millett and Scott of Foscote) held that Article 8 could not be relied upon to defeat the local authority’s proprietary or contractual rights to possession. Since the local authority had an unqualified right to immediate possession, there was no infringement of Mr Qazi’s right to respect for his home under Article 8 § 1 and so no issue arose under Article 8 § 2 as to justification. Alternatively, the effect of the authority’s proprietary or contractual rights was that any assessment under Article 8 § 2 would inevitably be determined in the local authority’s favour. The majority variously referred to a number of decisions of the Commission in which similar complaints, regarding the eviction of a former joint tenant from localauthority property after the joint tenancy had come to an end, had been declared manifestly ill-founded (see S. v. the United Kingdom, no. 11716/85, Commission decision of 14 May 1986, Decisions and Reports (DR) 47, p. 274; D.P. v. the United Kingdom, no. 11949/86, Commission decision of 1 December 1986, DR 51, p. 195; Ure v. the United Kingdom, no. 28027/95, Commission decision of 27 November 1996, unreported; and Wood v. the United Kingdom, no. 32540/96, Commission decision of 2 July 1997, unreported). Lord Hope, having held that Article 8 was applicable, continued: “... [I]n my opinion it does not follow that, on the facts of this case, there is an issue which must be decided within the domestic legal order by remitting the question whether any interference is permitted by Article 8 § 2 for decision by the County Court. ... I do not say that the right to respect for the home is irrelevant. But I consider that such interference with it as flows from the application of the law which enables the public-authority landlord to exercise its unqualified right to recover possession, following service of a notice to quit which has terminated the tenancy, with a view to making the premises available for letting to others on its housing list, does not violate the essence of the right to respect for the home under Article 8 § 1. That is a conclusion which can be applied now to all cases of this type generally. ... It follows that the question whether any interference is permitted by Article 8 § 2 does not require, in this case, to be considered by the County Court.” Lord Millett similarly held that: “... In my opinion Article 8 is not ordinarily infringed by enforcing the terms on which the applicant occupies premises as his home. Article 8 § 1 does not give a right to a home, but only to ‘respect’ for the home.” As regards the balancing exercise envisaged by Article 8 § 2 he stated: “... [N]o such balancing exercise need be conducted when its outcome is a foregone conclusion. In the present case ... the local authority had an immediate right to possession. The premises were Mr Qazi’s home, and evicting him would obviously amount to an interference with his enjoyment of the premises as his home. But his right to occupy them as such was circumscribed by the terms of his tenancy and had come to an end. Eviction was plainly necessary to protect the rights of the local authority as landowner. Its obligation to ‘respect’ for Mr Qazi’s home was not infringed by its requirement that he vacate the premises at the expiry of the period during which it had agreed that he might occupy them. There was simply no balance to be struck. ...” Lord Scott concurred with Lords Hope and Millett, although on somewhat different grounds: “In my opinion, the Court of Appeal, having correctly held that Mr Qazi had an Article 8 ‘home’, should have held that his rights under Article 8 could not prevail against the Council’s admitted and undoubted right to possession under the ordinary housing law. I would, for my part, have said that Article 8 was not, in these circumstances, applicable. But it could also be said that a possession order was ‘in accordance with the law’ and was necessary in order to protect and give effect to the Council’s right to possession. ... But it comes to the same thing. Article 8 cannot be raised to defeat contractual and proprietary rights to possession.” 24. As to the question of remedies in exceptional cases, Lord Hope referred (in paragraph 79 of the judgment) to Sheffield City Council v. Smart [2002] EWCA Civ 4, where the Court of Appeal had held, in a case where a non-secure council tenant was evicted following nuisance proceedings, that a challenge under Article 8 of the Convention to the local authority’s decision to serve notice to quit could be made by judicial review within the appropriate time-limits. Lord Hope continued by observing that the Court of Appeal in Smart had further held: “... that in the rare situation where something wholly exceptional happened after service of the notice to quit which fundamentally altered the rights and wrongs of the proposed eviction the judge in the County Court who was hearing the claim for possession might be obliged to address it in deciding whether the making of a possession order could be justified ... I wish to reserve my opinion as to whether it would be open to the tenant, in a wholly exceptional case, to raise these issues in the County Court where proceedings for possession were being taken following the service of the notice to quit by the housing authority, bearing in mind as Lord Millett points out that its decision to serve the notice to quit would be judicially reviewable in the High Court so long as the application was made within the relevant time-limit. The situation in the present case is different, as it was a notice to quit served by one of the joint tenants that terminated the tenancy.” Lord Millett also stated: “In the exceptional case where the applicant believes that the local authority is acting unfairly or from improper or ulterior motives, he can apply to the High Court for judicial review. The availability of this remedy, coupled with the fact that an occupier cannot be evicted without a court order, so that the court can consider whether the claimant is entitled as of right to possession, is sufficient to supply the necessary and appropriate degree of respect for the applicant’s home.” 25. The dissenting minority (Lords Bingham of Cornhill and Steyn) held that, where there was a proposed interference with a person’s right to respect for his home, the question of justification, if raised, did fall to be considered and should, in the instant case, be remitted to the County Court. Both cited with approval the following extract from the judgment of the Court of Appeal in Sheffield City Council v. Smart (cited in paragraph 24 above): “26. ... ‘Home’ is an autonomous concept for the purpose of ECHR [the Convention], and does not depend on any legal status as owner. Thus in these cases, the premises in Sheffield and Sunderland were without question the women’s homes. Since the effect of the possession orders would be to throw them out, I think it inescapable that those orders amounted to an interference with the appellants’ right of respect of their homes. I have said that the case is all about Article 8; more precisely, it is all about Article 8 § 2. 27. Before proceeding to the issues arising under Article 8 § 2, I should make it clear that I entertain what is perhaps a deeper reason for my view that the case cannot be concluded by a judgment that there is no violation of Article 8 § 1. It concerns the relationship between the two paragraphs of Article 8. I have held that eviction of these appellants would constitute a prima facie violation of their right to respect for their homes. But this conclusion is not simply an instance of that everyday judicial process, the application of a statute’s correct construction (here, Article 8 § 1) to a particular set of facts. Rather it has a purposive quality. The court has to arrive at a judicial choice between two possibilities, a choice which transcends the business of finding out what the legislation’s words mean. The first choice ... would entail a judgment that the Convention requirement was met at the Article 8 § 1 stage ... The second choice (accepting a prima facie violation of Article 8 § 1), which I prefer, entails a judgment that the more rigorous and specific standards set out in Article 8 § 2 have to be met if the court is to hold that the evictions are compatible with the appellants’ Convention rights. The Convention is, as it were, much more remotely engaged in the fabric of our domestic law if the first, rather than the second, choice is taken. Part of the court’s task is to decide how close that engagement should be in the context in hand. Thus I do not eschew the first choice merely because I take the view that the second more naturally reflects the ordinary sense of the words used in Article 8 § 1. I consider as a matter of substance that the vindication and fulfilment of the Convention rights, for which purpose [the Human Rights Act 1998] was enacted, require that the domestic law procedures involved in these appeals should be subjected to scrutiny for conformity with the Article 8 § 2 standards. Such a process is demanded by the fullness of our municipal law of human rights.” Lord Bingham nonetheless emphasised that the administration of public housing under various statutory schemes was properly entrusted to local housing authorities and that the occasions on which a court would be justified in declining a possession order would be highly exceptional. He concluded: “If (contrary to the ruling of the majority of the House) effect were to be given to my opinion, I am confident that the housing authorities acting in good faith in implementation of schemes prescribed by statute and administered by them need apprehend no significant increase in their litigious burden.” 26. In Kay v. London Borough of Lambeth; Leeds City Council v. Price, 8 March 2006, [2006] UKHL 10, the House of Lords constituted itself as a seven-judge committee (rather than five judges as usual) in order to revisit its decision in Qazi in the light of the Court’s judgments in Connors v. the United Kingdom (no. 66746/01, §§ 81-84, 27 May 2004) and Blečič v. Croatia (no. 59532/00, 29 July 2004; the latter judgment was subsequently referred to the Grand Chamber which found, on 8 March 2006, that because domestic remedies had not been exhausted, it was unable to take cognisance of the merits of the case). The Lords were unanimous in limiting their consideration to cases were the landlord was a public authority. 27. The majority (Lords Hope, Scott, Brown of Eaton-under-Heywood and Baroness Hale of Richmond) held that the judgment in Connors was not incompatible with the view of the majority in Qazi that there was no need for a review of the issues raised by Article 8 § 2 to be conducted by the County Court if the case was of a type where the law itself provided the answer, as in that situation a merits review would be a pointless exercise. In such a case, an Article 8 defence, if raised, should simply be struck out. However, in the light of the judgments in Connors and Blečič it was necessary to emphasise that a person evicted might have a defence to possession proceedings in exceptional cases, namely (a) where he challenged the domestic law as itself being incompatible with Article 8 (as in Connors); or (b) where he challenged the action of the public-authority landlord on public law grounds, on the basis that the authority’s actions constituted an abuse of power. 28. The minority (Lords Bingham, Nicholls of Birkenhead and Walker of Gestingthorpe) held that a defendant to possession proceedings brought by public authorities should be permitted in principle to raise an Article 8 defence during the County Court possession proceedings. Lord Bingham expressed it as follows: “I do not accept, as the appellants argued, that the public authority must from the outset plead and prove that the possession order sought is justified. That would, in the overwhelming majority of cases, be burdensome and futile. It is enough for the public authority to assert its claim in accordance with domestic property law. If the occupier wishes to raise an Article 8 defence to prevent or defer the making of a possession order it is for him to do so and the public authority must rebut the claim if, and to the extent that, it is called upon to do so. In the overwhelming majority of cases this will be in no way burdensome. In rare and exceptional cases it will not be futile.” | 1 |
train | 001-102451 | ENG | RUS | CHAMBER | 2,010 | CASE OF UDAYEVA AND YUSUPOVA v. RUSSIA | 4 | Violation of Art. 2;No violation of Art. 2 | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 6. The applicants were born in 1963 and 1960 respectively and live in Urus-Martan. The first applicant is the mother of Ali Udayev, who was born in 1990. The second applicant is the mother of Ramzan Yusupov, who was born in 1988. 7. In October 2000 Urus-Martan was under the full control of the Russian military forces. The military troops were stationed in the town and its vicinity, in the settlement of Michurina (also spelled as Michurino). The applicants' families lived in the same neighbourhood on the outskirts of UrusMartan. Their sons, Ali Udayev and Ramzan Yusupov, attended the same school. 8. In the afternoon of 17 October 2000 Ali Udayev and Ramzan Yusupov were walking home from school down Obyezdnaya Street, which was situated between the local cemetery and a field. At about 3.45 p.m. they were seen walking by Ramzan Yusupov's brother, Mr T. Yusupov. He was next to his house when at about 4 p.m. he saw an explosion in the vicinity. 9. The applicants' neighbour Ms D.M. was at home and heard the sound of a flying projectile coming from the Michurina settlement. Then she heard an explosion, saw clouds of black smoke coming from the road next to the cemetery and rushed to the place. A number of the applicants' relatives and neighbours also rushed to the place, where they found fragments of the bodies of Ali Udayev and Ramzan Yusupov. 10. About half an hour later a group of military servicemen arrived at the scene. One of them said that it must have been an explosion of a landmine. But a number of local residents told the officers that they had heard the sound of a flying projectile, and that therefore the explosion could not have been caused by a landmine. The head of the Urus-Martan town administration also arrived at the scene. In the evening of 17 October 2000 the local TV station reported the events in a news programme. 11. On 18 October 2000 the applicants buried their sons. Many residents of Urus-Martan attended the funeral. One of them, Ms Z.G., told the second applicant that on 17 October 2000 she had been working at the wheat processing plant located next to the road from Urus-Martan to Michurina. Russian military troops were stationed nearby. At about 4 p.m. she heard a projectile being launched from a tank. 12. According to another local resident, Ms L.M., on 17 October 2000 she was walking from Michurina to Urus-Martan. About 500 metres from Michurina she saw a group of servicemen on a tank. They told her that the roads to Urus-Martan were blocked and nobody was allowed to go into the town. About 200 metres from the place she met a fellow villager. He told her that drunken soldiers were down the road and that she should return to Michurina. At about 4 p.m., when Ms L.M. was at home, she heard a projectile being launched from a tank and the sound of an explosion on the outskirts of Urus-Martan. 13. Three residents of Michurina, Ms Z.P., Ms D.A and Ms Ay.T., informed the applicants that at about 4 p.m. on 17 October 2000 they had heard a projectile being launched from the area where the Russian military troops had been stationed and they had heard it explode on the outskirts of Urus-Martan. 14. On 30 October 2000 the Urus-Martan district hospital issued two statements certifying the deaths of Ali Udayev and Ramzan Yusupov on 17 October 2000 from numerous missile wounds. 15. The Government did not challenge the facts as presented by the applicants. At the same time they pointed out that, according to the information provided by the domestic investigation, on 17 October 2000 the military unit Don-100 stationed in Urus-Martan had been subjected to shelling by an illegal armed group under the command of Mr M.Ts. and that on that date the military unit had not used large-calibre weapons. They also stated that the deaths of the applicants' sons could have been caused by the shelling opened by the illegal armed group. 16. On 17 October 2000 the Urus-Martan district prosecutor's office (the district prosecutor's office) initiated an investigation into the deaths of Ali Udayev and Ramzan Yusupov. The case file was given the number 24045. In the submitted documents it was also referred to under no. 24005. 17. On 17 October 2000 the investigators examined the crime scene. Nothing was collected from the scene. The investigators briefly examined the boys' remains on the spot. No forensic analysis of the remains was carried out by the investigation. Shortly after the events the applicants collected fragments of the explosive device which had caused the deaths of their sons and submitted them to the investigators. 18. On 30 October 2000 the applicants' relatives wrote to the UrusMartan district military commander's office (the district military commander's office) requesting the authorities to conduct an effective investigation into the deaths of Ali Udayev and Ramzan Yusupov. No reply was given to this request. 19. On 10 November 2000 the head of the Urus-Martan district department of the interior (the ROVD) provided the investigators with a statement to the effect that Ali Udayev and Ramzan Yusupov had died as a result of the explosion of a projectile of the Shmel type; that on 17 October 2000 the military units Don-100 and regiment no. 245 stationed in the vicinity of UrusMartan did not use such large-calibre projectiles, and that on 17 October 2000 the military units had been subjected to shelling by an illegal armed group under the command of Mr M.Ts. 20. On 30 November 2000 (in the submitted documents the date was also referred to as 14 December 2000) the district prosecutor's office granted the applicants victim status in the criminal case. 21. From 30 November 2000 to 11 February 2005 the applicants did not receive any information from the investigative authorities about the developments in the criminal proceedings. 22. On 11 and 15 February 2005 the applicants wrote to the district prosecutor's office requesting information about the progress in the criminal investigation and asking for access to the investigation file. On 16 February 2005 the investigators refused to grant access to the file and informed the applicants that the investigation had been resumed. 23. On 10 March 2005 the applicants requested the district prosecutor's office to inform them about the date of the reopening of the criminal investigation. No reply was given to this request. 24. On 16 March 2005 the district prosecutor's office suspended the investigation in criminal case no. 24045. 25. On 9 June 2005 the applicants requested the investigators to inform them about the progress in the criminal case. No response was given to this request. 26. On 19 June or July 2005 the supervising prosecutor overruled the decision to suspend the investigation as premature, and ordered the investigators to resume the proceedings and take a number of investigative steps. The applicants were not informed about this decision. 27. Between March and July 2005 the applicants complained about the ineffectiveness of the investigation to domestic courts (see paragraphs 4647 below). 28. On 1 June 2007 the applicants were informed orally by an investigator, Mr K., that on an unspecified date the fragments of the projectile collected by the applicants from the crime scene had been sent for an expert examination. 29. On 23 July and 7 August 2008 the Chechnya prosecutor's office informed the applicants that their office was investigating the deaths of their sons and that on 7 August 2008 the investigation had been suspended. 30. According to the applicants, throughout the investigation the authorities consistently failed to inform them about its progress and deprived them of access to the investigation file. 31. On 17 October 2000 the district prosecutor's office opened criminal case no. 24045 under Article 105 § 2 of the Criminal Code (murder) in connection with the discovery on the eastern outskirts of Urus-Martan of the bodies of minors Ramzan Yusupov and Ali Udayev. 32. On 17 October 2000 the investigators examined the crime scene and the fragments of the bodies on the spot. Nothing was collected from the scene. 33. On 17 October 2000 the investigators questioned Ms G.M., who stated that she had been in her courtyard when she had heard the sound of a flying projectile coming from the outskirts of the town and then the sound of an explosion. The witness and her sister had rushed out into the street and next to the district hospital they had seen a hole in the ground and the remains of two bodies. The witness asserted that the explosion had been caused by the projectile which had arrived from the direction of the collective farm, and not by a mine, as she had clearly heard the distinctive sound of a projectile. 34. On unspecified dates the investigators questioned witnesses Mr Kh.Kh. and Ms Kh.O., whose statements concerning the events were similar to that given by Ms G.M. 35. Between 18 October and 10 November 2000 the law-enforcement agencies conducted checks in respect of thirty-two residents of UrusMartan to find out whether they had been involved in the deaths of the applicants' sons. 36. On 10 November 2000 the head of the UrusMartan ROVD provided the investigators with a statement to the effect that the applicants' sons had died as a result of the explosion of a projectile of the Shmel type. 37. On 30 November 2000 the investigators granted both applicants victim status in the criminal case and questioned the second applicant, who stated that she had found out about the events from her neighbours and that she had been prevented by them from approaching the scene of the incident. From the eyewitnesses she had learnt that her son and Ali Yudayev had been killed by a projectile which had arrived from the eastern part of UrusMartan. 38. On an unspecified date the investigators questioned the first applicant's husband, Mr I.U., who stated that on 17 October 2000 he had been in the Urus-Martan ROVD when he had been informed that his son Ali had been killed by a projectile. He had rushed to the place of the incident and found the remains of his son and those of Ramzan Yusupov. According to the witness, it was clear that the boys had died from a projectile which had arrived from the eastern part of Urus-Martan. 39. On an unspecified date the investigators questioned Mr L.M. who stated that on 17 October 2000 he had heard a powerful explosion and rushed into the street. Next to the cemetery he had seen clouds of thick black smoke and had run to the place, where he had found a hole in the ground measuring between 1.5 and 2 metres, school textbooks and the bodies of the two boys. He found out the boys' names from their school books. 40. On an unspecified date the investigators questioned Ms Z.P., who stated that on 17 October 2000 she had been on the eastern outskirts of Urus-Martan. At about 4.15 p.m. she had heard a projectile flying from the direction of the Michurina settlement and then an explosion. She had rushed to the place, where she had found the hole in the ground and the remains of two boys next to it. The witness stated that an acquaintance of hers, Ms Liza, had seen military tanks stationed in Michurina turning towards Urus-Martan and one of them firing a projectile in the town's direction. The witness further stated that at the scene she had not seen any wires or devices which could have indicated a landmine. 41. On an unspecified date the investigators questioned Ms D.M., who stated that on 17 October 2000 she had been at home. At about 4.15 p.m. she had heard a flying projectile and then an explosion. She had run out into the street and seen Ms Z.P. running to the place of the explosion. When the witness had arrived at the scene, she had found a hole in the ground of about one metre in diameter and the remains of two boys. From the shape of the hole it had been clear that the projectile had arrived from the direction of the Michurina settlement. 42. On an unspecified date the investigators questioned the applicants' neighbour, Mr Sh.U., who stated that on 17 October 2000 he had been at home. At about 4 p.m. he had heard an explosion and seen clouds of smoke and the neighbours running to the scene. There they had found the remains of the applicants' sons. After that military servicemen had arrived at the scene. The witness had heard some people saying that the explosion had been caused by a projectile; others had thought that it must have been a landmine. He also stated that at the material time landmines quite often exploded on that street. 43. On an unspecified date the investigators questioned Ms Z.B., whose statement concerning the events of 17 October 2000 was similar to the one given by Mr Sh.U. 44. On an unspecified date the investigators obtained information to the effect that on 17 October 2000 the military unit Don-100 stationed in UrusMartan had been shelled by an illegal armed group under the command of Mr M.Ts., and that on that date the military unit had not used large-calibre weapons. 45. Despite specific requests by the Court the Government did not disclose any documents from criminal case no. 24045, stating that an 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 concerning participants in criminal proceedings. 46. On 24 March 2005 the applicants complained to the UrusMartan town court that there was no effective investigation in the criminal case. On 6 April 2005 the court allowed their complaint in part. It instructed the prosecutor's office to resume the investigation and take a number of investigative steps. The court rejected the applicants' complaint in the part concerning their request for access to the investigation file. On 11 May 2005 the Chechnya Supreme Court upheld this decision on appeal. 47. On 13 July 2005 the applicants again complained to the UrusMartan town court that the investigation in the criminal case was ineffective and requested that the suspended proceedings be resumed. On 26 July 2005 the court rejected their complaint as groundless, stating that the prosecutor's office had resumed the criminal proceedings (see paragraph 26 above). 48. For a summary of the relevant domestic law see Khatsiyeva and Others v. Russia (no. 5108/02, §§ 105-107, 17 January 2008). | 1 |
train | 001-79145 | ENG | UKR | CHAMBER | 2,007 | CASE OF LAPINSKAYA v. UKRAINE | 4 | Violation of Art. 6-1;Violation of P1-1 | Peer Lorenzen | 4. The applicant was born in 1954 and resides in the town of Novogrodivka, Donetsk region, Ukraine. 5. The applicant instituted proceedings in the Novogrodivskyy Town Court of Donetsk Region against the “Novogrodivskaya” Mining Company 1/3 (Шахта 1/3 «Новогродівська») - a State-owned enterprise - to recover salary arrears and other payments due to her late husband. 6. On 1 March 2002 the Novogrodivskyy Town Court found in favour of the applicant (Рішення Новогродівського міського суду Донецької області) and awarded her UAH 2,290.80. The decision was sent for enforcement to the Novogrodivskyy Town Bailiffs' Service (Відділ Державної виконавчої служби Новогродівського міського управління юстиції). However, the decision was not enforced, allegedly due to the failure of the Bailiffs' Office to act, in not selling the property of the Mining Company. 7. In June 2002 the applicant instituted proceedings in the Novogrodivskyy Town Court of the Donetsk Region against the Novogrodivskyy Town Bailiffs' Service for failure to enforce the court decision in her favour. On 26 June 2002 the Town Court rejected the applicant's claim, finding no fault had been committed by the Bailiffs' Service. The court stated that the Bailiffs' Service had acted properly in enforcing the decision of 1 March 2002. However, by a number of decisions of the Commercial Court of the Donetsk Region, the Bailiffs' Service had been prohibited from selling the property of the Mining Company, due to the bankruptcy proceedings which had been initiated against the company. Also on 26 December 2001, the ban on the forced sale of assets belonging to undertakings in which the State holds at least 25% of the share capital was entrenched in the Law on the Introduction of a Moratorium on the Forced Sale of Property. On 2 September 2002 the Donetsk Regional Court of Appeal upheld the decision of the first instance court. On 12 November 2002 the Novogrodivskyy Town Court of the Donetsk Region rejected the applicant's appeal in cassation against the decision of 26 June 2002 as submitted too late. On 24 December 2002 the Donetsk Regional Court of Appeal upheld this ruling. 8. The Government submitted that in October 2004 the debtor requested the Novogrodivskyy Town Court to review the judgment of 1 March 2002 in light of new circumstances. No further information was provided by the parties. In particular, the applicant stated that she was completely unaware of these proceedings. 9. According to the applicant, by November 2004 she received UAH 2,014.80; the rest of the debt due to her remains unpaid. 10. The relevant domestic law is summarised in the judgment of Sokur v. Ukraine (no. 29439/02, § 17-22, 26 April 2005). | 1 |
train | 001-67897 | ENG | BGR | CHAMBER | 2,004 | CASE OF MITEV v. BULGARIA | 3 | Violation of Art. 5-3 with regard to the right to be brought promptly before a judge;Violation of Art. 5-3 with regard to the length of detention on remand;Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 5-5;Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | Christos Rozakis | 9. The applicant was born in 1967 and lives in Sofia. 10. During the relevant period the applicant, who was addicted to drugs, was charged with numerous counts of theft. The charges concerned thefts of electric appliances, small amounts of money, small religious ceremonial objects, food, cigarettes and objects of higher value, such as icons and antiquities. More than twenty separate investigations were launched in relation to those thefts. Some of the investigations were initially instituted against an unknown perpetrator whereas in others the applicant, either alone or together with other persons, was named as the suspected perpetrator from the outset. 11. In the course of the ensuing criminal proceedings the investigations were grouped. Two sets of such grouped proceedings are relevant to the present application: one concerning petty thefts and the second concerning icons and antiquities. 12. These included eight investigations and four summary investigations, instituted between 1993 and 1996. The applicant was charged for the first time on 26 October 1993 in respect of one of the investigations. Later charges were brought in the remainder and eventually the twelve files were joined. 13. During the investigation, between 1993 and 1996, the applicant and other suspected or accused persons were interrogated numerous times, fortyfour witnesses were questioned, fifteen on-site visits were made, nine searches were undertaken and numerous expert reports were commissioned and examined (psychiatric reports, finger-print reports and accounting reports). 14. Approximately one third of these acts of investigation concerned charges under which the applicant was eventually convicted. The remainder concerned charges in respect of which the applicant was later acquitted. 15. On 27 October 1994 the competent prosecutor referred the case back to the investigator as there had been irregularities and discrepancies. The investigator concluded his work on 15 June 1995. 16. On 20 February 1996 the Sofia Prosecutor’s Office submitted an indictment to the Sofia District Court. 17. On 18 March 1996 the Sofia District Court, noting that there had been breaches of procedural rules and discrepancies as regards the value of some of the stolen objects, referred the case back to the prosecutor. 18. On 20 February 1997 the prosecutor submitted a fresh indictment. 19. On 28 February 1997 the District Court, noting that some of the defects of the indictment had not been remedied despite the instructions given in the decision of 18 March 1996 and pointing to other discrepancies, referred the case back to the prosecutor. 20. On 22 January 1998 the prosecutor again submitted an indictment. 21. On 6 February 1998 the Sofia District Court, noting that certain procedural rules concerning the modification of the charges had not been observed, referred the case back to the prosecutor once more. 22. The final version of the indictment was submitted on 19 February 1998. It concerned sixteen counts of theft allegedly committed by the applicant and two other persons. 23. Throughout the judicial proceedings the applicant and his lawyer regularly appeared when summoned and did not cause any of the adjournments. 24. The first hearing was held on 13 May 1998. The court noted that one of the co-accused persons was not legally represented whereas legal representation was mandatory in view of the contradictory interests of the three accused persons. As a result, the hearing was adjourned. 25. It resumed on 10 June 1998 but had to be adjourned as one of the accused persons had not appeared. The court ordered his arrest. 26. On 14 July 1998 the hearing proceeded with the questioning of the three accused persons. Several experts and witnesses were also heard. As some of the witnesses had not appeared, the case was adjourned. 27. At the next hearing, held on 12 October 1998, several witnesses were heard. Others had not appeared, which necessitated an adjournment. 28. The hearing scheduled for 10 November 1998 could not proceed as one of the applicant’s co-accused was ill. 29. When the hearing resumed on 7 December 1998 several witnesses were heard but an adjournment was again necessary as other witnesses had not appeared. 30. The next hearing took place on 11 February 1999. Several witnesses were heard. The failure of one witness to appear prompted another adjournment. 31. Throughout the relevant period the Sofia District Court sought police assistance for the establishment of the addresses of witnesses. 32. On 29 March 1999, at the last hearing, the Sofia District Court acquitted the applicant on nine of the charges and convicted him on the remaining seven. He was sentenced to three years’ imprisonment, suspended. 33. On 27 April 1999 the applicant appealed to the Sofia City Court. 34. The Sofia City Court listed a hearing for 13 December 1999 which, however, could not proceed as one of the accused persons did not appear. 35. The hearing took place on 10 April 2000. 36. On 12 June 2000 the Sofia City Court delivered its judgment. It accepted the applicant’s argument that the case should be treated as one concerning a continuing criminal activity and modified the conviction accordingly while upholding the sentence. 37. This second group of proceedings commenced on 26 November 1992 when the applicant was arrested and charged with theft. Other files, concerning separate thefts were opened between 1992 and 1995. The applicant was charged with having stolen icons and antiquities. 38. During the preliminary investigation ten files concerning separate thefts were joined. Eventually, however, the indictment only concerned four thefts, the other charges having been dropped. 39. Some of the investigations launched in 1992, 1993 and 1994 were suspended soon after their beginning as the perpetrators were unknown at the time. They resumed in 1996, when the applicant and other persons were charged. 40. In the course of the investigations many witnesses were heard, several accused persons, including the applicant were questioned, on-site visits and searches were made and expert reports were commissioned and examined. Apparently, only a part of those investigation acts concerned charges eventually retained. According to the applicant, the relevant investigation activity was limited to the questioning of eleven witnesses, three confrontations, six expert reports, four on-site visits and one search. 41. On 13 March 1997 the investigator completed his work and submitted the file to the competent prosecutor. 42. On 23 April 1997 the prosecutor ordered additional investigation. Those were finalised on 1 August 1997. 43. After having decided to drop one of the charges, on 10 December 1997 the prosecutor again referred the case back to the investigator who complied with the instructions and submitted a revised report on 19 March 1998. 44. On 26 June 1998 the prosecutor submitted an indictment to the Sofia City Court against three accused persons, including the applicant. 45. Throughout the judicial proceedings before the Sofia City Court the applicant and his lawyer regularly appeared when summoned and did not cause any of the adjournments. 46. The first hearing before the Sofia City Court, acting as a trial court, was listed for 13 November 1998 but could not proceed as one of the accused persons had not been summoned. 47. On 10 December 1998 and 13 January 1999 the trial could not begin as no ex officio lawyer had appeared for one of the accused, despite the court’s repeated requests to the Sofia Bar. 48. The hearing scheduled for 9 March 1999 could not proceed as one of the accused persons could not be brought from prison owing to his ill health. 49. The trial eventually began on 5 May 1999. On that day the Sofia City Court heard the accused persons and the witnesses who had appeared. As some of the witnesses had not shown up, the hearing was adjourned until 15 June 1999. 50. On that day another adjournment was ordered as certain witnesses and experts had not appeared. 51. The hearing could not proceed on 13 October 1999 as one of the accused persons, a prisoner, was not brought to the courtroom: the Minister of Justice had imposed a five-day ban on transfers of prisoners in view of municipal elections during that period. 52. On 12 November and 13 December 1999 the hearing was again adjourned as the lawyers of two of the accused persons had not appeared, apparently owing to ill health. 53. Throughout the relevant period the Sofia City Court sought police assistance for the establishment of the addresses of witnesses. 54. The last hearing took place on 23 December 1999. On that day the Sofia City Court convicted the applicant in respect of three thefts and acquitted him in respect of the fourth alleged theft. He was sentenced to ten years’ imprisonment. The two other accused persons were also convicted and sentenced to terms of imprisonment. 55. Both the applicant and the prosecution appealed to the Sofia Appellate Court. 56. The applicant’s whereabouts were unknown until 15 December 2000 when he was arrested on new charges, unrelated to the present case. As a result of the applicant’s address being unknown, the Sofia Appellate Court could not proceed with the case until January 2001. 57. A hearing was listed for 30 March 2001 but was adjourned as one of the other accused persons was not legally represented. It appears that he was unable to continue paying his lawyer, which necessitated the appointment of an ex officio counsel and therefore an adjournment. 58. On an unspecified date in 2001 the Sofia Appellate Court held a hearing which was however adjourned as the report on the value of the stolen objects had not been submitted. 59. On 8 March 2002, having received the experts’ opinion that the value of the icons could not be determined, the Sofia Appellate Court set aside the judgment of the Sofia City Court of 23 December 1999 and referred the case to the preliminary investigation stage of the proceedings. The Appellate Court found, inter alia, that there had been a number of discrepancies concerning the value of the stolen objects which affected the legal characterisation of the charges, that the lower court’s judgment had not provided sufficient reasoning and that it had relied on inadmissible evidence. 60. As of 27 March 2002, the date of the latest information received from the parties in relation to the icons and antiquities case, the proceedings were pending at the investigation stage. 61. On 26 November 1992 the applicant was arrested and remanded in custody on one of the charges which eventually resulted in the criminal case concerning thefts of icons and antiquities. On 11 January 1993 the applicant was released on bail. 62. On 26 October 1993 the applicant was arrested and detained pending trial in relation to the group of case files which eventually resulted in the petty thefts case against him. On 8 April 1994 he was released on bail. 63. On 5 August 1994 the applicant was again arrested in relation to the petty thefts set of case files, brought before an investigator or a prosecutor, charged with additional counts of theft and placed under pre-trial detention. 64. On 17 October 1994 the applicant’s petition for release was dismissed by a prosecutor. 65. On 5 January 1995 another petition for release was dismissed on grounds that the applicant was suspected of having committed offences after his release on 8 April 1994 and that therefore there existed a danger of reoffending. 66. On 27 August 1996 a request for release submitted by the applicant was dismissed by a district prosecutor. That decision was upheld on 23 September 1996 by a regional prosecutor. The applicant’s ensuing appeal was dismissed on 9 October 1996 by the Chief Public Prosecutor’s Office. The decision stated, inter alia, that the applicant was charged with numerous serious crimes and that there were other criminal proceedings pending against him. Therefore, his detention was mandatory under Article 152 § 3 of the Code of Criminal Procedure. 67. According to the applicant, on 11 March and again on 24 April 1997 he submitted to the Sofia District Court, through the prison administration, appeals against his detention. The applicant stated that he had obtained registration numbers under the outgoing correspondence register of the prison but had never been notified of any examination or decision on his appeals. According to the Government, there was no evidence supporting the applicant’s statement that he had submitted appeals in March and April 1997 68. On 12 August 1997 the applicant appealed to the Sofia District Court against his pre-trial detention. He relied, inter alia, on a legislative amendment, in force since 12 August 1997, according to which pre-trial detention pending the preliminary investigation could not exceed one or two years, depending on the gravity of the charges. 69. The District Court held a hearing on 25 September 1997 and ordered the applicant’s unconditional release. The District Court stated, inter alia, that the applicant had been diagnosed as suffering from addiction to drugs and was in need of medical treatment. Furthermore, all evidence in the case had been collected. 70. Despite the District Court’s decision of 25 September 1997 the applicant was only released on 23 October 1997 owing to a misunderstanding concerning the different cases pending against him. 71. In particular, during a certain period of time, the petty thefts case had been dealt with under investigation file number 965/94. The applicant’s initial detention order of 5 August 1994 carried that reference. When later another file, no. 415A/96, had been added to the set, the latter number had become the number of the joint file. In his appeal to the District Court of 12 August 1997 the applicant had referred to file number 415A/96, which also figured in the District Court’s decision of 25 September 1997 ordering his release. 72. That decision was transmitted to the prison administration on 25 September 1997. The prison administration, apparently noting that there existed a detention order under investigation case number 965/94 and considering that that was a separate case, concluded that the applicant should remain in pre-trial detention. No written document was issued in this respect. 73. On 17 October 1997 the applicant submitted a complaint to the District Court stating that he was still in detention. He also stated that the two file numbers concerned the same case. The complaint was registered at the District Court on 21 October 1997. 74. On 23 October 1997 the District Court wrote to the prison administration clarifying the matter. The applicant was released on the same day. 75. On an unspecified date in 1997 the applicant, assisted by a lawyer, brought before the Sofia City Court a civil action against the prosecuting authorities and the Sofia District Court claiming non-pecuniary damages for his allegedly unlawful detention between 16 August 1997, the date by which his appeal of 12 August 1997 should have been decided in accordance with the statutory three-day time-limit, and 23 October 1997, the date on which he was released. 76. After several hearings, on 14 May 2001 the Sofia City Court reserved judgment. 77. By judgment of 27 February 2003 the Sofia City Court dismissed the applicant’s claims on grounds that the period of his pre-trial detention had been deducted from the term of imprisonment to which he had been sentenced and that no compensation for non-pecuniary damage was due in such circumstances. The applicant appealed. 78. On 24 March 2004 the Sofia Appellate Court partly upheld the lower court’s judgment, quashed it for the remainder and decided on the merits. 79. The Appellate Court noted that the fact that the applicant’s request for release filed on 12 August 1997 had not been examined until 25 September 1997 was in violation of domestic law. Nevertheless, the court considered that it was not possible to speculate whether or not his release would have been ordered had his application been examined before 25 September 1997. For these reasons, the court upheld the City Court’s judgment dismissing the applicant’s claims for the period between 16 August and 25 September 1997. 80. The Appellate Court found, however, that from 26 September until the applicant’s release on 23 October 1997 his detention had not been based on any legal ground. The court did not accept the reasoning of the Sofia City Court as regards the deduction of the time spent by the applicant in detention, since that deduction had been made from a suspended sentence and, therefore, the applicant had not benefited from a shorter stay in prison. On that basis the Appellate Court ordered the Prosecutor’s Office, the body in charge of supervising the enforcement of pre-trial detention orders, to pay to the applicant 500 Bulgarian levs (“BGN”) in non-pecuniary damages for his unlawful detention between 26 September 1997 and 23 October 1997. Since the applicant’s claim had been for BGN 7,000 and he owed court fees in an amount proportionate to the dismissed part of his claims, the applicant was ordered to pay BGN 260 in court fees. The applicant was thus eventually entitled to BGN 240 in compensation (the equivalent of about EUR 120). 81. The applicant filed a cassation appeal with the Supreme Court of Cassation. As of July 2004 the proceedings were pending. 82. The relevant provisions of the Code of Criminal Procedure and the Bulgarian courts’ practice at the relevant time are summarised in the Court’s judgments in several similar cases (see, among others, the Nikolova v. Bulgaria [GC], no. 31195/96, §§ 25-36, ECHR 1999II; Ilijkov v. Bulgaria, no. 33977/96, §§ 55-62, 26 July 2001; and Yankov v. Bulgaria, no. 39084/97, §§ 79-88, ECHR 2003XII (extracts)). 83. In June 2003 an amendment to the Code of Criminal Procedure, the new Article 239a, introduced the possibility for an accused person to have his case examined by a trial court if the investigation has not been completed within a certain statutory time-limit (two years in investigations concerning serious crimes and one year in all other investigations). 84. Section 2 of the State Responsibility for Damage Act of 1988 („Закон за отговорността на държавата за вреди, причинени на граждани“) provides, as relevant: “The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the prosecution, the courts ... for: 1. unlawful pre-trial detention ..., if [the detention order] has been set aside for lack of lawful grounds[.]” 85. In two recent judgments the Supreme Court of Cassation held that pretrial detention orders must be considered as being “set aside for lack of lawful grounds” – and that State liability arises – where the criminal proceedings have been terminated on grounds that the charges have not been proven (реш. № 859/ 2001 г. от 10 септември 2001 г. г.д. № 2017/2000 г. на ВКС) or where the accused has been acquitted (реш. № 978/2001 г. от 10 юли 2001 г. по г.д. № 1036/2001 г. на ВКС). The view taken appears to be that in such cases the pretrial detention order is retrospectively deprived of its lawful grounds as the charges were unfounded. 86. On the other hand, the Government have not informed the Court of any successful claim under section 2(1) of the Act in respect of unlawful pretrial detention orders in connection with pending criminal proceedings or proceedings which have ended with final convictions. It appears that rulings putting an end to pretrial detention in pending criminal proceedings have never been considered as decisions to “set aside for lack of lawful grounds” within the meaning of section 2(1) of the Act. Also, the terms “unlawful” and “lack of lawful grounds” apparently refer to unlawfulness under domestic law. 87. By section 2(2) of the Act, in certain circumstances a claim may be brought for damage occasioned by the “unlawful bringing of criminal charges”. Such a claim may be brought only where the accused person has been acquitted by a court or the criminal proceedings have been discontinued by a court or by the prosecution authorities on the ground that the accused person was not the perpetrator, that the facts did not constitute a criminal offence or that the criminal proceedings were instituted after the expiry of the relevant limitation period or despite a relevant amnesty. In contrast with the solution adopted under section 2(1) (see paragraph 57 above), the Supreme Court of Cassation has held that no liability arises under section 2(2) where the criminal proceedings were discontinued at the pre-trial stage on the ground that the accusation was not proven (реш. № 1085/2001 г. от 26 юли 2001 г. по г.д. № 2263/2000 г. на ВКС ІV г.о.). 88. Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the State Responsibility for Damage Act have no claim under general tort law as the Act is a lex specialis and excludes the application of the general regime (section 8(1) of the Act; реш. № 1370/1992 г. от 16 декември 1992 г., по г.д. № 1181/1992 г. на ВС ІV г.о.). The Government have not referred to any successful claim under general tort law in connection with unlawful pre-trial detention. | 1 |
train | 001-101906 | ENG | SVK | ADMISSIBILITY | 2,010 | ALLIANZ-SLOVENSKA POISTOVNA, A.S., AND OTHERS v. SLOVAKIA | 4 | Inadmissible | David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | The applicants are the following six private insurance companies which were established under the laws of Slovakia in 1991, 1993, 1992, 1994, 1997 and 1991 respectively and have their registered seats in Bratislava (Slovakia): Allianz – Slovenská poisťovňa, a.s.; Česká poisťovňa - Slovensko, akciová spoločnosť; ČSOB Poisťovňa, a.s.; KOMUNÁLNA poisťovňa, a.s. Vienna Insurance Group; Generali Slovensko poisťovňa, a. s. and UNIQA poisťovňa, a.s. The applicant companies were represented before the Court by Mr Ľ. Fogaš, a lawyer practising in Bratislava. The Slovak Government (“the Government”) were represented by Ms M. Pirošíková, their Agent, and Ms M. Bálintová, Co-Agent. The facts of the case, as submitted by the parties, may be summarised as follows. On 1 March 2002 Act no. 95/2002 Coll. on Insurance (“the Act”) came into force. The Act set an obligation for insurance companies doing business in the field of compulsory contractual insurance of liability for damage caused by the operation of motor vehicles to pay, on a yearly basis, 8 % of the premiums collected the previous year to the Ministry of the Interior (“the Ministry”). The Ministry would pass on those funds to certain bodies responsible for saving and protecting lives and property in road accidents such as fire brigades, rescue services and emergency hotlines. On 2 December 2002 the applicant companies, who do business in the above-mentioned field, lodged an action against the Ministry with the Bratislava I District Court (Okresný súd). They requested that the District Court rule that they were not obliged to pay 8 % of the premiums they collected as stipulated by the Act. In their view the Act violated their property rights and the nondiscrimination principle guaranteed by the Constitution and the Convention. On 15 October 2003 the District Court terminated the proceedings and stated that there was no other State organ to which the case could be transferred. It held that the relation between the parties was of a public-law nature and could not be considered civil or commercial, in which case it would be covered by the area of private law and the ordinary courts would have jurisdiction to examine it on the basis of the Code of Civil Procedure. No dispute over private-law matters was found to exist. On 30 April 2004 the Bratislava Regional Court (Krajský súd) upheld the decision of the District Court following an appeal by the applicant companies. The view was expressed that the specific obligation had been imposed upon the applicants by legislation and no legal provision permitted ordinary courts to rule on the alleged non-conformity of legislation with the Constitution. That was a matter solely for the Constitutional Court (Ústavný súd) to examine in the context of a motion lodged under Article 125 of the Constitution by one of various specified State organs. The applicants then claimed before the Constitutional Court, in a complaint under Article 127 of the Constitution, that they were not obliged to pay the above-mentioned contributions as the obligation had been imposed on them unconstitutionally. They further complained that the courts had refused to determine their claim. On 15 December 2004 the Constitutional Court declared the complaint inadmissible for the applicant companies’ failure to exhaust ordinary remedies, in view of which the Constitutional Court lacked jurisdiction to consider the complaint. In particular, the Constitutional Court found that the applicant companies had failed to appeal against the decision of 30 April 2004 on points of law under Article 237 (f) of the Code of Civil Procedure, whereas that remedy was available to any party who had been “prevented from acting before a court as a result of the court’s conduct”. On 30 April 2003 the Government passed a resolution proposing that section 30 of the Act be repealed, specifying in the explanatory report that this provision interfered with the insurance companies’ property in a discriminatory manner. The amendment was not adopted by the Parliament, however. In 2008 a new Insurance Act was adopted which maintained the applicant companies’ obligation to pay 8 % of the premiums collected. Section 30 (1) provided that insurance companies which did business in the field of compulsory contractual insurance of liability for damage caused by the operation of motor vehicles were obliged to pay to the Ministry, by the end of February, 8 % of the premiums for insurance in the abovementioned field collected in the preceding year. The insurance companies were obliged to report their fulfilment of this obligation to the National Bank of the Slovak Republic within three working days. Section 30 (2) provided that the Ministry (of the Interior), after consulting the Ministry of Finance, would pass on these funds to fire brigades, departments of the Ministry (of the Interior), rescue services and emergency hotlines in order to meet the costs incurred in obtaining, maintaining and operating the material and facilities needed to research the causes of road accidents and to save and protect lives and property in road accidents. In 2008 a new Insurance Act was adopted which replaced the relevant provisions of the 2002 Act. The obligation for the insurance companies to pay 8 % of the premiums collected on a yearly basis was maintained in section 33 of the 2008 Act. By 15 February each year the Ministry (of the Interior) is required to inform the Ministry of Finance about the use made of the contributions paid by the insurance companies. The Ministry (of the Interior) is also under an obligation to make this information public. Section 3 imposes a duty to take out an insurance policy in respect of motor vehicles. With regard to domestic motor vehicles, this duty lies with the vehicle’s holder, owner, operator or lessee (sub-section 1). As to foreign motor vehicles, unless it is otherwise provided for, the person liable to arrange for the insurance of a vehicle is the vehicle’s driver (subsection 2). The duty to take out an insurance policy commences at the latest on the first day on which the motor vehicle is used (sub-section 3). The Constitutional Court has held on many occasions that an examination of complaints lodged by natural or legal persons under Article 127 of the Constitution cannot entail a review of the constitutionality of legislation (see, for example, decisions no. II. ÚS 40/00, no. II. ÚS 5/02, no. II. ÚS 238/03, no. III. ÚS 10/07 or no. IV. ÚS 124/07). | 0 |
train | 001-85310 | ENG | HUN | CHAMBER | 2,008 | CASE OF SASSNE SARI v. HUNGARY | 4 | Violation of Article 6 - Right to a fair trial | András Sajó;Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | 4. The applicant was born in 1968 and lives in Bag. 5. In 2000 the applicant divorced her husband. The ex-spouses had an agreement about the placement of their son with the applicant. However, on 20 August 2002 the ex-husband took the son with him on a trip and did not return him to the applicant. Despite several enforcement fines imposed on the father, the applicant’s custody was restored only on 27 March 2006. 6. Meanwhile, on 11 October 2002 the father introduced an action requesting custody of the child. 7. On 20 April 2005 the District Court, after having held several hearings and obtained the opinion of an expert, adopted a decision, changing the child’s placement and granting custody to the father. On appeal, on 1 September 2005 the Regional Court quashed this decision. 8. In the resumed proceedings, on 23 June 2006 the District Court, after having held several hearings and obtained the opinion of an expert, again found for the father. 9. On 8 February 2007 the Regional Court upheld this decision and ordered the applicant to surrender the child to the father. This decision was served on the applicant’s lawyer on 12 March 2007. | 1 |
train | 001-104623 | ENG | DEU | COMMITTEE | 2,011 | CASE OF KUPPINGER v. GERMANY | 4 | Violation of Art. 6-1;Violation of Art. 13 | Angelika Nußberger;Ganna Yudkivska | 4. The applicant was born in 1953 and lives in Heidelberg. 5. The applicant is the father of a son born out of wedlock on 21 December 2003. Shortly after the child was born, the mother refused the applicant any contact with the child. In 2004 the applicant unsuccessfully attempted to establish contact with his son. 6. On 19 May 2005 the applicant lodged a request for the regulation of contact rights with the Frankfurt/Main District Court (Amtsgericht). On 29 May 2005 the court served the request on the mother and requested the Youth Office to submit comments, which were submitted on 29 August 2005, following a reminder by the court. On 7 October 2005 the court scheduled a hearing for 27 October 2005, which was postponed at both parties’ request to 1 December 2005. 7. Both parties having agreed to institute supervised contacts, the District Court ordered the Youth Office to name, within a time-limit of one month, a suitable institution to supervise the visits. It further decided to issue a decision on contact rights after having been informed about the concrete dates for contacts. 8. Between October 2005 and May 2006 the Youth Office unsuccessfully attempted to mediate an agreement on a suitable institution. 9. On 31 May 2006 the District Court informed the parties that it would attempt to find a suitable institution on its own motion. On 6 June 2006 the District Court ordered that contact visits should be supervised by a centre for psychological counselling. Between July and October 2006, five supervised contacts took place. 10. On 30 October 2006 the District Court requested the counselling centre to submit a report. On 5 December 2006 the Youth Office, following a further reminder by the court, submitted a report by the counselling centre dated 9 November 2006. Both the Youth Office and the counsel centre did not have any objections to contacts between father and son. The next step should be to limit the supervision to the accompanied handover of the child. However, having regard to the mother’s opposition, the Youth Office was not in a position to propose how contact rights should be established. 11. On 12 December 2006 the District Court informed the parties of its intention to hear expert opinion on the regulation of access rights and invited the parties to submit comments within two weeks. On 22 December 2006 and 11 January 2007 new counsel for the applicant requested to be granted access to the case file and asked the court to allow submissions within 14 days after the receipt of the case-file that was returned by letter of 16 January 2007. On 5 February 2007 the applicant’s counsel submitted her comments. 12. On 8 February 2007 the District Court commissioned a psychological expert and ordered her to submit the expert opinion within three months. 13. On 5 March 2007 the applicant requested the District Court to regulate further contact rights by interim order. On 27 March 2007 the District Court rejected the applicant’s request on the grounds that a regulation of contact rights had to be based on the result of the expert examination. It pointed out that the expert had declared that she would be able to terminate her report by the end of April, if both parents attended the proposed meetings. 14. On 29 March 2007 the Youth Office declared that it did not have any objections to further contacts. On 12 April 2007 the applicant requested the applicant to hold a hearing on his interim request. 15. On 19 April 2007 the District Court scheduled a second hearing for 16 May 2007. On 16 May 2007 the District Court heard the Youth Office, the person accompanying the visits and the expert. The applicant declared that he refused being examined by the expert. 16. By interim order of 22 May 2007 the District Court, following expert recommendation, ordered that supervised visits should take place every Thursday afternoon. Between 14 June and 12 July 2007 five contact visits took place. The applicant having lodged a complaint about the supervisor, the latter declared that he was not available to supervise further contacts. 17. On 8 June 2007 the applicant declared that he was now ready to be examined by the expert. On 9 July 2007 the expert informed the court that the applicant had failed to attend the arranged meeting. On 12 July 2007 the applicant submitted that he had appeared in time, but that the expert had not opened the door. He requested the court to terminate the examination without his cooperation, as he had lost confidence in the expert. 18. On 19 July 2007 the applicant had his last contact with his son. 19. On 31 July and 14 August 2007 the applicant requested the District Court to impose enforcement measures on the mother, who objected to further contacts. On 24 August 2007 the District Court, in separate proceedings, imposed enforcement measures on the mother. 20. On 26 July 2007 the District Court requested the expert to terminate the examination. On 7 September 2007 the expert submitted her report, in which she noted that the parents were unable to cooperate and recommended the continuation of supervised visits. On 7 September 2007 the District Court served the expert opinion on the parties and ordered the Youth Office to propose an institution which could arrange supervised visits. On 5 October 2007 the court asked the parties if a suitable institution had been found. In October and November 2007 the applicant, following several extensions of the time-limit set, submitted extensive comments. 21. On 22 November 2007 the District Court held a third hearing. While the expert recommended the continuation of supervised contacts, the Youth Office declared that it was difficult to find an institution to supervise the contacts and recommended a suspension of contact rights. 22. On 4 December 2007 the District Court informed the parties about its intention to appoint a curator ad litem to represent the child’s interests. On 6 and 13 December 2007 the parties objected. On 20 December 2007 the court appointed a curator ad litem and asked her to submit comments within two months. Both parties lodged complaints against the appointment which were withdrawn on 7 and 12 February 2008, respectively. 23. Between February and April 2008 the curator informed the court about her attempts to institute contact visits. During the following months, the curator and the Youth Office attempted to induce the parties to conclude a parental agreement on the modalities of supervised contacts. 24. On 8 April 2008 the applicant requested the District Court to issue a decision. On 15 May 2008 the District Court informed the parties that the parents had concluded an agreement on contacts which should be executed within a short period of time. On 19 May 2008 the District Court informed the parties that the proceedings were suspended as long as the agreement on contact rights was executed. On 6 June 2008 the Youth Office informed the court that supervised visits could be envisaged for mid-August. 25. On 26 August 2008 the applicant requested the District Court to order the Youth Office to refrain from issuing legal opinions and to respect binding court orders. On 12 September 2008 the District Court rejected the request. 26. On 11 February 2009 the institution which had been commissioned to supervise the contacts proposed a first contact for 28 February 2009. On 24 February 2009 the mother informed the court that she objected to a further cooperation with the supervising institution. 27. On 26 February 2009 the curator ad litem submitted a report on her activities since January 2008. Upon request, the court extended the time limit for the Youth Office to 31 May 2009 and for the mother to 28 April 2009. On 25 May 2009 the Youth Office submitted the final report by the supervising institution dated 7 March 2009, according to which the mother had failed to support the exercise of contact rights. 28. On 7 May 2009 the mother requested the court to hold a hearing. On 23 June 2009 the applicant, represented by new counsel, filed extensive submissions, and requested the court to issue an interim order and to schedule a hearing. On 30 July 2009 the District Court scheduled a hearing for 3 September 2009. 29. On 6 August 2009 the applicant, represented by counsel, lodged a constitutional complaint, complaining about the length of the proceedings and about the lack of an effective remedy. 30. On 17 August 2009 the applicant requested the court to re-schedule the hearing because of his holiday plans. On 24 August 2009 the court postponed the hearing to 24 September 2009. On 3 September 2009 the court postponed the hearing to 15 October 2009 in order to take into account the absence of the competent person in the Youth Office. On 21 September 2009 the Court of Appeal declared the applicant’s complaint against the postponement inadmissible. On 24 September 2009 the District Court, upon the mother’s request, further postponed the hearing to 26 October 2009. On 2 October 2009 the District Court postponed the hearing to 29 October 2009 because of the absence of the curator ad litem. 31. In the meantime, on 13 October 2009 the Court of Appeal rejected the applicant’s complaint against the further postponement, as the scheduling of a hearing was not subject to a legal remedy. With regard to the length of the proceedings, the Court of Appeal found as follows: “In the instant case, the numerous postponements have created a situation which is unacceptable in the light of the requirement to expedite the proceedings ... Contact proceedings have been pending since 2005. Contacts have taken place sporadically only; a final decision has not been given. On 23 June 2009 the applicant requested the issue of an interim order. The repeated postponements of the hearing cause a factual delay which amounts to a denial of justice or a suspension of the proceedings.” The Court of Appeal noted, however, that it was not competent to order the District Court to hold the hearing on a specific date. 32. On 15 October 2009 the District Court postponed the hearing upon the curator’s request to 2 November 2009. On 2 November 2009 the hearing took place, on 9 November 2009 the court heard the child. 33. On 21 December 2009, following further submissions filed by the parents and by the Youth Office, the District Court suspended the applicant’s contact rights for one further year. The District Court considered that the child, who last saw his father two and a half years before, and had been burdened by the proceedings, had to be given time, inter alia to cope with his entry into school. 34. On 5 January 2010 the applicant lodged a motion with the District Court to amend its decision of 21 December 2009 with respect to the father’s right to be informed about the child’s personal circumstances. On 22 March 2010 the District Court decided on this request. 35. On 30 December 2009 the applicant lodged an appeal with the Frankfurt Court of Appeal (Oberlandesgericht). By interim decision of 12 May 2010 the Court of Appeal, having held a hearing on 15 April 2010, ordered six contact visits to take place between May and August 2010. In October 2010, the main proceedings were still pending before the Court of Appeal. 36. As from 1 September 2009, proceedings in family matters are governed by the Act on Procedure in Family Matters and Non-Contentious Matters (Gesetz über das Verfahren in Familiensachen und in Angelegenheiten der freiwilligen Gerichtsbarkeit), section 155 of which reads as follows: “(1) Parent and child matters referring to the child’s place of abode, access rights or the surrender of the child, as well as proceedings based on a threat to the child’s welfare must be conducted as a matter of priority and expediently. (2) In proceedings pursuant to subsection (1) the court shall discuss the case with the parties at a hearing. The hearing shall take place at the latest one month after the proceedings have been instituted. The court shall hear the Youth Office during this hearing. This hearing may only be postponed for compelling reasons. Proof of the reasons for the need for the postponement must be furnished when the request for the postponement is made. (3) The court shall order the parties ... to appear in person at the hearing.” | 1 |
train | 001-105478 | ENG | UKR | CHAMBER | 2,011 | CASE OF FYODOROV AND FYODOROVA v. UKRAINE | 3 | Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 8;Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award | Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger | 5. The applicants, husband and wife, were born in 1948 and 1960 respectively and live in Takhtaulove. 6. In June 2000 the first applicant had a fight with the Ls, his neighbours. As a result, Mrs L. sustained bodily injuries, for which the first applicant was eventually convicted on 20 January 2005 and sentenced to suspended restriction of liberty. The applicants were also involved with the Ls in several civil proceedings concerning land use and other issues. 7. On 10 June 2001 Mrs L. addressed a letter to V. T., the Chief Psychiatrist of the Poltava District Clinical Hospital (“the Poltava Hospital”), alleging that the first applicant suffered from a serious mental condition and needed psychiatric treatment. She noted that he had been harassing her family for some nine years. In particular, he had been calling them names, cursing, eavesdropping, photographing their activities, recording their conversations with him, threatening to throw them out of their house and put Mr L. in prison. In June 2000 the first applicant had also hit Mrs L. in the course of an argument, inflicting serious injuries on her, which were the subject of pending criminal proceedings. She further noted that he had been in conflict with a number of other villagers. In particular, he was suspicious of everybody’s conduct; he photographed various allegedly “unlawful” acts; he threatened, cursed and argued with the villagers; he wrote various complaints to the authorities; he punctured the tyres of the village mayor’s car, stole crops and hay and engaged in fights. Finally, she alleged that he was prone to sudden fits of anger, beat his wife and had killed a dog. Lastly, he owned two rifles and was generally dangerous. 8. On 15 June 2001 M. F., a hospital psychiatrist, arrived in the applicants’ yard in an ambulance car and started questioning the first applicant about his relations with the Ls, in particular about their complaints that he had taken photographs of them without their consent. According to the first applicant, this conversation lasted about five minutes, after which he attempted to photograph the psychiatrist, the driver, and the ambulance car. In response, M. F. ran from the yard, shouting “this is abnormal”. 9. On 18 June 2001 V. T. informed the Poltava District Court that the first applicant was suffering from chronic delusional disorder (хронічний маячний розлад) and needed to undergo a forensic expert assessment with a view to receiving in-patient treatment. 10. On 30 June 2001 V. V., the Chief of the Regional Health Department, dismissed a complaint lodged by the first applicant, in which he alleged that the examination had been unlawful and the diagnosis incorrect. 11. In August 2001 the first applicant instituted court proceedings against M. F., V. T and V. V., complaining that he had been subjected to an unlawful examination and diagnosis in violation of the applicable law and medical guidelines. 12. On 6 February 2002 the Oktyabrsky District Court of Poltava allowed the first applicant’s claim and ordered the medical authorities to remove the diagnosis from his record. It observed, in particular, that complaints by the Ls could not be deemed a sufficient basis for the examination of the first applicant without his consent. It also found that the examination had been carried out in violation of the applicable procedural standards. In particular, M. F. had not duly informed the applicant of the reason for his visit and made his conclusions after an extremely brief informal conversation. 13. M. F. appealed against this judgment. 14. At 10 a.m. on 30 April 2002 the Poltava Regional Court of Appeal opened the hearing on M. F.’s appeal. The court noted in the hearing minutes that the first applicant had requested that the case be heard in his absence and that there was no reason not to grant this request. It had then heard submissions from M. F., who had presented his version of events and noted, in particular, that his conversation with the first applicant had lasted at least twenty or twenty-five minutes. The court also allowed M. F.’s request to add an unspecified certificate to the case-file materials. The floor was then given to a representative of the Regional Health Department, who maintained that M. F. had acted in accordance with the provisions of section 11 of the Law “On Psychiatric Assistance”, which lays down the circumstances under which a patient may be psychiatrically examined without his or her consent. In particular, there had been a serious cause for concern about the first applicant’s state of health, as at the material time criminal proceedings were pending against him on charges of assault against Mrs L. The court then heard the manager of the local polyclinics, who alleged that it had not been possible at the material time to subject the first applicant to a more extensive in-patient assessment. The hearing ended at 11:30 a.m. 15. On the same day the Court quashed the judgment of 6 February 2002 and dismissed the first applicant’s claim. By way of reasoning, the court noted the following: “The conclusion of the first-instance court that ... M. F. infringed the requirements of section 11 of the Law of Ukraine “On Psychiatric Assistance” in examining V. G. Fyodorov is not supported by the evidence contained in the case file. The first-instance court did not give sufficient consideration to explanations by the witness Fyodorova T.S. – the plaintiff’s wife, who maintained at the court hearing that M. F., upon exiting the ambulance car, had introduced himself and begun asking questions. The witness also indicated that M. F. had visited them for more than ten minutes. The court did not give sufficient weight to the testimonies by Fyodorov V. G. himself ... that M. F. had spoken to him concerning the photographing of the neighbour, Mrs L., and repeated the latter’s words concerning this matter. Therefore, the conclusion of the court that M. F. had not introduced himself before the examination of Fyodorov V. G. and had not informed him of the grounds and purpose of his examination does not follow from the facts of the case. The court erred in concluding that M. F. examined Fyodorov V. G. without his consent and any request by the latter for such an examination. The Panel of Judges considers that the written application by Mrs L. gave sufficient grounds for a psychiatric doctor to conduct a psychiatric examination in accordance with the requirements of paragraph 3 of section 11 of the Law of Ukraine “On Psychiatric Assistance”. Without substantiation, the first-instance court declared as wrongful the diagnosis ... concerning the state of Fyodorov’s V. G.’s health, since at the time of consideration of the case the case file contained no evidence disproving that diagnosis. The Panel of Judges considers that the actions of psychiatric doctor M. F., Chief Psychiatrist ... V. T ... were compliant with the requirements of section 11 of the Law of Ukraine “On Psychiatric Assistance”. The judgment of the first-instance court shall be quashed as the court’ ...” 16. The first applicant sought leave to appeal in cassation. He maintained, in particular, that the Court of Appeal had unlawfully held a hearing in his and his lawyer’s absence, having failed to notify either of them of the date of the hearing. He noted that the case file contained an unsigned request to hold a hearing in his absence. However, the first applicant contended that this unsigned application was forged and that even if it were not, no application to hear the case in the absence of his lawyer had been submitted. The first applicant further contended that the judgment lacked reasoning. He noted, in particular, that, according to the applicable law, an individual could be subjected to a psychiatric assessment either (a) upon his (or his representative’s) consent or (b) following a court decision or (c) in the event of urgent necessity. As the first applicant’s examination had not been based either on his consent or on a court decision, the court of appeal should have substantiated the finding that there had been an urgent need for it. Lastly, the first applicant complained that the court of appeal had not addressed his arguments concerning a violation of the applicable medical guidelines for diagnosing chronic delusional disorder, which presupposed extensive observation of a patient. In the first applicant’s opinion, having based the conclusion concerning the correctness of the diagnosis on the lack of any evidence to the contrary, the court of appeal had infringed the legal provisions concerning the presumption of mental health. 17. On 23 May 2003 the Supreme Court dismissed the first applicant’s request for leave to appeal in cassation, generally endorsing the findings of the court of appeal. 18. In May 2003 V. T. notified the first applicant’s lawyer that the first applicant’s name was not on the register of individuals suffering from mental disorders. On 9 September 2003 the Psychiatrists’ Association informed the first applicant that, having studied his medical documents, they found no basis to consider that he suffered from any disorders. On 2 February 2004 the applicant was also examined at the Kyiv Institute of Psychiatry and found not to be manifesting any signs of disorder and not to require treatment. Subsequently, referring to these documents, the first applicant unsuccessfully attempted to obtain an extraordinary review of the judgment of 30 April 2002. 19. In January 2003 the Poltava Hospital received several complaints from the applicants’ fellow villagers requesting that he be admitted to a psychiatric facility on account of various incidents of hostile behaviour towards them. 20. Referring to these complaints, V. T. requested the Poltava District Court to authorise the first applicant’s confinement to the psychiatric clinic for assessment and, if necessary, for treatment. On 20 February 2003 the court discontinued the proceedings, having advised V. T. that this matter was within the discretion of the supervising psychiatrist. 21. On 4 March 2003 V. T. addressed a letter to the district police requesting assistance in the first applicant’s hospitalisation in view of the danger he posed to others. In his letter he noted, in particular that “at the present moment Fyodorov V. G. is a danger to society. In connection with his mental disorders, during hospitalisation Fyodorov V. G. may use a hunting weapon in self-defence.” 22. According to the first applicant, on 5 March 2003 V. T. signed a certificate testifying his psychiatric fitness for the purposes of extending his hunting rifle permit. 23. On 6 March 2003 M. F. and two police officers arrived at the applicants’ home in the ambulance car and discussed the procedures concerning the extension of the permit. According to the first applicant, they invited him to follow them to the police station to complete the necessary formalities; however, he refused, assuring them that he would do so later. 24. At about 10:00 a.m. on 7 March 2003 the applicants went to the police station and requested instructions concerning the formalities to be completed for the rifle permit extension. 25. At about 12:00 p.m. M. F. arrived in the ambulance car and announced to the applicants that the first applicant was to be hospitalised. Notwithstanding the applicants’ protests, four police officers escorted the first applicant to the ambulance car and took him to the Poltava Regional Psychiatric Clinic, where he underwent two psychiatric assessments on the same day. 26. On 8 March 2003 the first applicant was released from the Regional Clinic as he was not considered to be in need of in-patient treatment. Subsequently (on 17 March 2003) the first applicant’s lawyer was informed by N. N., the Chief Psychiatrist of the Regional Clinic, that the first applicant’s diagnosis of chronic delusional disorder, which had served as the basis for his hospitalisation, had not been confirmed. However, he had been found to be suffering from a “pathological behavioural personality disorder of the unstable epileptic type, in the sub-compensation stage” (патохарактерологічний розлад особистості по епілептоїднонестійкому типу в стадії субкомпенсації). In September 2003 the first applicant was informed by the Psychiatrists’ Association that the stated diagnosis did not feature in the international classification table. On 11 October 2007 the first applicant underwent a psychiatric assessment in the Kyiv Centre for Forensic Assessment. The panel of experts concluded that neither on 15 June 2001, nor on 7 March 2003 or at the time of the assessment had the first applicant suffered from any psychiatric disorders. 27. On 11 March 2003 the applicants complained to the Poltava District Prosecutors’ Office that they had been ill-treated by M. F. and the police officers on 7 March 2003. They noted, in particular, that the decision to hospitalise the first applicant had been arbitrary and taken in excess of V. T.’s power. They further complained that the police had applied excessive force in enforcing this decision, which had caused their injuries. The use of force had been excessive because the first applicant’s protests were limited to a request to contact his lawyer and a demand to see the chief of the police department, which measures were legitimate in the context of the situation. In response he was restrained by four police officers, who also punched and kicked him, and dragged him down the stairs and into the ambulance car. The second applicant attempted to intervene, but in vain. According to her, the police officers punched her hands, pushed her in the chest and pressed her against the door, keeping her away from the first applicant. 28. On the same day the applicants were examined by medical experts, who found that the first applicant had contusions of the soft head tissue, face, left leg and neck, cumulatively qualified as “light bodily injuries”, which could have been sustained on the date and under the circumstances described by him. The second applicant had contusions of the right hand, left arm, left knee and right leg, caused by blunt objects, possibly on the date and under the circumstances described by her. The second applicant’s injuries were also cumulatively qualified as “light”. 29. On 16 April 2003 the Poltava District Prosecutor’s Office refused to institute criminal proceedings, having found that in restraining the first applicant, who had objected to the lawful actions of M. F. and the police officers’ order to get into the ambulance car, the police officers had not acted in excess of the authority conferred on them by applicable law. 30. On 27 June 2003 the first applicant was X-rayed and found to have a fractured jaw. 31. In July 2003 the first applicant underwent an additional assessment by medical experts, who found that the fractured jaw could have been sustained during his placement in the ambulance car in March 2003, as he had described, and re-qualified the injuries sustained during this period as of “medium severity”. Based on these findings, the applicants again requested the initiation of criminal proceedings against M. F. and the police officers. 32. On numerous occasions (14 August, 11 November and 24 December 2003, 25 May 2004 and 4 March 2005) the District Prosecutor’s Office refused to institute criminal proceedings for want of evidence of criminal conduct on the part of the officers and M. F. All those decisions were subsequently annulled either by the supervising prosecuting authorities or by the Oktyabrsky District Court with reference to the insufficiency of the investigations and various procedural omissions. 33. On 18 November 2003 the Deputy Poltava Regional Prosecutor wrote to the Poltava District Prosecutor, reprimanding him for having failed to organise a thorough examination of the applicants’ complaints. He noted, in particular, that the District Prosecutor had failed to study the case-file materials and provide written instructions as to the inquiry; that eyewitnesses of the incident had not been identified and questioned; and that the measures taken had been perfunctory. The Deputy Regional Prosecutor also gave various instructions as to the further investigation of the case. 34. On 28 July 2005 the Poltava Regional Prosecutors’ Office initiated criminal proceedings to investigate the circumstances in which the first applicant had sustained injuries. 35. On 18 October 2005 the Oktyabrsky District Court of Poltava also instituted criminal proceedings concerning the second applicant’s injuries. 36. On numerous occasions (in particular, 25 December 2005, 10 June 2006 and 29 December 2007) the above criminal proceedings were discontinued for want of evidence of criminal actions on behalf of M. F. and the police officers. Those decisions were set aside by the superior prosecutorial or judicial authorities with reference to the inadequacy of the measures taken to investigate the applicants’ complaints. 37. On 22 May 2009 the prosecutors’ office discontinued the criminal proceedings. It noted, in particular, that the Poltava District Hospital had received numerous complaints from the applicants’ neighbours concerning the first applicant’s aggressive behaviour. In particular, one such complaint, signed by five villagers, had been received in February 2003. Having obtained a ruling from the local court that the decision to hospitalise the first applicant could be taken by the supervising psychiatrist, V. T. had asked the police for assistance in ensuring the hospitalisation. Neither M. F. nor the policemen had exceeded the authority vested in them by applicable law in demanding the first applicant’s hospitalisation. The force applied to the applicants had been proportionate and had not exceeded that which was necessary in order to overcome their resistance. In particular, according to expert assessments and reconstructions of the crime scene, the first applicant had apparently fractured his jaw when he accidentally banged his head against the ambulance vehicle while resisting the efforts of the police officers to place him inside. 38. By a decision of 14 September 2009, upheld on appeal on 29 October 2009, the Oktyabrsky District Court quashed that decision. The courts noted, in particular, that while the prosecution had conducted a reconstruction of the crime scene based on the police officers’ version of the events, they had failed to verify the applicants’ version of events. Likewise the medical assessment had verified the police’s version of events only. The police had also failed to identify any eye-witnesses of the incident in order to question them about their impressions and had not fulfilled various instructions, given, in particular, by the court in reviewing previous decisions to discontinue the proceedings. 39. According to the case-file materials the investigation of the applicants’ complaints about ill-treatment is still pending. 40. The relevant provision of the Constitution reads as follows: “Every person has the right to freedom and personal inviolability. No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with a procedure established by law. In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the moment of detention, with a reasoned court decision in respect of the holding in custody. Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel. Everyone who has been detained has the right to challenge his or her detention in court at any time ...” 41. The relevant provisions of the Code can be found in the judgment in the case of Kozinets v. Ukraine (no. 75520/01, §§ 40-42, 6 December 2007). 42. The relevant provisions of the Code concerning notification arrangements are summarised in the judgment in the case of Strizhak v. Ukraine (no. 72269/01, §§ 30-31, 8 November 2005) and the admissibility decision in the case of Shytik v. Ukraine (no. 2911/03 of 30 September 2008). 43. The relevant provisions of the Law of Ukraine “On Psychiatric Assistance” read as follows: “Each individual shall be considered as having no mental disorders unless the presence of such a disorder is established on the grounds of and according to the procedure established by this Law and other laws of Ukraine.” “A psychiatric examination shall be carried out for the purposes of establishing whether or not an individual suffers from a mental disorder, whether she or he requires psychiatric assistance, and determining of the type of such assistance and the procedure for providing it. A psychiatric examination shall be carried out by a psychiatric doctor at the request or with the conscious consent of the individual... A psychiatric examination may be carried out without the individual’s conscious consent ... where the information available provides sufficient grounds for a reasonable assumption that the individual suffers from a severe mental disorder, as a result of which she or he: - commits or manifests an actual intention to commit an act which constitutes an imminent danger to her or himself or others; or - is unable on her or his own to meet her or his basic vital needs at the level necessary to sustain her or his life; or - will cause significant harm to her or his own health ... in the event that psychiatric assistance is not provided. The decision to carry out a psychiatric examination of an individual without her or his conscious consent ... shall be taken by a psychiatric doctor upon an application [by any person], which contains information giving sufficient grounds for such an examination. ... In urgent situations ... the decision to carry out a psychiatric examination of an individual without her or his conscious consent ... shall be taken by the psychiatric doctor alone, and the psychiatric examination shall be carried out immediately. In [other] cases, ... a psychiatric doctor shall submit an application to the court ... A forcible psychiatric assessment shall be carried out by the psychiatric doctor following a court order. Data concerning the psychiatric examination and the conclusion concerning the individual’s state of mental health, and the reasons for the application to the psychiatric doctor, shall be recorded in medical documents.” “An individual suffering from a mental disorder may be hospitalised without her or his conscious consent ..., if examination and treatment are possible only on an in-patient basis, and in the event of a finding that the individual is suffering from a severe mental disorder, as a result of which she or he: - commits or manifests an actual intention to commit an act which constitutes an imminent danger to her or himself or others; or - is unable on her or his own to meet her or his basic vital needs at the level necessary to sustain her or his life.” | 1 |
train | 001-22788 | ENG | CYP | ADMISSIBILITY | 2,002 | KARABARDAK and OTHERS v. CYPRUS | 4 | Inadmissible | Gaukur Jörundsson | The applicants are Mr Lütfi Celul Karabardak, Mrs Bahire Lütfioğlu, Mr Alper Lütfioğlu, Mr Cahit Lütfioğlu, Mr Lütfi Lütfioğlu and Mrs Aysel Altioğlu. They were born in 1933, 1933, 1958, 1956, 1961 and 1954 respectively and live in the “Turkish Republic of Northern Cyprus” (“TRNC”). They are represented before the Court by Mr Z. Necatigil and Ms S. Karabacak, lawyers practising in Turkey. The facts of the case, as submitted by the applicants, may be summarised as follows. The first applicant was living in Erenköy (Kokkina), Cyprus, when he was abducted on 1 January 1964 by forces under the control and/or the responsibility of the respondent Government. The second applicant is the wife of the first applicant. The other applicants are the children of the first applicant. The applicants submit that in 1964 their village had run out of food supplies because hostilities between the two communities had prevented any form of safe transportation of food. On 1 January 1964 the first applicant, who was a driver by profession, together with his friend, Saydam Hüsnü (Baybora), took his bus and headed towards the Turkish-Cypriot town of Lefke. On the way, whilst passing through the Greek-Cypriot village of Pyrgos, he and his friend were abducted by a group of armed Greek-Cypriots, including a police officer, and taken to an unknown destination. They were never heard of again. The persistent efforts of the relatives to ascertain the fate of the missing persons were in vain. Subsequently, on 4 April 1989, the first applicant’s case was submitted to the appropriate authority on missing persons, the United Nations Committee on Missing Persons in Cyprus (“CMP”) (case number 145). According to the personal diary of a certain Georghiou Luca, a teacher from the Greek-Cypriot village of Mosphileri, which was found in the possession of a Turkish-Cypriot journalist, the missing persons were “executed” summarily in the Greek-Cypriot cemetery of Pyrgos village by armed Greek Cypriots named Mouzouri and Pari “on the instructions of the Headquarters” (the code-name of the then Minister of Interior, Polycarpos Georghadjis). Through the intermediary of the Turkish-Cypriot member of the CMP, the relatives submitted this additional information to the CMP in the hope of finding out what really happened to the missing persons. According to the applicants, a number of requests were made to the CMP to conduct an effective investigation into the fate of the first applicant and his friend. However, there was no response to their requests and no hint of any effective investigation having been undertaken. The third applicant wrote to Amnesty International in London. He stated in his letter that all of their enquiries had so far borne no results and that the Greek-Cypriot Administration had persistently refused to investigate the matter. Amnesty International answered by saying that it appeared that while the CMP may have investigated quite a number of cases submitted to it, it has not been able to bring any of these investigations to a conclusion because the Committee members have been unable to come to an agreement about the Committee’s working methods. The accidental discovery of human remains in 1996 in the Kato Pyrgos region raised a hope for the applicants. However, a scientific report drafted by an American company, following the study of a bone sample, concluded that the individuals whose remains had been found had lived between 1030 and 1240 AD. On 2 March 2001 the Office of the Greek-Cypriot Member of the CMP sent the following letter to the CMP: “I am referring to the human remains which were accidentally discovered four years ago in Kato Pyrgos. My letter dated 10.12.1999, as well as your letter dated 14.4.2000 on this issue, are hereby appended for any reference. Further to a conversation you had with Mr Georgiades concerning recent developments on the matter, I wish to inform you that on two separate occasions, members of the team of the Physicians for Human Rights, assisted by our investigating officer and myself, searched the area for additional skeletal remains. All remains were subsequently taken to the laboratory of the Physicians for Human Rights in Cyprus for anthropological analysis, and for decent keeping. Moreover, skeletal samples were sent to a laboratory in U.S. for specialised tests in order to ascertain the period that the remains were buried. The report of the laboratory concerning the remains is appended, as well as a letter by Dr W. Hagkund Director PHR Cyprus Project. We would be most grateful if you could inform accordingly the Office of the Turkish Cypriot Member of the CMP of this development. We strongly suggest that the Turkish Cypriot family, which claimed in the press that the remains might belong to their missing father, should also be informed of the results of the scientific analysis by you too. We are at your entire disposal for any further information ...”. | 0 |
train | 001-92427 | ENG | SVK | ADMISSIBILITY | 2,009 | KISSKA v. SLOVAKIA | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | The applicant, Mr Boris Kišška, is a Slovak national who was born in 1977 and lives in Žilina. He was represented before the Court by Mr M. Klimašovský, a lawyer practising in Žilina. 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. On 8 August 1997 a private entrepreneur initiated proceedings before the District Court in Žilina concerning the payment of a sum of money. The applicant and the plaintiff concluded an agreement under which the relevant title was transferred to the former. The applicant asked the District Court for leave to replace the original plaintiff in the proceedings. On 30 January 2004 the District Court granted the request. On 10 May 2005 the District Court granted the action. The defendant appealed. On 13 October 2005 the District Court discontinued the proceedings. On 20 February 2006 the Court of Appeal quashed that decision. On 5 September 2006 the District Court discontinued the appeal proceedings as the defendant had failed to pay court fees. On 7 July 2006 the Constitutional Court found that the District Court in Žilina had violated the applicant’s right under Article 48 § 2 of the Constitution to a hearing without unjustified delay. The case was not complex. The applicant by his conduct had not contributed to the length of the proceedings. However, his predecessor, the initial plaintiff, had submitted only on 3 December 2003 a reply to the District Court’s request of 5 September 2002. The District Court had failed to proceed in an appropriate manner and it was responsible for delays totalling 52 months. The Constitutional Court awarded the equivalent of EUR 1,300 to the applicant as just satisfaction in respect of non-pecuniary damage. It also ordered the District Court to avoid any further delay in the proceedings and to reimburse the applicant’s legal costs. | 0 |
train | 001-84977 | ENG | SVN | CHAMBER | 2,008 | CASE OF ACIKGÖZ v. SLOVENIA | 4 | Violation of Art. 6-1;Violation of Art. 13 | Alvina Gyulumyan;Corneliu Bîrsan;David Thór Björgvinsson;Egbert Myjer;Elisabet Fura;Ineta Ziemele | 6. The applicant, Mr Ali Acikgöz, is a citizen of Turkey who was born in 1945 and lives in Austria. 7. On 5 April 1987 the applicant was involved in a serious car accident in which one person died. 8. Consequently, criminal proceedings were instituted against the applicant and, on 7 April 1987, the Kranj Basic Court (Temeljno sodišče v Kranju) ordered him to pay a bail of 5,000 DEM. 9. During the investigation, the investigating judge acquired forensic expert reports and examined a witness. 10. On 13 April 1988 the Public Prosecutor filed an indictment against the applicant for causing the accident by negligent driving. On 14 November 1991 the Kranj Basic Court dismissed the applicant's objection against the indictment. 11. On 30 December 1991 the applicant assigned a new lawyer to represent him in the proceedings and informed the court about his address in Austria. 12. On 30 June 1992, a hearing was cancelled due to the applicant's absence. Subsequently, the court examined several witnesses in the presence of the applicant's representative. 13. On 20 October 1992 the applicant's lawyer proposed that the next hearing be held in the absence of the applicant. 14. On 28 March 1994, further to the court's request, the applicant's lawyer informed the court that he had lost contact with the applicant. On 30 March 1994 the court asked the local police to inquire about the applicant's address. The police did not reply. 15. On 28 June 1994 the Convention entered into force in respect of Slovenia. 16. On 1 February 1995 the Kranj District Court (Okrožno sodišče v Kranju) gained jurisdiction in the case due to the reform of the Slovenian judicial system. The case was assigned to a judge, who did not deal with it. 17. On 26 August 1996 the case was assigned to a new judge. 18. On 14 November 1996 the Kranj District Court inquired about the applicant's address. The lawyer knew that the applicant had moved to Turkey but was not aware of his new address. It appears that the applicant notified his lawyer about his address on 30 December 1996. 19. On 14 May 1998 the applicant was summoned for a hearing through an assistance of the Ministry of Justice. On 27 October 1998 a hearing was held in the absence of the duly summoned applicant. The only witness examined at the hearing referred to his testimony given in the earlier stages of the proceedings and was not asked any further questions. No other evidence was taken at the hearing. The court subsequently convicted the applicant. A written judgment was served on him on 17 November 1998. 20. On 19 November 1998 the applicant appealed to the Ljubljana Higher Court (Višje sodišče v Ljubljani). 21. On 19 October 1999 the Ljubljana Higher Court acquitted the applicant. The judgment was served on the applicant on 30 December 1999. 22. On 31 December 1999 the applicant asked the Kranj District Court to reimburse him the bail (see paragraph 8 above) together with the default interest and sought reimbursement of the costs and expenses he had incurred in the proceedings. 23. On 23 February 2000 the Kranj District Court ordered the reimbursement of the costs and expenses. 24. On 10 March 2000 the Kranj District Court, relying on section 198 of the Criminal Procedure Act (see paragraph 30 below), ordered the reimbursement of the bail, but refused to reimburse the interests. 25. On 15 March 2000 the applicant appealed against that decision. 26. On 11 May 2000 the Ljubljana Higher Court rejected the appeal. The decision was served on the applicant on 29 August 2000. 27. On 19 March 2001 the applicant instituted civil proceedings in the Ljubljana Local Court (Okrajno sodišče v Ljubljani) seeking reimbursement of the interests incurred in respect of the bail paid in 1987. The proceedings are currently pending on appeal. 28. The Act on the Protection of the Right to a Trial without undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006) became operational on 1 January 2007. Under its sections 1 and 2, the right to a trial within a reasonable time is guaranteed for a party to court proceedings, a participant under the Act governing non-contentious proceedings and an injured party in criminal proceedings. 29. Section 25 lays down the following transitional rules in relation to applications already pending before the Court: “(1) In cases where a violation of the right to a trial without undue delay has already ceased and the party had filed a claim for just satisfaction with the international court before the date of implementation of this Act, the State Attorney's Office shall offer the party a settlement on the amount of just satisfaction within four months after the date of receipt of the case referred by the international court for the settlement procedure. The party shall submit a settlement proposal to the State Attorney's Office within two months of the date of receipt of the proposal of the State Attorney's Office. The State Attorney's Office shall decide on the proposal as soon as possible and within a period of four months at the latest. ... (2) If the proposal for settlement referred to in paragraph 1 of this section is not acceded to or the State Attorney's Office and the party fail to negotiate an agreement within four months after the date on which the party filed its proposal, the party may bring an action before the competent court under this Act. The party may bring an action within six months after receiving the State Attorney's Office reply that the party's proposal referred to in the previous paragraph was not acceded to, or after the expiry of the period fixed in the previous paragraph for the State Attorney's Office to decide to proceed with settlement. Irrespective of the type or amount of the claim, the provisions of the Civil Procedure Act concerning small claims shall apply in proceedings before a court.” 30. Section 198 of the Criminal Procedure Act (Zakon o kazenskem postopku, Official Gazette no. 63/94) provides that the bail should be reimbursed once the criminal proceedings terminate with a final decision or a final judgment. | 1 |
train | 001-23016 | ENG | POL | ADMISSIBILITY | 2,003 | J.G. v. POLAND | 4 | Inadmissible | Nicolas Bratza | The applicant, J.G., is a Polish national, who was born in 1958 and lives in Polwica, Poland. He was not legally represented in the proceedings before the Court. The respondent Government were represented by their Agent, Mr K. Drzewicki, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 23 May 1994 the Wrocław Regional Prosecutor (Prokurator Wojewódzki) charged the applicant with drug smuggling and detained him on remand in view of the reasonable suspicion that he had committed the offence in question, the serious nature of that offence and the risk that he might obstruct the proper conduct of the proceedings. On the same day, the applicant’s wife was charged with a similar offence and detained on remand. The applicant, in his written observations, submitted that, upon their detention, the authorities had ordered them to surrender their passports. The Government have not contested that fact. Subsequently, on several occasions, the applicant asked the prosecutor to release him on bail, but all his applications were to no avail. On 3 August 1994, on an application by the Regional Prosecutor, the Wrocław Regional Court (Sąd Wojewódzki) prolonged the applicant’s detention on remand until 31 December 1994. The court held that there was a reasonable suspicion that the applicant had committed the serious offence with which he had been charged. It considered that the need to confront suspects with each other, to obtain evidence from abroad and expert evidence justified the prolongation of his detention in order to ensure the proper course of the investigation. The Wrocław Court of Appeal (Sąd Apelacyjny) upheld this decision and the reasons therefor on 25 August 1994. On 19 September 1994 the applicant’s counsel asked the prosecutor to order that the applicant be examined by a cardiologist and a psychiatrist. According to a medical report, which was submitted to the prosecutor on 4 October 1994, the applicant’s health was not an obstacle to holding him in detention. On 15 December 1994 the applicant’s wife was released from detention on health grounds. On 22 December 1994, on a subsequent application by the Regional Prosecutor, the Wrocław Regional Court prolonged the applicant’s detention until 28 February 1995, repeating the reasons already invoked in the decision of 3 August 1994. The Wrocław Court of Appeal upheld that decision on 19 January 1995. On 3 January 1995 the applicant’s counsel informed the prosecutor that his client’s health was very bad and that, in particular, he had lost consciousness during one of their meetings in prison. It was, he added, not a single instance of fainting as the applicant had already several times had similar attacks. He asked the prosecutor to release the applicant immediately. The prosecution first asked the prison authorities to provide them with an updated report on the applicant’s health. According to that report, which was received on 13 January 1995, the applicant had only once informed prison doctors of having lost consciousness. Doctors did not consider that the applicant’s condition militated against keeping him in custody. Meanwhile, on 22 December 1994, the applicant had filed an application for release on bail with the Wrocław Regional Prosecutor and offered a security in the form of his movable and immovable property. The application was dismissed by the Wrocław Regional Prosecutor on 22 December 1994 and, on appeal, by the Wrocław Prosecutor of Appeal (Prokurator Apelacyjny) on 5 January 1995. In those decisions the prosecutors referred to the need to ensure the proper conduct of the proceedings and considered that the applicant’s detention should continue until at least the end of the investigation, especially as the applicant had not confessed. On 6 February 1995 the Regional Prosecutor laid further charges against the applicant. On 28 February 1995 the prosecution lodged a bill of indictment with the Wrocław Regional Court. The applicant was indicted on a charge of having smuggled not less than 30 kg of heroine. The bill of indictment comprised 21 charges against 15 co-accused. In March 1995 the applicant made 3 applications for release on health grounds. He complained about frequent headaches and states of unconsciousness, insomnia and heart-burning sensation. He also referred to his difficult family situation and, in particular, to the bad health of his wife, who was suffering from depressive neurosis and chronic gastritis. He produced the relevant medical certificates. On 21 March 1995 the Regional Court refused to release him. It considered that there was a sufficient likelihood that the applicant had committed the offence with which he had been charged. It also held that his detention should continue in view of the need to ensure the proper conduct of the trial. The court did not find that the situation of the applicant’s family was so serious as to justify his release on the grounds specified in Article 218 of the Code of Criminal Procedure. On 22 May 1995 the applicant filed a subsequent request for release. Later, in August 1995, he made several fresh, similar applications. He stressed that he had already spent nearly one year in detention. He referred to his own and his wife’s bad health, maintaining that she urgently needed help and support from him. He produced several medical and other certificates relating to her health and family situation. In June 1995, the Wrocław Regional Court ordered that further evidence concerning the applicant’s and his wife’s health and their family situation be obtained. On 7 and 17 August 1995, the applicant produced further documents. On 22 August 1995 the court rejected all the applications. It held that there was a sufficient appearance of likelihood that he had committed the offence in question. It further considered that that offence represented a serious danger to society and that, accordingly, there was a need to ensure the proper course of the trial. Referring to the applicant’s health, the court observed that the applicant was suffering only from neurosis, which was not in itself an obstacle to his continued detention. As regards his family situation, the court pointed out that other members of their family could provide his wife with the necessary care and assistance. The Wrocław Court of Appeal upheld that decision on 26 September 1995. It found that the charge against the applicant was sufficiently confirmed by evidence heard before the trial court. It also considered that the character of the offence, the complicated process of obtaining evidence and the stage of the proceedings indicated that holding the applicant in custody was necessary to secure the proper conduct of the trial. In the meantime, on 4 August 1995, the Regional Court had rejected the applicant’s other applications for release, which he had filed on 3 July and 1 August 1995. This decision was then upheld on appeal on 31 August 1995. The courts relied on two principal reasons, namely, on the reasonable suspicion that the applicant had committed the serious offence and the need to ensure the proper conduct of the proceedings. As regards the applicant’s health and his family situation, the courts found that there were no grounds for releasing him under Article 218 of the Code of Criminal Procedure. On 13 October 1995 the trial began. The court heard evidence from defendants. Further hearings were held on 1 December 1995 and 19 and 25 January 1996. The applicant repeatedly – but with no success – asked for release. On 25 January 1996 the applicant asked the Regional Court to release him on bail. The court refused on the same day. On 23 February 1996 the Wrocław Court of Appeal upheld that decision. It held that the charge against the applicant had a sufficient basis in evidence that had so far been heard before the trial court. It considered that the applicant’s offence represented a serious danger to society and that the nature of the offence, as well as the modus operandi, justified the fears that the applicant would obstruct the process of obtaining evidence. As regards the applicant’s family situation, the court observed that his wife was under the proper care in a psychiatric hospital and that her condition was not a reason to apply Article 218 of the Code of Criminal Procedure. On 31 January 1996 the applicant again asked for release on bail. He submitted that the health of his wife had markedly deteriorated and that she was in hospital. On 15 February 1996 the Wrocław Regional Court rejected the application in view of the reasonable suspicion that the applicant had committed the serious offence with which he had been charged and the need to secure the proper conduct of the proceedings. The court found that the bad health of the applicant’s wife was not a circumstance that could militate against his continued detention because she was being given care and treatment in hospital. On 5 and 7 March and 10, 13 and 31 May, 26 June and 9 July 1996 the Regional Court held further hearings. In the interim, on 20 March 1996, the applicant had filed another application for release. He repeated his previous arguments and produced further documents describing the bad health and difficult personal situation of his wife. He stressed that the total length of his detention was very considerable. The Wrocław Regional Court rejected the application on 9 July 1996. On 29 July 1996, on the applicant’s appeal, the Wrocław Court of Appeal quashed the detention order and released him under the condition that he report weekly to the police station at his place of residence and surrender his passport to the court. In addition, the court imposed further restrictions on the applicant’s movement and ordered, inter alia, that he be prohibited from leaving the territory of Poland. The Court of Appeal did not share the applicant’s opinion that he should be released in view of his family situation and held that detention was by itself a measure that inevitably entailed serious consequences for an individual’s family life. It considered, however, that the length of the applicant’s detention, which had at the time exceeded two years, militated in favour of his release. The court stressed that that element, given the fact that the trial had reached an advanced stage, that evidence had been secured and that there was no danger that the applicant might obstruct the process of obtaining evidence, justified the opinion that the application of a less severe preventive measure would adequately secure the further course of the trial. The trial came to an end on 23 May 1997. Beforehand, the Regional Prosecutor dropped the charge of drug smuggling against the applicant and asked the court to find him guilty of drug trafficking. The Regional Court convicted the applicant of drug trafficking and sentenced him to 3 years’ imprisonment and a fine of 15,000 Polish zlotys. The applicant did not appeal against his conviction. In their observations, the Government submitted that, on 15 May 1995 the Wrocław Regional Police had obtained information from the Warsaw Office of Interpol, according to which the Italian authorities had issued an order to search for the applicant by a “wanted” notice in connection with the suspicion of his having been involved in money laundering and with their intended request for his extradition to Italy. The applicant submitted that throughout his trial he had been unaware of that fact and that he had learnt of it – and of the fact that he had already been sentenced in absentia by the Italian courts – on 15 December 2001, when he had been arrested by the German authorities. He produced the relevant warrant of arrest. In that connection, the applicant added that the German courts had refused to extradite him to Italy because the Italian courts had not ensured him a fair trial in absentia. To begin with, he had not been informed of the charges. Nor had he been heard, summoned to stand trial or notified of the judgment. He produced the relevant decision given by the Dresden High Country Court on 19 February 2002. The court considered that his extradition to Italy was inadmissible because “in the trial preceding his conviction a minimum of his defence rights had not been respected”. At the material time the rules governing detention on remand were contained in Chapter 24 of the Law of 19 April 1969 – Code of Criminal Procedure (Kodeks postępowania karnego) (“the 1969 Code”) – entitled “Preventive measures” (Środki zapobiegawcze). The 1969 Code is no longer in force. It was repealed and replaced by the Law of 6 June 1997 (commonly referred to as the “New Code of Criminal Procedure”), which entered into force on 1 September 1998. The 1969 Code listed as “preventive measures”, inter alia, detention on remand, bail and police supervision. Article 210 § 1 of the 1969 Code, in the version applicable at the relevant time, read: “Preventive measures shall be imposed by the court; before a bill of indictment has been lodged with the competent court, the measures shall be imposed by the prosecutor.” Article 222 stated, in so far as relevant: “1. The prosecutor may order detention on remand for a period not exceeding three months. (1) the court competent to deal with the case, upon the prosecutor’s request, for a period not exceeding one year; (2) the Supreme Court, upon request of the Prosecutor General, for a further fixed term required to terminate the investigation.” Article 209 of the 1969 Code set out general grounds justifying imposition of preventive measures. That provision, as it stood at the material time, provided: “Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.” Article 217 § 1 defined grounds for detention on remand. That provision, in the version applicable until 1 January 1996 provided, in so far as relevant: “Detention on remand may be imposed if: (1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when he has no fixed residence [in Poland] or his identity cannot be established; or (2) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper conduct of proceedings by any other unlawful means; or (3) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in the Criminal Code; or (4) an accused has been charged with an offence which creates a serious danger to society.” On 1 January 1996 paragraphs (3) and (4) were repealed. From that date on that provision read: “(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent abode [in Poland]; or (2) [as it stood before 1 January 1996].” Paragraph 2 of Article 217 then read: “If an accused has been charged with a serious offence or an intentional offence [for the commission of which he may be] liable to a sentence of a statutory maximum of at least eight years’ imprisonment, or if a court of first instance has sentenced him to at least three years’ imprisonment, the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed.” The 1969 Code set out the margin of discretion as to maintaining a specific preventive measure. Articles 213 § 1, 218 and 225 of the Code were based on the precept that detention on remand, the most extreme among the preventive measures, should not be imposed if more lenient measures were adequate. Article 213 § 1 provided: “A preventive measure [including detention on remand] shall be immediately lifted or varied, if the basis therefor has ceased to exist or new circumstances have arisen which justify lifting a given measure or replacing it with a more or less severe one.” Article 225 stated: “Detention on remand shall be imposed only when it is mandatory; this measure shall not be imposed if bail or police supervision, or both of these measures, are considered adequate.” The provisions of the 1969 Code providing for “mandatory detention” (for instance, pending an appeal against a sentence of imprisonment exceeding three years) were repealed on 1 January 1996 by the Law of 29 June 1995 referred to above. Finally, Article 218 provided: “If there are no special reasons to the contrary, detention on remand should be lifted, in particular, if: (1) it may seriously jeopardise the life or health of the accused; or (2) it would entail excessively serious repercussions for the accused or his family.” | 0 |
train | 001-104601 | ENG | UKR | ADMISSIBILITY | 2,011 | KOCHERGA v. UKRAINE | 4 | Inadmissible | Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre | The applicant, Mr Mykola Mykolayovych Kocherga, is a Ukrainian national who was born in 1954 and lives in the town of Shakhtarsk, Donetsk region, Ukraine. The applicant worked in the mining industry for more than thirty years and developed an occupational lung disease and disability confirmed by the medical commission. Under the Compulsory State Social Insurance Against Work-Related Accidents and Occupational Diseases Causing Disability Act (“the Social Insurance Act”) he was entitled to receive different types of payments from the State Insurance Fund for Work-Related Accidents and Occupational Diseases (“the Fund”). According to the applicant, the Fund provided him with the majority of payments and other social benefits due to him. However, the Fund refused to pay him compensation for non-pecuniary damage, which was equally guaranteed by the Social Insurance Act, on the ground that the State budget for 2006 had suspended the relevant provision of the Social Insurance Act and did not foresee funds for this type of payment. The applicant challenged the above refusal in the Shakhtarsk Town Court in October 2006. By its decision of 4 December 2006, the court found in part for the applicant and awarded him 14,000 Ukrainian hryvnias, approximately 2,100 euros at the material time. The Fund appealed against the judgment, claiming that compensation for non-pecuniary damage was not automatic and that the applicant had to prove he had suffered such damage, which he had failed to do. It further contended that the applicant’s claim was belated and that the State Budget Act had suspended the relevant provisions of the Social Insurance Act and did not foresee expenses for this type of payment. On 15 February 2007 the Donetsk Regional Court of Appeal quashed the decision of the first-instance court and found against the applicant on the basis that the applicant had acquired a right to compensation after the State Budget Act for 2006 had already come into force and suspended the relevant provision. The applicant appealed on points of law. He maintained that the insurance scheme under which he had claimed compensation was formed of extra-budget funds and could not depend on the State budget. He further contested the conclusions of the court of appeal about the relevant provisions of the Social Insurance Act being suspended. On 3 April 2007 the Supreme Court refused the applicant’s request for leave to appeal on points of law. | 0 |
train | 001-5030 | ENG | SVK | ADMISSIBILITY | 2,000 | APIS a.s. v. SLOVAKIA | 3 | Inadmissible | Christos Rozakis | The applicant is a joint stock company with registered office in Turčianske Teplice. It is represented by Mrs B. Ambrušová, a lawyer practising in Martin. On 25 July 1995 the applicant company filed an action with the Bratislava City Court (Mestský súd) claiming that it was entitled to obtain 51 per cent of the shares of another limited company. At the same time the applicant company requested the City Court to take an interim measure ordering the defendant, the Fund of National Property, not to sell the shares at issue pending the outcome of the proceedings. On 15 August 1995 the City Court granted the request for an interim measure. On 8 July 1996 the Supreme Court (Najvyšší súd) upheld this decision. On 30 September 1996 the City Court dismissed the defendant's request for annulment of the interim measure. The defendant appealed and on 30 May 1997 the Supreme Court quashed the interim measure without having heard the parties. The applicant company petitioned the Constitutional Court (Ústavný súd) and alleged a violation of its right to a fair and public hearing in the proceedings leading to the Supreme Court's decision of 30 May 1997. On 2 December 1997 the Constitutional Court rejected the petition. It noted, inter alia, that the interlocutory proceedings in question did not determine the merits of the applicant company's action. | 0 |
train | 001-73193 | ENG | CZE | ADMISSIBILITY | 2,006 | JANATA v. THE CZECH REPUBLIC | 4 | Inadmissible | null | The applicant, Mr Pavel Janata, is a Slovakian national who was born in 1970 and lives in Prague. He is represented before the Court by Mr J. Buzalka, a lawyer practising in Prague. The facts of the case, as submitted by the parties, may be summarised as follows. On 2 June 1976 the former Prague 1 National Council (místní národní výbor) assigned a two-room flat to Mr X and his wife, Ms Y, in a State owned apartment house. On 23 April 1990 the Prague 1 Housing Association (bytový podnik) brought proceedings against Mr X and a certain Ms Z before the Prague 1 District Court (obvodní soud) asking that their tenancy be terminated and that Mr X and Ms Z be ordered to leave the flat. It alleged that the tenants had failed to pay the rent for more than three months. By a judgment of 20 September 1990, the District Court terminated the tenancy of Mr X and Ms Z, and ordered them to leave the flat within 15 days of the allocation of a substitute flat by the competent national council. The judgment was served on the parties at the end of 1990. On 14 May 1992 it became final. On 11 February 1991 Mr X commenced divorce proceedings against Ms Y. The judgment declaring the divorce was notified to the latter at her new address in May 1991. The judgment of 20 September 1990 was served on her in March 1992. In April 1993 the applicant became the owner of the apartment. On 22 February 1994 he introduced a civil action in the District Court, seeking a declaration that the eviction of Mr X should not be conditional on the allocation of alternative accommodation. The applicant claimed that the former tenant had not paid the rent and maintenance contributions for seven months. He submitted that the flat had been assigned to Mr X and his wife, Ms Y, on 2 June 1976 and that after their divorce, Ms Y had been provided with a substitute flat, Mr X having continued to occupy the common flat. The applicant further submitted that the District Court had terminated the tenancy of Mr X and his wife, and had ordered them to leave the flat within 15 days of the allocation of a substitute flat by the competent national council. On 27 June 1995 the District Court dismissed the applicant’s action finding, inter alia, that the fact that Mr X owed rent for over three months, or that he had caused disorder in the house, did not substantiate the applicant’s argument that the circumstances, on which the original judgment of 20 September 1990 had been based, had changed, thereby justifying its modification. On 14 August 1996 the Prague Municipal Court (městský soud) quashed the first instance judgment, finding that the former tenant’s continued unlawful behaviour, which had constituted the reason for the termination of the tenancy, had to be considered as an alteration of the circumstances (změna poměrů) on which the District Court had originally based its judgment of 20 September 1990. It ordered the District Court to clarify the circumstances in which Mr X had defaulted on the payment of his rent. On 19 June 1997 the District Court again dismissed the applicant’s action on the ground that the applicant had not proved that Mr X had violated his tenancy obligations. It further held that the amount of rent which the applicant had asked Mr X to pay was contrary to the national law. On 8 January 1998 the Municipal Court upheld the District Court’s judgment applying, inter alia, section III(6) of Act no. 519/1991 which amended the Code of Civil Procedure. The court modified, however, the reasons for the decision. It held that the judgment of 20 September 1990 had not become final and could not, therefore, be modified upon the applicant’s request. It found that the eviction order had not been directed against the same persons, to whom the flat had originally been allocated in 1976. It further found that Ms Y had not been a party to the 1990 proceedings, and the fact that the 1990 judgment had been notified to her in March 1992 was irrelevant. On 31 January 2000 the Prague High Court (Vrchní soud) dismissed the applicant’s appeal on points of law (dovolání). The court, considering that the judgment of the Municipal Court was a decision which had modified the first instance judgment, applied section 238(1)(a) and section 241(3)(d) of the Code of Civil Procedure (see “Relevant domestic law”, below). It shared the Municipal Court’s opinion that, if the original decision ordering the tenant’s eviction upon the allocation of a substitute flat had not become final, the applicant could not evict him without alternative accommodation being provided. The court added that the relevant judgment had clearly referred to Ms Z and not Ms Y, and that this had not been rectified, at least under section 164 of the Code of Civil Procedure. On 31 August 2000 the Constitutional Court (Ústavní soud) dismissed as being manifestly ill-founded the applicant’s constitutional appeal (ústavní stížnost), in which the applicant had alleged a violation of Articles 36 §§ 1 and Article 38 § 2 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod), as well as Article 6 § 1 of the Convention. Section 159(1) and (3) provides that a judgment, which has been duly served and which can no longer be appealed, becomes final. Once a case has been adjudicated and the decision has become final, it may not be reconsidered. Pursuant to section 164(1), the president of a chamber may rectify anytime and, if necessary ex officio, clerical errors or any other evident incorrectness in a judgment. Under section 238(1)(a), an appeal on points of law is admissible against a judgment of an appellate court, whereby the first instance judgment was modified. Pursuant to section 241(3)(d), an appeal on points of law may be filed on the ground that a decision was based on the incorrect legal consideration of the matter. Section III, containing the concluding and interim provisions, provides in its sixth sub-section that final judgments ordering an eviction from an apartment which were adopted before the entry into force of this Act, and which made the eviction conditional on the allocation of a substitute flat or other accommodation, retain their conditional nature. The beneficiary may nevertheless request a court, which is competent to execute the judgment, to modify that order and declare that the party leaving the flat should only be provided with substitute accommodation rather than a flat, or that no alternative housing need be allocated at all. Article 36 § 1 provides that everyone may assert his or her rights before an independent and impartial court of justice or, in specified cases, before another authority. Under Article 38 § 2, everyone is entitled to have his or her case considered in public without unnecessary delay, in his or her presence, and to express his or her opinion on all the submitted evidence. The public may be excluded only in those cases specified by law. | 0 |
train | 001-110825 | ENG | POL | COMMITTEE | 2,012 | CASE OF CHOROBIK v. POLAND | 4 | No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Legal aid) | David Thór Björgvinsson;Nebojša Vučinić;Vincent A. De Gaetano | 4. The applicant was born in 1941 and lives in Sosnowiec. 5. By a judgment of 8 August 2006 the Kraków Regional Administrative Court dismissed the applicant’s appeal against a second-instance administrative decision of 25 August 2005 by which the second-instance authority had refused to acknowledge that the applicant’s ailment was of an occupational character. 6. This judgment was served on the applicant on 25 September 2006. 7. By a decision of 19 October 2006 the court granted legal aid to the applicant. 8. The local Bar Association assigned a lawyer to the case by a decision of 2 November 2006. This decision was served on the lawyer on 8 November 2006. On 13 November 2006 the applicant gave a power of attorney to the lawyer. 9. On 1 December 2006 the lawyer submitted a cassation appeal to the Regional Administrative Court. 10. On 29 December 2006 that court held that the time-limit for lodging a cassation appeal had expired on 25 October 2006, thirty days after the applicant had been served with the judgment. The court rejected the cassation appeal on the ground that under the applicable laws the fact that the party was not represented by a lawyer and requested for legal aid only after having been served with the judgment had no bearing on the running of the time-limit for submitting a cassation appeal. It also noted that the legal-aid lawyer had failed to submit a request for leave to appeal out of time together with the cassation appeal. 11. The applicant’s lawyer appealed. He acknowledged that he had not submitted the request for leave to appeal out of time. However, he was of the view that this omission would not be relevant for the court’s decision to accept the cassation appeal for examination. 12. On 13 April 2007 the Supreme Administrative Court upheld the contested decision and shared the legal view expressed by the first-instance court. 13. The relevant domestic law and practice concerning the procedure for lodging cassation appeals with the Supreme Administrative Court against judgments of the Regional Administrative Courts are stated in the Court’s judgment in the case of Subicka v. Poland, no. 29342/06, §§ 1221, 14 September 2010. 14. In particular, in its decision no. II FZ 651/07 of 18 January 2008 the Supreme Administrative Court held that a request for leave to appeal out of time was the only method by which a cassation appeal submitted after the expiry of the time-limit by a legally-aided applicant could be admitted for examination. 15. When legal aid has been granted and the time-limit for the submission of a cassation appeal has already expired, it is open to the legally-aided party to submit the appeal together with a request for leave to appeal out of time made under sections 86 and 87 of the Law on the Procedure before Administrative Courts (e.g. NSA FZ 754/04 of 31 January 2005 and NSA, I OZ 160/08 of 14 March 2008). In certain cases the courts stated that such a request should be submitted within seven days from the date on which the lawyer obtained a power of attorney from the party, which date is considered as the date on which the impediment to lodging an appeal ceased to exist (e.g. the Białystok Regional Administrative Court, II SAB Bk 27/07 of 10 April 2008), or from the date when the lawyer could obtain effective access to the case file (e.g. the Poznań Regional Administrative Court, IV SA/Po 865/06 of 13 November 2007). 16. In a number of its recent decisions the Supreme Administrative Court acknowledged the difficulties which legally-aided parties experienced in connection with lodging their cassation appeals against judgments of the first-instance administrative courts. It expressed the view that they should not be penalised for the fact that their requests for legal aid were not processed speedily enough. It analysed relevant case-law of the administrative courts and noted that the manner in which the beginning of the time-limit for lodging cassation appeals was determined had led to divergent results. It held that it was necessary to determine the relevant time in a manner compatible with effective access to the highest administrative court and which ensured equal treatment for parties represented by lawyers appointed under the legalaid scheme and by privately hired lawyers. The court held that the time-limit for a legally-aided party started to run only on the day when a legal-aid lawyer had a genuine possibility of lodging the cassation appeal and not when he or she was informed of having been assigned to the case. The court was of the view that the latter approach was far too rigorous and rendered the effective enjoyment of legal assistance granted under the legal-aid system illusory. In any event, the cassation appeal had to be lodged within thirty days from the day on which the party was informed of the appointment of the legal-aid lawyer (I FZ 569/06 of 8 December 2006; I FZ 667/06 of 15 January 2007; I FZ 30/09 of 2 March 2007; II FZ 177/08 of 25 June 2008; II OZ 513/08 of 27 May 2008; I OZ 376/08 of 13 June 2008; I FZ 30/09 of 2 March 2009; II OZ 1093/09 of 9 December 2009; I FZ 30/09 of 2 March 2009). | 0 |
train | 001-4997 | ENG | AUT | ADMISSIBILITY | 2,000 | STADLER v. AUSTRIA | 4 | Inadmissible | Nicolas Bratza | The applicant is an Austrian national, born in 1946 and living in Maria Enzersdorf. She is a civil servant in the Ministry for Agriculture and Forestry (Bundesministerium für Land- und Forstwirtschaft). A. The facts of the case, as submitted by the parties, may be summarised as follows. From 1984 onwards the applicant was the deputy head of the department for internal auditing (Interne Revision) in the Ministry for Agriculture and Forestry. From 1 April 1989 to 31 March 1990 S., the head of the department, was on temporary leave and seconded to the Court of Audit (Rechnungshof). Initially, the applicant replaced him. On 16 May 1989 the applicant filed a request with the Ministry of Agriculture and Forestry for an extended extra duties allowance (Verwendungszulage) to compensate for her additional work load and responsibility as acting head of the department. On 27 June 1989 M. was appointed as provisional head of the department for internal auditing. This appointment was made public in August 1989. On 21 September 1989 the responsible civil servant in the Ministry of Agriculture and Forestry qualified the applicant’s request as one for a simple extra duties allowance (Verwendungsabgeltung) and transmitted this request for approval to the Federal Chancellor’s Office (Bundeskanzleramt). On 18 December 1989 the Ministry for Agriculture and Forestry, in a summary decision (Dienstrechtsmandat), granted the applicant a simple extra duties allowance for the period from 1 April 1989 until 30 June 1989. On 3 January 1990 the applicant filed objections (Vorstellung) against the summary decision. She submitted that M., head of the department for external auditing, had been appointed as provisional head of the department for internal auditing on 29 June 1989. This appointment was only effective as of 28 August 1989. As she had not been officially removed from her position as acting head of the department, she continued to occupy that position after M’s appointment. Consequently, she was entitled to an extended extra duties allowance after 30 June 1989. Though the calculation of the allowance had to be altered after M. had started to work on 30 August, the allowance could not be cancelled completely. She requested the re-calculation of her "simple extra duties allowance (extended extra duties allowance)". By letter of 14 February 1990 the Ministry of Agriculture and Forestry informed the applicant that it intended to grant her a simple extra duties allowance for the period from 1 April 1989 until 31 August 1989. It stated that the appointment of M. as provisional head of the department for internal auditing was effective as of 30 August 1989. Therefore the applicant’s function as acting head of the department had ended on 30 August 1989. On 19 May 1990 the applicant commented on the Ministry’s letter of 14 February 1990. She repeated that she was still acting head of the department for internal auditing, contested that M. had been validly appointed and raised doubts about the compatibility of M.’s functions. She claimed a simple extra duties allowance for the whole replacement period, namely from 1 April 1989 until 31 March 1990. On 14 February 1991 the Ministry for Agriculture and Forestry granted the applicant a simple extra duties allowance for the period from 1 April 1989 until 31 August 1989 and dismissed her request for an allowance for the period from 1 September 1989 until 31 March 1990. The Ministry found that the applicant had actually been in charge of the department as substitute to the head from 1 April 1989 until 30 August 1989. For this period she was therefore entitled to a simple extra duties allowance. On 4 April 1991 the applicant, represented by counsel, filed a complaint with the Administrative Court. She submitted that the former head of the department had decided to stay permanently with the Court of Audit. The post of the head of the department was therefore vacant. As she had never been removed from her functions as actual head of the department, and as someone was needed in the department who did not exercise any incompatible functions, she was still the provisional head of the department. Since only the abstract scope of her responsibilities was decisive for the allowance, she had a right to a simple extra duties allowance until 31 January 1991, on which date she had been seconded to the Office of the Parliament (Parlamentsdirektion). On 14 September 1994 the Administrative Court dismissed the complaint. Referring to the provisions of Section 30a §§ 1 (3) and 5 of the Salaries Act (Gehaltsgesetz), it found that the only issue to be determined was whether or not the applicant had been entitled to a simple extra duties allowance. She had not complained to the Administrative Court that she had been entitled to an extended extra duties allowance and the case-file did not show that she had been entitled to such an allowance. B. Relevant domestic law Section 30 a §§ 1 and 5 of the Salaries Act (Gehaltsgesetz), insofar as relevant, reads as follows: "(1) A civil servant is entitled to an extra duties allowance which has to be taken into account when assessing his pension claim, if he permanently ... 3. has a considerable level of responsibility for the accomplishment of tasks of general administration and if this level of responsibility exceeds the one which is normally connected with a position in an equal grade. (5) If the civil servant does not permanently perform the duties mentioned in para. 1, but does so for at least a period of one month, he is entitled to an extra duties allowance, which shall not be taken into account when assessing his pension claim ..." | 0 |
train | 001-85019 | ENG | CYP | GRANDCHAMBER | 2,008 | CASE OF KAFKARIS v. CYPRUS | 1 | No violation of Art. 3;No violation of Art. 5-1;Violation of Art. 7;No violation of Art. 7;No violation of Art. 14;Non-pecuniary damage - finding of violation sufficient | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabet Fura;Françoise Tulkens;Ireneu Cabral Barreto;Ján Šikuta;Javier Borrego Borrego;Jean-Paul Costa;Khanlar Hajiyev;Loukis Loucaides;Luzius Wildhaber;Nicolas Bratza;Peer Lorenzen;Snejana Botoucharova;Stanislav Pavlovschi;Sverre Erik Jebens | 11. The applicant was born in 1946. He is currently serving a sentence of life imprisonment at the Nicosia Central Prison. 12. On 9 March 1989 the applicant was found guilty by the Limassol Assize Court on three counts of premeditated murder committed on 10 July 1987, under, inter alia, section 203(1) and (2) of the Criminal Code (Cap. 154). On 10 March 1989 the Assize Court sentenced him to mandatory life imprisonment in respect of each count. The applicant had planted an explosive device under a car and detonated it, causing the death of Mr P. Michael and his two children, aged 11 and 13. The applicant had been promised the sum of 10,000 Cypriot pounds by someone who he has not identified for the murder of Mr P. Michael. 13. In its judgment passing sentence on the applicant, the Limassol Assize Court observed that the prosecution had invited the court to examine the meaning of the term “life imprisonment” in the Criminal Code and, in particular, to clarify whether it entailed imprisonment of the convicted person for the rest of his life or just for a period of twenty years as provided by the Prison (General) Regulations of 1981 and the Prison (General) (Amending) Regulations of 1987 (hereinafter “the Regulations”), adopted under section 4 of the Prison Discipline Law (Cap. 286). If the court found that the latter was applicable, then the issue of whether the sentences should be imposed consecutively or concurrently would arise and the prosecution would propose consecutive sentences. 14. The Assize Court relied primarily on the findings of the Nicosia Assize Court in 1988 in the case of The Republic of Cyprus v. Andreas Costa Aristodemou, alias Yiouroukkis (judgment of 5 February 1988, case no. 31175/87) and accordingly stated that it was not competent to examine the validity of the Regulations or take into account any possible repercussions they could have on the sentence. The Assize Court held that the term “life imprisonment” used in the Criminal Code meant imprisonment for the remainder of the life of the convicted person. In view of this, the court did not consider it necessary to examine whether the sentences it imposed would run concurrently or consecutively. 15. In particular, in its judgment the Assize Court stated the following: “The Law on the basis of which the accused has been found guilty on three counts of premeditated murder, provides that: ‘Whosoever shall be convicted of premeditated murder shall be liable to imprisonment for life’. It follows, therefore, that for the offence in question life imprisonment is imposed by the court as a mandatory sentence. Mr Kyprianou, on behalf of the Prosecution, has invited the court to examine the meaning of life imprisonment and decide whether it means imprisonment of the convicted person for the rest of his life or whether it means, as provided by the Prison (General) Regulations of 1981 and the Prison (General) (Amending) Regulations of 1987 (hereinafter “the Regulations”) as provided by Regulation 2 of the Prison (General) Regulations of 1981 and the Prison (General) (Amending) Regulations of 1987 (hereinafter “the Regulations”), adopted under section 4 of the Prison Discipline Law (Cap. 286), imprisonment for a period of twenty years. Mr Kyprianou has suggested that in the event that the court concludes that life imprisonment is interpreted as being for twenty years, an interpretation which, if we understood him correctly, he claimed as the correct one, then the issue as to whether the sentences should be imposed consecutively or concurrently would arise. It was, finally, his suggestion, which was in fact the purpose for which he referred to this matter, that, if this was the outcome, it would be correct in the present case, taking into account the special circumstances of the commission of the offences, that the sentences should be served consecutively. The same issue, in substance, was put before the Nicosia Assize Court in case no. 31175/87 between The Republic of Cyprus v. Andreas Costa Aristodemou, alias Yiouroukkis. In that case the Assize Court, in its detailed judgment, in which reference is made to the general principles governing the issue and also to the jurisprudence, concluded that the meaning of life imprisonment lies in the clear meaning imparted by the words, and that the Assize Court was not competent to examine the validity of any regulations or to take into account any possible repercussions they could have on the sentence. We completely agree with this judgment to which we refer. Concerning the validity of the Regulations, the Attorney-General of the Republic could probably have looked for other mechanisms for deciding the matter at the time when the competent authorities attempted to implement the specific regulation. We do not make mention here of the constitutional right of the President to grant pardon. With regard to the court’s observation that the repercussions of such regulations, if it is assumed of course that they are valid, are not taken into account, we refer in addition to the decision in Anthony Maguire Frederick George Charles Enos 40 Cr. App. R. p. 92, Martin Derek Turner 51 Cr. App. R. p. 72 and R. v. Black (1971) Crim. L.R. 109. We consider that imprisonment for life means imprisonment for the remainder of the convicted person’s life. It is therefore pointless to consider whether the sentences will run concurrently or whether they will be served consecutively.” 16. When the applicant was admitted to prison to serve his sentence, he was given written notice by the prison authorities that the date set for his release was 16 July 2002. In particular, he was given an F5 form titled “Personal File of Convict”, “I.D. no. 7176”. On the form, under the heading “Sentence”, it was marked “Life” and then “Twenty Years”; under the heading “Period” it was marked “From 17 July 1987 to 16 July 2007” and under the heading “Expiry” it was noted “Ordinary Remission 16 July 2002”. The applicant’s release was conditional on his good conduct and industry during detention. Following the commission of a disciplinary offence on 6 November 1989, his release was postponed to 2 November 2002. 17. The applicant appealed against his conviction. 18. On 21 May 1990 the Supreme Court dismissed the appeal upholding his conviction. 19. On 9 October 1992 in the case of Hadjisavvas v. the Republic of Cyprus (judgment of 8 October 1992, (1992) 1 A.A.D. 1134), the Supreme Court, in the context of a habeas corpus application lodged by a life prisoner who was not released on the date given by the prison authorities, declared the Regulations unconstitutional and ultra vires (see paragraphs 50-51 below). 20. On 3 May 1996 the Prison Law of 1996 (Law no. 62(I)/96) was enacted, repealing and replacing the Prison Discipline Law. 21. By a letter of 16 March 1998, the applicant applied, via the Director of Prisons, to the President of the Republic at the relevant time for pardon or the suspension of the remainder of his sentence in order to help care for his wife who was suffering from leukaemia. 22. By a letter of 30 April 1998, the Attorney-General at the material time refused his request. In particular he informed the applicant that, following an examination of his application, he was of the opinion that a recommendation to the President to suspend or commute his sentence under Article 53 § 4 of the Constitution was not justified. 23. The applicant was not released on 2 November 2002. 24. On 8 January 2004 the applicant submitted a habeas corpus application to the Supreme Court (first-instance jurisdiction) challenging the lawfulness of his detention. In this context he relied upon Article 3, Article 5 § 4 and Article 7 of the Convention. The Supreme Court, after considering the above-mentioned provisions, dismissed the application on 17 February 2004. In his judgment Kallis J stated, inter alia, the following: “... What is of importance in the present case is the principle set out in the case of Hogben and not the differences in the details of the facts. The principle then that has been laid down in the case of Hogben is that Article 7 applies only to the sentence that is imposed and not to the manner of serving the sentence. Therefore Article 7 does not prohibit a retrospective change in the law or in practice concerning release or conditional release from prison of a prisoner. I am therefore of the view that the principle set out in Hogben can be applied in the present case. Everything that the learned counsel of the applicant has pleaded has to do with the practice of release from prison. In the instant case the Assize Court imposed a sentence of life imprisonment on the applicant and explained to him at the same time that life imprisonment meant imprisonment for the remainder of his life. What the prison authorities then did, with the F5 form, constitutes an action concerning the execution of the sentence. After the case of Hadjisavvas the Regulations on the basis of which the prison authorities gave the applicant the F5 form, have ceased to apply, with the result that the sentence of life imprisonment imposed on the applicant by the Assize Court is applicable. What happened was a change in the legal situation concerning the time of the applicant’s release. As in the Hogben case, Article 7 § 1 of the Convention is not applicable. ... I endorse the principle set out in Hogben. I consider that the applicant cannot derive a right to judicial review on the basis of Article 5 § 4 of the Convention because of the alleged change in the date of his release from prison which does not change the legal basis for his detention. It should be emphasised that his detention is founded on the sentence of life imprisonment imposed on him by the Assize Court and this had been explained to him as ‘imprisonment for the remainder of his life’. It follows that the relevant suggestion by Mr Demetriades does not stand and is dismissed. On this occasion, I should add that the decision of the Commission on the issue of interpretation of Article 5 § 4 of the Convention is in line with the jurisprudence of the European Court of Human Rights (see De Wilde, Ooms and Versyp v. Belgium (‘Vagrancy’ cases) 18 June 1971, Series A no. 12) ... The fact that Hogben is a decision of the Commission does not render it less persuasive. It constitutes a decision of a specialised organ with vast experience in interpreting the Convention. It therefore constitutes an authority of great persuasiveness. I am satisfied about the correctness of the Commission’s decision in Hogben, which I have endorsed. It was further the suggestion of Mr Demetriades that ‘this kind of sentence imposed on the applicant without the possibility of examination by a Parole Board does not conform with Article 3 of the Convention’. ... I endorse the above approach [in Hogben]. Its essence is that the change in release policy does not constitute a violation of Article 3 of the Convention. The existence or not of a Parole Board does not form part of the ratio of the decision. This answers the suggestion of Mr Demetriades concerning the absence of a Parole Board in Cyprus. Consequently, his suggestion based on Article 3 of the Convention does not stand and is dismissed. ... Finally, I must note that the applicant has sought his release from prison through an order of habeas corpus. As stated, however, in the case of Doros Georgiades (Civil Appeal no. 11355, 3 October 2002), adopting the relevant position of English jurisprudence (see Halsbury’s Laws of England, 4th edition, Volume 11, §§ 1472 and 1473): ‘In general the writ of habeas corpus will not be granted to persons convicted or in execution under legal process, including persons in execution of a legal sentence after conviction on indictment. The writ of habeas corpus will not be granted where the effect of it would be to review the judgment of one of the superior courts which might have been reviewed on appeal or to question the decision of an inferior court or tribunal on a matter within its jurisdiction; or where it would falsify the record of a court which shows jurisdiction on the face of it.’ Consequently, the granting of a habeas corpus order in the present case would have been tantamount to reviewing the sentence that had been imposed by the Assize Court, whereas this could have been done in the context of an appeal.” 25. On 26 February 2004 the applicant lodged an appeal with the Supreme Court (appeal jurisdiction). 26. In his grounds of appeal, the applicant challenged the interpretation of the term “life imprisonment” made by the Assize Court when sentencing him in 1989 in view of the prison regulations applicable at the time and the notice given to the applicant by the prison authorities upon his admission to prison. He argued that the fact that he had not challenged his sentence following conviction could not be interpreted as an acceptance of the Assize Court’s interpretation of the term “life imprisonment.” He relied upon, inter alia, Article 3, Article 5 § 4 and Articles 7 and 14 of the Convention in relation to the lawfulness of his continuing detention. 27. As regards Article 3 of the Convention, the applicant claimed that the conduct of the authorities had been contrary to this provision. In particular, ground seven of his appeal read as follows: “The existence on the date on which the sentence was imposed on the convicted person of the Regulation that defined a sentence of life imprisonment as being twenty years, the issuing of the F5 notice, the admission that the applicant would have been released on 2 November 2002 if the aforementioned Regulation had been applicable and the sudden annulment of all the above constituted inhuman and degrading treatment. The Republic cannot behave in this way towards the applicant’s life without any consequences for anyone apart from the applicant, who had to live with this uncertainty. The aforementioned change of twenty years’ imprisonment to imprisonment for life following an error by the House of Representatives and/or the Attorney-General of the Republic and/or the President of the Republic constitutes, without any fault on the applicant’s part, inhuman and degrading treatment which, on account of its uncertainty, violates Article 3 of the Convention. The aforementioned change from the imposed twenty years’ imprisonment to a death sentence, which will take effect on an unknown date given the fact that there is no possibility of re-examining the matter, constitutes inhuman treatment contrary to Article 3 of the Constitution. Indeed, this becomes even more obvious, when one considers that the death penalty has already been abolished in Cyprus.” 28. Concerning Article 5 § 4 of the Convention, the applicant in ground six of his appeal noted that he was not requesting judicial review of his sentence on account of a change in policy concerning the day of his release but the examination of the lawfulness of his detention, given that even the prison authorities had admitted that he should have been released on 2 November 2002. In this connection, he complained of the lack of a mechanism to examine the lawfulness of his detention. 29. When challenging the Supreme Court’s (first instance) interpretation of Article 7 of the Convention, the applicant distinguished his case from that of Hogben v. the United Kingdom (no. 11653/85, Commission decision of 3 March 1986, Decisions and Reports 46, p. 231), in that Hogben related to the manner of application of the sentence in view of the change in the policy of the parole board whereas in his case the issue raised was that of a retrospective change of the law due to unconstitutionality and the increase of his sentence from twenty years to life. In this connection, he emphasised that in Cyprus there was no parole board unlike in England. 30. On 20 July 2004 the Supreme Court dismissed the appeal. It stated, inter alia: “The appellant is essentially raising one issue. And his learned counsel has acknowledged that judgment as to this [issue] will determine the conclusion ... We summarise the appellant’s positions as set out in the grounds of appeal as explained. He does not invoke the Regulations as an autonomous ground for his release, especially since ... they are not applicable any more. Furthermore, he does not suggest or attempt a review of the Assize Court’s judgment, as was wrongly perceived at first instance. We are not going against, as he explained, the Assize Court’s judgment but the Republic as a whole. The Regulations were then applicable at that time and since the Assize Court had not annulled them for being unconstitutional, we must conclude that it considered them valid. And since the law does not provide a definition of the term ‘life imprisonment’, it was an element of the regulation of the sentence provided. As Mr Demetriades put it, the overall legal situation at the time of the imposition of the sentence, indicated that life imprisonment meant in essence twenty years’ imprisonment. In addition, even if there was doubt, this had to be taken to the applicant’s benefit. Hence, in view of this fact, there was no reason to lodge an appeal against the Assize Court’s judgment especially since the applicant had been served with the F5 notice. ... The suggestion of the appellant presumes that a judicial assessment of unconstitutionality, or, more precisely, that the Regulations are ultra vires in relation to the law on the basis of which they were issued, brings about legislative change of whatever form. However, as has been decided (see Georgios Mavrogenis v. the House of Representatives and Others (1996) 1 A.A.D. 315, at 341 and Alekos N. Clerides v. the Republic of Cyprus, 20 October 2000), judicial assessment necessarily adjudicates retrospectively on the law or regulation and, as the principle of separation of powers dictates, it does not entail a legislative development. It is a fact, however, that this question, both at first instance and before us, has not been touched upon from this point of view so as to raise the issue of Law no. 62(1)/96. In any event the Assize Court imposed a sentence of life imprisonment on the appellant, expressly specifying that this meant imprisonment for the remainder of his life. This was the reason for which it did not examine the question of possible consecutiveness and the appellant’s perception that it is inferred that the Assize Court recognised the Regulations as valid is wrong. The Assize Court essentially considered that the Regulations were not connected with the issue of the sentence envisaged for it did not consider that the then existent Regulations changed the fact that in accordance with the law, imprisonment for the remainder of the appellant’s life was imposed. Was this approach wrong? Did in reality the law, viewed as a whole, even in the light of the interpretation suggested by the appellant comparing Article 7 § 1 of the Convention with Article 12 § 1 of the Constitution, envisage imprisonment for only twenty years? We would say that the first-instance judgment was not wrong in finding that this situation corresponded to the one in the case of Hogben. The principle applied, namely that Article 7 § 1 of the Convention does not concern the enforcement of the sentence, which remains one of life imprisonment, is not in question. The Regulations were made on the basis of and for the purposes of the Prison (Discipline) Law, whereas it is the Criminal Code that determines the sentence, in this case mandatory life imprisonment and no other. Nevertheless, and as Mr Demetriades also agreed, we are not reviewing the correctness of the judgment of the Assize Court. Such review does not fall within the [court’s] jurisdiction in the context of a habeas corpus application. ... The appellant is being detained on the basis of an Assize Court judgment after being sentenced to life imprisonment, determined as imprisonment for the remainder of his life. Thus, he is being detained on a lawful basis and his application for release was correctly rejected with the final observation that ‘the granting of a habeas corpus order in the present case would have been tantamount to reviewing the sentence that had been imposed by the Assize Court, whereas this could have been done in the context of an appeal’.” 31. Under Cypriot law, the offence of premeditated murder carries a mandatory sentence of life imprisonment. 32. Section 203(1) of the Criminal Code (Cap. 154) (as amended in 1962 by Law no. 3/62) provides as follows: “Any person who causes the premeditated death of another person by an unlawful act or omission is guilty of the crime of premeditated murder.” 33. Section 203(2) of the Criminal Code (Cap. 154) (as amended in 1983 by Law no. 86/83) provides as follows: “Any person who shall be convicted of premeditated murder shall be liable to imprisonment for life.” Before its amendment by Law no. 86/83, the above section provided the mandatory sentence of the death penalty for the offence of premeditated murder. 34. Section 29 of the Criminal Code (as amended by Laws nos. 86/83 and 15(1)/99) provides that, with the exception of premeditated murder and the offence of treason (sections 36 and 37 of the Criminal Code), in cases where a person has been convicted of other serious offences that are punishable by a sentence of imprisonment for life, such as manslaughter (section 205(3) of the Criminal Code), or of any other period, the court trying the case has the discretion to impose a sentence of imprisonment for a shorter period or one of a pecuniary form instead which does not exceed the amount that court is empowered to impose. 35. In the case of Politis v. the Republic of Cyprus ((1987) 2 C.L.R. 116), the Supreme Court examined the constitutionality of sections 29 and 203 of the Criminal Code (at the time the death penalty was still in force), and held as follows: “The first objective of Article 7 § 2 [of the Constitution] is to sanction the death penalty for the limited class of grave crimes specified therein. The second, to vest competence in the legislature to fix such measure of punishment as mandatory in the exercise of its legislative power ... The expression ‘a law may provide’ in the second part of Article 7 § 2 imports discretion leaving it to the legislature to ordain the death penalty for premeditated murder as a matter of legislative policy. They are not bound but may do so if they deem it appropriate. By necessary implication they may ordain any other fixed measure of punishment including, no doubt, a sentence of life imprisonment. ... Obviously the constitutional legislation singled out the crimes listed in Article 7 § 2 for exceptional treatment in view of their gravity and their repercussions on the well-being of society. In the case of premeditated murder what marks the gravity of the offence is the element of premeditation that necessarily renders the crime particularly heinous. In agreement with the Assize Court, we rule that sections 29 and 203(2) of the Criminal Code are not unconstitutional and as such make a sentence of life imprisonment obligatory upon conviction for premeditated murder.” 36. Article 53 of the Constitution provides as follows: “1. The President or the Vice-President of the Republic shall have the right to exercise the prerogative of mercy with regard to persons belonging to their respective Community who are condemned to death. 2. Where the person injured and the offender are members of different Communities such prerogative of mercy shall be exercised by agreement between the President and the Vice-President of the Republic; in the event of disagreement between the two the vote for clemency shall prevail. 3. In case the prerogative of mercy is exercised under paragraph 1 or 2 of this Article the death sentence shall be commuted to life imprisonment. 4. The President and the Vice-President of the Republic shall, on the unanimous recommendation of the Attorney-General and the Deputy Attorney-General of the Republic, remit, suspend, or commute any sentence passed by a court in the Republic in all other cases.” 37. Following the events of 1963, in particular the withdrawal of Turkish-Cypriots from the government and the consequent occupation of northern Cyprus by Turkish troops, the decision to remit, suspend, or commute any sentence under Article 53 § 4 has to be taken by the President of the Republic with the concurrence of the Attorney-General of the Republic. 38. The Attorney-General may make recommendations or give advice to the President of the Republic concerning the early release of prisoners sentenced to life imprisonment. The President, however, is not bound by such advice or recommendations. 39. The relevant provisions of the Prison Discipline Law of 1879, as applicable at the time the Prison (General) Regulations of 1981 came into force (see paragraph 40 below), read as follows. “The Governor in Council may make regulations for the proper custody and support of prisoners, for the nature and amount of labour to be performed by them, for the classification of prisoners according to their different sentences, for the punishment of offences committed by prisoners, and for the maintenance of good order and discipline in prisons. All such regulations, before coming into force, shall be published in the Gazette.” “Regulations made under section 4 may make provision whereby, in such circumstances as may be prescribed by the regulations, a person serving a sentence of imprisonment may be granted remission of such part of that sentence as may be so prescribed on the ground of his industry and good conduct; and on the discharge of a person from a prison in pursuance of any such remission as aforesaid his sentence shall expire.” “The Governor may at any time if he thinks fit release on licence a person serving a term of imprisonment for life subject to compliance with such conditions, if any, as the Governor may from time to time determine.” 40. The relevant provisions of the Prison (General) Regulations of 1981, made on the basis of section 4 of the Prison Discipline Law (Cap. 286), read as follows. “No convicted person shall be discharged from the Prison before the expiration of his sentence except as provided by Article 53 § 4 of the Constitution of the Republic of Cyprus.” “Every prisoner serving a sentence of nine years or more may be granted remission of one half of the sentence, on the ground of good conduct and industry.” “Where the imprisonment is for life or where a sentence of death is commuted to imprisonment for life, remission of the sentence shall be calculated as if the imprisonment is for twenty years.” “The date of the expiration of the sentence and the earliest possible date of discharge shall be entered in the personal record of each prisoner and in the discharge book to be kept at the prison, and the Director shall inspect such records and discharge book at frequent intervals so as to ensure that the provisions of this Regulation are strictly complied with.” “The Director shall submit to the minister for transmission to the Attorney-General of the Republic the name of every prisoner serving a life sentence who has served ten years of such sentence, or of every prisoner serving a sentence exceeding fifteen years who has served eight years of his sentence, who has attained, or is believed in the absence of positive evidence to have attained, the age of 60, for consideration of his case. The Director shall communicate this rule to every such prisoner. Prisoners must be made distinctly to understand that the submission of their name to the minister in no way implies that any remission of sentence will be necessarily granted.” 41. The Prison (General) (Amending) Regulations of 1987 came into force on 13 March 1987 and amended the Prison (General) Regulations of 1981. 42. The following definition of “imprisonment for life” was introduced in Regulation 2: “In the present Regulations: ... ‘imprisonment for life’ means imprisonment for twenty years. ...” 43. Regulation 93, governing the remission of the sentence of prisoners serving a sentence of life imprisonment, provided as follows: “(i) Every prisoner serving a sentence of imprisonment for life may be granted remission of his sentence on the ground of good conduct and industry, not exceeding in total one-quarter of such sentence. (ii) The decision on the reduction of the sentence, as well as the extent of such remission for each aforesaid prisoner, shall not be taken unless the said prisoner has served fifteen years of his sentence.” 44. Regulation 96(c) was repealed. 45. In the case of Malachtou v. the Attorney-General of Cyprus ((1981) 1 C.L.R. 543), the Supreme Court stated, inter alia, the following concerning subsidiary legislation: “... the power for the enactment of subsidiary legislation must, in the nature of things, emanate strictly from the provisions of the enabling law. Any other approach would constitute an encroachment on the legislative powers of the House of Representatives, the body exclusively entrusted with legislative powers, under our Constitution. Subsidiary legislation enacted without just cause will be declared ultra vires ... A body to which power is delegated to legislate must derive authority from the provisions of the enabling enactment; any attempt to bypass or transgress the limits set thereto will be struck down as ultra vires. They cannot infer the existence of any authority to legislate, other than that expressly conferred by law, and must, therefore, confine themselves to the four corners of the enabling enactment. Any relaxation of this approach would certainly undermine the system of separation of powers that pervades our system of law and finds expression in the Constitution.” 46. In the case of Triftarides v. the Republic of Cyprus ((1985), judgment of 16 October 1985), the Supreme Court, when examining the manner of the remission of sentence by the President under Article 53 § 4 of the Constitution with regard to a prisoner serving a ten-year sentence, stated the following: “... Under Article 53 § 4 of the Constitution the President of the Republic remitted the sentence passed by the Court and not the sentence that would have been served in the light of Regulation 94. This is clear from the wording of Article 53 § 4 which in so far as material on this point says that ‘The President ... remits ... any sentence passed by a court in the Republic ...’.” 47. In its judgment of 5 February 1988 in the case of The Republic of Cyprus v. Andreas Costa Aristodemou, alias Yiouroukkis (case no. 31175/87) the Nicosia Assize Court, when sentencing the accused for premeditated murder under the Criminal Code, stated, among other things, the following: “The accused has been sentenced to life imprisonment after being found guilty of premeditated murder. This sentence is imposed by the Court mandatorily; since it is the only one provided by the Criminal Code, Cap. 154, as amended by Law no. 86/83, which also amends section 29 of the Criminal Code, the Court cannot impose another sentence for the crime of premeditated murder. After the abolition by this Law of the death penalty, the legislature provided for the above sentence so it would be in agreement with Article 53 § 3 of the Constitution. This Article provides for the commutation of a death sentence to a sentence of life imprisonment, in the event that the President of the Republic exercises his right of pardon on the basis of § 1 of that Article. ... Counsel for the accused suggested that the Court should order that the sentence of life imprisonment that was imposed on the accused should run concurrently with the one he is already serving. ... ... [i]n support of his suggestion he referred to the case of R v. Foy (1962) 2 All E.R. 246. ... In contrast, Mr Kyprianou argued that the Court must order that the sentence imposed should be served after the one already being served by the accused because, on the basis of the Regulations of 1987 (Official Gazette of the Republic, Annex 3, Part 1 of 13/3/87), which were made by the Council of Ministers and published in the Official Gazette of the Republic after being put before Parliament, the interpretation of the term ‘life imprisonment’ is given as meaning ‘imprisonment for twenty years’. Regulation 93 of these Regulations provides that a person sentenced to life imprisonment may be granted remission of his sentence on the ground of good conduct and industry, not exceeding in total one-quarter of this sentence. Therefore, Mr Kyprianou continued, the sentence of life imprisonment has been determined at a period of twenty years, or fifteen if the convicted person demonstrates good conduct. Consequently, what Lord Parker said in the case of R v. Foy, on which counsel for the accused relied, does not apply. Mr Kyprianou also showed his concern, as Senior Counsel of the Republic, about the possible cases, such as the present one, where one person commits many murders but is only given one sentence of imprisonment for fifteen or twenty years. Our opinion is that neither Mr Kyprianou nor Mr Clerides is treating the legal issue correctly. ... On the basis of everything said by Lord Parker [in the case of R v. Foy (1962) 2 All E.R. 246], life imprisonment means imprisonment for the remainder of the time for which the applicant is alive. Accordingly, and since a sentence of life imprisonment has been imposed on the accused, no other such sentence can follow. Mr Clerides suggests, however, that the court must issue this order, for he is also basing himself on the Regulations of 1987 and is concerned that, since these Regulations are in force, the accused may possibly be released in fifteen years and thus is not facing the danger of serving another prison sentence of fifteen or twenty years, if the second sentence follows the first one. Article 12 § 1 of the Constitution provides that a court may not impose a longer sentence than that provided for by the law at the time of the commission of the offence. The Criminal Code indeed provides that the sentence of life imprisonment is mandatory and the only sentence following conviction for premeditated murder. In our judgment, the sentence ‘imprisonment for life’ means exactly what is stated by the simple Greek words, that is, imprisonment for the remainder of the biological existence of the convicted person. This interpretation was also given by the Court of Appeal of England in the case of R v. Foy ... As we have already stated, section 203(2) of the Criminal Code is the only provision prescribing the sentence of life imprisonment as mandatory, and this in the light of the provisions of Article 53 § 3 of the Constitution. The Regulations of 1987 were drawn up on the basis of the Prison (Discipline) Law (Cap. 286), which still applies on the basis of the provisions of the Constitution even though it was enacted just when Cyprus became an English colony. The provisions of this law, however, have to be applied in such a way that they comply with the express provisions of the Constitution. We wonder whether these Regulations are not unconstitutional and whether the interpretation of the term ‘imprisonment for life’, which is encountered in the Constitution and the Criminal Code, so as to mean ‘twenty years’, is arbitrary. We say ‘we wonder’ since such an issue has not been raised before us and thus we have no right in this procedure to convey an opinion on this. Another observation that can be made, however, is the following: it appears that the drafters of the Regulations, even if they are valid, did not notice the special provision of section 11 of the above Law (Cap. 286) which concerns life prisoners and provides that they may be released on licence by a decision of the ‘Governor’, which may be revoked. The life sentence is specifically provided for in the above Law to last for life, along the lines of the English legal system. This is why Lord Parker stated what we quoted above. Another issue that is raised, even for the purposes of academic debate, is to what extent a law or regulation can provide for the remission, suspension or commutation of a convicted person’s sentence in view of the express provision of Article 53 § 4 of the Constitution which bestows this privilege on the President of the Republic with the concurrence of the Attorney-General. It has been established by judicial precedent that when the court imposes a sentence, it does not take into account regulations, even if they are applicable, that allow for the remission of the sentence when a convicted person displays good conduct. The Regulations of 1987 were made in order to serve the purposes to which the court does not refer when passing the sentence, which is determined on the basis of the applicable legislation and the Constitution. It is therefore up to the competent authorities, when and if the matter is raised at the appropriate time, to take into account what we have mentioned above in the form of legal observations. We have already imposed on the accused the sentence that the law envisages, that is, life imprisonment, and we have nothing else to add.” 48. On 16 October 1991, in a letter to the Director of Prisons, through the Director General of the Ministry of Justice, the Attorney-General at the time stated the following concerning the prisoner Mr Yiouroukkis: “In reply to your letter dated 26 September 1991 and file no. F162/2/a, I would inform you that the convicted person Andreas Aristodimou Yiouroukkis, to whom your letter refers, was sentenced to life imprisonment by the Nicosia Assize Court on 5 February 1988 in criminal case no. 31175/87 and this was interpreted in the Assize Court’s judgment to mean imprisonment for the rest of his biological existence. This legal approach concerning the nature of life imprisonment was also adopted in a subsequent case, no. 23069/87, by the Limassol Assize Court on 10 March 1989. In view of the above, the duration of the sentence in the case of a sentence of life imprisonment is not determined and is not reduced in accordance with Regulation 2 and Regulation 93(1) of the Prison (General) Regulations 1981 and 1987 respectively, but the sentence in question is subject to remission or suspension by the President of the Republic, in accordance with Article 53 § 4 of the Constitution, who in exercising his powers, may take into account, among other things, the spirit of the above-mentioned Regulations 2 and 93(1).” 49. On 2 January 1992, in a letter to the Director General of the Ministry of Justice, the Attorney-General at the time stated the following concerning the prisoner Mr Yiouroukkis: “In reply to your letter dated 3 December 1991 and file no. Y.D. 12.7.01, concerning the duration of the life imprisonment of the convicted person, Andreas Aristodimou Yiouroukkis, I observe the following: ... In the present case the Nicosia Assize Court, when it imposed the sentence of life imprisonment on the above-mentioned convicted person, interpreted section 203(2) of the Criminal Code, Cap. 154 (as amended, for this purpose, by Law no. 86/83) and judged that life imprisonment means imprisonment for the rest of the convicted person’s biological existence. Consequently, there is a court judgment for the duration of the sentence of the specific convicted person which has not been overruled on appeal and is binding and mandatory for all the authorities of the Republic. The interpretation of the relevant provision of the Criminal Code given by the Nicosia Assize Court was followed ..., in a subsequent case, by the Limassol Assize Court and since this interpretation has not been questioned by another Assize Court or overruled by the Supreme Court, it must be regarded as the correct judicial interpretation of the Criminal Code provision in question and must be applied in the future to all situations where an accused is sentenced to life imprisonment, even if reference is not made in the judgment to the fact that such imprisonment means imprisonment for the rest of his biological existence. ... No issue of unequal treatment of prisoners who are serving a sentence of life imprisonment in comparison with prisoners who are serving sentences of a shorter term can be raised, because the sentence of life imprisonment, owing to its nature, differs radically from any other sentence of imprisonment and issues of unequal treatment can arise only when comparing similar, and not dissimilar, things. Furthermore, there is no possibility of applying secondary legislation, such as the Prison (General) Regulations of 1981 and 1987, when this conflicts with primary legislation such as the relevant provision of the Criminal Code. This is why, to the extent that the Regulations in question conflict with the relevant provision of the Criminal Code as it has been interpreted judicially, they cannot be applied. ... ... when the President of the Republic, in cooperation with the Attorney-General, examines the possibility of remission of the sentence in accordance with Article 53 § 4 of the Constitution, in the case in which the convicted person is serving a sentence of life imprisonment, he will have in mind that the sentence, unless there is a remission, means imprisonment for the remainder of the biological existence of the convicted person .” 50. On 9 October 1992 the Supreme Court (first instance) in the case of Hadjisavvas v. the Republic of Cyprus (see paragraph 19 above) ruled that the Regulations were unconstitutional and ultra vires. The prisoner in that case had also been convicted of premeditated murder and sentenced to life imprisonment. He had submitted a habeas corpus application to the Supreme Court when he was not released on the date that had been given to him as a release date by the prison authorities. The Supreme Court dismissed his application and affirmed that the term “life imprisonment” under the Criminal Code meant imprisonment for the remainder of the life of the convicted person. In particular, the court stated as follows: “The Criminal Code provides a mandatory sentence for the crime of premeditated murder: ‘... a sentence of imprisonment for life’ (see section 203(2) of the Criminal Code as amended by Law no. 86/83). The constitutionality of this provision of the law was examined in the case of Politis v. Republic (1987) 2 C.L.R. 116 and was held to be correct in the light of the provisions of Articles 7 § 2 and 12 § 3 of the Constitution. The sentence of life imprisonment is not equated by the legislature with a prison sentence for any period of time, neither where it is imposed as a mandatory punitive measure on the basis of section 203(2) nor as a discretionary measure under section 29 of the Criminal Code, Cap. 154. This would anyhow be contrary to the provisions of these two sections of the Criminal Code since life imprisonment is mandatory for the crime of premeditated murder whereas for the purposes of section 29, where life imprisonment is a discretionary measure, the courts have the discretion to impose a sentence of a shorter period. A prison sentence for a period shorter than life imprisonment may comprise a sentence longer than imprisonment for twenty years with which life imprisonment is equated on the basis of Regulation 2 of the Prison Regulations. In the case of Georghios Aristidou v. Republic (1967) 2 C.L.R. 43 the Court of Appeal imposed a sentence of imprisonment of twenty-five years following the commutation of the appellant’s conviction for premeditated murder to manslaughter. Mr Pourgourides [the applicant’s advocate] suggested that the enactment of the Prison (General) (Amendment) Regulations of 1987 (Regulatory Administrative Act 76/87) by the Council of Ministers with the approval of the Parliament, as provided by the enabling Law for the Submission to the House of Representatives of Regulations issued under the Law of 1985 (no. 51/85) and the Prison Discipline (Amendment) Law of 1983 (no. 85/83) resulted in the amendment of the relevant provisions of the Criminal Code so that a sentence of life imprisonment entailed only imprisonment for twenty years. In support of his position he referred to Bennion, Statutory Interpretation, 2nd edition, pp. 154-55, where it is stated that in the United Kingdom the amendment of secondary legislation by Parliament entails its transformation into primary legislation. This suggestion ignores: (a) the fact that the Prison Regulations were made within the scope of the authority granted by the Prison (Discipline) Law and not on the basis of the Criminal Code; (b) the direct connection between the Regulations of 1987 with the authority granted by section 4 of Cap. 286 and the fact that authority for their issue is drawn exclusively from the provisions of that law; (c) the strict separation of powers which applies in Cyprus and the restriction of the executive to the enactment of secondary legislation on the basis of express authority which is granted by primary legislation (see Police v. Hondrou & Another, 3 R.S.C.C. 82; Malachtou v. Attorney-General (1981) 1 C.L.R. 543, and Payiatas v. Republic (1984) 3 C.L.R. 1239). Acceptance of Mr Pourgourides’s position would have, inter alia, as a consequence the involvement of the executive in the enactment of primary legislation in violation of Article 61 of the Constitution and the principle of separation of powers. In President of Republic v. House of Representatives (1985) 3 C.L.R. 2165 and President of Republic v. House of Representatives (1986) 3 C.L.R. 1159, it is noted that the participation of Parliament in the creation of secondary legislation does not transform its nature into primary legislation. In Republic v. Sampson (Civil Appeal 8532, decided on 26 September 1991) the full bench of the Supreme Court had the opportunity to examine the legal status of the Prison Regulations in relation to the enabling law, the Prison (Discipline) Law, Cap. 286. At the outset we noted that this law was enacted in 1879 and, as with any other colonial law which was in force at the time of the proclamation of the Republic, the provisions of Cap. 286 are applied while being adjusted ‘to the necessary extent to the Constitution’ (Article 188 § 1 of the Constitution). This adjustment, as we have pointed out, is within the competence of the judiciary (see, inter alia, Diagoras Development v National Bank (1985) 1 C.L.R. 581, and United Pibles Societies (Gulf) v. Hadjikakou (Civil Appeal 7413, decided on 28 May 1990). The adjustment of the provisions of Cap. 286 ensures that its provisions are compatible with the principle of the separation of powers, which constitutes the judiciary as the sole judge of the punishment of offenders (see, inter alia, Politis (cited above) and The District Officer of Nicosia v. Hadjiyiannis, R.S.C.C. 79; The District Officer of Famagusta v. Demetra Panayiotou Antoni, 1 R.S.C.C. 84; The Superintendent Gendarmerie of Lefka v. Christodoulos Antoni Hadjiyianni, 2 R.S.C.C. 21; Morphou Gendarmerie v. Andreas Demetri Englezos, 3 R.S.C.C. 7; The District Officer of Nicosia v. Michael Ktori Palis, 3 R.S.C.C. 27; The District Officer of Famagusta v. Michael Themistocli and Another, 3 R.S.C.C. 47; Nicosia Police v. Djemal Ahmet, 3 R.S.C.C. 50; The District Officer of Kyrenia v. Adem Salih, 3 R.S.C.C. 69; Miliotis v. The Police (1975) 7 J.S.C. 933). Consequently, to the degree and extent that section 4, in conjunction with section 9, of Cap. 286 confers power for the determination of the duration of a sentence of imprisonment on an authority other than a judicial one, it is contrary to the Constitution and has ceased to be in force following the proclamation of the Republic. Besides, the granting of power to the Director of Prisons to remit the sentence because of good conduct and industry, under the provisions of Regulation 93, is contrary to the principle of the separation of powers, which precludes the involvement of an executive or administrative organ in the determination of the punishment of an offender. The only authority on whom power is conferred by the Constitution to remit, suspend or commute a prison sentence is the President of the Republic, acting with the concurrence of the Attorney General. The examination of the power to make secondary legislation conferred by sections 4 and 9 of Cap. 286 is not directly required in this case, since neither of the two provisions concerns the serving of a sentence of life imprisonment. The serving of life imprisonment is regulated specifically by the provisions of section 11 of Cap. 286, from which it emerges that life imprisonment means imprisonment for the remainder of the life of the convicted person, subject to the right granted to the President of the Republic to suspend the sentence for such period of time as may be fixed on the release of the convicted person on licence. Section 11 of Cap. 286 is in harmony with the Constitution and has maintained its force after the proclamation of the Republic inasmuch as it is consistent with the powers conferred on the President of the Republic by Article 53 § 4 of the Constitution.” 51. The Supreme Court thus concluded that it had not been shown that Mr Hadjisavvas should have been released on the date given or any subsequent date and, consequently, the habeas corpus application was rejected. 52. In 1993 nine life prisoners (eight serving a mandatory life sentence and one a discretionary life sentence) were released on the basis of Article 53 § 4 of the Constitution. Their sentences were commuted to twenty years’ imprisonment and then remitted so as to allow their immediate release. The procedure followed for the release of these prisoners was the same. The following example concerns the case of one such prisoner: 53. In a letter of 28 September 1993 to the President of the Republic, the Attorney-General of the Republic stated the following in relation to a life prisoner: “Dear Mr President, Anastasis Savva Politis (convict no. 7035 in the Central Prisons) was sentenced by the Nicosia Assize Court to life imprisonment for premeditated murder. On the basis of the applicable Prison (General) Regulations 1981 and 1987, it was considered that life imprisonment was equal to imprisonment for twenty years and it was announced to him, the day after he was sentenced, that his sentence would be twenty years’ imprisonment from 26 December 1986. In the meantime his sentence was reduced to eight years’ imprisonment on account of a presidential pardon in respect of one-fifth of the sentence (four years), on the occasion of the election of the new President of the Republic in 1988, and on account of the remission of eight years for good conduct and industry, in accordance with the Prison (General) Regulations, and the date of his release was determined as 25 December 1994. On 5 February 1988 the Nicosia Assize Court, in another case, judged that life imprisonment was for the remainder of the biological existence of the convicted person and, hence, on 29 January 1992, I gave the opinion that in such a case the relevant Regulations cannot be applied in a way that would automatically reduce life imprisonment to twenty years’ imprisonment. In the light of all the above, I suggest that this convicted person’s sentence should be commuted to twenty years’ imprisonment and reduced by four years on the basis of the presidential pardon of 1988 and by such an additional period that he may be immediately released. The life prisoners Andreas Soteriou Lemonas, and Demetris Xadjisavvas and Demetris Miliotis were afforded the same treatment, the first two in April 1993 and the last-mentioned recently. I take this opportunity to suggest, on humanitarian grounds, that the sentences of all life prisoners whose date of release was determined, on the basis of the Prison (General) Regulations 1981 and 1987, as falling within the years 1993 and 1994 should be commuted to twenty years’ imprisonment and reduced so they may be released immediately and not kept in a state of agony as to whether they will eventually receive the same treatment. The next date determined, on the basis of the above Regulations, for release of a life prisoner is the year 2000. The relevant order is enclosed for your signature in the event that you agree with my above suggestion.” 54. On 28 September 1993 the President of the Republic announced the following in relation to the same life prisoner: “Because the convicted person Anastasis Savvas Politis (no. 7036) was sentenced, on 27 January 1987, in criminal case no. 537/87, by the Nicosia Assize Court, to life imprisonment for premeditated murder, and § 4 of the Constitution, commutation of the sentence to imprisonment of twenty years and its remission so that he may be released immediately; For this reason, on the recommendation of the Attorney-General of the Republic, by this Order, on the basis of Article 53 § 4 of the Constitution, the convicted person’s sentence is commuted to twenty years’ imprisonment and is remitted so that he is released immediately.” 55. On 29 September 1993 an announcement was made concerning the release of six life prisoners, the relevant part of which stated: “The President of the Republic, on the basis of recommendations to this end by the Attorney-General of the Republic, and with the opportunity of the first anniversary of the Independence of the Republic of Cyprus during his presidential term, has decided to remit the sentences, so that they are released immediately, of the following life prisoners, who, if their sentences had been assessed on the basis of twenty years’ imprisonment, would have been released in 1993 or 1994: Ian Michael Davison Abdel Hakim Saado El Khalifa Khalet Abdel Kader El Khatib Saadeldin Mohammad Idress Achilleas Georgiou Avraam Anastasis Savva Politis.” 56. On 3 May 1996, the Prison Law of 1996 (Law no. 62(I)/96) was enacted, repealing and replacing the Prison Discipline Law (Cap. 286). 57. The relevant part of section 9(1), governing the release of prisoners, provides as follows: “No prisoner who is serving a sentence of imprisonment may be discharged from prison until he has served his sentence in accordance with the provisions of this law except in the case provided for by Article 53 § 4 of the Constitution of the Republic or any other law in force.” 58. Section 12(1) of the Prison Law of 1996 provides that, with the exception of prisoners serving a life sentence, a sentence can be remitted if the prisoner demonstrates good conduct and industry. The relevant part reads as follows: “In accordance with the provisions of this Law, a person who is serving a prison sentence shall obtain remission of his sentence if he displays good conduct and industry, unless a sentence of life imprisonment has been imposed on him.” 59. Section 14 of the Law (as amended by Law no. 12(I)/97), governing the release of prisoners under conditions, provides as follows: “1. Subject to the provisions of the Constitution, the President of the Republic, with the agreement of the Attorney-General of the Republic, may order by decree the conditional release of a prisoner at any time. 2. A prisoner who is conditionally released by virtue of this section, may, until the expiry of his sentence, be under the supervision and inspection of a person specified in the Decree of Conditional Release and shall conform to whatever other conditions and restrictions are set out in the said Decree. 3. The President of the Republic, with the agreement of the Attorney-General of the Republic, may at any time by a new decree amend or nullify the conditions and restrictions contained in the decree issued by virtue of subsection 1 above. 4. If before the expiry of the sentence of the prisoner who is released, as referred to above, the President of the Republic, with the agreement of the Attorney-General of the Republic, is satisfied that the said person has failed to comply with any valid condition or restriction set out in the decree, he may by a new decree revoke the convicted person’s conditional release and order his return to prison to serve the rest of his sentence. 5. After the convicted person’s return to prison he shall be entitled to the benefits provided in section 12 of this Law only after one year has elapsed from the date of his return to prison and provided that during this year he has displayed industry and good conduct. 6. The period of time from the date of the decree for the release of the prisoner on the basis of this section until the date of its revocation shall be included in the period of the sentence served by the prisoner. 7. A prisoner who does not comply with the decree revoking his release shall be deemed to be a fugitive from lawful detention.” 60. The relevant provisions of the Constitution read as follows. “No person shall be deprived of his life except in the execution of a sentence of a competent court following his conviction of an offence for which this penalty is provided by law. A law may provide for such penalty only in cases of premeditated murder, high treason, piracy jure gentium and capital offences under military law.” “No person shall be subjected to torture or to inhuman or degrading punishment or treatment.” “No person shall be held guilty of any offence on account of any act or omission which did not constitute an offence under the law at the time when it was committed; and no person shall have a heavier punishment imposed on him for an offence other than that expressly provided for it by law at the time when it was committed.” “No law shall provide for a punishment which is disproportionate to the gravity of the offence.” “1. A party to any judicial proceedings, including proceedings on appeal, may, at any stage thereof, raise the question of the unconstitutionality of any law or decision or any provision thereof material for the determination of any matter at issue in such proceedings and thereupon the Court before which such question is raised shall reserve the question for the decision of the Supreme Constitutional Court and stay further proceedings until such question is determined by the Supreme Constitutional Court. 2. The Supreme Constitutional Court, on a question so reserved, shall, after hearing the parties, consider and determine the question so reserved and transmit its decision to the Court by which such question has been reserved. 3. Any decision of the Supreme Constitutional Court under paragraph 2 of this Article shall be binding on the court by which the question has been reserved and on the parties to the proceedings and shall, in case such decision is to the effect that the law or decision or any provision thereof is unconstitutional, operate as to make such law or decision inapplicable to such proceedings only.” 61. Under the Constitution the Attorney-General is an independent officer of the Republic. The relevant parts of Article 112 of the Constitution provide as follows: “1. The President and the Vice-President of the Republic shall appoint jointly two persons who are qualified for appointment as a judge of the High Court one to be the Attorney-General of the Republic and the other to be the Deputy Attorney-General of the Republic. ... 2. The Attorney-General of the Republic shall be the Head and the Deputy AttorneyGeneral of the Republic shall be the Deputy Head of the Law Office of the Republic which shall be an independent office and shall not be under any Ministry. ... 4. The Attorney-General and the Deputy Attorney-General of the Republic shall be members of the permanent legal service of the Republic and shall hold office under the same terms and conditions as a judge of the High Court other than its President and shall not be removed from office except on the like grounds and in the like manner as such judge of the High Court. ...” 62. Under Article 113 of the Constitution, the Attorney-General is the legal adviser of the Republic and the President: “1. The Attorney-General of the Republic, assisted by the Deputy Attorney-General of the Republic, shall be the legal adviser of the Republic and of the President and of the Vice-President of the Republic and of the Council of Ministers and of the Ministers and shall exercise all such other powers and shall perform all such other functions and duties as are conferred or imposed on him by this Constitution or by law. 2. The Attorney-General of the Republic shall have power, exercisable at his discretion in the public interest, to institute, conduct, take over and continue or discontinue any proceedings for an offence against any person in the Republic. Such power may be exercised by him in person or by officers subordinate to him acting under and in accordance with his instructions.” 63. In her report the Commissioner for Administration examined, inter alia, issues concerning life imprisonment. In this context she examined the situation in other member States of the Council of Europe, principally the United Kingdom, Greece and France, vis-à-vis Cyprus. She stated, amongst other things, the following: “... Life imprisonment 79. In the Central Prisons there are currently twelve prisoners who have been sentenced to life imprisonment. The matter of the sentence of life imprisonment, in the light of the regime in force, is being discussed both by the House of Representatives and by the competent committee under the aegis of the Ministry of Justice and Public Order, which also had the initiative in promoting the subject. The central component of this process now in progress is the regulating by law of life imprisonment in a way which will give the possibility to those serving life sentences of being released once they have served a significant part of their sentence and previously received the appropriate treatment and preparation. Reservations are expressed about whether such regulating is constitutional. 80. I am of the opinion that the regulating by law of the matter is permitted by the Constitution. It is not a procedure for granting a pardon but the regulating of the serving of a sentence which in no way conflicts with the prerogative of the President of the Republic to remit, commute or suspend a sentence by virtue of Article 53 § 4. In accordance with the separation of powers, the regulating by law of the matter could include, in the case of the imposition by the courts of the sentence of life imprisonment, empowering the same court to fix a minimum term for the sentence which would be served obligatorily before examination of the possibility of the conditional release of the prisoner. I am of the opinion that this minimum term of the sentence should not exceed twenty to twenty-five years. Within the framework of the proposed regulation a committee may be set up with an advisory role which, on the basis of enacted criteria and in accordance with the rehabilitation progress of each prisoner serving a life sentence and the particular circumstances of each case, could recommend conditional release. ... Conclusions – Recommendations – Suggestions ... – In relation to the matter of prisoners serving life sentences, I consider essential the acceleration of the process of the regulating by law of the matter in a way which will fix a minimum time-limit for serving the sentence, which will not exceed twenty to twenty-five years, after the expiration of which and according to the circumstances of each case the possibility of the conditional release of a prisoner serving a life sentence can be examined. ...” 64. The following paragraphs contain a summary of the information provided by the Government in the context of the present proceedings as to the position under their domestic law concerning the operation and validity of the 1981 and 1987 Regulations. 65. Prior to the Supreme Court’s judgment in the case of Hadjisavvas v. the Republic of Cyprus (see paragraphs 19, 50 and 51 above), the Regulations – in particular Regulations 2 and 93 – were understood by the executive and administrative authorities of the Republic, including the Prison Service, as imposing a maximum period of twenty years to be served by any person who had been sentenced to life imprisonment. Any prisoner sentenced to life imprisonment after the above Regulations came into force would, in practice, have had a period of five years automatically deducted from the time to be served in prison by way of remission pursuant to Regulation 93. Thereafter, days of remission could be deducted from this five-year period as a consequence of misconduct by the prisoner. It was understood by the Republic’s executive and administrative authorities, including the Prison Service, that a life prisoner’s misconduct could not result in him being detained beyond the twenty-year point. In fact, because of the very limited number of life prisoners in Cyprus and the dates of their respective convictions, no life prisoner had ever reached the point in his sentence when these provisions were applied directly so as to lead to his release. The release of the nine life prisoners in 1993 had been pursuant to Article 53 § 4 of the Constitution in the light of how the Regulations would have operated in their cases. 66. In its judgment in the case of Hadjisavvas, the Supreme Court declared Regulation 93 to be unconstitutional and ultra vires in relation to the enabling primary legislation, namely the Prison Discipline Law. Under Cypriot domestic law, the position was that in proceedings where the constitutionality of subsidiary legislation was raised by a party by way of collateral challenge, the court’s judgment only took effect in relation to the particular subject matter of the proceedings. Thus, the Supreme Court’s judgment in the case of Hadjisavvas, in which the constitutionality of Regulation 93 had been raised as a collateral issue to Mr Hadjisavvas’s habeas corpus application, was only operative so as to determine the ongoing legality of his detention. It also followed from Article 144 § 3 of the Constitution that the above judgment did not operate so as to render Regulation 93 unconstitutional and invalid as against persons other than the parties to that case. In other words, it did not result in Regulation 93 being rendered invalid vis-à-vis other individuals. 67. Because the Supreme Court’s judgment in Hadjisavvas had been binding on the parties to the case, including the executive and administrative authorities of the Republic, Regulation 93 could not thereafter lawfully be applied by the above authorities. Nonetheless, the judgment could not be understood as having retrospective effect such as to impugn the validity of Regulation 93 as it had been applied to other individuals affected by that Regulation. Therefore, the fact that Regulation 93 was declared unconstitutional and ultra vires by the Supreme Court in 1992 did not have retrospective effect such as to render the Regulation void ab initio for all purposes. It did not, for example, render unlawful any action taken pursuant to Regulation 93 between the date of its enactment and the judgment in Hadjisavvas. Accordingly, at the time of the applicant’s offence in July 1987 or at the time he was sentenced in March 1989, Regulation 93 could not have been void or without legal effect in respect of the applicant. After the Hadjisavvas judgment, however, the administrative and executive authorities of the Republic could not lawfully take action, in reliance on Regulation 93, treating it as reducing a life sentence imposed by a court to a maximum of twenty years’ imprisonment since this would have been inconsistent with the Constitution as authoritatively interpreted by the Supreme Court in that judgment. 68. Article 21 of the Council of Europe Convention on the Prevention of Terrorism provides as follows: “... 3. Nothing in this Convention shall be interpreted either as imposing an obligation to extradite if the person who is the subject of the extradition request risks being exposed to the death penalty or, where the law of the requested party does not allow for life imprisonment, to life imprisonment without the possibility of parole, unless under applicable extradition treaties the requested party is under the obligation to extradite if the requesting party gives such assurance as the requested party considers sufficient that the death penalty will not be imposed or, where imposed, will not be carried out, or that the person concerned will not be subject to life imprisonment without the possibility of parole.” 69. Matters relating to long-term imprisonment and conditional release were addressed by the Committee of Ministers as long ago as 1976, when it adopted Resolution (76) 2 on the treatment of long-term prisoners on 17 February 1976 (at the 254th meeting of the Ministers’ Deputies): “The Committee of Ministers, ... I. Recommends that the governments of the member States: ... 9. ensure that the cases of all prisoners will be examined as early as possible to determine whether or not a conditional release can be granted; 10. grant the prisoner conditional release, subject to the statutory requirements relating to the time served, as soon as favourable prognosis can be formulated; considerations of general prevention alone should not justify refusal of conditional release; 11. adapt to life sentences the same principles as apply to long-term sentences; 12. ensure that a review, as referred to in 9, of the life sentence should take place, if not done before, after eight to fourteen years of detention and be repeated at regular intervals; ...” 70. In its general report the sub-committee responsible for drafting the resolution stated: “... it is inhuman to imprison a person for life without any hope of release. A crime-prevention policy which accepts keeping a prisoner for life even if he is no longer a danger to society would be compatible neither with modern principles on the treatment of prisoners during the execution of their sentence nor with the idea of the reintegration of offenders into society. Nobody should be deprived of the chance of possible release. Just how far this chance can be realised must depend on the individual prognosis.” 71. On 30 September 1999 the Committee of Ministers adopted Recommendation No. R (99) 22 concerning prison overcrowding and prison population inflation (adopted at the 681st meeting of the Ministers’ Deputies), the relevant part of which provides as follows. “... 23. The development of measures should be promoted which reduce the actual length of the sentence served, by giving preference to individualised measures, such as early conditional release (parole), over collective measures for the management of prison overcrowding (amnesties, collective pardons). 24. Parole should be regarded as one of the most effective and constructive measures, which not only reduces the length of imprisonment but also contributes substantially to a planned return of the offender to the community. 25. In order to promote and expand the use of parole, best conditions for offender support, assistance and supervision in the community have to be created, not least with a view to prompting the competent judicial or administrative authorities to consider this measure as a valuable and responsible option. 26. Effective programmes for treatment during detention and for supervision and treatment after release should be devised and implemented so as to facilitate the resettlement of offenders, to reduce recidivism, to provide public safety and protection and to give judges and prosecutors the confidence that measures aimed at reducing the actual length of the sentence to be served and the community sanctions and measures are constructive and responsible options. ...” 72. On 24 September 2003 the Committee of Ministers adopted Rec(2003)22 on conditional release (at the 853rd meeting of the Ministers’ Deputies), the relevant parts of which provide as follows. “The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe, Considering that it is in the Council of Europe member States’ interest to establish common principles regarding the enforcement of custodial sentences in order to strengthen international cooperation in this field; Recognising that conditional release is one of the most effective and constructive means of preventing reoffending and promoting resettlement, providing the prisoner with planned, assisted and supervised reintegration into the community; Considering that it should be used in ways that are adapted to individual circumstances and consistent with the principles of justice and fairness; ... Considering, therefore, that it is desirable to reduce the length of prison sentences as much as possible and that conditional release before the full sentence has been served is an important means to that end; Recognising that conditional release measures require the support of political leaders, administrative officials, judges, public prosecutors, advocates and the public, who therefore need a detailed explanation as to the reasons for adapting prison sentences; Considering that legislation and the practice of conditional release should comply with the fundamental principles of democratic States governed by the rule of law, whose primary objective is to guarantee human rights in accordance with the European Convention on Human Rights and the case-law of the organs entrusted with its application; ... Recommends that governments of member States: 1. introduce conditional release in their legislation if it does not already provide for this measure; 2. be guided in their legislation, policies and practice on conditional release by the principles contained in the appendix to this recommendation; 3. ensure that this recommendation on conditional release and its explanatory memorandum are disseminated as widely as possible. Appendix to Recommendation Rec(2003)22 ... II. General principles 3. Conditional release should aim at assisting prisoners to make a transition from life in prison to a law-abiding life in the community through post-release conditions and supervision that promote this end and contribute to public safety and the reduction of crime in the community. 4(a) In order to reduce the harmful effects of imprisonment and to promote the resettlement of prisoners under conditions that seek to guarantee safety of the outside community, the law should make conditional release available to all sentenced prisoners, including life-sentence prisoners. 4(b) If prison sentences are so short that conditional release is not possible, other ways of achieving these aims should be looked for. 5. When starting to serve their sentence, prisoners should know either when they become eligible for release by virtue of having served a minimum period (defined in absolute terms and/or by reference to a proportion of the sentence) and the criteria that will be applied to determine whether they will be granted release (‘discretionary release system’) or when they become entitled to release as of right by virtue of having served a fixed period defined in absolute terms and/or by reference to a proportion of the sentence (‘mandatory release system’). 6. The minimum or fixed period should not be so long that the purpose of conditional release cannot be achieved. ... IV. Granting of conditional release Discretionary release system 16. The minimum period that prisoners have to serve to become eligible for conditional release should be fixed in accordance with the law. 17. The relevant authorities should initiate the necessary procedure to enable a decision on conditional release to be taken as soon as the prisoner has served the minimum period. 18. The criteria that prisoners have to fulfil in order to be conditionally released should be clear and explicit. They should also be realistic in the sense that they should take into account the prisoners’ personalities and social and economic circumstances as well as the availability of resettlement programmes. 19. The lack of possibilities for work on release should not constitute a ground for refusing or postponing conditional release. Efforts should be made to find other forms of occupation. The absence of regular accommodation should not constitute a ground for refusing or postponing conditional release and in such cases temporary accommodation should be arranged. 20. The criteria for granting conditional release should be applied so as to grant conditional release to all prisoners who are considered as meeting the minimum level of safeguards for becoming law-abiding citizens. It should be incumbent on the authorities to show that a prisoner has not fulfilled the criteria. 21. If the decision-making authority decides not to grant conditional release it should set a date for reconsidering the question. In any case, prisoners should be able to reapply to the decision-making authority as soon as their situation has changed to their advantage in a substantial manner. Mandatory release system 22. The period that prisoners must serve in order to become entitled to release should be fixed by law. ... VIII. Procedural safeguards 32. Decisions on granting, postponing or revoking conditional release, as well as on imposing or modifying conditions and measures attached to it, should be taken by authorities established by law in accordance with procedures covered by the following safeguards: (a) convicted persons should have the right to be heard in person and to be assisted according to the law; (b) the decision-making authority should give careful consideration to any elements, including statements, presented by convicted persons in support of their case; (c) convicted persons should have adequate access to their file; (d) decisions should state the underlying reasons and be notified in writing. 33. Convicted persons should be able to make a complaint to a higher independent and impartial decision-making authority established by law against the substance of the decision as well as against non-respect of the procedural guarantees. 34. Complaints procedures should also be available concerning the implementation of conditional release. 35. All complaints procedures should comply with the guarantees set out in Rules 13 to 19 of the European rules on community sanctions and measures. 36. Nothing in paragraphs 32 to 35 should be construed as limiting or derogating from any of the rights that may be guaranteed in this connection by the European Convention on Human Rights. ...” 73. On 11 January 2006 the Committee of Ministers adopted Rec(2006)2 on the European Prison Rules (at the 952nd meeting of the Ministers’ Deputies), the relevant part of which provides as follows. “Part VIII Sentenced prisoners Objective of the regime for sentenced prisoners 102.1 In addition to the rules that apply to all prisoners, the regime for sentenced prisoners shall be designed to enable them to lead a responsible and crime-free life. 102.2 Imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment.” “10. Meanwhile, the Parliament has passed amendments to the Penal Code allowing prison sentences to be replaced by community service. The Minister of Justice also disclosed current discussions in the government on the penalty of life imprisonment, with a view to making termination of imprisonment possible subject to certain conditions.” “11. In her report concerning the detention conditions at the Central Prison in 2004, the Ombudswoman criticised the Cypriot authorities’ interpretation of life sentence as imprisonment for the rest of the convicted person’s life. In most other Council of Europe member States life imprisonment does not entail imprisonment for the rest of the natural life of the convicted person. At the time of the Commissioner’s first visit there were discussions in the government about the possibility of terminating life imprisonment subject to certain conditions. A solution to this question has yet to be found, though. The Deputy Director of the Central Prison spoke of the difficulties in dealing with those currently serving life sentence, fourteen men at the time of the Office’s visit, both in terms of the prisoners’ morale, and security issues. The usual incentives for encouraging good behaviour in prisoners were inevitably of no use in relation to those serving life sentences, and this posed security problems both for the warders and for the other prisoners.” 74. The Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between member States (OJ L 190 of 18 July 2002, p. 1) provides for the execution in any member State of a judicial decision made in another member State for the arrest and surrender of a person for the purpose of criminal proceedings or the execution of a custodial sentence. The relevant parts of Article 5 provide as follows: “The execution of the European arrest warrant by the executing judicial authority may, by the law of the executing member State, be subject to the following conditions: ... 2. if the offence on the basis of which the European arrest warrant has been issued is punishable by custodial life sentence or life-time detention order, the execution of the said arrest warrant may be subject to the condition that the issuing member State has provisions in its legal system for a review of the penalty or measure imposed, on request or at the latest after twenty years, or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing member State, aiming at a non-execution of such penalty or measure; ...” 75. The relevant part of Article 77 of the Rome Statute of the International Criminal Court, pertaining to applicable penalties, provides as follows: “1. Subject to Article 110, the Court may impose one of the following penalties on a person convicted of a crime referred to in Article 5 of this Statute: (a) Imprisonment for a specified number of years, which may not exceed a maximum of thirty years; or (b) A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person. ...” 76. Article 110, concerning the Review by the International Criminal Court on the reduction of sentences, provides as follows: “1. The State of enforcement shall not release the person before expiry of the sentence pronounced by the Court. 2. The Court alone shall have the right to decide any reduction of sentence, and shall rule on the matter after having heard the person. 3. When the person has served two-thirds of the sentence, or twenty-five years in the case of life imprisonment, the Court shall review the sentence to determine whether it should be reduced. Such a review shall not be conducted before that time. 4. In its review under § 3, the Court may reduce the sentence if it finds that one or more of the following factors are present: (a) The early and continuing willingness of the person to cooperate with the Court in its investigations and prosecutions; (b) The voluntary assistance of the person in enabling the enforcement of the judgements and orders of the Court in other cases, and in particular providing assistance in locating assets subject to orders of fine, forfeiture or reparation which may be used for the benefit of victims; or (c) Other factors establishing a clear and significant change of circumstances sufficient to justify the reduction of sentence, as provided in the Rules of Procedure and Evidence. 5. If the Court determines in its initial review under § 3 that it is not appropriate to reduce the sentence, it shall thereafter review the question of reduction of sentence at such intervals and applying such criteria as provided for in the Rules of Procedure and Evidence.” | 1 |
train | 001-88157 | ENG | CZE | ADMISSIBILITY | 2,008 | GABOROVA v. THE CZECH REPUBLIC | 4 | Inadmissible | Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva | The applicant, Mrs Hana Gáborová, is a Czech national who was born in 1941 and lives in Liberec. The Czech Government (“the Government”) were represented by their Agent, Mr V. Schorm, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. In 1954 the applicant’s parents sold their real estates to a certain P. The sale contract is, according to the applicant, invalid, because the State allegedly did not consent to this transaction, P. did not occupy the estates and did not pay the purchase price. Since the applicant’s parents did not seem to be willing to re-occupy the property, this fell into State ownership. I. Proceedings on the nullity of the sale contract (no. 20 C 67/94) On 13 January 1994 the applicant filed an action against J.P. and M.P. seeking to declare the sale contract null and void. On 22 August 1994 the Liberec District Court (okresní soud) discontinued the proceedings following the applicant’s withdrawal of her action. The court’s decision became final on 5 October 1994. II. Proceedings on the nullity of the sale contract (no. 20 C 1210/94) On 3 October 1994 the applicant filed an action against J.P., M.P. and J.P.jr seeking to declare the sale contract null and void. On 18 October 1994 the District Court discontinued the proceedings following the applicant’s withdrawal of her action. The court’s decision became final on 19 January 1996. III. Proceedings on the determination of property rights (no. 20 C 1604/95) On 26 October 1995 the applicant brought proceedings against M.P. seeking to determine her property rights to the real estates which had belonged to her parents. On 17 August 2000 the District Court discontinued the proceedings upon the applicant’s withdrawal of her case. The decision became final on 24 October 2000. IV. Proceedings on the determination of property rights (no. 20 C 129/96) On 6 February 1995 the applicant brought new proceedings seeking to determine her property rights to the real estates, this time against M.P. and J.P.jr. On 17 August 2000 the District Court discontinued the proceedings upon the applicant’s withdrawal of her case. The decision became final on 21 September 2000. V. Restitution proceedings On 13 January 1999 the applicant brought a number of actions for recovery of the property. On 10 January 2000 the District Court decided to deal with the actions separately. i) Restitution proceedings no. 20 C 60/2000 On 17 August 2000 the applicant withdrew her restitution action brought against M.P. The proceedings were discontinued on the same day. The District Court’s decision delivered in this respect became final on 24 October 2000. ii) Restitution proceedings no. 20 C 61/2000 The applicant’s action brought against the Hunting Association Mlýnice (Myslivecké sdružení Mlýnice) was originally sent as a supplement to her action registered under no. 20 C 129/96 (see above). On 10 January 2000 the proceedings were severed for separate consideration and decision. The proceedings terminated in a decision of the Ústí nad Labem Regional Court (krajský soud) of 14 June 2005 which became final on 22 June 2005. iii) Restitution proceedings no. 20 C 62/2000 The applicant’s action brought against the Nová Ves Municipality (Obec Nová Ves) was originally sent as a supplement to her action registered under no. 20 C 129/96 (see above). The proceedings were severed and terminated on 11 October 2005. iv) Restitution proceedings no. 20 C 63/2000 The applicant’s action brought against the Liberec Land Funds (Pozemkový fond) was originally sent as a supplement to her action registered under no. 20 C 129/96 (see above). The proceedings were severed and terminated in a decision of the Supreme Court (Nejvyšší soud) of 12 December 2006. v) Restitution proceedings no. 20 C 64/2000 The applicant’s action brought against the Forestry of the Czech Republic (Lesy České republiky) was originally sent as a supplement to her action registered under no. 20 C 129/96 (see above). The proceedings were severed and terminated in a decision of the Regional Court of 31 March 2005 which became final on 14 April 2005. vi) Restitution proceedings no. 15 Ca 457/93 On 20 May 1993 the Liberec Land Office (pozemkový úřad) rejected the applicant’s claim for restitution of her parents’ property. In a judgment of 11 November 1993 the Regional Court upheld the administrative decision. The judgment became final on 16 December 1993. On 27 February 2007 the applicant filed a constitutional appeal (ústavní stížnost) which the Constitutional Court rejected as having been introduced outside the sixty-days’ statutory time-limit on 22 March 2007. VI. Proceedings on the determination of the applicant’s inheritance (no. 20 C 1085/2000) On 21 August 2000 the applicant filed an action against M.P. to establish that the latter’s property should be included in the applicant’s inheritance. The proceedings were discontinued on 15 December 2000, the applicant having not complied with the District Court’s request to rectify certain shortcomings in her action. The decision became final on 12 January 2001. The relevant domestic law and practice concerning remedies for the length of judicial proceedings are stated in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007). | 0 |
train | 001-101739 | ENG | BEL | GRANDCHAMBER | 2,010 | CASE OF TAXQUET v. BELGIUM | 1 | Violation of Art 6-1;Non-pecuniary damage - award | András Sajó;Anatoly Kovler;Christos Rozakis;Elisabet Fura;Françoise Tulkens;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Luis López Guerra;Mirjana Lazarova Trajkovska;Nicolas Bratza;Nona Tsotsoria;Päivi Hirvelä;Peer Lorenzen;Sverre Erik Jebens;Vladimiro Zagrebelsky;Zdravka Kalaydjieva | 9. The applicant was born in 1957 and lives in Angleur. 10. On 17 October 2003 the applicant appeared before the Liège Assize Court, together with seven co-defendants, on charges of murdering an honorary minister (ministre d’Etat), A.C., and attempting to murder the latter’s partner, M.-H.J. According to the wording of the indictment, they were charged with the following offences, committed in Liège on 18 July 1991: “as principals or joint principals, either through having perpetrated the offences or having directly cooperated in their perpetration, or through having, by any act whatsoever, lent such assistance to their perpetration that without it the offences could not have been committed, or through having, by gifts, promises, threats, abuse of authority or power, scheming or contrivance, directly incited another to commit the offences, or through having, by means of speeches in a public place or assembly, or by means of any written or printed matter, image or emblem displayed, distributed or sold, offered for sale or exhibited in a place where it could be seen by the public, directly incited another to commit the offences, 1. having knowingly and intentionally killed [A.C.], with the additional circumstance that the killing was premeditated, an offence classified by law as premeditated murder [assassinat]; 2. having attempted, knowingly, intentionally and with premeditation, to kill [M.H.J.], the intent to commit the offence having been manifested by conduct which objectively constituted the first step towards perpetration of the offence and which was halted or failed to attain the aim pursued only as a result of circumstances outside the control of the perpetrators, an offence classified by law as attempted premeditated murder.” 11. Only one of the co-defendants filed a statement of defence. The applicant alleged that it was impossible for him to do so since he had no knowledge of the evidence against him. 12. The indictment of 12 August 2003 stated, inter alia, that in June 1996 a person described by the applicant as an anonymous witness had passed on certain information to the investigators. A record of 3 September 1996 noted the informer’s wish to remain anonymous, based on fears for his safety “in view of the importance of his information and the media outcry that has always surrounded the [A.C.] case”. The person was never interviewed by the investigating judge. He had given the investigators information obtained in confidence from a person whose identity he refused to disclose. During the trial in the Assize Court, questions were put to the investigators on the initiative of several of the defendants about the informer’s identity. The investigators stated that their informer was not one of the defendants and had not personally witnessed the alleged offences. According to the information supplied, which was set out in fifteen points, A.C.’s murder had been planned by six people, including the applicant and another leading politician. The passage incriminating the applicant stated: “V. der B. and Taxquet were said to have been particularly insistent about the urgent need to kill [A.C.] before the ‘91 holidays as he had promised to make some significant disclosures after the summer break.” 13. On account of the numerous applications made during the trial, the Assize Court delivered thirteen interlocutory judgments: (i) judgment of 17 October 2003 noting the absence of certain defendants and directing that they were to be tried in absentia; (ii) judgment of 20 October 2003 on an application to have a confrontation between witnesses declared null and void; (iii) judgment of 27 October 2003 concerning the examination of witnesses without one of the co-defendants being present; (iv) judgment of 3 November 2003 on the examination of a witness in camera; (v) judgment of 6 November 2003 setting aside the order for a codefendant to be tried in absentia; (vi) judgment of 13 November 2003 refusing an application by the prosecution for a hearing to be held in camera; (vii) judgment of 19 November 2003 on the examination of certain witnesses in camera; (viii) judgment of 18 December 2003 on an application by a codefendant for the examination of certain witnesses; (ix) judgment of 18 December 2003 on the use of recordings of a confrontation between witnesses; (x) judgment of 18 December 2003 on an application by the civil parties for the examination of witnesses who had failed to appear and the reexamination of other witnesses; (xi) judgment of 18 December 2003 on an application by a co-defendant for the examination or re-examination of the anonymous witness; (xii) judgment of 18 December 2003 on the applicant’s submissions as to the examination of witnesses who had failed to appear and the reexamination of other witnesses; (xiii) judgment of 18 December 2003 on an application by the applicant for the examination or re-examination of the anonymous witness. 14. In the last-mentioned judgment, concerning the application for an investigating judge to hear or rehear evidence from the person who had anonymously supplied information noted down by two non-commissioned gendarmerie officers, the Assize Court held: “This information, obtained anonymously by members of the police force, has no probative value as such. Accordingly, in the present case it simply constituted information capable of giving fresh impetus or a new slant to the investigation and enabling lawful evidence to be gathered independently. When examined as witnesses at the trial, [the two non-commissioned gendarmerie officers] stated that their informer was not one of the defendants and had not personally witnessed any of the acts he described; he had merely relayed information he claimed to have received in confidence from a person whose identity he refused to disclose. They also noted that some of the information supplied by their informer, relating in particular to other politicians mentioned in the submissions by counsel for Richard Taxquet ..., could not be corroborated by any evidence, despite their inquiries. ... In the investigators’ view, the process of drawing up an official record of information given to them by an anonymous informer did not in itself constitute any infringement of the defence rights of the persons named by the informer. That step solely involved the disclosure, with a view to its analysis and verification, of information that might be of interest to the investigation and might assist in clarifying the facts. Viewed in isolation from any objective data that might subsequently confirm it, this information did not constitute evidence of the acts allegedly carried out by the persons whose identity was mentioned by the informer. ... Lastly ... it is not possible to speak of a re-examination, seeing that it does not appear from the case file or the oral proceedings that [the person described as an anonymous witness] gave evidence under oath to an investigating judge. With regard to the application for an examination of that person, firstly, the court is unaware of his identity and, secondly, regardless of the considerations referred to by the judicial investigating bodies in that connection, such an examination does not appear useful for establishing the truth and would delay the proceedings needlessly without giving cause to hope for more certain results.” 15. The jury was asked to answer thirty-two questions put to it by the President of the Assize Court. Four of them concerned the applicant and were worded as follows: “Question 25 – PRINCIPAL COUNT Is the accused Richard Taxquet, who is present in court, guilty, as principal or joint principal, – either through having perpetrated the offence or having directly cooperated in its perpetration, – or through having, by any act whatsoever, lent such assistance to its perpetration that without it the offence could not have been committed, – or through having, by gifts, promises, threats, abuse of authority or power, scheming or contrivance, directly incited another to commit the offence, – or through having, by means of speeches in a public place or assembly, or by means of any written or printed matter, image or emblem displayed, distributed or sold, offered for sale or exhibited in a place where it could be seen by the public, directly incited another to commit the offence, of having knowingly and intentionally killed [A.C.] in Liège on 18 July 1991? Question 26 – AGGRAVATING CIRCUMSTANCE Was the intentional homicide referred to in the previous question premeditated? Question 27 – PRINCIPAL COUNT Is the accused Richard Taxquet, who is present in court, guilty, as principal or joint principal, – either through having perpetrated the offence or having directly cooperated in its perpetration, – or through having, by any act whatsoever, lent such assistance to its perpetration that without it the offence could not have been committed, – or through having, by gifts, promises, threats, abuse of authority or power, scheming or contrivance, directly incited another to commit the offence, – or through having, by means of speeches in a public place or assembly, or by means of any written or printed matter, image or emblem displayed, distributed or sold, offered for sale or exhibited in a place where it could be seen by the public, directly incited another to commit the offence, of having attempted knowingly and intentionally to kill [M.-H.J.] in Liège on 18 July 1991, the intent to commit the offence having been manifested by conduct which objectively constituted the first step towards perpetration of the offence and which was halted or failed to attain the aim pursued only as a result of circumstances outside the control of the perpetrator? Question 28 – AGGRAVATING CIRCUMSTANCE Was the attempted intentional homicide referred to in the previous question premeditated?” 16. The jury answered “yes” to all four questions. 17. On 7 January 2004 the Assize Court sentenced the applicant to twenty years’ imprisonment. 18. The applicant appealed on points of law against his conviction of 7 January 2004 by the Assize Court and all the interlocutory judgments given by that court. 19. In a judgment of 16 June 2004, the Court of Cassation dismissed the appeal. It held, in particular, as follows: (i) the belated appearance of a co-defendant could not infringe the appellants’ defence rights as they had been able to challenge freely both the statements made by that defendant during the preliminary investigation and relayed at the trial by the persons to whom they had been given, and the statements made directly by the defendant before the jury; (ii) the Assize Court had rightly ordered that two witnesses should be examined in camera, fearing that they might not be able to express themselves freely if the hearing were public, which would hinder the proper administration of justice; (iii) in refusing, on the ground that such a step might delay the proceedings needlessly, to show the film of the confrontation between some of the defendants and certain Tunisian nationals against whom charges had been brought, the Assize Court had not breached the rights of the defence or the principle that hearings must be conducted orally, since the refusal had been based on the fact that those taking part in the confrontation, having appeared at the trial, had been directly confronted with the defendants; (iv) in directing that the proceedings should continue on the ground that the examination of certain witnesses who had failed to appear in court (having been properly summoned) was not necessary for establishing the truth, and in holding that a further appearance by certain other witnesses “would be likely to prolong the proceedings needlessly without giving cause to hope for more certain results”, the Assize Court had not breached Article 6 of the Convention and the principle that hearings must be conducted orally; (v) since the presumption of innocence related above all to the attitude of the judges determining a criminal charge, comments by an investigator and reports in the press, even if inaccurate, malevolent or amounting to a criminal offence, could not in themselves cause the trial to breach Article 6 §§ 1 and 2 of the Convention; (vi) it could not be inferred from the jurors’ alleged inexperience, the speed with which they deliberated or the lack of reasons given for their verdict that they were incapable of impartial adjudication in a case that had attracted considerable press coverage; (vii) the procedure for appointing members of the jury and the fact that they reached their verdict as to guilt without having discussed the issue with the court did not mean that the Assize Court was not an independent and impartial tribunal established by law within the meaning of Article 6 § 1 of the Convention or that the presumption of the accused’s innocence could not be lawfully rebutted in that court; (viii) neither Article 6 nor Article 13 of the Convention guaranteed the right of appeal; (ix) neither Article 6 §§ 1 and 3 (b) of the Convention nor Article 14 § 3 (b) of the International Covenant on Civil and Political Rights, nor Article 149 of the Constitution, even when taken in conjunction with the above-mentioned treaty provisions, placed any obligation on a jury to give reasons for its answers; (x) the ground of appeal relating to Article 6 § 3 (b) of the Convention (inability to confer freely with his lawyer as a result of his detention the day before the start of the trial) was inadmissible as it did not appear from the evidence in the file that the applicant had alleged before the Assize Court that there had been a violation of the right to have adequate facilities for the preparation of his defence; (xi) Articles 10 and 11 of the Constitution, Article 26 of the International Covenant on Civil and Political Rights and Article 14 of the Convention did not lay down a requirement for reasons to be given for a verdict as to guilt, or the right of appeal or the right to appear before courts made up solely of professional judges; the discretion of the lay jury, which, moreover, was circumscribed by Articles 351, 352, 364 and 364 bis of the Code of Criminal Procedure, did not give rise to an arbitrary difference in treatment for the purposes of Article 14 of the Convention between those being tried by assize courts and those being tried by other criminal courts. 20. As to the ground of appeal contending that the appellants’ conviction had been decisively or incidentally based on the statements of an anonymous informer, the Court of Cassation stated: “In so far as they challenge the observation that the Assize Court was unaware of the identity of the person whose examination was being requested and could therefore not order it, these grounds of appeal, being directed against an obiter dictum, are immaterial. On that account, they are inadmissible. As to the remaining arguments, the presence in the criminal case file of a record containing information from an unidentified source does not require the trial court, as a condition for the validity or admissibility of the prosecution, to ensure that the informer is identified and examined in accordance with the procedure set forth in Articles 189 bis and 315 bis of the Code of Criminal Procedure. Those provisions leave it open to the trial court to appoint an investigating judge to that end if such a step appears useful for establishing the truth. The judgments take the view, on the basis of a factual assessment which this court is not empowered to overrule, that the examination sought would delay the proceedings needlessly without giving cause to hope for more certain results. The judgments also observe that the information obtained anonymously did not correspond to the evidence obtained lawfully and independently against the defendants. It does not appear from the Assize Court’s reply to the appellants’ submissions that the trial court contested their right to rebut the evidence produced at the trial. On that account, these grounds of appeal cannot be allowed. As to the remaining argument, Article 6 § 3 (d) of the Convention ... is not breached by the mere fact that the trial court considered it unnecessary or impossible to order the cross-examination of the anonymous informer whose disclosures provided helpful guidance for the investigation. On that account, these grounds of appeal have no basis in law.” 21. In the Questions à la Une programme broadcast by Radio-Télévision Belge Francophone (the State broadcaster for the French-speaking part of Belgium) in early 2006, one of the applicant’s co-defendants, S.N., stated that he had been the anonymous informer and had acted as a “middleman” on behalf of another co-defendant, D.C., whose accusations he had relayed. During the same programme, the identity of the anonymous witness was confirmed by the Minister of Justice who had been in post at the time of the events. S.N. said that he had received the sum of 3,000,000 Belgian francs (BEF) (74,368.06 euros (EUR)) from the Belgian State as a “middleman’s commission”. D.C. had allegedly received BEF 5,000,000 (EUR 123,946.76). 22. Following the 1789 French Revolution, the jury featured in the 1791 French Constitution and the 1808 Code of Criminal Procedure. At that time, Belgium was part of French territory. When it was separated from France and attached to Holland, the jury was abolished but assize courts continued to exist. When Belgium gained independence, the institution of the jury was enshrined in the Constitution of 7 February 1831, Article 98 of which provided: “The jury shall be constituted for all serious crimes and for political and press offences.” The institution was envisaged by the framers of the Constitution as the touchstone of the authenticity of any democratic demand. The jury was seen above all as a political affirmation of the freedom won by the people, the symbol of the people’s sovereignty. It was instituted by the decree of 19 July 1831; membership was initially based on function (jury capacitaire) and subsequently, from 1869, on property (jury censitaire). By virtue of a Law of 21 December 1930, a new reform made the composition of the jury more democratic and representative of all social classes, the result being the twelve-member lay jury that still exists today. 23. Article 150 of the Consolidated Constitution of 17 February 1994 provides: “The jury shall be constituted for all serious crimes and for political and press offences, except for press offences motivated by racism or xenophobia” (text as amended on 7 May 1999). 24. Furthermore, Article 149 provides: “All judgments shall contain reasons; they shall be delivered in public.” 25. Proceedings in assize courts in Belgium afford a number of safeguards, particularly as regards the defence rights of the accused. 26. Article 241 of the Code of Criminal Procedure (“the CCP”) requires the Principal Public Prosecutor to draw up an indictment indicating the nature of the offence forming the basis of the charge, and any circumstances that may cause the sentence to be increased or reduced. Pursuant to Article 313 of the CCP, the Principal Public Prosecutor must read out the indictment and the defendant or his counsel the statement of defence. Article 337 states that the questions put to the jury must derive from the indictment (which itself must be consistent with the judgment committing the accused for trial – Article 271 of the CCP) and must comply with certain formal requirements; for example, questions that are complex or concern points of law are prohibited. 27. At the close of the oral proceedings, questions are put to the jury in order to establish the factors likely to lead to the precise determination of whether or not the accused is guilty as charged. The president of the Assize Court is empowered to put questions to the jury on all the circumstances which might have an influence on the facts which served as the basis for the indictment, provided that these circumstances were discussed during the oral proceedings. The principal question concerns the constituent elements of the offence, while there must be a separate question in respect of each count. Separate questions regarding other facts, such as aggravating circumstances or the existence of any justification or mitigating factor, may also be put. The prosecution and the accused can challenge the questions and have the opportunity to ask the president to put one or more additional questions to the jury. In the event of a dispute regarding the questions, the Assize Court must decide by a reasoned judgment. 28. Article 341 provides that, after asking the questions, the president hands them to the jury; at the same time, he hands over the indictment, the reports establishing the offence and the documents in the file other than the written witness statements. 29. In accordance with Article 342, once the questions have been put to and handed to the members of the jury, they retire to deliberate in private. The foreman is either the first member of the jury drawn by lot or is appointed by the jury with his or her consent. Before the deliberations begin, the foreman reads out the following instruction, which is also displayed in large type in the most visible place in the deliberation room: “The law does not ask jurors to account for how they reached their personal conviction; it does not lay down rules on which they are to place particular reliance as to the completeness and sufficiency of evidence; it requires them to ask themselves questions, in silence and contemplation, and to discern, in the sincerity of their conscience, what impression has been made on their rational faculties by the evidence against the defendant and the submissions of the defence. The law does not tell them: ‘You will hold every fact attested by this number of witnesses to be true’; nor does it tell them: ‘You will not regard as sufficiently established any evidence that does not derive from this report, these exhibits, this number of witnesses or this many clues’; it simply asks them this one question, which encompasses the full scope of their duties: ‘Are you inwardly convinced?’” 30. Article 343 authorises members of the jury to leave the deliberation room only when they have arrived at their verdict. 31. Lastly, Article 352 provides that if the judges are unanimously persuaded that the jurors, while complying with the procedural requirements, have made a substantive error, the court must stay the proceedings and adjourn the case until the following session for consideration by a new jury, which cannot include any of the original members. However, according to information supplied by the Government, this option has been used on only three occasions. 32. The Chamber judgment of 13 January 2009 has had repercussions on the case-law of the Belgian courts. 33. In judgment no. 2505 (P.09.0547.F) of 10 June 2009, the Court of Cassation held: “As to the ground of appeal, raised proprio motu, alleging a violation of Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms: According to a judgment of 13 January 2009 of the European Court of Human Rights in [Taxquet v. Belgium, no. 926/05], the right to a fair trial guaranteed by Article 6 § 1 of the Convention implies, where the Assize Court is concerned, that the decision on a criminal charge should highlight the considerations that have persuaded the jury of the accused’s guilt or innocence and should indicate the precise reasons why each of the questions has been answered in the affirmative or the negative. On account of the binding effect of interpretation now attaching to that judgment and the prevalence over domestic law of the international legal rule deriving from a treaty ratified by Belgium, the court is compelled to reject the application of Articles 342 and 348 of the Code of Criminal Procedure in so far as they lay down the rule, now criticised by the European Court, that the jury’s verdict does not contain reasons. It appears from the documents to which the court may have regard, in particular the indictment, that during the preliminary investigation the appellant, who was prosecuted for murder as the principal or joint principal, provided explanations, as to the acts of which he was accused, which were rebutted by a witness whose identity was kept secret under Articles 86 bis and 86 ter of the Code of Criminal Procedure. In submissions filed with the Assize Court at the hearing on 18 February 2009 the appellant requested that the verdict contain reasons so that, in the event of his conviction, he could understand the grounds that had persuaded the jury to find him guilty, and so that the Court of Cassation could review the lawfulness of the verdict. With regard to the charge of murder against the appellant, the jury was asked to answer a principal question about his involvement in committing intentional homicide, an additional question on the statutory defence of provocation and two questions, in the alternative, on the offence provided for in Article 401 of the Criminal Code. The jury answered the first question in the affirmative and the second in the negative, leaving the other questions unanswered. The judgment appealed against sentenced the appellant to eighteen years’ imprisonment for murder, on the basis of the verdict expressed solely by answers in the affirmative or the negative to the questions put in accordance with the law. The judgment states that there is no need to give any further reasons for the finding of guilt, on the ground that the precision of the questions adequately offsets the brevity of the decision. However, the bare statement that the appellant is guilty of murder and that there are no mitigating factors does not disclose the precise reasons why the charge, which the appellant denied, was found to have been made out, and does not enable this court to review, inter alia, whether the conviction was based to a decisive extent on the deposition by an anonymous witness incriminating the accused or was supported by other corroborating evidence in accordance with Article 341, paragraph 3, of the Code of Criminal Procedure. While conforming to Belgian law, which does not require jurors to account for how they reached their personal conviction, the decision is contrary to Article 6 of the Convention in so far as that provision may be construed as meaning that the right to a fair trial encompasses a statement of reasons for the verdict.” 34. Other judgments to similar effect have subsequently been delivered. 35. In Belgium, even before the Chamber judgment in the Taxquet case, a Bill of 25 September 2008 that sought, among other things, to allow the president of the Assize Court to be present during the jury’s deliberations in order to assist its members was considered by the Senate. The proposed version of Article 350 of the CCP stated that the Assize Court should give reasons for its decision as to guilt, but was not required to address the parties’ submissions. 36. The Assize Court Reform Act of 21 December 2009, which was published in the Moniteur belge on 11 January 2010 and came into force on 21 January 2010, has introduced a requirement for the Assize Court to state the main reasons for its verdict. The relevant provisions of the CCP now read as follows: “Once the questions have been put and handed to the jurors, they shall retire to the deliberation room to deliberate. The foreman is either the first member of the jury drawn by lot or is appointed by the jury with his or her consent. Before the deliberations begin, the foreman shall read out the following instruction, which shall also be displayed in large type in the most visible place in the deliberation room: ‘The law provides that the accused may be convicted only if it is apparent from the evidence admitted that he is guilty beyond reasonable doubt of the offence with which he is charged.’” “The members of the jury may leave the deliberation room only when they have reached their verdict. No one may enter while they are deliberating, for any reason whatsoever, without the written authority of the president. The president may enter the room only if he is called by the foreman, in particular to answer questions of law, and is accompanied by his fellow judges, the accused and his counsel, the civil party and his counsel, the prosecution and the registrar. A reference to the incident shall be made in the record. ...” “The court and the members of the jury shall then immediately retire to the deliberation room. Without having to address all the submissions filed, they shall formulate the principal reasons for their decision. The decision shall be signed by the president, the foreman of the jury and the registrar.” 37. The relevant Articles of the Criminal Code provide as follows: “A criminal attempt is made out where the intent to commit a serious crime [crime] or other major offence [délit] has been manifested by conduct which objectively constituted the first step towards perpetration of the offence in question and which was halted or failed to attain the aim pursued only as a result of circumstances outside the control of the perpetrator.” “The following shall be punished as perpetrators of a serious crime or other major offence: Those who have perpetrated the offence or have directly cooperated in its perpetration; Those who have, by any act whatsoever, lent such assistance to its perpetration that without it the offence could not have been committed; Those who have, by gifts, promises, threats, abuse of authority or power, scheming or contrivance, directly incited another to commit the offence; Those who have, by means of speeches in a public place or assembly, or by means of any written or printed matter, image or emblem displayed, distributed or sold, offered for sale or exhibited in a place where it can be seen by the public, directly incited another to commit the offence, without prejudice to the penalties provided for by the law against those who incite others to commit offences, even where such incitement has no effect.” “The following shall be punished as accessories to a serious crime or other major offence: Those who have given instructions for its commission; Those who have procured weapons, implements or any other means used to commit the offence, knowing that they were intended for that purpose; Those who have, save in the case provided for in paragraph 3 of Article 66, knowingly aided or abetted the principal or principals in acts preparatory to or facilitating the commission of the offence or in its completion.” “Homicide committed with intent to kill shall be classified as murder [meurtre]. It shall be punishable (by twenty to thirty years’ imprisonment).” “Murder committed with premeditation shall be classified as premeditated murder [assassinat]. It shall be punishable (by life imprisonment).” 38. The Law of 1 April 2007 (which was published in the Moniteur belge on 9 May 2007 and came into force on 1 December 2007) entitles convicted persons to seek the reopening of their trial following a finding by the European Court of Human Rights of a violation of the Convention. 39. Article 442 bis of the CCP provides: “If a final judgment of the European Court of Human Rights has found that there has been a breach of the European Convention for the Protection of Human Rights and Fundamental Freedoms or the Protocols thereto (hereinafter ‘the European Convention’), an application may be made for the reopening – in respect of criminal matters alone – of the proceedings that resulted in the applicant’s conviction in the case before the European Court of Human Rights or in the conviction of another person for the same offence on the basis of the same evidence.” 40. Article 442 ter of the CCP provides: “The following shall be entitled to apply for the reopening of the proceedings: (1) the convicted person; (2) if the convicted person has died, has been deprived of legal capacity or has been declared untraceable, the person’s spouse, lawful cohabitee, descendants, brothers and sisters; (3) the Principal Public Prosecutor at the Court of Cassation, of his own motion or at the instigation of the Minister of Justice.” 41. Article 442 quinquies of the CCP provides: “Where it appears from consideration of the application either that the impugned decision is in breach of the European Convention on the merits or that the violation found is the result of procedural errors or shortcomings of such gravity as to cast serious doubt on the outcome of the proceedings in issue, the Court of Cassation shall order the reopening of the proceedings, provided that the convicted person or the entitled persons under Article 442 ter, point (2), continue to suffer very serious adverse consequences which cannot be redressed other than by reopening the trial.” 42. Following the Court’s judgment in Da Luz Domingues Ferreira v. Belgium (no. 50049/99, 24 May 2007), the Court of Cassation, in a judgment of 9 April 2008, ordered the reopening of the proceedings and withdrew the judgment it had delivered on 6 January 1999 (Journal des tribunaux, 2008, p. 403). 43. It is clear that there are many different models of lay adjudication in the member States of the Council of Europe. There are variations reflecting cultural and historical particularities even among countries that have opted for the “traditional” trial-by-jury model, the defining feature of which is that professional judges are unable to take part in the jurors’ deliberations on the verdict. 44. The member States may be divided into three categories: those without any form of jury trial or any model of lay adjudication in criminal matters; those using a collaborative court model of lay adjudicators sitting and deliberating alongside professional judges in criminal matters; and those which have opted for the “traditional” jury model in criminal matters. 45. Among the models examined, fourteen Council of Europe member States have never had a jury system or any other form of lay adjudication in criminal matters or have abolished it: Albania, Andorra, Armenia, Azerbaijan, Bosnia and Herzegovina, Cyprus, Latvia, Lithuania, Luxembourg, Moldova, the Netherlands, Romania, San Marino and Turkey. In these States criminal courts are composed exclusively of professional judges. 46. The member States with a collaborative system are Bulgaria, Croatia, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Liechtenstein, Monaco, Montenegro, Norway (in most cases), Poland, Portugal, Serbia, Slovakia, Slovenia, Sweden, “the former Yugoslav Republic of Macedonia” and Ukraine. The collaborative system, which can also be employed alongside the traditional jury model, is characterised by the fact that the professional judges and the jurors collectively determine all questions of law and fact, the issue of guilt and the sentence. 47. The ten Council of Europe member States that have opted for a traditional jury system are Austria, Belgium, Georgia, Ireland, Malta, Norway (only in serious appeal cases), the Russian Federation, Spain, Switzerland (the Canton of Geneva until 1 January 2011), and the United Kingdom (England, Wales, Scotland and Northern Ireland). 48. In its traditional form, trial by jury involves a combination of a number of jurors sitting with one or more professional judges. The number of jurors varies according to the country and the subject matter of the proceedings. The number of professional judges varies from country to country. In Ireland, Malta, Russia, Spain, Switzerland and the United Kingdom the court and jury are presided over by a single judge. In Austria, Belgium and Norway the court consists of three professional judges together with the jury. The professional judges cannot take part in the jury’s deliberations on the question of guilt, which falls within the exclusive competence of the jury. 49. In a number of countries the jurors are presented with a list of specific questions before they retire to deliberate on the facts of the case. Seven States – Austria, Belgium, Ireland, Norway, Russia, Spain and Switzerland – follow this practice. 50. In Ireland, England and Wales, at the conclusion of the evidence, the judge sums up the case to the jurors. He reminds them of the evidence they have heard. In doing so, the judge may give directions about the proper approach to take in respect of certain evidence. He also provides the jurors with information and explanations about the applicable legal rules. In that context, the judge clarifies the elements of the offence and sets out the chain of reasoning that should be followed in order to reach a verdict based on the jury’s findings of fact. 51. In Norway the judge directs the jurors on each legal issue raised and explains the rules they should follow when they retire to deliberate on the verdict. At the end of the trial, he also sums up the evidence to the jury or draws its attention to evidence of importance. 52. In Austria the jurors’ verdict is reached on the basis of a detailed questionnaire which sets out the main elements of the various charges and contains questions requiring a “yes” or “no” answer. 53. In principle, juries deliberate in private, without the presiding judge(s) being present. Indeed, the secrecy of the jury’s deliberations is a firmly established principle in many countries. 54. In Belgium a professional judge may be invited to the deliberation room to provide the jury with clarifications on a specific question, without being able to express a view or to vote on the issue of guilt. In Norway the jury may summon the presiding judge, but if the jury considers that it needs further clarifications as to the questions to be answered, the legal principles applicable or the procedure to be followed, or that the questions should be amended or new questions put, it must return to the courtroom, so that the matter can be raised in the presence of the parties. 55. In the Canton of Geneva the presiding judge attends the jury’s deliberations to provide assistance, but cannot give an opinion on the issue of guilt. A registrar is also present to make a record of the decisions taken and the reasons given. 56. The general rule appears to be that reasons are not given for verdicts reached by a traditional jury. This is the case for all the countries concerned, except Spain and Switzerland (Canton of Geneva). 57. In Spain the jury’s verdict is made up of five distinct parts. The first lists the facts held to be established, the second lists the facts held to be not established, the third contains the jury’s declaration as to whether the accused is guilty or not guilty, and the fourth provides a succinct statement of reasons for the verdict, indicating the evidence on which it is based and the reasons why particular facts have been held to be established or not. A fifth part contains a record of all the events that took place during the discussions, avoiding any identification that might infringe the secrecy of the deliberations. 58. Until 1991 the authorities of the Canton of Geneva considered that the jury satisfied the requirement of a reasoned decision by answering “yes” or “no” to the precise questions put to it. However, in a decision of 17 December 1991 the Federal Court found such replies to be insufficient and required juries in the canton to give reasons for their verdicts in future. In 1992 Articles 298 and 308 of the Geneva Code of Criminal Procedure were amended to require the jury to state reasons for its choices should it consider that this was necessary for an understanding of its verdict or its decision. Article 327 of the Code of Criminal Procedure requires the jury to state “the reasons for taking into account or disregarding the main items of evidence and the legal reasons for the jury’s verdict and the decision by the court and the jury as to the sentence or the imposition of any measure”. 59. Within the States that have opted for a traditional jury system, an appeal against the jury’s verdict is available in Georgia, Ireland, Malta, Spain, Sweden and the United Kingdom, whereas no appeal is available in Austria, Belgium, Norway, Russia and Switzerland (Canton of Geneva). In Austria, convicted persons may appeal to the Court of Appeal against the sentence only; they may also file a plea of nullity with the Supreme Court. 60. In Belgium, since the events in issue in the present case, the Law of 21 December 2009, which came into force on 21 January 2010 (see paragraph 36 above), has amended the procedure in the Assize Court, notably by requiring it to state the main reasons for the verdict reached by the jury, in order to clarify its meaning. | 0 |
train | 001-101358 | ENG | MKD | CHAMBER | 2,010 | CASE OF VASILKOSKI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 3 | Violation of Art. 5-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient | Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva | 5. The applicants were born between 1947 and 1985 and live in different cities in the former Yugoslav Republic of Macedonia. 6. They were toll collectors, controllers or senior staff (инкасанти на наплатна рампа или раководители) in a public roads enterprise. 7. The applicants were detained in several police stations in Skopje, some on 18 and some on 24 November 2007 on suspicion of abuse of office, namely that they had acted as an organised group and misappropriated over 5 million euros (EUR) from toll charges collected between April and November 2007. An individual report was drawn up for the detention of each applicant. 8. A group of applicants were brought before an investigating judge of the Skopje Court of First Instance (“the trial court”) on 19 November 2007, and the remainder on 25 November. By two separate decisions of 20 and 26 November 2007 respectively, after having heard oral evidence from the applicants, the investigating judge started the investigation and remanded them in custody. The orders were based on all the grounds specified in section 199 of the Criminal Proceedings Act (“the Act”, see paragraph 32 below), namely a risk of absconding and reoffending, and of interference with the investigation. The judge relied on the gravity of the charges and the potential penalty and the fact that the applicants had acted as a well organised group. 9. Nine applicants and other co-accused appealed against the detention order, requesting its replacement by a more lenient measure. The appellants relied on their family situation in the respondent State, the absence of a previous criminal record, the fact that some of them had appeared voluntarily in police stations and the failure of the investigating judge to give concrete reasons justifying the detention of each of them separately. A three-judge panel of the trial court (“the panel”), set up under section 22 § 6 of the Act, dismissed appeals submitted by two applicants. No evidence was produced that the panel decided the remaining appeals. 10. On 18 and 21 December 2007 respectively, the panel extended the applicants' detention for thirty days on all three counts specified under section 199 of the Act. The risk of absconding was justified by the gravity of the charges, the potential penalty and the fact that ten applicants had no possessions and no family in the respondent State. Eighteen applicants appealed, alleging lack of reasons. Their requests for a more lenient measure were supported with evidence about their poor health, copies of their passports and certificates attesting to their possessions in the respondent State. Some of them also requested release on bail. 11. On 31 December 2007 and 4 January 2008 respectively, the Skopje Court of Appeal dismissed the appeals and confirmed the orders. Only in respect of Mr Z. Pankovski, who produced the original copy of his employer's decision dismissing him from work, did the court exclude “the possibility of reoffending” from the list of grounds for his detention. It did not admit in evidence the uncertified copies of the dismissal decisions submitted by the other appellants. As to the remainder, it stated inter alia: “... circumstances related to the type and nature of the criminal offence for which the investigation has started against the accused, the potential penalty prescribed for the offence, as well as the personal circumstances of the accused, taken as a whole, suggest that there is a real risk of flight if they are released at this stage of the proceedings ... a reasonable risk that they may interfere with the investigation, as well as grounds to reoffend ... it is this court's view that there are no statutory grounds at this stage of the proceedings to replace custody with a more lenient measure that would guarantee that the accused would appear for trial ...” 12. The investigation was subsequently extended and involved, in total, seventy-two accused. 13. On 16 and 21 January 2008 respectively, the panel extended the applicants' pre-trial detention for thirty days, relying on all the grounds specified in section 199 of the Act, namely the risk of absconding and reoffending, and of interference with the investigation. Sixteen applicants appealed against these orders, seeking release. 14. With decisions of 28 January and 1 February 2008 respectively, the Skopje Court of Appeal ruled partly in favour of those applicants who appealed and presented originals or certified copies of the employer's decisions dismissing them from work. “The possibility of them reoffending” was no longer relied on as a ground for their continued detention. Furthermore, of its own motion and relying on section 397 of the Act (see paragraph 34 below), the court excluded in respect of all the accused included in the panel's decision of 21 January 2008, “the possibility of them interfering with the investigation” from the list of grounds for their detention. In so doing it reasoned that the accused could not interfere with the examination of protected witnesses and the viewing of a DVD, which were the only remaining investigative measures. The court confirmed the panel's concern about the risk of flight, however, relying on the gravity of the charges and the potential penalty. 15. On 15 February 2008 the public prosecutor lodged an indictment against all the accused, including the applicants. On the same day, the panel partly upheld the public prosecutor's request and extended the applicants' detention, but only on account of the risk of them absconding. In this connection it stated: “... the detention in prison is justified given the fact that there is a real risk of flight in view of the gravity and nature of the offences with which the accused are charged, and the potential penalty ...” 16. That decision was challenged by eight accused, including five applicants. They alleged that the panel had not given sufficient reasons to substantiate the risk of them absconding, given their family situation, their state of health, the absence of any previous criminal record and the fact that some of them had already had their passports seized. 17. On 6 March 2008 the Skopje Court of Appeal confirmed the panel's decision, stating that the risk of flight was substantiated by the gravity of the charges, the potential penalty and the way in which the offence had been committed. 18. By individual decisions rendered between 7 March and 1 April 2008, Mr Mehmed Asani and Mr Mitre Kirovski were released on bail. Ms Lenka Jovanovska, and Ms Slavjanka Angelova, were also released on condition that they appeared in court on a regular basis. These decisions were given in response to separate requests from these applicants for the detention order to be replaced by a more lenient measure. 19. On 15 March 2008 the panel ordered a thirty-day extension of the pre-trial detention of the remaining applicants. “The risk of them absconding” was once again based, in respect of all of them, on the gravity of the charges and the potential penalty. Four accused appealed against that decision, including two applicants who argued that the panel had not given specific reasons to substantiate the risk of them absconding. They submitted that they had not gone into hiding; their identity was known and they had appeared in court regularly. The Skopje Court of Appeal dismissed those arguments, holding that the risk of flight lay in the nature of the offence, the gravity of the charges and the potential penalty. 20. On 7 April 2008 the trial started. Given the high number of accused, the trial court decided to hold hearings outside the court building. After taking oral evidence from the applicants, on 15 April 2008 the trial court accepted the proposal of the public prosecutor and replaced the order for prison custody with an order for house arrest in respect of all remaining applicants, except Mr Nikola Vasilkoski, Mr Ljoki Mevaip, Mr Agim Stafai, Mr Dragan Trickovski and Mr Goran Nautliev, who remained in prison. In taking that decision the court relied on section 198 (2) of the Act (see paragraph 31 below), under which prison custody should be as brief as possible. The police were also ordered to supervise compliance with the house arrest. For the same reasons as in earlier decisions, the detention in respect of the remaining applicants was ordered on account of the risk of them absconding. 21. It would appear that only Mr Agim Stafai appealed against that decision. On 8 May 2008 his appeal was dismissed with the explanation that the panel had given sufficient reasons for extending his detention, namely that the gravity of the charges and the potential penalty pointed to a risk of him absconding. 22. On 15 May 2008 the panel extended the detention of the remaining applicants for the same reasons as before. On 22 May 2008, of its own motion, the panel substituted the order for detention in prison with an order for house arrest in respect of the five applicants mentioned in paragraph 20 above. 23. After that date, the house arrest of the remaining applicants was extended on several occasions. The extension was grounded on their potential to abscond in view, once more, of the gravity of the charges and the potential penalty. 24. In a decision of 10 October 2008, the panel extended the house arrest for the following reasons: “... the criminal proceedings are about to end ... for the sake of expediency it is considered that the risk of flight still persists in view of the gravity of the charges, the potential penalty and the number of accused, suggesting the need to extend the house arrest as the most lenient means of securing attendance at the trial ...” 25. In decisions of 11 and 17 November 2008 respectively, the panel gave the same reasons for extending the house arrest of the remaining applicants. For failure to comply with the house arrest order, Mr Nikola Vasilkoski and Mr Goran Nautliev were ordered to be sent back to prison. 26. On 28 November 2008 the trial court found the applicants guilty and imposed a prison sentence in respect of six applicants and a suspended sentence in respect of the others. As the trial had ended and the applicants had a permanent residence and family in the respondent State, the court also ordered their release, considering that there was no risk of them absconding. 27. At a public hearing held on 30 November and 1 December 2009, the Skopje Court of Appeal quashed the trial court's decision and referred the case for fresh consideration. It would appear that the proceedings are pending at the trial level. 28. During the proceedings, the applicants made numerous unsuccessful requests for their detention in prison to be replaced by a more lenient measure, or sought their release on bail. 29. Section 22 § 6 of the Criminal Proceedings Act of February 2005 provides for a three-judge panel of the trial court to rule, inter alia, on appeals against decisions of the investigating judge. 30. The Act specifies the measures which the court may issue in order to secure the attendance of an accused at a trial (sections 185-199). 31. Under section 198 § 2 of the Act detention in prison should be as brief as possible. 32. Under section 199 § 1 (1-3) of the Act detention in prison may be ordered on reasonable suspicion that the person concerned has committed an offence if there is a risk of absconding, interference with the investigation or reoffending. 33. Under section 200 §§ 1 and 6 of the Act an investigating judge has jurisdiction to order pre-trial detention. The person concerned may appeal before the panel. 34. Section 205 §§ 2 and 6 of the Act provides for the panel set up under section 22 § 6 to extend the detention at the request of the investigating judge or the public prosecutor. The extension order may be challenged before the court above. 35. Under section 397 of the Act, if the second-instance court considers grounds for an appeal applicable to any co-accused who did not lodge a formal appeal, it may, of its own motion, proceed as if the appeal had been lodged by the co-accused concerned (the beneficium cohaesionis rule). | 1 |
train | 001-57538 | ENG | SWE | CHAMBER | 1,984 | CASE OF McGOFF v. SWEDEN | 2 | Violation of Art. 5-3;No violation of Art. 5-4;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | null | 11. Mr. Anthony McGoff is an Irish citizen, born in 1950 and resident at Naas (County Kildare) in Ireland. At the time of the events complained of, he was a contractor by profession. 12. On 27 October 1977, the District Court (tingsrätten) of Stockholm issued a warrant for his arrest (häktningsbeslut) on the ground that there was probable cause to suspect him of gross smuggling and a serious offence against the legislation on narcotics, and also to believe that he would abscond. Mr. McGoff was not present at the hearing but was represented by counsel assigned by the court. 13. After being arrested in the Netherlands on 10 July 1979, he was extradited to Sweden on 24 January 1980 and immediately placed in custody in the main prison (allmänna häktet) in Stockholm. The District Court was notified the following day. As from 25 January 1980, the police inspector in charge endeavoured to interrogate Mr. McGoff, but the latter declined to make any statement until he had had the opportunity to consult a lawyer. Although informed that Mr. L had been appointed as official defence counsel, the applicant refused to accept any other lawyer than Mr. F. The District Court therefore appointed Mr. F who, on 28 January, visited the applicant in his cell. 14. On 8 February, the District Court held a hearing at the close of which it ordered Mr. McGoff’s continued detention and directed that criminal proceedings against him should be instituted no later than 21 February 1980. The public prosecutor instituted such proceedings on 21 February. 15. On 26 February, when the main hearing (huvudförhandling) was about to begin, the applicant requested that two persons be heard as witnesses and expressed his wish to adduce certain written evidence which was not immediately available. The District Court remanded Mr. McGoff in custody and deferred the hearing until 7 March 1980. 16. On the latter date, in view of the applicant’s poor physical condition, the District Court once more adjourned the hearing; it also directed that the applicant should be kept in detention. 17. The trial finally took place on 13 March 1980. Mr. McGoff was convicted of a serious offence against the legislation on narcotics and sentenced by the District Court to two years’ imprisonment; the District Court also ordered that he should be deported from Sweden on expiry of his sentence. 18. Conviction and sentence were upheld on 12 May 1980 by the Svea Court of Appeal (Svea hovrätt). On 26 June 1980, the Supreme Court (högsta domstolen) refused the applicant’s request for leave to appeal. 19. On 24 November 1980, Mr. McGoff was released after serving two-thirds of his sentence, account having been taken of the time spent in detention both in the Netherlands and in Sweden prior to conviction (Chapter 33, section 5, of the Penal Code). 20. Under Chapter 52, section 1, of the Code of Judicial Procedure (rättegångsbalken) an appeal against an arrest warrant is not made subject to any time-limit. In virtue of the last paragraph of Chapter 24, section 17, the court must be notified immediately when such warrants are executed. Once it is in receipt of such information, the court has to lay down the period of time within which criminal proceedings (åtal) against the person detained must be instituted. If this period is greater than two weeks, the court must normally hold a public hearing at least once a fortnight in order to decide whether or not detention is to be continued. 21. On 10 March 1983, the Swedish Government set up a commission to consider revising parts of the Code of Judicial Procedure, including the rules governing pre-trial detention. In particular, the commission is to inquire into the possibilities of making the prerequisites for placing a suspect in detention on remand (häktning) more stringent and into possible ways of shortening the duration of detention on remand and provisional detention (anhållande). | 1 |
train | 001-58140 | ENG | ITA | CHAMBER | 1,998 | CASE OF BOTTA v. ITALY | 2 | Art. 8 inapplicable;Art. 14 inapplicable | C. Russo;Feyyaz Gölcüklü;John Freeland;R. Pekkanen | 8. Mr Botta, who was born in 1939 and lives in Trezzano sul Naviglio (Milan province), is physically disabled. 9. In August 1990 he went on holiday to the seaside resort of Lido degli Estensi, near to the town of Comacchio (Ferrara province) with a friend, who is also physically disabled. There he discovered that the bathing establishments were not equipped with the facilities needed to enable disabled people to gain access to the beach and the sea (particularly special access ramps and specially equipped lavatories and washrooms), in breach of Italian legislation, which required a clause obliging private beaches to facilitate the access of disabled people to be added to the relevant concession contracts and made provision for compliance to be enforced by the competent local authorities. According to Comacchio District Council, the compulsory clause was, however, only added to concession contracts signed after the adoption of the provisions concerned. 10. The applicant asserts that he was for a time able to gain access in his vehicle to certain public beaches without facilities, but was later prevented from doing so because a barrier had been erected across the entrance by order of the Ravenna harbour-master. 11. On 26 March 1991 the applicant sent a letter to the mayor of Comacchio asking him to take the necessary measures to remedy the shortcomings noted the previous year. No reply was received. 12. In August 1991 Mr Botta returned to Lido degli Estensi, where he found that none of the measures requested had been implemented, although they were mandatory. He was therefore obliged to ask the local coastal authority for permission to drive his vehicle onto a public beach without facilities. He also wrote to various local bodies, receiving the following replies: the president of the cooperative which ran the resort’s private beaches informed him that the concession contracts did not stipulate any obligation to install the facilities requested; the local coastal authority replied that it had to receive an official request before it could authorise the construction of special access ramps on the beaches; the mayor asserted that it was the private beaches’ responsibility to install the facilities in question, but nevertheless gave the applicant permission to drive onto a public beach in his vehicle. In an undated memorandum the coastal authority gave him permission to drive onto a public beach without facilities in his vehicle for a limited period expiring on 31 August 1991. 13. On 9 August 1991 the applicant decided to lodge a complaint with the carabinieri against the Minister for Merchant Shipping, the Ravenna harbour-master and the mayor and deputy mayor of Comacchio. He alleged that, by failing to take any steps whatsoever to oblige the private beaches to install the facilities for disabled people prescribed by law on pain of cancellation of their licences, these authorities had committed the offence of omitting to perform an official duty (omissione d’atti d’ufficio), as defined in Article 328 of the Criminal Code. On 20 December 1991 he asked the Ferrara public prosecutor’s office to inform him where matters stood in the case. On 5 May 1992 the public prosecutor’s office submitted that the proceedings should be discontinued. 14. In an order of 12 May 1992 the judge responsible for preliminary investigations (giudice per le indagini preliminari) attached to the Ferrara District Court ordered the discontinuation of the proceedings on the ground that, having completed his inquiry, he had not found any evidence that the offence defined in Article 328 of the Criminal Code had been committed, given that the beaches’ concession contracts all contained a clause which obliged bathing establishments to make the beaches accessible to disabled people and to install at least one changing cubicle and one lavatory for their use. On 1 September 1992 Mr Botta once again wrote to the Ferrara public prosecutor’s office seeking information about the state of the proceedings. On 16 September 1992 he was informed by telephone that the proceedings relating to his complaint had been discontinued. 15. According to information supplied by the applicant and not contradicted by the Government, although some of the private beaches in Lido degli Estensi have subsequently installed changing cubicles and lavatories for disabled people, in July 1997 none of them had yet built a ramp designed to permit disabled people to gain access to the beach and the sea. On 29 August 1997 Comacchio District Council informed the registry of the Court of the adoption, on 11 August 1997, of the resort’s new improvements plan, under which compliance with the law on bathing establishments had to be achieved by 30 April 1999 at the latest. 16. Law no. 13 of 9 January 1989 contains provisions intended to guarantee disabled people effective access to private buildings and establishments and the removal of architectural obstructions (barriere architettoniche). section 1(2) laid down in particular that within three months of its entry into force the Minister of Public Works had to publish in the form of a decree the technical specifications to be used for the construction of private buildings and low-rent housing. The law also gives mayors certain duties, including an obligation to ensure that work to adapt facilities for use by disabled people is carried out at their request. In particular, section11 provides that, after receiving a request from a disabled person, a mayor must calculate what sum the District Council requires to do the work and inform the Region accordingly. The Region then ascertains its own needs and requests the necessary funds from the Ministry of Public Works. This money is paid out from the ad hoc fund set up pursuant to section 10 of the Law. 17. On 14 June 1989, pursuant to section 1(2) of the Law, the Ministry of Public Works adopted a decree (no. 236) requiring all future contracts awarding concessions to private beaches to include a clause obliging the beaches to install at least one changing cubicle and one lavatory specially designed for the use of disabled people and in addition to construct a special ramp enabling them to gain access to the beach and the sea. On 23 January 1990 the Ministry of Merchant Shipping drew the attention of all harbour-masters to these provisions. 18. Moreover, section 23(3) of Law no. 104 of 5 February 1992 makes the grant of a concession in respect of public land, and its renewal, subject to implementation of the above measures by the establishments concerned. In addition, Law no. 118 of 30 March 1971 lays down equivalent provisions regarding the removal of architectural obstructions from public buildings and buildings open to the public. 19. Lastly section 41(8) of Law no. 104 of 1992 requires the competent administrative authorities to send the Prime Minister an annual report on the measures to assist disabled people for which they bear responsibility. In 1995 no report for the purposes of section 41(8) of Law no. 104 of 1992 was submitted by the Ministry of Transport and Shipping, which had replaced the Ministry of Merchant Shipping in 1994, and the report submitted by the Ministry of Public Works merely stated that in 1994 none of the work for which it bore responsibility had been carried out because the relevant procedures had not yet been laid down. 20. Recommendation No. R (92) 6 of the Committee of Ministers, of 9 April 1992, on a coherent policy for people with disabilities, defines a handicap as “a social disadvantage, for a given individual, resulting from an impairment or a disability, that limits or prevents the fulfilment of a role that is normal (depending on age, sex, and social and cultural factors) for that individual”. The recommendation urges member States of the Council of Europe to “guarantee the right of people with disabilities to an independent life and full integration into society, and recognise society’s duty to make this possible” so as to ensure “equality of opportunity” for people with disabilities. The public authorities should aim, inter alia, to enable people with disabilities “to have as much mobility as possible, and access to buildings and means of transport” and “to play a full role in society and take part in economic, social, leisure, recreational and cultural activities”. As regards leisure time and cultural activities in particular, Recommendation No. R (92) 6 states: “All leisure, cultural and holiday activities should be made accessible to people with disabilities; Structural, technical, physical and attitudinal obstacles which limit the enjoyment of the above activities should be removed. In particular, access to cinemas, theatres, museums, art galleries, tourist venues and holiday centres should be improved… Cultural and leisure venues should be planned and equipped so that they are accessible and can be enjoyed by people with disabilities.” The recommendation also states: “The exercise of basic legal rights of people with disabilities should be protected, including being free from discrimination.” 21. Recommendation 1185 (1992), adopted by the Parliamentary Assembly of the Council of Europe on 7 May 1992, on rehabilitation policies for the disabled, emphasises: “Society has a duty to adapt its standards to the specific needs of disabled people in order to ensure that they can lead independent lives.” In furtherance of that aim, it calls on the governments and agencies concerned “to strive for and encourage genuine active participation by disabled people … in the community and society” and, to that end, “to guarantee ease of access to buildings”. 22. The revised European Social Charter, adopted by the Committee of Ministers on 1–4 April 1996 and opened for signature on 3 May 1996, provides in its Article 15, entitled “Right of persons with disabilities to independence, social integration and participation in the life of the community”: “With a view to ensuring to persons with disabilities, irrespective of age and the nature and origin of their disabilities, the effective exercise of the right to independence, social integration and participation in the life of the community, the Parties undertake, in particular: … 3. to promote their full social integration and participation in the life of the community, in particular through measures, including technical aids, aiming to overcome barriers to communication and mobility and enabling access to transport, housing, cultural activities and leisure.” | 0 |
train | 001-97957 | ENG | TUR | CHAMBER | 2,010 | CASE OF MUSTAFA AND ARMAĞAN AKIN v. TURKEY | 3 | Violation of Art. 8;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | 5. The applicants were born in 1957 and 1988 respectively and live in Ödemiş. 6. On 30 September 1999 the first applicant's wife instituted divorce proceedings and asked for the custody of their two children; Armağan (the second applicant) and his younger sister Damla who was born in 1993. 7. The Ödemiş Civil Court of First Instance (“the Ödemiş Court”) granted the couple's divorce on 23 June 2000. Having regard to the “parties' incomes and the ages of the two children”, the Ödemiş Court awarded custody of Armağan to the first applicant and that of Damla to her mother. It also decided that the parents would exchange the children between 1 and 15 February every year, during the month of July and for a total period of four days during the two religious holidays. 8. On 30 November 2000 the first applicant requested the Ödemiş Court to grant an interim measure to the effect that he would have both children one weekend and his ex-wife would have them the next. This way, he argued, the children would not lose contact with each other and he would have the opportunity to spend every other weekend with both his children. This request was rejected on 19 December 2000 by the Ödemiş Court which considered that its decision concerning the custody issue had been correct. 9. The appeal lodged by the applicant against the Ödemiş Court's decision of 23 June 2000 was rejected by the Court of Cassation on 8 December 2000. A request made by the first applicant for a rectification of that decision was rejected on 8 February 2001. 10. On 11 September 2001 the first applicant brought a court case on behalf of his son and on his own behalf against his ex-wife. He claimed that although he and his son were living in the same town and very close to his ex-wife and his daughter, the decision of the Ödemiş Court had prevented the two children from seeing each other and him from spending time with both his children. This, he claimed, was causing irreversible psychological problems for the children. Even when the children saw each other in the street they were prevented from talking to each other by their mother. He requested that the children be able to see each other every weekend. He also asked the court to order his ex-wife to pay maintenance to him in respect of Armağan. 11. The Ödemiş Court refused the applicants' requests on 1 February 2002. It held that, although diligence had to be shown to satisfy the needs of the parents and their children and to improve the ties between them, ordering Damla to spend every weekend with her father would mean a continual change of environment for her and would confront her with variations in discipline. 12. The applicants appealed and referred in their appeal to a number of decisions of the Court of Cassation. According to those decisions, the applicable law and procedure required domestic courts to ensure that access arrangements do not prevent the children of divorced parents from seeing each other. The applicants maintained that ensuring this was a matter for a court of law to consider of its own motion. They also argued that the children's best interests should be given paramount importance. They drew the Court of Cassation's attention to the fact that the two siblings had not seen each other for two years. 13. The appeal was rejected by the Court of Cassation on 29 April 2002 which considered that the Ödemiş Court had “adequately examined the evidence available to it and that its conclusion had been in accordance with the applicable legislation”. A subsequent rectification request lodged by the applicants was rejected on 15 July 2002. In their request for rectification the applicants submitted that the two children had not seen each other for almost three years and that their request for rectification was their last chance of seeing each other. | 1 |
train | 001-57845 | ENG | ITA | CHAMBER | 1,993 | CASE OF ISTITUTO DI VIGILANZA v. ITALY | 2 | Preliminary objection allowed (out of time) | C. Russo;N. Valticos | 7. Istituto di Vigilanza is a security firm whose headquarters are in Turin. On 26 October 1978 Mrs Figus Milone, a former employee, brought proceedings against it in the Turin magistrate’s court (pretore) for unfair dismissal. 8. At the first hearing, on 28 November 1978, the magistrate raised of his own motion the question whether certain legislative provisions were compatible with the constitutional principle of equality between men and women in the field of employment. On 19 December 1978 he stayed the proceedings pending the decision of the Constitutional Court (Article 295 of the Code of Civil Procedure). The Constitutional Court gave judgment on 16 January 1987; the text of its judgment was filed at the registry on 22 January. 9. The plaintiff resumed the proceedings on 16 February 1987 and they ended on 28 May with a friendly settlement. | 0 |
train | 001-68153 | ENG | RUS | CHAMBER | 2,005 | CASE OF BORDOVSKIY v. RUSSIA | 3 | No violation of Art. 5-1;No violation of Art. 5-2;No violation of Art. 5-4 | null | 8. The applicant was born in 1967 and lives in Gomel, Belarus. 9. In 1995 the applicant worked in a private asset management company. 10. In 1996 the General Prosecutor’s Office of Belarus (“the Belarusian GPO”) carried out a criminal investigation into the company’s business. The applicant was twice questioned in the course of the investigation. 11. In February 1997 the applicant quit his job and in July 1997 moved to St. Petersburg. 12. The Belarusian GPO considered the applicant’s departure as an attempt to abscond. For this reason, on 22 September 1997 the Belarusian GPO charged the applicant in his absence with large-scale fraud and embezzlement, and issued in his respect a detention order and an international search and arrest warrant. 13. On 9 July 1998 the Russian police arrested the applicant in St. Petersburg. According to the applicant, the policemen did not inform him of the reasons for his arrest and failed to produce any documents justifying it. 14. On 9 July 1998 the Russian National Bureau of Interpol sent an urgent wire to its Belarusian counterpart. The Russian Bureau requested confirmation that the applicant was still wanted by the Belarusian authorities and inquired whether the Belarusian authorities planned to request his extradition. 15. On 11 July 1998 the Russian authorities interviewed the applicant. In the course of the interview, the applicant wrote explanations in which he provided certain details about the investigation in Belarus, his questionings and departure to Russia. The applicant noted that, until his arrest, he had not known that the Belarusian authorities had been searching for him. 16. On 13 July 1998 the applicant was placed in a temporary detention unit of the St. Petersburg Police Department. 17. On 16 July 1998 the Belarusian GPO sent to the General Prosecutor’s Office of Russia (“the Russian GPO”) a formal request for the applicant’s extradition, pursuant to Article 56 of the CIS Convention on Legal Assistance in Civil, Family and Criminal Cases. On 4 August 1998 the Russian GPO received this request. 18. On 27 July 1998 the Belarusian National Bureau of Interpol replied to its Russian partner’s wire of 9 July 1998 and requested the applicant’s detention pending the extradition proceedings. 19. On 13 August 1998 a senior investigator of the Belarusian GPO interrogated the applicant for the first time, having come for this purpose from Minsk. The investigator informed the applicant about the nature of the accusation against him but did not serve formal charges. According to the applicant, it was not until then that he was for the first time informed – albeit only orally – about the charges. 20. On 20 August (19 August, according to the Government) 1998, the applicant was transferred to Remand Centre IZ–47/4 in St. Petersburg. 21. According to the applicant, in August–November 1998 his lawyer lodged three applications for his release: on 18 August 1998 with the Dzerzhinskiy District Court of St. Petersburg, on 27 August 1998 with the Kalininskiy District Court of St. Petersburg, and on 2 November 1998 with the St. Petersburg City Court. These applications were made pursuant to Article 220-1 of the Code of Criminal Procedure which provided for the judicial review of detention on remand. According to the Government, the applicant’s lawyer did not lodge these applications. 22. On 25 September 1998 the Russian GPO agreed to extradite the applicant. 23. On 5 October 1998 the St. Petersburg Prosecutor’s Office informed the applicant’s lawyer that, on 11 August 1998, the Russian GPO had ordered the applicant’s continued detention pending the extradition proceedings, pursuant to the request of the Belarusian authorities and because the applicant was not a Russian citizen. 24. On 25 October 1998 the applicant was re-located to Remand Centre no. 1 in Smolensk. 25. On 17 November (12 November, according to the Government) 1998 he was handed over to the Belarusian authorities. 26. On 24 November 2000 the Zheleznodorozhnyi District Court of Gomel convicted the applicant and sentenced him to three years’ suspended imprisonment with compulsory community work. 27. Russia and Belarus are members of the CIS. On 24 April 1992 the Ministries of Internal Affairs of the CIS signed an Agreement on Co-operation in the Sphere of Crime Control (“the Agreement on Crime Control”). Section 6 of that Agreement provides as follows: “A Party shall, with regard to its internal legislation, assist another Party who requests: (a) the arrest of a person who evades investigating authorities, trial or serving a sentence, or the detention of such a person if necessary; (b) the extradition of a person for criminal prosecution or for serving a sentence.” 28. On 22 January 1993 the Independent States signed a Convention on Legal Assistance in Civil, Family and Criminal Cases (“the Convention on Legal Assistance”), which provided as follows: “1. The Contracting Parties shall ... on each other’s requests extradite persons, who find themselves in their territory, for criminal prosecution or serving a sentence. 2. Extradition for criminal prosecution shall extend to offences which are criminally punishable under the laws of the requesting and requested Contracting Parties, and which entail at least one year’s imprisonment or a heavier sentence.” “1. A request for extradition (требование о выдаче) shall include the following information: (a) the title of the requesting and requested authorities; (b) the description of the factual circumstances of the offence, the text of the law of the requesting Contracting Party which criminalises the offence, and the punishment sanctioned by that law; (c) the [name] of the person to be extradited, the year of his birth, citizenship, place of residence, and, if possible, the description of his appearance, his photograph, fingerprints and other personal information; (d) information concerning the damage caused by the offence. 2. A request for extradition for the purpose of criminal persecution shall be accompanied by a certified copy of a detention order....” “1. The person whose extradition is sought may also be arrested before receipt of a request for extradition, if there is a related petition (ходатайство). The petition shall contain a reference to a detention order ... and shall indicate that a request for extradition will follow. A petition for arrest ... may be sent by post, wire, telex or fax. 2. The person may also be detained without the petition referred to in point 1 above if there are legal grounds to suspect that he has committed, in the territory of the other Contracting Party, an offence entailing extradition. 3. In case of [the person’s] arrest or detention before receipt of the request for extradition, the other Contracting Party shall be informed immediately.” “1. The Contracting Parties shall ... search for the person before receipt of the request for extradition if there are reasons to believe that this person may be in the territory of the requested Contracting Party.... 2. A request for the search ... shall contain ... a request for the person’s arrest and a promise to submit a request for his extradition. 3. A request for the search shall be accompanied by a certified copy of ... the detention order.... 4. The requesting Contracting Party shall be immediately informed about the person’s arrest or about other results of the search.” “1. A person arrested pursuant to Article 61 § 1 and Article 61-1 shall be released ... if no request for extradition is received by the requested Contracting Party within 40 days of the arrest. 2. A person arrested pursuant to Article 61 § 2 shall be released if no petition issued pursuant to Article 61 § 1 arrives within the time established by the law concerning arrest.” “The requested Contracting Party shall inform the requesting Contracting Party about the place and time of the hand-over. If the requesting Contracting Party does not take the person to be extradited within 15 days after the fixed date for handing over, the person shall be released.” 29. Pursuant to Article 220-1 of the Code of Criminal Procedure of 1960 (“the CCrP”), in force at the material time, a remand prisoner could apply for a judicial review of his pre-trial detention. 30. Article 91 § 4 of the Criminal Code of Belarus 1960, in force at the material time, provided that appropriation or embezzlement of third parties’ property of which the defendant had custody, or appropriation of the property by abuse of office, committed on several occasions, in concert with others and on a large scale, was punishable by 8 to 15 years’ imprisonment, the confiscation of property and a prohibition on holding certain offices or on taking up certain activities for a period of 3 to 5 years. | 0 |
train | 001-100885 | ENG | SVK | COMMITTEE | 2,010 | CASE OF CECHOVA v. SLOVAKIA | 4 | Violation of Art. 6-1 | Giovanni Bonello;Ján Šikuta;Lech Garlicki | 4. The applicant was born in 1967 and lives in Košice. 5. On 13 January 2000 the applicant's former husband lodged an action against the applicant for distribution of matrimonial property. 6. On 10 June 2004 the Constitutional Court found that the Košice II District Court had violated the applicant's right to a hearing within a reasonable time. It awarded the applicant the equivalent of 876 euros (at that time) as just satisfaction in respect of non-pecuniary damage, ordered the District Court to proceed and to reimburse the applicant's legal costs. 7. On 15 March 2006 it rejected the applicant's fresh complaint about the length of these proceedings as being manifestly ill-founded. 8. On 8 December 2009 the District Court delivered a judgment in the case. The applicant appealed and the proceedings are still pending. | 1 |
train | 001-79659 | ENG | NOR | CHAMBER | 2,007 | CASE OF TØNSBERGS BLAD AS AND HAUKOM v. NORWAY | 2 | Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings;Costs and expenses award - domestic proceedings | Christos Rozakis | 6. The first applicant, Tønsbergs Blad A/S, is the publisher of the newspaper Tønsbergs Blad. The second applicant, Mrs Marit Haukom, is its former editor-in-chief. She is a Norwegian national who was born in 1952 and lives in the city of Tønsberg in southern Norway. 7. Tønsbergs Blad is a regional newspaper covering primarily the city of Tønsberg and eight surrounding municipalities in the County of Vestfold. The newspaper is 100% owned by Orkla Media A/S. It is published six days a week. In 2002 it had a daily average circulation of 33,314, corresponding to a 60% household coverage within its primary circulation area. 8. In a meeting held on 21 September 1999 the Standing Committee on Development and Environmental Affairs (a politically appointed body attached to the Municipal Council) of the Tjøme Municipality asked the municipal administration to provide a survey of properties whose owners were suspected of breaching permanent residence requirements. Under section 5(3) of the Concession Act (Lov om konsesjon ved erverv av fast eiendom) of 31 May 1974 (no. 19), such requirements applied to the extent that it was deemed necessary to prevent private properties intended for permanent residential use from being transformed into holiday homes. Provisions to this effect were further contained in Regulation (forskrift) no. 2089 of 14 December 1984, issued under the above-mentioned Act in respect of the Tjøme Municipality, one of the few municipalities in Norway which applied permanent residence requirements for all-year residences. The purpose was to fend off pressures exerted on the local community by the exceptionally high demand for holiday homes in the Tjøme area, an attractive holiday destination for a large number of people residing notably in the Oslo region. There was also a concern that too many residences were unoccupied during off-season periods. 9. On 11 October 1999 the municipal administration drew up a list which was entitled “Properties which should be verified in relation to the residence requirements. (Not public)”. It was a tip-off list based on information from inhabitants and local politicians in the Municipality and was presented to the Standing Committee at a meeting open to the public held the following day. The list included the name of Mr Tom Vidar Rygh, who at the time was the Executive Vice-President, the Head of Financial Investments and a member of the Executive Board of Orkla ASA, one of Norway's largest industrial companies. 10. The property in question had been acquired in 1987 and Mr Rygh's wife held title to it (a fact that was not deemed significant in the defamation proceedings summarised below). An all-year residence had been erected on the property in 1988 and the Rygh family had used it as their main residence for 10 years until 1998, when they had moved to Oslo because of Mr Rygh's professional situation. Before that, they had been given legal advice that using the property solely for holiday purposes would not conflict with the residence requirements under the relevant national law. 11. Mr Terje Wilhelmsen, a journalist, became aware of the process initiated by the Tjøme Municipality and received a copy of the above-mentioned list. He had a close network of contacts within the Municipality. From autumn 1999 he made a number of enquiries to the Municipality on the subject. On 7 June 2000 the journalist interviewed the director of the Municipality's Planning and Building Department (leder for plan- og bygningssaker), Mr Dag Dreyer Sæter. 12. On 8 June 2000 the newspaper published as its main story an article written by Mr Wilhelmsen, which gave rise to the defamation proceedings brought against the applicants by Mr Rygh. On the front page there appeared an introduction to the article under the headline (all quotations below are translations from Norwegian): “May be forced to sell” and the sub-heading “[H.K.] and Tom Vidar Rygh will have to explain themselves on permanent residence requirements” The introduction read: “Permanent residence requirements: In the worst-case scenario [H.K.] may be forced to sell her property at Hvasser [an island next to Tjøme]. The same applies to Orkla director Tom Vidar Rygh. According to the understanding of Tønsbergs Blad, their properties are on a list which the Tjøme Municipality will submit to the County Governor [Fylkesmannen] in the very near future. The list includes properties whose use is thought not to be in conformity with the permanent residence requirements. Taking action: The Tjøme Municipality will now take a firm line towards house owners within the Municipality who do not comply with the permanent residence requirements. For a long time there has been a zero limit on concessions at Tjøme. This means that all-year residences must be inhabited all year. Those who breach this requirement may be forced to rent out or to sell their property. This is confirmed by the director of the Planning and Building Department, Mr Dag Dreyer Sæter.” The front page also contained photographs of Mrs H.K. (a famous singer) and of Mr Rygh. 13. The article continued inside the paper on page 3 with the following headlines: “Tjøme hunts for permanent residence sinners [H.K.] and Tom Vidar Rygh may be forced to sell” and an introduction: “TJØME: Both singer [H.K.] and Orkla director Tom Vidar Rygh may be forced to sell their properties in Tjøme. The reason is that, according to the Tjøme Municipality, they do not comply with the permanent residence requirements applicable to their properties.” 14. At the top of page 3 the paper published photographs of Mrs Rygh's and Mrs H.K.'s respective properties. Under the former photograph, to the left, there was a caption: “RESIDENCE REQUIREMENTS: Tom Vidar Rygh owns this property in Sandøsund at Hvasser. The Tjøme Municipality considers that the residence requirements are not satisfied.” Between the two above-mentioned photographs there was a small photo of Mr Rygh with this caption: “MUST PROVIDE AN EXPLANATION: - It must be due to a misunderstanding, says Tom Vidar Rygh” 15. The article stated: “The Tjøme Municipality is now in the process of tightening up the obligation to comply with the residence requirement in the municipality. A zero concession limit has long since been introduced. This means that year-round properties must be lived in all year. Confrontation In the near future the technical services department of the Tjøme Municipality will approach the County Governor in order to report its suspicion that the residence requirement is not being fulfilled for a number of properties. It is then up to the County Governor to confront the owners of these properties. The director of the Planning and Building Department, Mr Dag Dreyer Sæter, does not wish to comment to Tønsbergs Blad as to which properties are on the list they are sending to the County Governor. But from what Tønsbergs Blad has been given to understand, the property of Tom Vidar Rygh at Sandøsund on Hvasser island is on the list. The same applies to H.K.'s property, which is at Nes on Hvasser. Clearing up 'I cannot comment on individual properties at the present time. First we must write to the County Governor. This will occur in the near future.' 'But will the Tjøme Municipality now tighten up the obligation to comply with the residence requirement?' 'Yes, indeed. This is an issue that has been discussed at both the administrative and the political levels for some time. Now we want to do something about it. We know that the residence requirements are not being complied with for several properties in the municipality. This is why we are now taking this initiative vis-à-vis the County Governor. Now we want to get this cleared up.' Can be rented out 'What are the owners of these properties risking?' 'To begin with, they will have to explain themselves to the County Governor. I would emphasise that it is not a requirement that the owners themselves live in the properties. It is enough for them to be rented out on a year-round basis. If this is not done, there may be a question of enforced sale,' says the director of the Planning and Building Department Dag Dreyer Sæter to Tønsbergs Blad. 'Misunderstanding' H.K. owns the property on Hvasser together with her husband ... He does not wish to comment on the matter to Tønsbergs Blad, in view of the fact that he has heard from neither the Municipality nor the County Governor. Tom Vidar Rygh told Tønsbergs Blad that if his property on Hvasser was on the Municipality's list of properties where the residence requirements are not being fulfilled, this had to be due to a misunderstanding. Beyond that he did not wish to comment.” 16. Below, on the same page, Tønsbergs Blad published another article based on interviews with local politicians: “Residence requirements are a two-edged sword TJØME: May-Sylvi Hansen, who is the leader of the Conservatives on Tjøme Municipal Council, thinks that the time is ripe for a new and thorough political debate on the question of residence requirements. Anne Vestad 'The whole question of residence requirements is a two-edged sword', she says. The Tjøme Conservatives have the maintenance of the residence requirements in their manifesto, but at the same time the party feels a need to have a broad political debate on the question. May-Sylvi Hansen, who in addition to being the leader of the Conservatives on Tjøme Municipal Council also sits on the Planning and Environment Committee, tells Tønsbergs Blad that at any rate she sees no reason for a tightening-up of the obligation to fulfil the residence requirements now. 'The residence requirements issue is under discussion in the Tjøme Conservative Party, and the question is whether we should perhaps be a little more liberal in the time to come. But this is a two-edged sword. On the one hand we don't want to see year-round residences made into summer homes, but on the other hand we have had considerable migration to Tjøme in recent years – the population is growing fast,' says May-Sylvi Hansen. Not a problem any more 'In the seventies and eighties the residence requirements were entirely necessary in this municipality. But in my opinion, after the big migration to the municipality began, empty houses in the winter are no longer a problem. We should therefore undertake a serious review of the whole issue of residence requirements and ask whether, when all's said and done, it's just an old bogeyman,' says Hansen. Arne Fjellberg of 'The Tjøme List' independents, who chairs the Planning and Environment Committee, does not agree with May-Sylvi Hansen that the occupation provisions should be liberalised. 'Must tighten up' 'I fully support the director of the Planning and Building Department's view that it is necessary to tighten up the obligation that the residence requirements be fulfilled. With the mobility and flexibility that many now have in relation to their work, it shouldn't be a problem to live in Tjøme even if you work somewhere else. We want people to live in the houses of Tjøme, make no mistake about that,' says Fjellberg. 'So you don't support May-Sylvi Hansen in her view that it is time for a general rethink of the residence requirements?' 'The Tjøme List wants to retain the residence requirements, but I'm willing to be a part of a discussion of the residence requirement in general. It could surely be useful,' says Arne Fjellberg.” 17. On 9 June 2000 Aftenposten, one of Norway's largest daily newspapers, published a brief item on the matter, stating, inter alia, that an Orkla director and a famous singer might be forced to sell their properties, without specifying their names. 18. On 12 June 2000 Mr Rygh addressed a letter to the Tjøme Municipality. Its Chief Executive Officer (Rådmannen), Mr Gunnar A. Hansø, replied by a letter of 22 June 2000, which stated inter alia: “The Tjøme Municipality is working on a survey of the status of the permanent residence requirements which have been implemented at Tjøme under section 5(3) of the Concession Act. Part of the reason why this work has started now are the enquiries from a number of local residents. These are neighbours to properties which are used, or should be used, for permanent residence but which, according to these enquiries, are not being used for this purpose. The list of properties that must be 'checked out' has now become quite extensive. A number of the enquiries result from the lack of knowledge about the contents of the regulations and the circumstances pertaining to the relevant users. Consequently, these properties are being checked out, which is an ongoing process. ... Your wife's property has been reviewed in the same way, and I can confirm that the property, on legal grounds, has now been removed from the list.” 19. On contacting the Tjøme Municipality on 29 June 2000, the journalist Mr Wilhelmsen was informed that the Chief Executive Officer had replied to Mr Rygh and that Mrs Rygh's property had been removed from the list. Mr Wilhelmsen received a copy of the above-mentioned letter of 22 June 2000. 20. On 30 June 2000 Tønsbergs Blad published an article entitled “No restrictions on new cottages Tjøme Chief Executive Officer points to major loopholes in the Concession Act” with the following introduction: “Escape: Singer [H.K.] and Orkla director Tom Vidar Rygh escape the permanent residence requirements in the Tjøme Municipality. They were included on the Municipality's list of properties that were subject to residence requirements, but have now been taken off. The reason is that they have built on their land themselves. Thus, the residence requirements do not apply. Major loopholes: Chief Executive Officer Gunnar Hansø (picture) at Tjøme asserts that the Concession Act is filled with holes the size of a barn door. He warns that the Municipality will take up the issue with the Ministry of Agriculture. By exploiting loopholes in the Concession Act, it is easy to get hold of an entirely new holiday home at Tjøme. All you need to do is to acquire a plot and build an all-year residence on it. Then no one can require permanent residence.” 21. The article continued on page 5, with the following headlines and introduction: “Residence requirements do not apply to new houses [H.K.] and Tom Vidar Rygh do not have to move to Hvasser.” “TJØME: Singer [H.K.] and Orkla director Tom Vidar Rygh do not have to take up permanent residence in the Tjøme Municipality. The reason: they have built on their properties themselves. Thus the Concession Act does not apply. This means that they do not have to reside here.” 22. In addition the coverage contained photographs of Mr Rygh and Mrs. H.K., with captions stating that they had “escaped” the residence requirements with regard to their properties. There were also photographs of the properties, with captions stating “No residence requirement” and adding that the properties, which had previously been on the Municipality's list of properties not complying with the residence requirements, had now been taken off the list. 23. The article reproduced an interview with the Municipality's Chief Executive Officer, Mr Hansø, who was reported to have said that he had absolutely no wish to comment on individual cases, but confirmed that some had been cleared and removed from the list: “We did this for legal reasons.” He had further stated, inter alia, that it was unfortunate that the Concession Act, which had loopholes the size of a barn door, did not apply to the purchase of undeveloped sites, but only to properties with buildings on. In practice, that meant that anyone building a year-round residence in the Tjøme Municipality did not have to live in the house at all and could not be forced to move in. They could use it as a summer holiday cabin if they wished. It was not until the residence had been used for a period as a year-round home that the residence requirement would apply, but then only in the event of resale of the property. It could not be fair that residence requirements applied to some properties but not to others. To change this he would raise the matter with the Ministry of Agriculture. 24. On 5 July 2000 Tønsbergs Blad published an article containing, inter alia, an interview with a former Minister of Agriculture, who stated that the loopholes in the Concession Act that had been detected in Tønsbergs Blad's articles were “completely unreasonable” and should be amended. 25. On 5 and 6 July 2000 Mr Rygh conveyed to the newspaper orally and in writing his dissatisfaction with its 8 June 2000 coverage, including the fact that his name had been mentioned. The newspaper responded, orally and in writing. By a letter of 18 July 2000, Mr Rygh's lawyer demanded that Tønsbergs Blad publish a rectification and an apology. The newspaper replied that it had acted in accordance with the ethics of journalism and that, immediately after becoming aware that Mr Rygh's property had been removed from the list, it had accordingly published an article on the front page and had offered him space for his own viewpoints, an offer it had maintained for a period thereafter. An interview with Mr Rygh had not been published, as the newspaper had respected his decision that this was not desirable. 26. In a further article published on 8 August 2000, entitled “Tønsbergs Blad clarifies”, the paper stated that the properties belonging to Mrs H.K. and Mrs Rygh had been removed from the list in question, that the requirements at issue did not apply to their properties and that, accordingly, there had been no breach of the permanent residence requirements with regard to these properties. 27. On 15 September 2000 Mr Rygh instituted private criminal proceedings (privat straffesak) before the Tønsberg City Court (byrett). He requested that both the introduction on the front page and the article on page 3 be declared null and void under Article 253 of the Penal Code, that Tønsbergs Blad and its editor-in-chief (at the time of publication Mrs Marit Haukom) be punished under Articles 247 and 431 respectively of the Penal Code and that the newspaper and its editor-in-chief be ordered to pay compensation for non-pecuniary damage under section 3-6 of the Damage Compensation Act 1969. 28. By a judgment of 13 September 2001 the City Court acquitted the applicants and ordered Mr Rygh to pay 183,387 Norwegian kroner (NOK) in respect of their costs. It found that a defamatory allegation had been made but, with reference to Article 10 of the Convention, attached special importance to the public interest of the permanent residence issue and to the freedom of the press in respect of presentation and form. 29. On 26 September 2001 Mr Rygh appealed against the judgment to the Agder High Court (lagmannsrett). 30. By a judgment of 21 May 2002 the High Court upheld Mr Rygh's claims in part. 31. As to the first issue, whether the impugned statements amounted to defamation for the purposes of Article 247 of the Penal Code, the High Court observed that it agreed with the City Court that, when considering the 8 June 2000 article in isolation and as a whole, the allegations in question must be understood to mean that the Municipality, after having made a specific assessment of the relevant properties, had taken the stance that a breach of the residence requirements had occurred with regard to Mr Rygh's property, among others, and that his name had therefore been entered on a list which the Municipality had decided to transmit to the County Governor for further processing. The report should therefore be perceived by the ordinary reader as an allegation that Mr Rygh had breached the obligation of residence. 32. As to the question whether this amounted to a defamatory accusation, the High Court held that a breach of the residence requirements did not constitute a criminal offence but that, in a place like Tjøme, many people would regard it as being immoral and an affront to the public interest. The High Court agreed with the City Court that the accusations were not of the most defamatory kind but, not least in view of the strong personal angle of the report, the High Court found that it was capable of damaging Mr Rygh's good name and reputation. An examination of whether it was capable of causing a loss of the reputation required for the exercise of his profession was not necessary. 33. The High Court did not find that the applicants had adduced sufficient proof of the defamatory accusation under Article 249 § 1 of the Penal Code to avoid liability for defamation under Article 247. In this connection it observed: “It is correct that Tom Vidar Rygh's name was mentioned on a list drawn up in October 1999 by the administration of the Tjøme Municipality for its Standing Committee on Development and Environmental Affairs. The heading of the list reads: 'Properties which should be verified in relation to the residence requirements'. Further, it was noted that the list was not public. Had the Tønsbergs Blad limited itself to stating this, it would have made an accusation that was true. ... Mr Rygh's name was put on the preliminary 'tip-off' list, based on tip-offs from inhabitants, local politicians and others. The High Court has no doubt that a number of local inhabitants could have believed that the residence requirements were breached in so far as Rygh's property was concerned, given the fact that it concerned an all-year residence which had been vacated and used as a holiday home. The mayor of the municipality has explained that he was of the opinion that the permanent residence requirements were breached, as has Mr Sæter, the director of the Planning and Building Department. However, Mr Sæter explained in the proceedings before the High Court that, at that time, he had not conducted a further investigation of the property. His view that the property was subject to the permanent residence requirements had been based on his belief that it had been converted from an older residence. He was fully aware that permanent residence requirements did not apply where a person had acquired an open plot of land and then built a house on it. Mr Sæter also explained that, when he had told the journalist Mr Wilhelmsen that a list would shortly be submitted to the County Governor, he was aware that the list would have to be examined first. According to the High Court's understanding of Mr Sæter, there had been no further elaboration of the preliminary tip-off list since autumn 1999. ... Since Mr Sæter was well aware of the exception to the residence requirements for new buildings on open plots of land, he would have quickly discovered that no obligation of residence applied here. ... The High Court further notes that to date none of the names that were on the provisional tip-off list from the autumn of 1999 have been transmitted to the County Governor because the Municipality believed that there was a breach of the residence requirements. The allegations made by Tønsbergs Blad on 8 June 2000 were therefore demonstrably inaccurate.” 34. The High Court was divided as to the question whether the accusations were unlawful (rettstridige). A majority of four members found that that was the case, whereas a minority of three members agreed with the City Court. 35. However, a qualified majority of minimum five votes was required for finding liability under Article 247 of the Penal Code. Mr Rygh's claim that he had been the victim of unlawful defamation under Articles 247 and 431 by the newspaper and its editor-in-chief, respectively, was therefore rejected. 36. On the other hand, under Article 253 of the Penal Code, which required only a simple majority, the High Court declared the following two statements, published respectively on the front page and on page 3 of the 8 June 2000 issue (see paragraphs 12 and 13 above), null and void: “Permanent residence requirements: In the worst–case scenario [H.K.] may be forced to sell her property at Hvasser [an island next to Tjøme]. The same applies to Orkla director Tom Vidar Rygh. According to the understanding of Tønsbergs Blad, their properties are on a list which the Tjøme Municipality will submit to the County Governor in the very near future. The list includes properties whose use is thought not to be in conformity with the permanent residence requirements.” “...Tom Vidar Rygh may be forced to sell their properties at Tjøme. The reason is that, according to the Tjøme Municipality, they do not comply with the permanent residence requirements applicable to their properties.” The High Court further decided that the applicants were jointly and severally liable, under section 3-6 of the Damage Compensation Act 1969, to pay Mr Rygh NOK 50,000 in compensation for non-pecuniary damage. The High Court in addition decided that no costs should be awarded with respect to the proceedings either before the City Court or the High Court. 37. The applicants appealed to the Supreme Court against the procedure followed by the High Court (saksbehandlingen), namely the fact that the issue of nullification had been determined by a simple majority, and against its application of the law (rettsanvendelesen). On 4 September 2002 the Appeals Leave Committee of the Supreme Court granted leave to appeal in so far as the latter ground was concerned but refused such leave with respect to the former ground. 38. By a decision of 1 July 2003 the Supreme Court dismissed the applicants' appeal and ordered them to pay Mr Rygh NOK 673,879 for his legal costs. When deciding on the question whether to declare parts of the newspaper article null and void, the Supreme Court applied Article 2 § 3 of the Code of Criminal Procedure. This limited the scope of the Supreme Court's review of the facts of the case (see further on this below). As far as the question of non-pecuniary damage was concerned, the appeal only referred to the application of the law. Therefore, even though the Code of Civil Procedure was to be applied in this regard, in accordance with Article 435 of the Code of Criminal Procedure, the Supreme Court had to base its examination on the same facts as the High Court in this connection too. 39. In his opinion, to which three other members subscribed, Mr Justice Støle held, inter alia: “(33) I shall first look at how the statements must be understood. It follows from case-law that the interpretation is part of the application of the law .... It is the statements whose nullification is requested which are to be interpreted. The question is how these must be assumed to have been understood by the readers of the newspaper. Taking the wording as our point of departure, we must then look at what perceptions the statements create in the ordinary newspaper reader. In my opinion there is no conflict between the case-law of the European Court of Human Rights and that of the Supreme Court as regards the subject matter of the interpretation; see the references to 'the ordinary reader' in the decisions of the European Court of Human Rights. (34) The statements to be interpreted are included in the newspaper's first story of 8 June 2000. In the usual way the statements must be interpreted in context with the rest of the news report, with its typography and use of pictures. Like the High Court, however, I find it clear that the subsequent articles, carried on 30 June and 8 August 2000, are not of significance for this purpose. I shall return to the significance of the follow-up reportage in another context. Here it is sufficient to show that these are not suitable for shedding light on the meaning of the statements whose nullification is being requested. ... The statements in the story of 30 June 2000 are more of the nature of a description of a subsequent development, namely that Mr Rygh has been 'cleared' in the case. I would add – not that my standpoint depends on it – that the distance in time to the article to which the nullification claim applies is also materially greater than in Norsk Retstidende ('Rt') 2002-764. (35) The unanimous High Court has summarised its interpretation as follows: 'When one accordingly considers the article of 8 June 2000 in isolation, the High Court agrees with the City Court that the statements, seen in isolation and as a whole, must be perceived by the ordinary reader as saying that the Municipality, after considering the relevant properties, has taken the position that there has been a breach of the residence requirements for, inter alia, A's property, and that his name has therefore been written down on a list that the Municipality has decided to refer to the County Governor for further action. The story must appear to the ordinary newspaper reader as a statement that Mr Rygh has breached the residence requirements.' (36) This by and large coincides with my own view. The core of the accusation was that Mr Rygh found himself on a list that the Tjøme Municipality had prepared, and which contained the names of persons whom the Municipality considered to have breached the residence requirements. I do not, however, concur with the majority of the High Court that the story 'must appear to the ordinary newspaper reader as a statement that Mr Rygh has breached his residence requirements'. It is clearly apparent from the article that it is the Municipality's opinion that is being reported, and that the list is to be sent to the County Governor for decision. (37) I agree with the High Court that the statements, as interpreted, contain a defamatory accusation; see Article 247 of the Penal Code. It is the first alternative in that provision that is relevant, and the allegation that the Municipality considered that the residence requirements had been breached was liable to damage his 'good name and reputation'. An accusation of a breach of the law of this nature must be regarded as defamatory. It is the public's moral judgment of the act that is decisive, and it is not a requirement that actual damage be demonstrated or substantiated. The High Court found that no evidence of the truth of the accusation was presented, and this conclusion is binding on the Supreme Court. ... (40) In the specific weighing of factors in our case, the point of departure must be that Tønsbergs Blad has published a defamatory accusation about factual matters, namely that the Municipality had considered Mr Rygh's property under the rules on residence requirements and was of the opinion that Mr Rygh had breached the residence requirements. In this connection I do not accord any independent weight to the fact that he was not the holder of title to the property. The Supreme Court must find that the accusation was untrue – that applies both to the Municipality's alleged perception that the residence requirements had been breached, and the allegation that Mr Rygh's name was entered on a list that the Municipality, on the basis of such a perception, had prepared of owners of properties in respect of which the residence requirements were supposed to have been breached. As regards the facts, a unanimous High Court has found that this was a provisional 'tip-off list' based on tips from inhabitants and local politicians in the Municipality. It had been drawn up by the municipal administration in October 1999, and bore the title 'Properties which should be verified in relation to the residence requirements. (Not public)'. The High Court also noted that the Municipality, at the time the newspaper published the article on 8 June 2000, had not 'undertaken any further processing of the provisional tip-off list from the autumn of 1999'. The Supreme Court is bound by this assessment of the evidence. (41) The main rule in both Norwegian defamation law and Article 10 of the European Convention on Human Rights is that non-proven defamatory allegations of fact are not protected by freedom of expression. As regards the European Court's case-law, I refer to the judgment of 20 May 1999 in Bladet Tromsø and Stensaas v. Norway (no 21980/93), § 66, and to the judgment of 7 May 2002 in McVicar v. United Kingdom (no. 46311/99), §§ 84 and 87; there must be special grounds for departing from this main rule. (42) There is also a distinction between transmission of other people's untrue accusations and the media's own presentation of non-proven defamatory allegations. Freedom of expression stretches further to cover transmission, depending, inter alia, on who has made the allegation that is transmitted. If it is a report from a public authority, as in the Bladet Tromsø case, freedom of expression enjoys stronger protection. (43) In our case it cannot be found that the newspaper has transmitted a defamatory accusation that was made by others. The article gives no source for the accusation, and the Supreme Court cannot depart from the High Court's (the majority's) assessment of evidence with regard to the newspaper's having based itself on an anonymous source in relation to the information that Mr Rygh was on the list that was to be sent to the County Governor and that his property was 'thus to be looked into with regard to a breach of the residence requirements'. The reliance on anonymous sources otherwise prevents the courts from testing whether the journalist displayed due care by employing that source; see Rt 1987-764, p. 771, and the European Court of Human Rights' judgment in McVicar, § 86. Referring to anonymous sources should therefore in this connection be equated with accusations made by the newspaper without giving sources. I will return later to the question of what grounds the newspaper had at the time of publication for the truth of the accusation. (44) The decision in Rt-2002-764 and the case-law of the European Court of Human Rights shows that the specific weighing of factors must take into consideration several criteria. Of these I would emphasise the degree of public interest, the nature of the accusation, including whether the accusation is classified as a 'value judgment' or a 'factual statement', whether it is directed against a public person or a private individual, and the degree of care, including the extent to which the media at the time of publication had factual support for considering the allegation to be true. In general, the protection of the expression will be stronger if it concerns matters of public interest, value judgments, imparting of information, a public person, and if there are strong reasons for holding the allegation to be true. Contrariwise: if the case concerns limited public interest, factual statements, the media's own presentation, private persons and weak grounds for holding the allegation to be true, the protection of the expression will be weaker. (45) That the expression containing the accusation is of public interest is in my view a fundamental criterion for regarding the media's own presentation of untrue defamatory allegations against private individuals about factual matters as being protected by freedom of expression. (46) It is immediately clear that the question of enforcement of the residence requirements for year-round residences in a coastal municipality like Tjøme is of public interest. For Tønsbergs Blad as the local newspaper in the region, this was naturally a topic for critical coverage. The fact that there existed a list of properties that there was a question of referring to the County Governor must also be regarded as being of interest for the residents of the region and the newspaper's readership. Which properties or owners were on the list, on the other hand, must in my opinion be regarded as of limited public interest. If any of the individuals who were entered on the 'tip-off list' – for example owing to their function, position of trust or participation in the public debate – had had a special connection to the issue of residence requirements, it might have been different. It may well be the case that the modern news industry makes considerable use of known persons to arouse the interest of the readers. But I agree with the High Court that the fact that Mr Rygh was a relatively famous person as the executive VP of Orkla does not mean that he can automatically be regarded as a public person in relation to the rules on residence requirements. The majority's emphasis on his not having involved himself in the public debate on this topic appears very consonant with the European Court of Human Rights' reasoning in its judgment of 25 November 1999 in Nilsen and Johnsen v. Norway (no. 23118/93), § 52, first sub-paragraph, with its emphasis on Bratholm's 'participation in public debate' as the central theme. (47) I would then return to the question of the journalist's due care in the publication, and view this in the context of the use of an anonymous source and of what factual grounds he had at the time of publication for considering the allegation true. I would first remark that there did not exist any written documentation from the municipality's processing of the matter that could support the allegation, over and above what the unanimous High Court has characterised as 'the provisional tip-off list'. As mentioned, the Supreme Court must in my opinion base its decision on what the High Court has found with regard to the use of an anonymous source. I cannot therefore see that it can be found that the newspaper had other sources or other grounds for its allegation that Mr Rygh's name was on a list that the Municipality should 'in the near future refer to the County Governor'. This was the basis for the accusation that the Municipality considered that Mr Rygh had breached the residence requirements. Even if use of anonymous sources is a recognised tool of modern journalism, such use of sources will imply a stricter requirement of due care. Moreover, in such a situation, it must to a considerable degree be the newspaper's risk that the factual information conveyed may turn out to be untrue. (48) It is true that the same day the newspaper carried an interview with the director of the Municipality's Planning and Building Department, in which it was confirmed that the Municipality would in the near future be sending a list to the County Governor. But in my opinion the interview does not allow the conclusion to be drawn that the Municipality's processing was concluded and that a definitive list therefore existed. In this connection I would not lay any particular emphasis on the fact that representatives of the Municipality may – before consideration of the tip-off list – have considered that the residence requirement applied to the Rygh family's property. Nor did the journalist claim to have based his story on information from these people. Otherwise, in my view, there are generally grounds for emphasising the big difference between being on a so-called tip-off list that has not been considered by the Municipality and being on a list that the Municipality has decided, after processing and consideration, to refer to the County Governor, who is the central government's supervisory and administrative authority. (49) When Mr Rygh was contacted by the journalist immediately prior to the newspaper's running the story on 8 June 2000, his reaction was that the whole thing had to rest on a misunderstanding. Even if it is understandable that the newspaper may have wanted a broader statement from Mr Rygh, I cannot see that he can be blamed for his behaviour here. Without it having any importance for my view on the question I am discussing here, I would like to mention that it was subsequently discovered that Mr Rygh had obtained legal advice on the residence requirements in connection with his family's move to Oslo in 1998 in consequence of his work situation in Orkla. As the situation must have appeared to him, when he was contacted by the journalist immediately before the newspaper ran the story on 8 June 2000, his reaction was in my opinion understandable. The circumstance that I have mentioned here cannot in any event mean that the journalist may be regarded as having acted with due care. (50) The articles that Tønsbergs Blad carried on 30 June and 8 August 2000 are of negligible significance for the questions I have now discussed. The stories came a relatively long time after the initial article. And under Article 253 § 2 of the Penal Code, claims for nullification must be rejected when the person making the accusation 'withdraws it before the main hearing in a manner that the court finds satisfactory to the aggrieved person'. Tønsbergs Blad has not, however, requested the case to be dismissed from the courts, and I have no occasion to enter into any discussion of this question. I would, however, remark that Norwegian defamation law is based on the notion that a withdrawal of an allegation has significance in relation to the sanctions, and not the assessment of unlawfulness (rettstridsvurderingen). (51) As the case now stands, I cannot agree with Tønsbergs Blad that the newspaper's follow-up report means that there is on the whole a balanced presentation suggesting that the statements in the story of 8 June 2000 cannot be deemed unlawful. The story of 30 June 2000 was in particular angled in such a way as to make it less appropriate as a modification of the original statement's defamatory character; see the use of the expression that Mr Rygh 'is escaping' the residence requirements. In the discussion of 8 August 2000, under the headline 'Tønsbergs Blad clarifies', there is a more neutral correction, but it is not stated here either that Mr Rygh has not been on any list that has been considered by the Municipality. (52) By way of conclusion I see good reason to emphasise: as will be apparent from what I have reproduced from the first voting judge in Rt. 2002-764, in considering specific statements the press's role as a central practitioner of freedom of expression must be weighed against the interests of privacy, including the reputation of the individual. When the expression concerns a case of public interest, the role of the press as a 'public watchdog' means that interference with freedom of expression requires a weighty justification. In our case it is the protection of Mr Rygh's reputation that calls for the interference. The only way I can see the situation is that Tønsbergs Blad could have highlighted the residence requirements issue critically, as it did in the reportage of 8 June 2000, without the strong focus on Mr Rygh personally – a focus that rested on a deficient factual basis. (53) In the light of this I have concluded that the statements of which nullification is requested are not protected by Article 10 of the Convention and that the request must be granted. Since the special arguments regarding the compensation claim for non-pecuniary damage have not been maintained, it follows that this part of the judgment is also upheld.” 40. The dissenting judge, Mr Justice Rieber-Mohn, stated: “(56) ... I concur that in its news coverage of 8 June 2000 Tønsbergs Blad published a defamatory statement – an accusation of a factual character – for which there was no factual basis. I also agree with the first voting judge that the core of the accusation is that Mr Rygh found himself on a list that the Tjøme Municipality had drawn up, which contained the names of individuals whom the Municipality considered to have breached the residence requirements. This would, however – assuming it was correct – not have been a final declaration that there had been a breach of the residence requirements. For this reason, among others, I agree with the minority of the High Court and the City Court that the accusation lies in the lower stratum of what can be covered by Article 247 of the Penal Code. I also have the impression that the High Court's majority by and large agree with this. (57) When an untrue defamatory statement is made, the point of departure is also clear under the European Court of Human Rights' case-law concerning Article 10 of the European Convention: the accusation is not protected by freedom of expression. But exceptions to this may be contemplated. If the accusation is to enjoy protection under freedom of expression, it must at the least be demanded that the news coverage in which it is contained is of public interest and additionally that the necessary care was taken by the newspaper. I consider that these criteria were met in this case. (58) There can be no doubt that the general subject with which the newspaper was concerned, and with which the news coverage of 8 June 2000 really dealt, namely compliance with the rules on residence requirements, was and is of great public interest. The question is whether it is in the public interest to publicise a possible breach of the residence requirements on the part of Mr Rygh. I would first mention that in modern journalism it is a common and recognised method of popular education to illustrate general and usually difficult questions by means of the roles and fates of individuals, when they are considered especially relevant. When individuals are unwillingly brought forward, and are subjected to accusations of crime and so forth, a mass medium must have good reasons for this, for example if the person concerned has sought out the light of publicity in this area, or is a prominent person in society who must accept that special demands are made of his integrity and sense of responsibility to society. At the time in question Mr Rygh belonged to the top management of one of the country's biggest industrial conglomerates, and his name was not unfamiliar in the news. In my opinion individuals who have sought prominent positions in society, which require a special degree of trust from the public, must to some extent accept that the media will follow them with the eyes of Argus, not just in their professional activities but also when, in the more private sphere, they challenge laws and other regulations that are particularly meant to safeguard the interests of society. It is therefore possible to conceive of violations of the law by these individuals that in the circumstances will be of public interest, even if the breach carries no criminal responsibility or the penalties are minor. In this case the newspaper thought that Mr Rygh had broken the rules on residence requirements, which in public opinion was and is of major social importance, even if such a contravention is not a criminal offence. I have difficulty seeing that it was not a matter of public interest if such a very prominent person as Mr Rygh had not complied with the residence requirements with regard to his property in the Tjøme Municipality. (59) The question then becomes whether the newspaper has acted with the requisite care. It must be noted that the journalist used an anonymous source when he wrote that Mr Rygh was on the Municipality's list of those who were considered to have breached the residence requirements. It is undisputed that for a long while Tønsbergs Blad had been working on this topic, and that the journalist – who lived at Tjøme – had been in contact with several representatives of the Municipality. It must also be noted that the journalist, on application to the Municipality, received confirmation that there existed a list that the Municipality had drawn up, but the mistake was that this was a list of individuals who, according to external tip-offs, had breached the obligation, and not a list of individuals whom the Municipality had already found to have breached it. The newspaper thus confused the tip-off list, which contained Mr Rygh's name, with the list that the Municipality was indeed to refer to the County Governor for a decision on whether the residence requirements had been complied with. (60) I cannot see that the newspaper is much to be blamed for this confusion. The journalist had reason to believe that a municipal assessment had been carried out at that point. In the story of 8 June 2000 the director of the Planning and Building Department confirmed that technical services would 'in the very near future' write to the County Governor regarding individuals whom the Municipality suspected of breaching the residence requirements. The director also stated: 'We know that the residence requirements are not being complied with for several properties in the Municipality'. And the director did not wish to say 'which properties are on the list we are referring to the County Governor'. This last statement gave the clear impression that the list which the Municipality had assessed already existed. In addition, prominent representatives of the Tjøme Municipality – such as the mayor and the director of the Planning and Building Department – subsequently stated that, at the time when the newspaper had carried the controversial reportage, they had been of the opinion that Mr Rygh was in breach of the residence requirements. This is clearly apparent from the High Court's judgment, both the minority and majority remarks. Tønsbergs Blad was therefore close to the truth in its story of 8 June 2000. I would also mention that, according to the story, the newspaper had approached Mr Rygh for his view of the matter, but he did not want to comment beyond stating that the fact that his name was on the list must have been due to a misunderstanding.” 41. Under Norwegian defamation law, there are three kinds of response to unlawful defamation, namely the imposition of a penalty under the provisions in Articles 246 and 247 of the Penal Code, an order under Article 253 of the Code declaring the defamatory allegation null and void (mortifikasjon) and an order under the Damage Compensation Act 1969 to pay compensation to the aggrieved party. Only the latter two were at issue in the present case. 42. Under Article 253 of the Penal Code, a defamatory statement which is unlawful and has not been proved true may be declared null and void by a court. In so far as relevant this provision reads: “1. When evidence of the truth of an allegation is admissible and such evidence has not been produced, the aggrieved person may demand that the allegation be declared null and void unless otherwise provided by statute.” 43. Such a declaration is applicable only with regard to factual statements, the truth of value judgments not being susceptible of proof. 44. Although the provisions on orders declaring a statement null and void are contained in the Penal Code, such an order is not considered a criminal sanction but a judicial finding that the defendant has failed to prove its truth and is thus viewed as a civil-law remedy. 45. Section 3-6 of the Damage Compensation Act reads: “A person who has injured the honour or infringed the privacy of another person shall, if he has displayed negligence or if the conditions for imposing a penalty are fulfilled, pay compensation for the damage sustained and such compensation for loss of future earnings as the court deems reasonable, having regard to the degree of negligence and other circumstances. He may also be ordered to pay such compensation for non-pecuniary damage as the court deems reasonable. If the infringement has occurred in the form of printed matter, and the person who has acted in the service of the owner or the publisher thereof is responsible under the first subsection, the owner and publisher are also liable to pay compensation. The same applies to any redress imposed under the first subsection unless the court finds that there are special grounds for dispensation...” 46. Conditions for holding a defendant liable for defamation are further set out in Chapter 23 of the Penal Code, Article 247 of which provides: “Any person who, by word or deed, behaves in a manner that is likely to harm another person's good name and reputation or to expose him to hatred, contempt, or loss of the confidence necessary for his position or business, or who is accessory thereto, shall be liable to fines or imprisonment for a term not exceeding one year. If the defamation is committed in print or in broadcasting or otherwise under especially aggravating circumstances, imprisonment for a term not exceeding two years may be imposed.” A limitation to the applicability of Article 247 follows from the requirement that the expression must be “unlawful” (“rettsstridig”). While this is expressly stated in Article 246, Article 247 has been interpreted by the Supreme Court to include such a requirement. 47. Further limitations to the application of Article 247 are contained in Article 249, which, in so far as is relevant, reads: “1. Punishment may not be imposed under Articles 246 and 247 if evidence proving the truth of the accusations is adduced. ...” | 1 |
train | 001-68749 | ENG | LTU | CHAMBER | 2,005 | CASE OF RAINYS AND GASPARAVICIUS v. LITHUANIA | 3 | Violation of Art. 14+8;Not necessary to examine Art. 8;No violation of Art. 10;No violation of Art. 14+10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | David Thór Björgvinsson | 8. The first applicant, Mr Raimundas Rainys, is a Lithuanian national who was born in 1949 and lives in Vilnius. The second applicant, Mr Antanas Gasparavičius, is a Lithuanian national who was born in 1945 and lives in Kretinga. The facts of the case, as submitted by the parties, may be summarised as follows. 9. From 1975 to October 1991 the first applicant was an employee of the Lithuanian branch of the Soviet Security Service (hereinafter the “KGB”). Thereafter he found employment as a lawyer in a private telecommunications company. 10. On 17 February 2000 two authorities - the Lithuanian State Security Department and the Centre for Research into the Genocide and Resistance of the Lithuanian People - jointly concluded that the applicant was subject to the restrictions imposed under Article 2 of the Law on the Evaluation of the USSR State Security Committee (NKVD, NKGB, MGB, KGB) and the Present Activities of Permanent Employees of the Organisation (hereinafter “the Act”, see paragraph 22 below). The conclusion confirmed that the applicant had the status of a “former KGB officer” as construed by the Act. As a result, on 23 February 2000 he was dismissed from his job at the telecommunications company. 11. The applicant brought an administrative action against the security intelligence authorities, arguing that his dismissal under Article 2 of the Act and the resultant inability to find employment were unlawful. 12. On 29 June 2000 the Higher Administrative Court found that the conclusion of 17 February 2000 had been substantiated, and that the applicant was subject to the restrictions imposed under Article 2 of the Act. 13. On 5 September 2000 the Court of Appeal rejected the applicant's appeal. 14. The applicant has been unemployed since 26 February 2002. 15. From 1971 until October 1991 the second applicant worked at the KGB. Thereafter he started practising as a barrister. 16. On an unspecified date in 2000, the Lithuanian State Security Department and the Centre for Research into the Genocide and Resistance of the Lithuanian People jointly concluded that the applicant had the status of a “former KGB officer”, and that he was thereby subject to the restrictions imposed under Article 2 of the Act. On 12 June 2000 the Bar informed him that he would be disbarred pursuant to that law. 17. The applicant brought an administrative action, claiming that his dismissal from the Bar would be unlawful. While the applicant did not contest the fact that he had worked for the KGB even following the declaration of Lithuanian independence on 11 March 1990, he submitted that thereafter he had worked as an informer for the authorities of independent Lithuania. Furthermore, throughout his time at the KGB the applicant had allegedly only worked with cases concerning purely criminal investigations, not political persecutions. In the applicant's view, he had been entitled to be exempted from the employment restrictions, in accordance with Article 3 of the Act. 18. On 21 February 2001 the Vilnius Regional Administrative Court rejected the applicant's claim. The court found that he had indeed worked with criminal investigations while at the KGB, but that he had remained employed there until his retirement in October 1990. The court held that the exceptions in Article 3 of the Act were not applicable to the applicant, given that he did not end his employment with the KGB immediately after Lithuania's declaration of independence on 11 March 1990. 19. Upon the applicant's appeal, on 16 May 2001 the Supreme Administrative Court upheld this decision. The court reiterated that the applicant was not entitled to be exempted under Article 3 of the Act, as he had not ended his KGB employment immediately after 11 March 1990. Moreover, there was no plausible evidence attesting that thereafter the applicant had worked at the KGB as an agent of the authorities of independent Lithuania. 20. As a result of the proceedings on 29 May 2001 the applicant was disbarred. 21. He has now found employment in the business field. 22. The Law on the Evaluation of the USSR State Security Committee (NKVD, NKGB, MGB, KGB) and the Present Activities of Former Permanent Employees of the Organisation (Įstatymas dėl SSRS valstybės saugumo komiteto (NKVD, NKGB, MGB, KGB) vertinimo ir šios organizacijos kadrinių darbuotojų dabartinės veiklos) was enacted on 16 July 1998 by the Seimas (Parliament) and promulgated by the President of the Republic. The Act reads as follows: “The USSR State Security Committee (NKVD, NKGB, MGB, KGB – hereinafter SSC) is recognised as a criminal organisation which committed war crimes, genocide, repression, terror and political persecution in the territory of Lithuania when occupied by the USSR.” “For a period of 10 years from the date of entry into force of this Law, former employees of the SSC may not work as public officials or civil servants in government, local or defence authorities, the State Security department, the police, prosecution, courts or diplomatic service, customs, State supervisory bodies and other authorities monitoring public institutions, as lawyers and notaries, as employees of banks and other credit institutions, on strategic economic projects, in security companies (structures), in other companies (structures) providing detective services, in communications systems, or in the educational system as teachers, educators or heads of institutions[;] nor may they perform a job requiring a weapon.” “1. The restrictions provided for in Article 2 shall not be applied to former permanent employees of the SSC who, while working at the SSC, investigated only criminal cases and who discontinued their work at the SSC not later than 11 March 1990. 2. The Centre for Research into the Genocide and Resistance of the Lithuanian People and the State Security Department may [recommend by] a reasoned application that no restrictions under this law be applied to former permanent employees of the SSC who, within 3 months of the date of the entry into force of this Law, report to the State Security Department and disclose all information in their possession ... about their former work at the SSC and their current relations with former SSC employees and agents. A decision in this respect shall be taken by a commission of three persons set up by the President of the Republic. No employees of the Centre for Research into the Genocide and Resistance of the Lithuanian People or the State Security Department may be appointed to the commission. The commission's rules shall be confirmed by the President of the Republic.” “The procedure for implementation of the Act shall be governed by [a special law].” “This Act shall come into effect on 1 January 1999.” 23. Following the examination by the Constitutional Court of the compatibility of the Act with the Constitution (see § 28 below), on 5 May 1999 Article 3 of the Act was amended to the effect that even those individuals who had worked for the KGB after 11 March 1990 could be eligible for exceptions under Article 3 of the Act. 24. On 16 July 1998 a separate law on the implementation of the Act was adopted. According to that law, the Centre for Research into the Genocide and Resistance of the Lithuanian People and the State Security Department were empowered to reach a conclusion on an individual's status as a “former permanent employee of the KGB” for the purposes of the Act. 25. On 26 January 1999 the Government adopted a list (“the list”) of positions in various branches of the KGB on Lithuanian territory attesting to a person's status as a “former permanent employee of the KGB” (“former KGB officer”) for the purposes of the Act. 395 different positions were listed in this respect. 26. On 4 March 1999 the Constitutional Court examined the issue of the compatibility of the Act with the Constitution. The Constitutional Court held in particular that the Act had been adopted in order to carry out “security screening” measures on former Soviet security officers, who were deemed to be lacking in loyalty to the Lithuanian State. The Constitutional Court decided that the prohibition on former KGB agents' occupying public posts was compatible with the Constitution. It further ruled that the statutory ban on the holding by former KGB employees of jobs in certain private sectors was compatible with the constitutional principle of a free choice of profession in that the State was entitled to lay down specific requirements for persons applying for work in the most important economic sectors in order to ensure the protection of national security and proper functioning of the educational and financial systems. The Constitutional Court also held that the restrictions under the Act did not amount to a criminal charge against former KGB agents. 27. While the Act does not specifically guarantee a right of access to a court to contest the security intelligence authorities' conclusion, it was recognised by the domestic courts that, as a matter of practice, a dismissal from employment in the public service on the basis of that conclusion gave rise to an administrative court action (and a further appeal) under the general procedure governing industrial disputes and alleged breaches of personal rights by the public authorities, pursuant to Articles 4, 7, 8, 26, 49, 50, 59, 63 and 64 of the Code of Administrative Procedure, Article 222 of the Civil Code and Article 336 of the Code of Civil Procedure (as effective at the material time). 28. Restrictions have been imposed in many post-communist countries with a view to screening the employment of former security agents or active collaborators in the former regimes. In this respect, international human rights bodies have at times found fault with similar legislation where this has lacked precision or proportionality, characterising such rules as discrimination in employment or the exercise of a profession on the basis of political opinion. The possibility of appeal to the courts has been considered a significant safeguard, although not sufficient in itself to make good shortcomings in legislation (see Sidabras and Džiautas, nos. 55480/00 and 59330/00, 27.7.2004, §§ 30-32, ECHR 2004 - ...). 29. Article 1 § 2 of the European Social Charter provides: “With a view to ensuring the effective exercise of the right to work, the Parties undertake: ... 2) to protect effectively the right of the worker to earn his living in an occupation freely entered upon[.]” This provision, which was retained word for word in the Revised Charter of 1996 (which entered into force with regard to Lithuania on 1 August 2001), has been consistently interpreted by the European Committee of Social Rights (ECSR) as establishing a right not to be discriminated against in employment. The non-discrimination guarantee is stipulated in Article E of the Revised Charter in the following terms: “The enjoyment of the rights set forth in this Charter shall be secured without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status.” 30. The International Labour Organisation (ILO) has also adopted a number of relevant international legal instruments. The most pertinent text is ILO Convention No. 111 on Discrimination (Employment and Occupation) of 1958. In its 1996 General Survey, the Committee of Experts on the Application of Conventions and Recommendations (CEACR) restated its interpretation of Convention No. 111, drawing upon examples taken from national law. A 1996 survey identifies comparable provisions in the national law of a number of European countries. In Latvia, the State Civil Service Act 2000 and the Police Act 1999 prohibit the employment of persons who worked for or with the Soviet security services. In 2003 the CEACR expressed its dissatisfaction with the above texts in the following terms: “6. The Committee recalls that requirements of a political nature can be set for a particular job, but to ensure that they are not contrary to the Convention, they should be limited to the characteristics of a particular post and be in proportion to its labour requirements. The Committee notes that the above established exclusions by the provisions under examination apply broadly to the entire civil service and police rather than to specific jobs, functions or tasks. The Committee is concerned that these provisions appear to go beyond justifiable exclusions in respect of a particular job based on its inherent requirements as provided for under Article 1 (2) of the Convention. The Committee recalls that for measures not to be deemed discriminatory under Article 4, they must be measures affecting an individual on account of activities he or she is justifiably suspected or proven to be engaged in which are prejudicial to the security of the State. Article 4 of the Convention does not exclude from the definition of discrimination measures taken by reason of membership of a particular group or community. The Committee also notes that in cases where persons are deemed to be justifiably suspected of or engaged in activities prejudicial to the security of the State, the individual concerned shall have the right to appeal to a competent body in accordance with national practice. 7. In the light of the above, the Committee considers the exclusions from being a candidate for any civil service position and from being employed by the police are not sufficiently well defined and delimited to ensure that they do not become discrimination in employment and occupation based on political opinion ...” | 1 |
train | 001-5390 | ENG | POL | ADMISSIBILITY | 2,000 | KEPKA v. POLAND | 1 | Inadmissible | Georg Ress | The applicant is a Polish national, born in 1935 and living in Warsaw, Poland The facts of the case, as submitted by the applicant, may be summarised as follows. On 1 April 1988 the applicant, who at about the same time took his doctor’s degree in physics, joined the National Fire Service (Państwowa Straż Pożarna) and, when he obtained a post of senior academic teacher at the National Fire Academy (Szkoła Główna Slużby Pożarniczej), attained the rank of lieutenant. During the entire period of his service the applicant worked as a teacher. He gave lectures on physics and carried out scientific research. Part of that research concerned issues considered important for national defence. He also published articles and scientific dissertations. In 1988 the applicant completed two training courses: the first in fire prevention, the second designed for fire officers. On an unspecified later date he achieved the rank of captain. On 31 May 1994 the applicant underwent a routine medical examination. The relevant report stated that he was permanently unfit to take part in fighting fires and emergency actions but fit to serve if he continued to work as a lecturer. On 23 January 1995 the Superintendent of the National Fire Academy opened disciplinary proceedings against the applicant on charges of insubordination (in connection with his failure to comply with a superior’s order), wilful disregard of instructions (in that he had allowed third persons to have access to research carried out in respect of the matter of crucial importance for national defence) and two other breaches of discipline. On 10 March 1995 the Superintendent issued an order disciplinarily discharging the applicant from the fire service “with effect from 31 March 1995”. The applicant appealed to the Commandant of the National Fire Service (Komendant Główny Państwowej Straży Pożarnej). On 29 March 1995 the Commandant upheld the order. The applicant appealed to the Minister of the Interior (Minister Spraw Wewnętrznych) on 6 April 1995. He requested the Minister, inter alia, to “quash immediately the relevant orders” and to “promote him and award a special prize as reward for his achievements”. On 30 May 1995 the Minister upheld the decision to discharge the applicant from the fire service but amended the date on which it was to take effect, ordering that the material date be 31 May 1995. Subsequently, on an unspecified date, the applicant appealed to the Supreme Administrative Court (Naczelny Sąd Administracyjny). He contested the decision of the Commandant of the National Fire Service of 29 March 1995 and the decision of the Minister of the Interior of 30 May 1995, alleging that they were contrary to the law. The Supreme Administrative Court gave judgment on 13 September 1995. It dismissed the appeal for two principal reasons: firstly, because it had no jurisdiction to deal with disciplinary matters and, secondly, as it had found no legal flaw in the impugned decisions. In the meantime, on an unspecified date, the applicant had sued the Superintendent of the National Fire Academy in the Warsaw District Court of Labour (Sąd Rejonowy - Wydział Pracy), seeking reinstatement to the fire service. The court refused to deal with the merits of the claim because a discharge from the fire service did not fall within the labour courts’ jurisdiction, such matters being resolved exclusively in administrative proceedings. The organisation of the National Fire Service, terms and conditions of service therein and detailed duties of firemen are laid down in the Law of 24 August 1991 on the National Fire Service (Ustawa o Państwowej Straży Pożarnej) (as amended), hereafter referred to as “the 1991 Act”. The National Fire Service in Poland is part of the national public service. From the organisational point of view, it is, like the police, incorporated into the Ministry of the Interior. The Commandant of the National Fire Service is a public authority called a “central organ of governmental administration” (centralny organ administracji rządowej) and, like the Commandant of the Police, is subordinate to the Minister of the Interior (section 9 §1 of the 1991 Act). The Minister of the Interior not only supervises the National Fire Service but also has the power to issue ordinances or other regulations setting out the detailed organisation of fire-fighting brigades, units and their equipment (section 8 § 4 of the 1991 Act). Within the general structure of the State, the National Fire Service, like other emergency services, belongs to the forces for maintenance of public safety. Section 1 of the 1991 Act lays down the general tasks and duties of the National Fire Service. This provision reads: “1. There shall be established the National Fire Service – a professional, uniformed and specially equipped formation, which shall deal with fire-fighting, disasters and other local emergencies. 2. The National Fire Service shall carry out the following principal tasks: 1) identifying fire hazards and other local emergencies; 2) organising and carrying out rescue actions during fires, disasters or operations to combat local emergencies; 3) carrying out supporting specialised rescue actions during disasters or operations by other emergency services to combat local emergencies; 4) training staff for the National Fire Service and other organs of fire protection and the national system for the protection of the nation; 5) supervising compliance with fire-safety regulations; 6) carrying out research into fire prevention and protection of the nation. 3. Service in the National Fire Service shall be performed by fire service officials, hereafter named “firemen”.” Section 2 § 1 states: “The National Fire Service shall organise the national system of fighting fires and combating emergencies, aimed at protecting life, health, property and the environment, in particular through: 1) fighting fires and other disasters; 2) technical rescue operations; 3) chemical rescue operations; 4) ecological rescue operations; 5) medical rescue operations.” Section 8 § 1 sets out the following structure of the National Fire Service: “There shall be the following organisational units of the National Fire Service: 1) the Chief Command; 2) the Regional Command; 3) the County/Town Command; 4) the National Fire Academy and other schools or training centres; 5) the research and development units; 6) the Central Museum of the Fire Service.” Section 17 § 1 of the Act, referring to the organisation of the National Fire Academy, stipulates: “The organisation and scope of the activities of the National Fire Academy, as well as the rules governing the appointment or dismissal of its Superintendent and his deputies, shall be regulated by the provisions concerning higher military academies.” | 0 |
train | 001-83879 | ENG | ROU | CHAMBER | 2,007 | CASE OF BRAGADIREANU v. ROMANIA | 3 | Remainder inadmissible;No violation of Art. 3;Violation of Art. 3 (detention conditions);Violation of Art. 6-1(length);Non-pecuniary damage - financial award;Costs and expenses - claim dismissed | David Thór Björgvinsson | 5. The applicant was born in 1954 and lives in Bucharest. 6. On 9 June 1993, the applicant was placed in police custody for five days under the accusation of having murdered his partner. On 14 June 1993, the prosecutor attached to the Giurgiu County Court ordered the applicant's remand in custody. 7. On 22 October 1993, the prosecutor attached to the Giurgiu County Court committed the applicant for trial for aggravated murder, under Article 176 (a) of the Criminal Code. 8. On 4 April, 10 October, 28 November 1994, 9 January, 13 February and 15 May 1995, in the presence of the applicant and D.U., his chosen defence counsel, the County Court heard evidence from witnesses. On 10 October 1994 the applicant also gave evidence. On 15 May 1995 the County Court heard evidence from the prosecutor, the civil party and D.U. It then allowed the applicant to address the court last. 9. In a judgment of 29 May 1995 the County Court found the applicant guilty of aggravated murder and sentenced him to twenty years' imprisonment. It based its judgment on the witness testimonies, the applicant's declarations and behaviour and the medical reports concerning the death of the victim. On 16 February 1996 the sentence was confirmed, upon the applicant's appeal, by the Bucharest Court of Appeal which heard evidence from the applicant and I.C., his defence counsel. 10. The applicant appealed in cassation before the Supreme Court of Justice alleging that he had not committed the murder and that, therefore, the evidence had been wrongly interpreted by the courts. 11. The applicant was sent to the Prison Hospital from 4 August to 5 October 1995, from 4 April to 25 April 1996 and again from 8 to 22 August 1996. He underwent several surgical interventions there. In 1996 he was diagnosed with a perianal tumour but refused further surgery. Due to a severe problem with his eyes, the doctors who examined the applicant recommended his release. 12. During the proceedings before the Supreme Court, the applicant's health was in constant decline. Therefore, he was absent from most of the hearings held in the case, but allegedly requested repeatedly that the proceedings be suspended because of his illness. 13. It appears from the non-definitive decisions that the applicant was represented either by a court-appointed counsel or by a lawyer of his choice for most of the hearings. 14. On 17 February 1997, after having examined the applicant and having noted, in particular, that he had lost 20 kg in six months, the prison doctors recommended that the applicant undergo an expert examination by the Forensic Institute. On 10 March 1997, the same doctors recommended the applicant's release. 15. He was hospitalised again between 8 January and 30 May 1997. In March 2007, he was transferred under escort to the Bagdasar public Hospital in Bucharest where he underwent a colostomy. He claims that he was handcuffed to the bed. 16. On 23 April 1997, the doctors recommended his release from custody due to his severe medical condition. 17. On 15 May 1997, the Forensic Institute concluded that the applicant had to follow a three-month course of treatment, which would prevent him from participating in the proceedings. 18. On 27 May 1997 the Supreme Court suspended the trial due to the applicant's health condition, as revealed by the Forensic Institute's report adduced in the case. It also ordered the applicant's release, which took place on 30 May 1997. 19. The Supreme Court requested periodically the experts' opinion on the applicant's condition in order to assess if the reasons for the suspension of the proceedings were still valid. 20. After his release, the applicant continued to be treated for his illness. On 15 January 1998 the Forensic Institute certified that another sixmonth course of treatment was necessary and that during that time the applicant could not participate in the proceedings. 21. On 10 March 1999 the court held a hearing and noted that the medical report had not yet been submitted. It set its next hearing for 2 June 1999. 22. On 12 March 1999 the Forensic Institute informed the Supreme Court that the applicant was fit to participate in the trial. 23. On 2 June the court took note of the medical report but noted some informalities and sent it back to the Forensic Institute. It set its next hearing for 13 October. 24. On 13 October 1999, in the presence of the applicant's chosen counsel, the Supreme Court noted that neither the prosecutor nor the lower courts had ordered the applicant's psychiatric evaluation, required by law for any person prosecuted for aggravated murder. 25. Therefore, in a final decision of 25 October 1999 the Supreme Court of Justice quashed the previous decisions adopted in the case and sent the case back to the County Court, ordering the applicant's psychiatric evaluation. 26. On 10 March 2000 the file was sent to the Giurgiu County Court, which held the first hearing on 10 April 2000, and then several more, the applicant being absent due to his health problems. He was, however, represented in the proceedings mainly by D.U., a lawyer of his choice. 27. Evidence in the file showed that on 31 May 2000 he had been released from hospital. 28. On 20 November 2000 the County Court referred the case back to the prosecutor to order the psychiatric evaluation. 29. The prosecutor's appeal against this judgment was allowed by the Bucharest Court of Appeal in a final decision of 1 March 2001 which instructed the County Court to order the applicant's evaluation itself, as decided by the Supreme Court on 25 October 1999. 30. On 23 April 2001 the case was restored to the County Court's list of cases. 31. Some twenty hearings took place before the County Court, the case being repeatedly postponed due to the absence of the expert reports or for erroneous summoning of the parties. It appears that the applicant did not attend any of these hearings but was represented at most of them by D.U., his defence counsel. 32. On 15 June 2001 the applicant was hospitalised for another operation. 33. On 14 September 2001 the Forensic Institute estimated that the applicant required a four-month course of medical treatment that could not be administered in prison. However, on 29 October 2001, upon the County Court's request, it concluded that the applicant was fit to participate in the trial. 34. On 5 November 2001 the applicant appeared before the medical commission for his psychiatric examination. 35. On 27 March 2002 the psychiatric expert report was adduced in the case. It confirmed that the applicant had been mentally competent for legal purposes at the time of the victim's murder. The County Court heard evidence from the applicant's lawyer and the prosecutor on 20 May 2002 and pronounced its judgment on 10 June 2002. Due to the applicant's repeated absence on account of his medical condition, the County Court could not hear evidence from him in person. 36. The court re-examined the evidence already in the file and based its decision on the corroboration of witness testimonies gathered by the investigators and the courts, the expert reports concerning the victim's death and the applicant's behaviour towards his partner, towards his former wives (witnesses in the case) and during the criminal investigations and court proceedings – including the assessment of the answers he gave during a polygraph test that he had agreed to take on 12 June 1993 and in the course of which he had not been assisted by a lawyer – and the psychiatric evaluation of the applicant. The County Court found him guilty of aggravated murder and sentenced him to twenty years' imprisonment. 37. The applicant, through his lawyer, lodged an appeal against this judgment challenging the interpretation of facts and law by the County Court. He claimed his innocence and alternatively asked the court to reduce his sentence. His appeal was rejected as out of time in a decision of 13 November 2002 of the Bucharest Court of Appeal. 38. However, on 28 February 2003 the Supreme Court of Justice, upon the applicant's request, quashed the decision and referred the case back to the Bucharest Court of Appeal for a re-examination of the appeal. It considered that the applicant had respected the time limits for lodging his appeal. 39. The applicant did not attend any of the four hearings held before the Court of Appeal. I.C., his chosen representative, attended one of these hearings. The court noted that both the applicant and his lawyer alleged that their health had prevented them from attending the hearings. However, the Court of Appeal found that the applicant was not hospitalised at that time and that his lawyer had failed to designate a substitute, although the court had requested him to do so, in compliance with the law. 40. On 29 May 2003 the Court of Appeal designated of its own motion a representative for the applicant. The same day it examined and rejected the appeal, the applicant not being present at the hearing. It found that the evidence confirmed the applicant'imposed by the District Court was justified. The courtappointed counsel pleaded for the applicant's innocence and alternatively asked the court to lower the sentence imposed. 41. The applicant appealed in cassation against this decision with the Supreme Court of Justice, challenging, as before, the interpretation of facts and law by the courts. The applicant did not attend any of the three hearings on the merits held in the case. At the first hearing, his personal assistant appeared (see paragraph 42 below), informed the Court of the applicant's poor health and asked for a postponement to allow the applicant to appoint a representative. The court postponed the case and appointed a lawyer for the applicant. Before the next hearing, I.C., the applicant's defence council who had represented him in the appeal above, made a written request for another postponement on the ground that he did not have time to study the whole file. In the presence of the court-appointed counsel and of the prosecutor, the court allowed the request. However, I.C. failed to appear at the last hearing of 12 February 2004. The courtappointed counsel participated on behalf of the applicant. In a final decision rendered on the same day, after reassessing the evidence adduced in the case, the Supreme Court upheld the sentence. 42. On 28 August 2003 the applicant was examined by a commission of doctors from the Commission for the protection of handicapped persons. They established that his condition amounted to a severe functional deficiency which entitled him to a personal assistant. 43. On 19 February 2004 the applicant lodged a request for the postponement of the execution of the sentence for medical reasons. Later on he reformulated it, asking for the suspension of the sentence. 44. On 1 March 2004 the applicant was referred to the Forensic Institute for an opinion on whether he was fit to serve the sentence. 45. The Forensic Institute doctors re-examined the applicant and concluded that the stage of his illness permitted the continuation of his imprisonment and that his medical treatment could be continued in prison hospitals: “The pathology ... is severe, with unpredictable evolution, possibly towards a fatal prognosis which can happen regardless of whether [the applicant] is in prison or released.” The doctors submitted their report on 30 September 2004. 46. Based on this evidence, the applicant's request for suspension was rejected on 18 October 2004 by the Giurgiu County Court. The decision was upheld by the Bucharest Court of Appeal on 22 November 2004. The applicant did not appeal on points of law and thus this latter decision became final. 47. On 24 October 2006 the Forensic Institute started a new expert examination of the applicant in order to assess the possibility of interrupting the execution of his sentence. However, on 30 August 2006 the applicant refused to continue with this examination, as he considered that it would not benefit him. 48. On 10 March 2004 the applicant was imprisoned in order to serve the remainder of the sentence. He claimed that he had been placed in a cell with thirty beds arranged at three levels and with badly damaged mattresses, with two detainees in each bed, two toilets and no shower or warm water in the room. Due to his medical condition (as he had an artificial anus, he was unable to control his bowel movements) he asked to be transferred to a single-bed cell, but his request was rejected on the ground that no such cells existed in that penitentiary, except those for solitary confinement. 49. According to the applicant, he repeatedly requested to be examined by a doctor, but to no avail. He claimed that his medicine had not been provided by the authorities for lack of funds, and his family had had to send it to him. 50. The Government sent the applicant's medical file along with a letter from the Administration of Penitentiaries dated 26 September 2006 which detailed the medical care that the applicant received in prison. 51. It appears that from 10 to 22 March 2004 he was hospitalised in the Jilava Penitentiary Hospital where he was examined by the penitentiary doctors. He underwent laboratory tests and an oncological evaluation in public hospitals. 52. Subsequently he was examined periodically by the penitentiary doctors and often sent for specialist check-ups. 53. From 8 May to 22 July 2004 the applicant was hospitalised again in the Jilava Penitentiary Hospital. Laboratory analyses were performed and he was also sent to the public hospital for more detailed examinations. 54. He was hospitalised again in Jilava from 8 to 28 August 2004. On 18 August 2004 the doctors performed an abdominal ultrasound scan and recommended check-ups every three months. 55. On 6 August 2004 the applicant received from his family thirty tubes of Pentoxifilin. 56. His medical surveillance continued throughout 2004, 2005 and 2006. He underwent ophthalmologic check-ups, was seen by specialist doctors at least every other month, and received through the penitentiary pharmacies the prescribed medicines every month. 57. On 28 June 2005 the applicant informed the authorities that he refused to be examined in the Jilava Penitentiary Hospital, bearing in mind his criminal complaint of ill treatment against the penitentiary doctors (see paragraphs 61-62 below). 58. He was hospitalised again in Jilava from 23 to 31 August 2006. 59. It appears that the applicant received medicine from the penitentiary pharmacies as prescribed by the doctors that had examined him. 60. Between the periods of hospitalisation, the applicant was detained in the penitentiaries in Rahova and Giurgiu. 61. On 4 June 2004 the applicant lodged a criminal complaint against the penitentiary doctors that had operated on him while in detention. He accused them of intentional harm and malpractice during the surgical intervention. On 1 April 2005 the Bucharest Military Prosecutor's Office dismissed the complaint as out of time. The applicant appealed against this decision. In his letter to the Prosecutor's Office, he invoked the fact that he was “transported to and kept in the Bagdasar-Arseni Hospital under escort”. The criminal complaint was re-examined and dismissed again, on 28 July 2005, by the Bucharest Military Prosecutor. In a decision of 18 April 2006 the Bucharest Military County Court upheld the Prosecutor's decision, on the grounds that the accusation against the penitentiary doctors was unfounded and that, in any case, due to the time lapse between the operations and the lodging of the criminal complaint, responsibility for any of the alleged crimes was time-barred. 62. On 3 August 2005 the applicant lodged a complaint with the Bucharest District Court under the Government's Ordinance no. 56/2003. He considered that his right to information, to the protection of his health and to a healthy environment had been infringed in prison. Furthermore he claimed that the prison conditions had amounted to torture. Accordingly, he argued that despite his severe medical condition the prison authorities had refused to put him in a cell by himself. He also claimed lack of access to his medical and criminal files. 63. In a decision of 17 October 2005 the District Court dismissed his action. It considered that the quality of medical care did not fall under the ordinance invoked; the applicant should have lodged an action in civil responsibility against the doctors. In any case, the evidence showed that the applicant had been given adequate medical care, seen by various doctors and examined and afforded the aftercare that had been prescribed. 64. The court dismissed as unfounded the applicant's allegation of lack of access to his medical file. It noted that the said file had been adduced in the case, both the applicant and his representative having thus had access to it. 65. Lastly, the District Court recalled that the Ordinance did not impose an obligation on the prison authorities to ensure access for the applicant to his criminal file. It recalled that the applicant had the right to designate a representative to study it. 66. The applicant's appeal was also dismissed by the Bucharest County Court, in a final decision of 5 December 2005. The County Court noted that the Penitentiary had refused to move the applicant to an individual cell on the ground that he would be soon transferred to a new section, to a room that would be better suited to his medical requirements. It appears that the court estimated that the applicant's allegations concerning the negative influence on his health of the conditions of his detention were unfounded. The court also recalled that it was for the prison authorities to provide his personal assistant. 67. In a letter of 16 December 2005 the Commission for the Protection of handicapped persons informed the applicant that as long as he was imprisoned he was not entitled to any special allowance for his own needs or for hiring a personal assistant, since it was for the penitentiary to provide care for him. 68. To date, the applicant is still in prison. It seems that he has not been transferred to an individual cell. 69. The relevant provision of the Code of Criminal Procedure on the psychiatric evaluation of a person charged with a criminal offence reads as follows: “(1) The psychiatric evaluation is mandatory in cases of aggravated murder...” 70. The Code of Criminal Procedure provides that informalities in the trial such as the courts not hearing evidence from the accused in person, constitute an infringement of the rights to defence which shall lead to declaring the decision taken null and void. The relevant provisions of domestic law and practice are described in detail in the case of Ilişescu and Chiforec v. Romania (no. 77364/01, §§ 18-19, 1 December 2005). 71. The relevant part of law no. 51/1995 on the organization and exercise of lawyers' practice reads: “The lawyer shall study the case thoroughly..., shall attend every court hearing...” 72. The relevant part of the statutes of the lawyers' practice reads: “(2) When the lawyer is prevented from fulfilling his professional duties, he shall provide a substitute...” 73. Extract from the 11th General Report of the European Committee for the Prevention of Torture (CPT) (CPT/Inf (2001) 16) “29. In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions. No doubt, various factors - including those of a cultural nature - can make it preferable in certain countries to provide multi-occupancy accommodation for prisoners rather than individual cells. However, there is little to be said in favour of - and a lot to be said against - arrangements under which tens of prisoners live and sleep together in the same dormitory.” 74. The CPT standards (“Substantive” sections of the CPT's Annual General Reports) “50. The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners... [Prisoners unsuited for continued detention] 70. Typical examples of this kind of prisoner are those who are the subject of a shortterm fatal prognosis, who are suffering from a serious disease which cannot be properly treated in prison conditions, who are severely handicapped or of advanced age. The continued detention of such persons in a prison environment can create an intolerable situation. In cases of this type, it lies with the prison doctor to draw up a report for the responsible authority, with a view to suitable alternative arrangements being made.” 75. The CPT visited Romania in 1995, 1999, 2001, 2002, 2003, 2004 and 2006. All but its most recent visit report have since been made public. Overcrowding of prisons and lack of reasonable hygiene facilities were constantly stressed by the CPT. 76. Recommendation no. R (98) 7 concerning the ethical and organisational aspects of health care in prison reads: “C. Persons unsuited to continued detention: serious physical handicap, advanced age, short term fatal prognosis 50. Prisoners with serious physical handicaps and those of advanced age should be accommodated in such a way as to allow as normal a life as possible and should not be segregated from the general prison population. Structural alterations should be effected to assist the wheelchair-bound and handicapped on lines similar to those in the outside environment. 51. The decision as to when patients subject to short term fatal prognosis should be transferred to outside hospital units should be taken on medical grounds. While awaiting such transfer, these patients should receive optimum nursing care during the terminal phase of their illness within the prison health care centre. In such cases provision should be made for periodic respite care in an outside hospice. The possibility of a pardon for medical reasons or early release should be examined.” | 1 |
train | 001-105032 | ENG | BGR | ADMISSIBILITY | 2,011 | KATSARSKA AND OTHERS v. BULGARIA | 4 | Inadmissible | Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva | The applicants, Ms Kina Koseva Katsarska, Mr Krasimir Stefanov Katsarski, Mr Lachezar Stefanov Katsarski and Ms Todorka Hristova Damyanova, are Bulgarian nationals who were born in 1927, 1955, 1962 and 1928 respectively. The first three applicants live in Blagoevgrad and the fourth applicant lives in Sofia. The applicants were represented before the Court by Mr Y. Yankov, a lawyer practising in Sofia. The ancestors of the applicants owned a plot of land and a two-storey building in Blagoevgrad. A portion of that property was expropriated in 1948. However, in practice the whole property was taken and allocated for use by the State enterprise T. Two additional storeys to the expropriated building were constructed by the State in 195455 and 196870 respectively. In 1993, following the demise of the communist regime, T. was transformed into a State-owned limited liability company. Pursuant to the legislation in force at the time, it acquired ownership of the two additional storeys previously allocated for its use. On an unspecified date after the adoption of legislation in Bulgaria in the early 1990s which provided for the restoration of titles to certain types of expropriated property, the applicants obtained restitution of the land and the first two storeys of the building. In 1997 the first, second and third applicants brought a rei vindicatio claim against the company T. and the State. They argued that they had become coowners of the two storeys constructed after the expropriation, as only parts of the building had been expropriated from their ancestors. As their ancestors had never consented to another person constructing and becoming owner of the two new storeys, the State could not have acquired the entire property. The claim was examined at three levels of jurisdiction and dismissed in a final judgment of the Supreme Court of Cassation of 29 December 2005. The domestic courts found that the two additional storeys could not be subject to restitution under the denationalisation legislation, because they had never been expropriated. Furthermore, even if the applicants’ ancestors had remained co-owners of the property, parts of which had been expropriated, and had thus become co-owners of the two additional storeys, their rights had been extinguished and the State had acquired full ownership of these storeys through adverse possession, once the applicable ten-year statutory period had expired. The provisions of the restitution legislation, relied on by the first, second and third applicants, stating that the rules on adverse possession did not apply to expropriated property, were not applicable in the case. | 0 |
train | 001-57968 | ENG | FRA | CHAMBER | 1,995 | CASE OF G. v. FRANCE | 3 | Lack of jurisdiction (complaint inadmissible);No violation of Art. 7-1 | null | 7. Mr G., a driving test examiner, was charged on 14 December 1980 with accepting bribes. It was alleged that he had issued driving licences in exchange for payment of a sum of money (Article 177 of the Criminal Code, see paragraph 12 below). In the course of the investigation and following additional submissions from the prosecuting authority, the investigating judge charged him with "corruption in the form of soliciting sexual favours" and indecent assault with violence or coercion (see paragraph 13 below) on the person of P., a driving test candidate. The investigating judge based the second charge on Article 333 of the Criminal Code as amended by the Law of 23 December 1980 (see paragraph 14 below). It was specifically alleged that G. had, on 14 November 1980, constrained a young woman who suffered from a slight mental handicap to submit to acts of buggery. At the material time such acts were classified as indecent assault rather than rape. 8. On 18 November 1982 the Rennes Criminal Court sentenced him to five years' imprisonment, two of which were suspended, for accepting bribes as a citizen responsible for a public service and indecent assault with violence or coercion by a person in authority. In so doing, the court was applying the Law of 23 December 1980 (see paragraph 14 below). The Rennes Court of Appeal upheld that decision in a judgment of 14 November 1983. On 26 February 1985 the latter judgment was quashed by the Court of Cassation on the ground that no reply had been given to the pleas of nullity. The case was remitted to the Angers Court of Appeal. 9. In a judgment of 22 January 1987 that court rejected the pleas of nullity. It dismissed the charge of corruption in the form of soliciting sexual favours, but found the applicant guilty of accepting bribes and of indecent assault with coercion and abuse of authority. It reduced his sentence to three years' imprisonment by virtue of Law no. 80-1041 of 23 December 1980, whose entry into force postdated the commission of the offences in question (see paragraph 14 below). 10. The applicant lodged a further appeal on points of law with the Court of Cassation. The fourth and last ground of this appeal was formulated as follows: "Violation of Article 7 of the Declaration of the Rights of Man and the Citizen, of Articles 4, 332 and 333 of the Criminal Code as applicable to the alleged offences and Article 593 of the Code of Criminal Procedure, failure to state reasons and lack of a legal basis; In so far as the impugned judgment found the defendant guilty of indecent assault on the person of P. on 14 November 1980; ... Before the entry into force of Law no. 80-1041 of 23 December 1980, under the Criminal Code the offence of indecent assault with coercion was not committed where no violence had been practised on the person who had been the object of that coercion; no one may be convicted in respect of acts which the law did not regard as an offence before they were carried out and the alleged indecent assault with coercion of which the appellant is accused did not, at the material time, constitute any criminal offence; nor did the mental deficiency of the `victim' constitute an aggravating circumstance. The acts in question could not therefore be punished under this head. By ruling as it did, the Court of Appeal violated the principle that no act may be classified as a punishable offence unless the law makes prior provision to that effect." 11. On 25 January 1989 the Court of Cassation dismissed the appeal. It explained its rejection of the above-mentioned ground in the following terms: "The finding of guilt on the count [of accepting bribes] justified the sentence imposed; in accordance with Article 598 of the Code of Criminal Procedure [see paragraph 15 below] it is therefore unnecessary to rule on the fourth ground of appeal put forward by the appellant." 12. Article 177 1° of the Criminal Code is worded as follows: "Anyone who has solicited or accepted offers or promises, solicited or received gifts or presents shall be liable to a term of imprisonment of from two to ten years and a fine equal to double the value of the promises accepted or the articles received or requested, such fine not being less than FRF 1,500, where he has done so 1° as a person holding elected office, being a public servant in the administrative or judicial branch of the civil service, a member of the armed forces or having equivalent status, the agent or representative of a public administrative authority or of an administrative authority placed under the control of the public authorities or a citizen responsible for a public service, in return for performing or refraining from performing one of his duties or one of the tasks attaching to his post, whether fair or not, but not covered by his salary." 13. The relevant provisions of the Criminal Code were as follows: "Any indecent assault committed or attempted without violence on the person of a child of either sex under the age of fifteen years shall be punished by between five and ten years' imprisonment. The same penalty shall be imposed in respect of indecent assault by any relative in the ascending line carried out on the person of a minor, even if the victim is aged over fifteen years provided that he or she is unmarried. Without prejudice to the more severe penalties laid down in the foregoing paragraphs or in Articles 332 and 333 of the present Code, whosoever shall commit an indecent or unnatural act with a person of the same sex aged less than twenty-one years shall be punished by between six months' and three years' imprisonment and a fine of between FRF 60 and FRF 15,000." "Whosoever shall commit the crime of rape shall be sentenced to between ten and twenty years' imprisonment. If the offence has been committed on the person of a child not having fully attained fifteen years of age, the offender shall receive the maximum penalty available. Whosoever shall commit or attempt to commit indecent assault with violence on individuals of either sex shall be sentenced to between five and ten years' imprisonment. If the crime has been committed on the person of a child not having fully attained fifteen years of age, the offender shall be sentenced to between ten and twenty years' imprisonment." "If the offenders are relatives in the ascending line of the person on whom the indecent assault was carried out, if they belong to the class of those who have authority over that person, if they are his or her schoolteachers or hired servants, or hired servants of the above-mentioned persons, if they are officials or ministers of a religion, or if the offender, whoever he may be, was assisted in his offence by one or more persons, the penalty shall be between ten and twenty years' imprisonment in the case provided for in the first paragraph of Article 331 and life imprisonment in the cases provided for in the preceding Article." As there was no statutory definition of the notions of rape and indecent assault, the case-law delimited the scope of those terms. Thus coercion or non-physical violence has been treated as equivalent to physical violence. Consequently the offences were constituted where they had been committed without the victim's consent (see judgments of the Criminal Division of the Court of Cassation of 5 July 1838, Bulletin no. 191; of 27 September 1860, Bulletin no. 219; of 25 June 1857, Bulletin no. 240; of 27 December 1883, Bulletin no. 295; and of 17 November 1960, Bulletin no. 528). 14. Articles 332 and 333 of the Criminal Code were amended by Law no. 80-1041 of 23 December 1980, which entered into force on 24 December 1980. They now read as follows: "Any act of sexual penetration, of whatever nature, committed on the person of another by violence, coercion or by taking the victim unawares shall constitute rape. Rape shall be punished by between five and ten years' imprisonment. However, rape shall be punished by between ten and twenty years' imprisonment where it has been committed either on a person who was especially vulnerable owing to pregnancy, sickness, infirmity or physical or mental deficiency, or on a person under the age of fifteen years, or with the threatened use of a weapon, or by two or more assailants or accomplices, or by a legitimate, natural or adoptive ascendant of the victim or by a person in a position of authority over the victim or by a person who has abused the authority conferred by his duties." "Any other indecent assault committed or attempted with violence, coercion or by taking the victim unawares on a person other than a minor under the age of fifteen years shall be punished by between three and five years' imprisonment and a fine of between FRF 6,000 and FRF 60,000 or by one of these penalties alone. However, indecent assault as defined in the first paragraph shall be punished by between five years' and ten years' imprisonment and a fine of between FRF 12,000 and FRF 120,000 or one of these penalties alone where it was committed or attempted either against a person who was particularly vulnerable owing to sickness, infirmity or physical or mental deficiency or pregnancy, or with the threatened use of a weapon, or by a legitimate, natural or adoptive ascendant of the victim or by a person in a position of authority over the victim, or by two or more assailants or accomplices, or by a person who has abused the authority conferred on him by his duties." The new law downgraded the offence of indecent assault from serious offence (crime) to less serious offence (délit). 15. Article 5 of the Criminal Code provides that "in the event of conviction for several serious offences and less serious offences, only the heaviest penalty available for one of the individual offences shall be imposed". This principle that sentences are not to be imposed consecutively is part of the basis for the doctrine of justified penalty laid down in Article 598 of the Code of Criminal Procedure, according to which: "Where the penalty imposed is the same as that which would be imposed under the law that applies to the offence, any application to have the judgment quashed on the basis that there has been an error in the citation of the relevant provision shall fail." Thus the Court of Cassation will declare the operative part of a judgment imposing a sentence to be justified where the sentence imposed is identical to that which the trial court would have ordered if the error of classification had not been committed. Where the appellant has been convicted of several offences, the court will not examine the ground based on the error and directed against one of the offences if the penalty imposed is justified by the other offences (see judgments of the Criminal Division of the Court of Cassation of 25 September 1890, Bulletin no. 196; of 30 October 1925, Recueil Dalloz 1926, p. 6; of 25 March 1927, Recueil Dalloz 1927, p. 287; of 7 November 1931, Recueil Dalloz 1931, p. 559). | 0 |
train | 001-105428 | ENG | GBR | ADMISSIBILITY | 2,011 | JOBE v. THE UNITED KINGDOM | 4 | Inadmissible | Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano | The applicant, Mr Pa Monde Jobe, is an Gambian national who was born in 1980 and lives in Gambia. He was represented before the Court by Mr L. McNulty, a barrister practising in London. The applicant was arrested on 15 December 2006 in Birmingham. He remained in custody throughout the criminal proceedings against him. On arrest, he was found to be in possession of a large number of digital files containing extremist Islamist material. This included files entitled “Military Training manual”, “Al Qa’eda Training Manual”, “How Can I Train Myself For Jihad?”, and “39 ways to Serve and Participate in Jihad”. The documents were contained either on a “torrent” file, acquired through a file-sharing system on the internet or, in the case of the “Al Qa’eda Training Manual” document, on a compact disc. On the applicant’s mobile telephone the police found a video of West Midlands police head-quarters, which was alleged to have been taken with view to a possible terrorist attack. The applicant was charged inter alia with five counts of possessing a document or record containing information likely to be useful to a person committing or preparing an act of terrorism, contrary to section 58(1)(b) of the Terrorism Act 2000. Under section 58(3) it is a defence for a person charged with an offence under section 58 to prove that he had a reasonable excuse for his action or possession. In his defence statement the applicant explained that he had acquired the torrent file when undertaking research on the internet concerning military training in his native country, Gambia. He was considering returning to Gambia in the future and wished to know what training he would need to perform in his country in order to join the army. For the document “Al Qaeda Training Manual” he said on a number of occasions he had purchased, or was given, material relating to Islamic religious, historic and current affairs. The compact disc was one such item and, at the time of his arrest, he did not know its complete content and was not aware of that particular document. Similar explanations were given for the remaining documents, with the additional explanation that all Muslims were obliged to participate in Jihad. Finally, concerning the video on his mobile telephone, the applicant explained that he had taken it when he had just acquired the phone. While travelling on a bus, he had decided to test the video facility on the telephone. There were no signs to indicate that videoing was prohibited in that area and, indeed, the actual images captured were immaterial to him. On 12 December 2007 the applicant appeared before Birmingham Crown Court and pleaded not guilty to all the charges. He raised the “reasonable excuse” defence contained in section 58(3) of the Terrorism Act. At the time there was no legal guidance on what a reasonable excuse would be under that section. On 1 February 2008 the applicant sought an indication from the trial judge as to what sentence he would receive should he change his plea to guilty (see the Goodyear case, relevant domestic law and practice below). The applicant was advised that he would receive a maximum sentence of four years’ imprisonment, which would mean that he would be released soon after conviction since he had already spent a significant period of time on remand. If the applicant did not change his plea and was found guilty by a jury he would face a longer sentence. The applicant therefore changed his plea to guilty, and sentencing was adjourned until 25 February 2008. On 13 February 2007 the Court of Appeal handed down its judgment in the case of R v. K [2008] EWCA Crim 185, on the defence of “reasonable excuse” in section 58(3). In that case the defendant had argued that section 58(3) was too uncertain in its ambit to satisfy the principle of legal certainty. The court rejected that argument and stated that a reasonable excuse was: “simply an explanation that the document or record is possessed for a purpose other than to assist in the commission or preparation of an act of terrorism. It matters not that that other purpose may infringe some other provision of the criminal or civil law.” The applicant believed that the effect of K was that the explanations that he had given concerning the possession of the documents were now a defence to the charges he faced. He therefore made an application for his guilty plea to be withdrawn, which was granted on 19 March 2008. In granting the application, the trial judge also recognised that, at the applicant’s trial, he would now be obliged to direct the jury in line with the decision in K. The prosecution took an interlocutory appeal against the trial judge’s decision. That appeal was, however, dismissed by the Court of Appeal on 1 May 2008, which found that it was bound by its judgment in K. The prosecution then appealed to the House of Lords, arguing that K had been wrongly decided. The House of Lords gave judgment on 4 April 2009 ([2009] UKHL 13). It began by setting out what the Crown would be required to prove to establish a case against an accused under section 58, stating: “The Crown must prove beyond reasonable doubt that the defendant (1) had control of a record which contained information that was likely to provide practical assistance to a person committing or preparing an act of terrorism, (2) knew that he had the record, and (3) knew the kind of information which it contained. If the crown establishes all three elements, then it has proved its case against the defendant and he falls to be convicted unless he establishes a defence under subsection (3).” It then considered the operation of the “reasonable excuse” defence in section 58(3) and observed: “It is only where the prosecution has already proved all these elements and so is otherwise entitled to a conviction, that the defendant needs to rely on the defence in section 58(3) in order to avoid conviction. If, applying section 58(3), the jury accept that the defendant had a reasonable excuse for possessing the material, then, because of that additional factor in the circumstances, he is entitled to be acquitted, even though it remains the case that the Crown has proved all the necessary elements of the offence in terms of section 58(1). It necessarily follows that, if the jury do not accept the defence put forward by the defendant under section 58(3), the defence fails and their duty will be to convict him of the offence under section 58(1) (emphasis in original).” At paragraph 69 of its ruling the House of Lords provided the following example as to how the defence was to operate: “Suppose, for instance, the Crown proves beyond a reasonable doubt that, when a defendant was stopped and searched, a disk containing the Al Qa’eda Training Manual was found in his pocket and that he knew what was on the disk. The defendant adduces evidence to the effect that he had found it on a train only a few minutes before and was on his way to hand it in to the nearest police station when he was stopped. Assume that this would be a reasonable excuse. The jury would have to find the defence satisfied and acquit the defendant, unless the Crown proved beyond a reasonable doubt that the defence was not satisfied – in the hypothetical example, by proving that the defendant’s story was not true and that, in fact, he was not on his way to hand in the disk when he was stopped. If the Crown proved this, then, in terms of section 118(2) [of the Terrorism Act 2000: see relevant domestic law and practice below], it would have proved that the defence was not satisfied – in other words, that it had not been made out. The supposed defence would then vanish from the scene and the Crown would be entitled to ask for a conviction on the basis of the evidence of the defendant’s possession of the disk.” The House of Lords rejected the interpretation of the “reasonable excuse” defence adopted by the Court of Appeal in K. It was not correct to interpret the defence as meaning that any non-terrorist purpose would be a reasonable purpose. The Court of Appeal’s construction of “reasonable excuse” was, in the House of Lords’ view, “utterly different” from the construction which had been put on the equivalent defence in other statutes (as those relating to possession of an offensive weapon or failure to provide a blood or urine sample in road traffic cases). It continued: “More than that, however, the Court of Appeal’s construction robs the adjective “reasonable” in section 58(3) of all substance. Neither the judge nor the jury is left with any room to consider whether the excuse tendered by the accused for, say, his possession of the document or record is actually reasonable. Provided only that he proves that his purpose was not connected with the commission etc of an act of terrorism, the Court of Appeal give him a defence under subsection (3). Indeed they expressly affirm that it matters not that the defendant’s purpose may infringe some other provision of the criminal or civil law. Suppose, for example, that the accused had a document containing information about the security system protecting the Home Secretary’s residence. The interpretation adopted by the Court of Appeal means that, if the defendant proved that he had this document because he was planning to burgle the Home Secretary’s house and steal her jewellery, this would, by definition, be a reasonable excuse since the defendant’s purpose would not be connected with the commission etc of an act of terrorism. The same would apply if the defendant’s purpose was to murder the Home Secretary for purely personal motives. Even if the jury rightly considered that these ‘excuses’ were outrageous rather than reasonable, in each case the judge would have to direct them that the defendant’s purpose amounted to a reasonable excuse in terms of section 58(3) and that they would have to acquit him. In our view, Parliament could not have intended section 58(3) to be interpreted or applied in that way.” “Unless the judge is satisfied that no reasonable jury could regard the defendant’s excuse as reasonable, the judge must leave the matter for the jury to decide. When doing so, if appropriate, the judge may indicate factors in the particular case which the jury might find useful when considering the issue – such as the defendant’s age, his background, his associates, his way of life, the precise circumstances in which he collected or recorded the information, and the length of time for which he possessed it.” As to the argument that an over-zealous use of section 58 by the police and prosecution could exacerbate rather than reduce the threat of terrorism, the House of Lords observed that, while prosecutors were very familiar with the need to exercise a wise discretion in deciding whether taking proceedings would ultimately be in the public interest, in section 58 Parliament had enacted the safeguard that proceedings were not to be initiated without the consent of the Director of Public Prosecutions (paragraph 85): “This can be seen as an acknowledgment that the nature of these offences is such that not all contraventions of the provisions should be prosecuted. More positively, the need for this consent should help ensure that prosecutors do indeed give due consideration to the public interest and do not embark on prosecutions in cases which do not merit it.” Following the House of Lords’ judgment the applicant considered himself to be in the same position that he had been in prior to the Court of Appeal’s judgment in K. In particular, he considered that he had no means of knowing whether the jury would find his reasons for possession to be reasonable. Accordingly, on 20 April 2009, the applicant sought a further indication of sentence in order to decide whether to once more change his plea to guilty. The indication given by a different trial judge was of a maximum of four and a half years’ imprisonment. In light of the fact that this would mean a virtually immediate release, rather than an uncertain trial after which he might receive a much longer sentence, the applicant pleaded guilty to the charges. He was sentenced to three years and nine months’ imprisonment. He completed his sentence on 8 May 2009 and was deported to Gambia on 15 May 2009. Section 58 provides as follows: “Collection of information. (1) A person commits an offence if— (a) he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, or (b) he possesses a document or record containing information of that kind. (2) In this section “record” includes a photographic or electronic record. (3) It is a defence for a person charged with an offence under this section to prove that he had a reasonable excuse for his action or possession. (4) A person guilty of an offence under this section shall be liable— (a) on conviction on indictment, to imprisonment for a term not exceeding 10 years, to a fine or to both, or (b) on summary conviction, to imprisonment for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both. Section 118 of the Act provides that, if the defendant adduces evidence which is sufficient to raise the issue of a defence of “reasonable excuse”, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not. In R v. Goodyear [2005] 1 W.L.R. 2532, the Court of Appeal set out the procedure to be followed when a defendant, during the course of criminal proceedings against him, asks the judge for an indication of the maximum sentence he would receive upon a plea of guilty. Any advance indication of sentence to be given by the judge should normally be confined to the maximum sentence if a plea of guilty were tendered at the stage at which the indication is sought. Where appropriate, there must be an agreed, written basis of plea between the defence and prosecution. Where there is a dispute about a particular fact which counsel for the defendant believes to be effectively immaterial to the sentencing decision, the difference should be recorded, so that the judge can make up his own mind. The judge should never be invited to give an indication on the basis of what would be, or what would appear to be, a “plea bargain”. Whenever an indication of sentence is sought, the defendant’s representative should advise the defendant that he should change his plea to guilty only if he accepts that he is guilty. The defendant should also be informed that the sentence could be increased on appeal by means of an Attorney-General’s reference, if the sentence was considered to be unduly lenient. The representative must also make clear that any indication given by the judge reflects the situation at the time when it is given, and that if a guilty plea is not tendered in the light of that indication the indication ceases to have effect. Prosecution counsel should, inter alia, draw the judge’s attention to any minimum or mandatory statutory sentencing requirements and avoid saying anything that may create the impression that the sentence indication has the support or approval of the Crown. | 0 |
train | 001-90499 | ENG | FIN | ADMISSIBILITY | 2,008 | DANKER v. FINLAND | 4 | Inadmissible | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | The applicant, Mr Anders Danker, is a Finnish national who was born in 1961 and lives in Lidingö, Sweden. He was represented before the Court by Mr J. Hakanen, a lawyer practising in Turku. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties and as they appear from the documents on the file, may be summarised as follows. The police investigated allegations that a bank had advanced loans without the necessary guarantees to such an extent that its solvency had been endangered and that unlawful financial inducements had been offered. The investigation also focused on whether there had been debtor dishonesty or fraud. On 10 September 1994 the applicant was questioned by the police as a suspect. The pre-trial investigation was completed on 14 July 1995. The applicant was subsequently charged with economic crime allegedly committed in 1991 and 1992. On 18 April 1996 the Salo District Court (käräjäoikeus, tingsrätten) upheld a co-defendant’s claim that he had not been properly summoned to the trial and declared the case against him inadmissible. On 24 September 1996 the Turku Court of Appeal (hovioikeus, hovrätten) upheld the decision. On 20 October 1997 the Supreme Court (korkein oikeus, högsta domstolen) quashed the previous decisions and remitted the case to the District Court. Meanwhile, a second hearing was held on 12 June 1996. At the third hearing on 27 August 1996, the District Court upheld a co-defendant’s claim that he had not been properly summoned. On 11 February 1998 the Court of Appeal quashed the decision. On 8 February 1999 the Supreme Court upheld the appellate court’s decision. The applicant was summoned to appear before the District Court for the first time at the above-mentioned third hearing held on 27 August 1996. The public prosecutor was found to be biased and a new prosecutor was assigned to the case, which was then adjourned until 11 November 1996. On 21 January 1998 the District Court upheld a co-defendant’s claim that he had not been properly summoned and that the statute of limitations had already expired. On 8 October 1998 the Court of Appeal quashed the decision and remitted the case to the lower court. On 3 November 2000 the Supreme Court upheld the appellate court’s decision. Meanwhile, on 30 March 2000 the District Court noted in its minutes that the parties disagreed as to whether the “reasonable time” requirement in Article 6 of the Convention had been complied with, and that the court would decide at a later stage whether the trial could continue. On 18 May 2000 the District Court issued a separate decision dismissing a co-defendant’s request that the charges against him should be declared inadmissible due to the length of the proceedings. It held, inter alia, that the case was exceptionally difficult, involving voluminous evidence and being of significant public interest. On 19 December 2000 it dismissed a renewed request. On 12 January 2001 a co-defendant lodged a procedural complaint with the appellate court. It was dismissed on 13 March 2001. There were 28 days of hearings in the District Court up to the end of 2000, held at approximately two to five-month intervals. On 28 June 2001 a Spanish court acceded to the request of the Finnish Government for the extradition of a co-defendant to Finland to serve a prison sentence which had previously been imposed on him. According to an arrangement, he would be granted immunity from further prosecution in Finland for offences he had previously committed. On 14 August 2001 the District Court found that the criminal case against the co-defendant was barred on the basis of his immunity. On 30 November 2001 the Ministry of Justice applied to the Spanish authorities for permission to continue his prosecution in Finland in respect of offences other than those for which he had been extradited. On 4 October 2002 the relevant Spanish court acceded to the request. The appeal was rejected on 2 December 2002. On 10 January 2003 the Spanish Government consented to his continued prosecution in Finland. The co-defendant challenged the lawfulness of his continued prosecution before the Finnish courts. During spring 2003 he changed counsel. On 20 August 2003 the District Court rejected his claim for continued immunity, finding that the immunity had been annulled by the afore-mentioned decision of the Spanish Government. The decision was upheld by the Court of Appeal on 3 or 13 December 2003. The present case was adjourned until 9 December 2003 owing to the need to replace the public prosecutor, who had fallen ill. Meanwhile, on 25 February and 20 August 2003 respectively, the District Court dismissed the further requests of a co-defendant and the applicant to have the charges against them ruled inadmissible on account of the length of the proceedings. The applicant’s procedural complaint was dismissed by the appellate court on 3 December 2003. On 12 October 2004 the Supreme Court refused leave to appeal. On 9 February 2004 the District Court also dismissed the renewed request of the applicant, among others, observing that the question of whether the length of the proceedings had been unreasonable would be examined in due course and that any redress required could be given at the end of the proceedings. The appellate court upheld the last-mentioned decision on 30 June 2004. On 12 October 2004 the Supreme Court refused leave to appeal. On 31 August 2004 the District Court dismissed a further request that the charges be declared inadmissible owing to the length of the proceedings. During the trial the police conducted at least 12 additional investigations, the last of which, according to the Government’s observations in the case of Uoti v. Finland (no. 61222/00, § 19, 9 January 2007), was completed on 28 November 2003. There had been a total of some 50 days of hearings prior to 30 March 2004 when the District Court had started to obtain evidence. Thereafter, there were 38 days of hearings up until the end of October 2004. On 30 December 2004 the Parliamentary Ombudsman, noting that he lacked competence to interfere with the ongoing proceedings, drew the Government’s attention to the need to allocate adequate financial resources to both the District Court and the authorities involved in the case. On 21 March 2006 the District Court gave its judgment. It dismissed as time-barred the charge concerning aiding and abetting debtor dishonesty but convicted the applicant of an accounting offence. The court found that the “reasonable time” requirement laid down in the Constitution and the Convention had not been respected and that the applicant was therefore entitled to redress. The court noted that it had dismissed one of the charges as time-barred. As the court was not allowed to pass judgment on the time-barred charge, redress for the length of the proceedings had to be given in some other way. Accordingly, the applicant’s sentence should be mitigated. The court considered that the redress had to be significant and, having regard to the exceptionally lengthy nature of the proceedings, it should also be substantial. The applicant had not contributed to the length of the proceedings. The court stated that it was reducing the applicant’s sentence by half owing to the breach of the “reasonable time” requirement. It sentenced him to a suspended term of sixty days’ imprisonment. The applicant appealed. The Court of Appeal held two preparatory hearings in November 2006. In the main hearing the case was heard over five days in January 2007. On 22 October 2007 the Court of Appeal gave its judgment. It concurred with the lower court that the “reasonable time” requirement had not been respected and that the applicant was therefore entitled to redress, which had to be significant and substantial. It also had to be given in a clear and measurable manner. No reason had emerged not to impose a sentence. The court found that the applicant had not contributed to the length of the proceedings. It stated that it was reducing the applicant’s sentence by two-thirds owing to the lengthy proceedings. The Court of Appeal agreed with the District Court that the standard sentence would be four months’ imprisonment and noted that the lower court had mitigated that sentence by half, that is, sixty days. The Court of Appeal further noted that it was not possible to mitigate the applicant’s sentence to a fine, having regard to the harmful and dangerous nature of the offence, the motives and the guilt displayed by the offence. Applying Chapter 6, article 7, point 3, of the Penal Code (as amended by Act no. 515/2003 and with effect from 1 January 2004; rikoslaki, strafflagen), the Court of Appeal, owing to the breach of the “reasonable time” requirement, sentenced him to a suspended term of forty days’ imprisonment. The applicant requested leave to appeal. On 22 May 2008 the Supreme Court refused leave to appeal. Chapter 6, article 7, point 3, of the Penal Code reads: “In addition to what is provided above in section 6, grounds for mitigating the sentence that are also to be taken into consideration are ... (3) a considerably long period that has passed since the commission of the offence; if the punishment that accords with established practice would for these reasons lead to an unreasonable or exceptionally detrimental result.” Chapter 6, article 12, point 4, of the Penal Code (as amended by Act no. 515/2003 which took effect on 1 January 2004) reads: “The court may waive the sentence if ... 4) the imposition of a sentence must be considered unreasonable or purposeless especially having regard to the factors mentioned in Chapter 6, article 6, point 3 and Chapter 6, article 7 or the measures taken by social and health services; ...” In its judgment of 11 June 2004 (KKO 2004:58) the Supreme Court noted that, although there were no legal provisions justifying the dismissal of a criminal charge due to unreasonably long proceedings, such a dismissal or declaration of inadmissibility might in some exceptional circumstances, for example if their duration ruled out a good defence, be the only effective remedy satisfying the requirements of Article 13 of the Convention. That was, however, not the case here. In considering whether there were grounds for applying Chapter 6, article 7, point 3, of the Penal Code, the Supreme Court held that it had to be decided in casu whether the duration of the proceedings (here over 5.5 years) had been unreasonable. It concluded that in this case there were no grounds not to impose a sentence or to mitigate the sentence owing to the duration of the proceedings. In its judgment of 15 June 2005 (KKO 2005:73) the Supreme Court, applying Chapter 6, article 7, point 3, of the Penal Code, reduced the sentence by six months owing to the lengthy proceedings (some ten years). It imposed an immediate term of ten months’ imprisonment, finding that it was not justifiable to further mitigate the sentence by suspending the term of imprisonment. On 1 February 2006 the Supreme Court gave a judgment (KKO 2006:11) in which, applying Chapter 6, article 12, point 4, of the Penal Code, it afforded redress for the breach of the “reasonable time” requirement (here the proceedings had lasted over seven years) by waiving the sentence. | 0 |
train | 001-70625 | ENG | ITA | ADMISSIBILITY | 2,005 | SOTTANI v. ITALY [Extracts] | 1 | Inadmissible | null | The applicant, Mr Giovanni Sottani, is an Italian national who was born in 1950 and lives in Scandicci (Florence). He was represented before the Court by Mr Di Donato, Ms Costantini and Mr De Stefano, lawyers practising in Florence. The facts of the case, as submitted by the parties, may be summarised as follows. On 4 March 1991 the applicant’s wife, B.C., who had been suffering from acute leukaemia, died at Careggi Hospital in Florence. After carrying out a hospital autopsy (autopsia amministrativa) on 5 March 1991 to determine the cause of death, the doctors indicated in the medical record that the applicant’s wife had died of acute bronchopneumonia. On 3 April 1991 the applicant lodged a criminal complaint with the public prosecutor’s office at Florence Magistrate’s Court (“the prosecutor’s office”), claiming, inter alia, that certain delays had contributed to his wife’s death, especially delays in performing a chest X-ray and in recording the results of a platelet test. In addition, the applicant stated that one of the doctors who treated his wife had described a “French drug” used in her treatment as “dreadful” and “directly attacking the DNA cells”. The applicant thus complained that he had not been informed that the drug was dangerous and asked whether it had already passed the trial stage or was still undergoing trials. On an unspecified date and on the basis of an expert report, the public prosecutor, considering that the delays indicated by the applicant had no causal link with the death of B.C. and that her leukaemia had reached a terminal phase, requested that the investigating judge discontinue the proceedings. On 24 September 1991 the applicant lodged an objection, indicating, inter alia, that the “question concerning the amsacrine-based drug administered to his wife” had not been addressed. On 7 October 1991, on the basis of a medical certificate, the investigating judge found that B.C.’s leukaemia had not reached the terminal phase as the expert had indicated. He dismissed the request for discontinuation and ordered a new expert report. The investigating judge questioned in particular whether the amsacrine-based drug had been administered to the applicant’s wife “in accordance with the knowledge of specialised medical science in that field”. In a report dated 4 February 1992, the expert indicated that the doctors had not committed any error, carelessness or negligence in the treatment of B.C.’s illness. Having analysed the medical literature, the expert also expressed the opinion that the amsacrine-based drug had been administered to her in accordance with technical knowledge in the relevant field. On 20 February 1992 the public prosecutor again requested that the case be discontinued, and the applicant lodged an objection on 12 March 1992. On 13 April 1992 the investigating judge dismissed the objection and discontinued the proceedings. On 22 July 1992 the applicant applied for the reopening of the preliminary investigation, but his application was rejected on 28 July 1992. On 28 January 1994 the applicant again lodged a criminal complaint with the prosecutor’s office. He complained that morphine, which is contra-indicated in cases of respiratory disorders, had been administered to his wife and that certain doctors had fabricated the time of her death on the medical record in order to avoid liability for manslaughter. According to an expert report dated 28 December 1994, the therapy chosen for the treatment of the applicant’s wife was adequate and there was no causal link between the administration of the morphine and her death. On 14 March 1995 the prosecutor’s office accordingly called for the discontinuance of the proceedings. The applicant lodged an objection on 27 March 1995. On 31 March 1995 the investigating judge discontinued the proceedings. On an unspecified date the applicant learnt from an article in the New England Journal of Medicine of 26 January 1995 that F.L., a colleague of P.R.F., the doctor in charge of the haematology department of Careggi Hospital, had worked on trials involving the amsacrine-based drug “A.”, used to treat leukaemia. In a parliamentary question of 4 May 1998, M.B., a member of parliament, requested that the Minister of Justice and the Minister of Health conduct an inquiry at the haematology department of Careggi Hospital to ascertain, in particular, details of any trials of the drug “A.”. In a letter of 10 June 1998, the Health Minister therefore requested that Careggi Hospital provide him promptly with any information about any such trials. That request, which went unanswered, was repeated on 23 June and 9 July 1998. In a note of 16 July 1998, Careggi Hospital informed the Health Minister that no further trials involving the drug “A.” had been carried out since 1993. On 6 August 1998 the Health Minister requested that the Rome carabinieri find out whether there had been any trials of the drug “A.” at Careggi Hospital during the period preceding the death of the applicant’s wife and, if so, to obtain details of any such trials. In a report of 26 October 1998, the carabinieri informed the Health Minister that, according to the information provided by P.R.F., no trials of the drug “A.” had been conducted at Careggi Hospital. However, P.R.F. had indicated that the drug in question had been administered to the applicant’s wife as part of her leukaemia treatment and that she had died following an acute infection that had been an adverse effect of the drug. In addition, P.R.F. asserted that the patient’s relatives had been informed that the drug had been administered. In the meantime, on 5 September 1998, the applicant had again lodged a criminal complaint with the prosecutor’s office. He claimed, inter alia, that the drug “A.”, whilst still undergoing trials, had been administered to his wife without her knowledge and without the consent of her family. On 15 September 1998 the prosecutor’s office ordered an expert report. On 29 October 1999 the prosecutor ordered the carabinieri to add to the case file the documents attesting to the participation of the applicant’s wife in the trials. In an undated report based on the article from the New England Journal of Medicine, the expert observed that international trials of treatment for acute leukaemia had been under way during the period when the applicant’s wife was being treated in hospital. The medication used in that treatment included the drug “A.”, which had not been registered in Italy. According to the article, the patients who participated in the trials had given their consent in accordance with the regulations of each hospital. On the basis of the documents provided by the carabinieri, the expert went on to indicate that B.C. had been included in the trials without her knowledge and that she had died not from acute bronchopneumonia but from a heart attack following the administration of the drug “A.”. On 24 April 2001 the doctors who had treated B.C. were committed for trial on a charge of manslaughter. They were accused of giving the applicant’s wife a drug that had not been registered in Italy without informing her either of the risks incurred or of her inclusion in the trials. The case was listed for a preliminary hearing on 6 November 2001. On that date the applicant joined the proceedings as a civil party. On 7 January 2002 the preliminary hearings judge found that there was no case to answer. He considered that it had not been established with certainty that the drug administered to B.C. could lead to heart complications or that her death had been caused by a heart attack, since the initial medical report had indicated acute bronchopneumonia as the cause of death. In addition, he noted that the public prosecutor had not ordered a judicial autopsy in the course of the initial investigation. Because of that omission in the judicial investigation, the exact cause of B.C.’s death could no longer be established. The relevant Articles of the Code of Criminal Procedure (“the CCP”) provide: “Applications to join the proceedings as a civil party shall be made from the preliminary hearing stage ...” “Injured parties shall exercise the rights and powers expressly afforded to them by law, and may, furthermore, at any stage of the proceedings, submit pleadings and, except in cassation proceedings, request the inclusion of evidence.” “Injured parties may appoint a statutory representative for the exercise of the rights and powers afforded to them ...” “1. In the course of the preliminary investigation, the public prosecutor and the person being investigated [persona sottoposta alle indagini] may apply to the judge for the immediate production of evidence [incidente probatorio] ...” “1. Injured parties may request that the public prosecutor apply to the investigating judge for the immediate production of evidence [incidente probatorio] in the course of an investigation. 2. In the event that the public prosecutor fails to grant that request, he shall give reasons for his decision and notify the same to the injured party.” Article 116 of the implementing provisions of the CCP, pertaining to investigations into deaths that appear to have occurred as a result of a crime, provides: “Where it is suspected that a person died as a result of a crime, the public prosecutor shall verify the cause of death and, should he consider it necessary, order an autopsy ...” | 0 |
train | 001-120034 | ENG | ROU | CHAMBER | 2,013 | CASE OF HANU v. ROMANIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) | Alvina Gyulumyan;Corneliu Bîrsan;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria | 6. The applicant was born in 1973 and lives in Constanţa. 7. On 22 March 2000 criminal proceedings were instituted against the applicant, a bailiff by profession. He was charged with bribery, abuse of power and forgery, on the basis of criminal complaints lodged by M.M. and G.A (hereinafter “the complainants”), two individuals he had assisted as a bailiff in enforcement proceedings. M.M. alleged that the applicant had requested money from her in exchange for him asking a judge to assist with the enforcement of a title deed, while G.A. stated that the applicant had requested a certain amount of money from him to assist with the enforcement of a judgment. 8. On 22 March 2000 an operation was set up in respect of the applicant. The police gave M.M. a tape recorder and money which was marked with a fluorescent substance. She and her cousin met the applicant in a bar. According to the report of the operation, M.M. had wanted to hand the money to the applicant, but he had made a signal to her to put it into his briefcase. Her cousin had not been there when this had happened. After the envelope containing the money had been placed in the applicant’s briefcase, the police had appeared. The report of the operation stated that there had been no fluorescent substance found on the applicant’s hands, but that money had been found in the briefcase. 9. The applicant was held in pre-trial detention from 30 November 2001 until 27 December 2001, when he was released following a court order dismissing a request by a prosecutor to keep him in custody. 10. On 3 December 2001 the prosecutor attached to the Constanţa Court of Appeal (“the Court of Appeal”) issued an indictment against the applicant for bribery and abuse of power. The charges against him were based on statements of the complainants and other witnesses, and the report of the operation. 11. On 24 September 2002 the Constanţa County Court acquitted the applicant of all charges after hearing evidence from the witnesses, the complainants and the applicant. 12. In reaching its decision, the court noted that the only prosecution evidence available was the statements of the complainants and other witnesses, some of whom were the complainants’ relatives, who could only state what they had been told by them. Moreover, none of the witnesses actually saw the money being given to the applicant. Secondly, the court noted that no mention was made in any of the evidence submitted to it of the tape recorder that had been used during the police operation. It held, therefore, that none of the evidence was conclusive proof as to the applicant’s guilt. 13. The prosecutor appealed. In a hearing held on 10 January 2003 before the Court of Appeal, the prosecutor sought conviction of the applicant, while the applicant’s lawyer asked for the appeal to be dismissed. The applicant did not give evidence before the court, but he was given the opportunity to address the court at the end of the hearing and declared that he was innocent. No witnesses were heard and no additional evidence was adduced at that stage of the proceedings. Neither the applicant nor his lawyer submitted written observations. 14. In a decision of 23 January 2003, the Court of Appeal overturned the acquittal and found the applicant guilty of both charges, sentencing him to three years’ imprisonment suspended. It concluded that the witness statements were proof that the applicant had committed the offences alleged. 15. The applicant lodged an appeal on points of law, claiming, inter alia, that the appellate court had failed to hear the witnesses directly regarding the statements on which it had relied and had failed to take into account other evidence in his defence; that the prosecution had withheld the taperecording of the operation from the case file even though the applicant had asked for it to be assessed by the courts and the prosecutor had authorised the recording himself; and that none of the evidence adduced was conclusive proof that he had committed the offences alleged. 16. A hearing was held on 27 June 2003 before the Supreme Court of Justice (“the Supreme Court”). The applicant did not attend the hearing, but his lawyer was present. No witnesses were heard and no new evidence was adduced during the hearing. On that day, the court concluded the proceedings and set a date for the public delivery of its final decision. 17. At the following hearing on 4 July 2003, the Supreme Court dismissed the applicant’s appeal on points of law with final effect. It concluded that the Court of Appeal had assessed the evidence correctly and that the applicant’s submissions were not corroborated by any of the other evidence adduced. It emphasised that besides the statements of the complainants, the Court of Appeal had also relied on statements of witnesses who knew that G.A. had attempted to secure money to pay the applicant. It also considered the fact that no fluorescent substance had been found on the applicant’s hands to be irrelevant, given that he had requested the money which was found in his briefcase. No reference was made to the applicant’s submissions regarding the tape recorder or to the appellate court’s failure to hear the complainants and the witnesses directly. 18. The relevant provisions of the Romanian Code of Criminal Procedure concerning the authority of the appellate courts, as in force at the material time, read as follows: “(1) The court deciding the appeal shall examine the contested decision on the basis of the case file and any new written documents adduced to it. (2) In deciding the appeal, the court may make a new assessment of the evidence in the case file and may order any new evidence that it deems to be necessary ...” “In deciding the appeal, the court shall decide to: ... (2) uphold the appeal and: (a) quash the decision of the first-instance court, deliver a new decision and proceed in accordance with Article 345 et seq. to its judgment on the merits ... ” 19. The relevant provisions of the Code of Criminal Procedure concerning the authority of courts ruling on appeals on points of law, as in force at the material time, as well as amendments introduced in September 2006, are described in the case of Găitănaru v. Romania (no. 26082/05, §§ 17-18, 26 June 2012). In particular, article 38515 of the Code, as in force at the material time, provided for the Supreme Court of Justice, when allowing an appeal on points of law, to refer the case to a lower court if it was necessary to hear evidence in the case. | 1 |
train | 001-59719 | ENG | DEU | CHAMBER | 2,001 | CASE OF HOFFMANN v. GERMANY | 3 | No violation of Art. 8;Violation of Art. 14+8;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings | Antonio Pastor Ridruejo | 7. The applicant is a German national, born in 1954 and living in Mülheim. He is the father of the child J., born out of wedlock on 25 August 1985. The applicant and the child’s mother, Ms S., lived together at the time of the child’s birth. They separated in spring 1987. J.’s mother married in 1992 and J.’s family name was changed to her mother’s new family name. 8. On 23 June 1987 the Mülheim District Court decided that the applicant should be entitled to visit his daughter. These visiting arrangements were confirmed in a court settlement between the parents in July 1987. Under the terms of this settlement, the applicant was entitled to visit the child every 14 days. After some first visits, the applicant did no longer exercise his right of access to his daughter. 9. On 9 May 1990 the child’s mother applied with the Mülheim District Court for an amendment of the above settlement to the effect that the applicant should no longer be allowed access to his child. It was stated that the applicant had not exercised his right of access for three years so that J. had completely forgotten him. His wish to see her again was not in J.’s interest. 10. On 12 June 1990 the Mülheim Youth Office (Jugendamt), having regard to a report by the Diakonisches Werk, a Catholic welfare organisation, recommended that the applicant should not be granted access to his child. 11. On 9 October 1990 the Mülheim District Court ordered that a medical report be prepared on the question of access. The report dated 27 June 1991 recommended that contact between the applicant and J. be build up carefully and gradually, despite of the risk for J.’s emotional balance. The established sound emotional ties between J. and her mother and the relationship of trust with the mother’s partner should, however, not be upset. 12. In a further report of 26 August 1991, the Diakonisches Werk recommended that the applicant should meet J. in a child guidance centre (Erziehungsberatungsstelle). If these contacts developed positively, they should be extended or, in the event of a negative experience, access should be stopped. The Youth Office shared this assessment. 13. On 3 November 1992 the Mülheim Child Guidance Centre confirmed that, between 10 August and 11 September 1992, J. had met the applicant three times in the centre in her mother’s presence. It was stated that J. had sensed the conflicts between her parents and was under mounting emotional strain as a result. 14. On 14 December 1992 the Mülheim District Court heard the applicant and J.’s mother. In these and the following proceedings, both parties were represented by counsel. 15. On 18 December the Mülheim District Court heard the then seven-year-old child in the absence of her parents. She stated that she had not recognised her natural father and that she did not want to see him. 16. On 23 January 1993 the District Court set aside its earlier decision of 23 June 1987 and the court settlement of July 1987. The court noted inter alia that the applicant had not exercised his right to visit his daughter since 1987 and that J.’s mother was opposed to the applicant’s request. The court found that the applicant was not entitled to have access to his daughter. Referring to section 1711 of the Civil Code (Bürgerliches Gesetzbuch), the District court observed that the mother, in the exercise of her right to custody, determined the child’s relations with third persons, and that therefore her will was decisive. The father could only be granted a right of access by court order if this was in the interest of the child. According to the court’s findings, these conditions were not met in the applicant’s case. The court considered that, as the parents separated when J. was only one and a half years old and as he did not exercise his right of access for several years, he was a stranger in respect of the child. No bonds existed between her and the applicant and she did not regard him as her father. The District Court further considered that the attempt to overcome this situation had failed. It noted that, in the course of several meetings between the applicant and his daughter at an educational assistance office in August and September 1992, he had remained a stranger to J. who did not wish to have contacts with her father. In the court’s view, it was not in J.’s interest to act contrary to her wish. After several changes, her mother’s new husband had become a person exercising parental functions (männliche Bezugsperson). J.’s stable position and emotions would be shaken if contacts with a stranger were forced. In this context, the court considered that J. was very sensitive and vulnerable and therefore needed stable living conditions and a family life free of conflict. Her physical and emotional well-being could be easily affected and she had difficulties in concentrating and learning. Her wish not to have any contacts with her father had, therefore, to be accepted. 17. On 26 March 1993 the Duisburg Regional Court dismissed the applicant’s appeal. The Regional Court endorsed the District Court’s findings under section 1711 of the Civil Code. The Regional Court further found that the applicant’s appeal submissions did not disclose any new elements that were relevant. His argument that it had not been his fault that he had not been able to exercise his right of access since 1987 was irrelevant, as the child’s interests were decisive. His criticism of section 1711 was irrelevant as this provision was the applicable legislation according to which granting access contrary to the mother’s will was only possible in the interest of the child. However, in the applicant’s case the District Court, on the basis of an expert opinion, had correctly found that J.’s wish not to have contacts with the applicant had to be accepted. Moreover, even assuming that J. was influenced by her mother, such influence could not justify to force her to have contacts with the applicant. In this respect, the Regional Court again noted the expert’s findings that J. was very sensitive and vulnerable and that any forced contacts would certainly harm her. 18. On 4 June 1993 the Düsseldorf Court of Appeal declared the applicant’s further complaint inadmissible, pursuant to section 63a of the Non-Contentious Proceedings Act (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit). The Court of Appeal considered that the prevailing legal situation, excluding a further appeal in proceedings concerning a father’s access to his child born out of wedlock, could not be objected to from a constitutional point of view. Even if the criteria established in the Federal Constitutional Court’s decision of 1991 on the necessity to abolish discrimination against children born out of wedlock were applied to procedural rules, the general standards as to the period left to the legislator for the purpose of amending the relevant legislation did not yet permit the conclusion that the existing legislation was unconstitutional. 19. On 21 July 1993 the applicant filed a constitutional complaint with the Federal Constitutional Court, complaining that the refusal of access to his daughter infringed his parental rights and amounted to discrimination, as well as about the refusal of his further appeal. The First Chamber of the First Senate of the Federal Constitutional Court acknowledged receipt on 28 July 1993. 20. On 17 January 1994 the Constitutional Court informed the applicant’s lawyer that it was dealing with a further case concerning section 1711 of the Civil Code which had already been submitted. A decision in that case was envisaged for the current year. The processing of the applicant’s case was therefore postponed. On 18 January 1995, upon the applicant’s inquiry, the Judge at the Federal Constitutional Court dealing with the applicant’s case informed him that a decision on the other case was envisaged for the current year. In a letter of 5 August 1996, the applicant’s representative was informed that the date of a decision upon his complaint could not be foreseen. The applicant was subsequently informed that, in the light of the legislative reforms, a decision on his constitutional complaint did no longer appear necessary and the applicant agreed to consider the complaint as settled. The applicant’s renewed request for access to J. remained unsuccessful. 21. The statutory provisions on custody and access are to be found in the German Civil Code. They have been amended on several occasions and many were repealed by the amended Law on Family Matters (Reform zum Kindschaftsrecht) of 16 December 1997 (Federal Gazette 1997, p. 2942), which came into force on 1 July 1998. 22. Section 1626 § 1 reads as follows (the Court’s translation): “The father and the mother have the right and the duty to exercise parental authority (elterliche Sorge) over a minor child. The parental authority includes the custody (Personensorge) and the care of property (Vermögenssorge) of the child.” 23. Pursuant to section 1626 a § 1, as amended, the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect (declaration on joint custody) or if they marry. According to Section 1684, as amended, a child is entitled to have access to both parents; each parent is obliged to have contact with, and entitled to have access to, the child. Moreover, the parents must not do anything that would harm the child’s relationship with the other parent or seriously interfere with the child’s upbringing. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties; and they may order the parties to fulfil their obligations towards the child. The family courts can, however, restrict or suspend that right if such a measure is necessary for the child’s welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child’s well-being would be endangered. The family courts may order that the right of access exercised in the presence of a third party, such as a Youth Office authority or an association. 24. Before the entry into force of the amended Law on Family Matters, the relevant provision of the Civil Code concerning custody and access for a child born in wedlock was worded as follows (the Court’s translation): Section 1634 “1. A parent not having custody has the right to personal contact with the child. The parent not having custody and the person having custody must not do anything that would harm the child’s relationship with others or seriously interfere with the child’s upbringing. 2. The family court can determine the scope of that right and can prescribe more specific rules for its exercise, also with regard to third parties; as long as no decision is made, the right, under section 1632 § 2, of the parent not having custody may be exercised throughout the period of contact. The family court can restrict or suspend that right if such a measure is necessary for the child’s welfare. 3. A parent not having custody who has a legitimate interest in obtaining information about the child’s personal circumstances may request such information from the person having custody in so far as this is in keeping with the child’s interests. The guardianship court shall rule on any dispute over the right to information. 4. Where both parents have custody and are separated not merely temporarily, the foregoing provisions shall apply mutatis mutandis.” 25. The relevant provisions of the Civil Code concerning custody of and access to a child born out of wedlock were worded as follows (the Court’s translation): Section 1705 “Custody over a minor child born out of wedlock is exercised by the child’s mother...” Section 1711 “1. The person having custody of the child shall determine the father’s right of access to the child. Section 1634 § 1, second sentence, applies by analogy. 2. If it is in the child’s interests to have personal contact with the father, the guardianship court can decide that the father has a right to personal contact. Section 1634 § 2 applies by analogy. The guardianship court can change its decision at any time. 3. The right to request information about the child’s personal circumstances is set out in Section 1634 § 3. 4. Where appropriate, the youth office shall mediate between the father and the person who exercises the right of custody.” 26. Like proceedings in other family matters, proceedings under former section 1711 § 2 of the Civil Code were governed by the Act on Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit). 27. According to section 12 of that Act, the court shall, ex officio, take the measures of investigation that are necessary to establish the relevant facts and take the evidence that appears appropriate. 28. In proceedings regarding access, the competent youth office has to be heard prior to the decision (section 49(1) (k)). 29. As regards the hearing of parents in custody proceedings, section 50a (1) stipulates that the court shall hear the parents in proceedings concerning custody or the administration of the child’s assets. In matters relating to custody, the court shall, as a rule, hear the parents personally. In cases concerning placement into public care, the parents shall always be heard. According to paragraph 2 of section 50a, a parent not having custody shall be heard except where it appears that such a hearing would not contribute to the clarification of the matter. 30. Section 63 provides for a right of a further appeal challenging the first appeal decision. Section 63a of that Act as in force at the material time excluded this right in proceedings concerning a natural father’s access to his child born out of wedlock. This provision has been repealed by the Law on Family Matters of 1997. | 1 |
train | 001-22547 | ENG | SVK | ADMISSIBILITY | 2,002 | L'ALIK v. SLOVAKIA | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Milan Ľalík, is a Slovakian national, who was born in 1953 and lives in Bratislava. He is represented before the Court by Mrs E. Ľalíková, a lawyer practising in Bratislava. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant is a Supreme Court judge. Pursuant to Section 19 of Act No. 420/1991 on Remuneration of Judges and Trainee Judges, judges’ pay is to be adjusted proportionally to the actual increase or decrease in the average salary of persons employed within the national economy where such an increase or decrease exceeded ten per cent in the course of the preceding calendar six months. On 22 March 1999 the National Council of the Slovak Republic adopted Act No. 57/1999. It introduced an amendment to the Remuneration of Judges and Trainee Judges Act of 1991 in that the procedure of adjustment of the pay of judges provided for in Section 19 was not to be applied during the period from 1 April 1999 to 31 December 1999. As a result, the applicant’s pay was not adjusted, leading to an earning difference of approximately 15,000 Slovakian korunas. By virtue of Act No. 57/1999, a similar adjustment of the remuneration of the President of Slovakia, of the members of the National Council and of the Government, of the constitutional judges as well as of other high ranking public officials was also suspended for the same period. On 2 July 1999 a group of Members of Parliament filed a petition to the Constitutional Court in which they alleged that the above amendment was contrary to the Constitution and that it risked undermining the independence of judges. The representative of the National Council submitted written observations on the petition which stated, inter alia, that the suspension complained of was a part of comprehensive restrictive measures affecting the whole national budget which were adopted upon the proposal of the Government with a view to remedying the adverse economic situation. Furthermore, the suspension extended to all public officials whose remuneration was to be adjusted in accordance with the same principle. The Constitutional Court dismissed the petition on 4 July 2000. The decision stated that the amendment in question did not jeopardise the independence of judges, and that the Constitution did not exclude that the remuneration of judges be linked to and reflect the developments in the domestic economy. The provision under which the procedure to adjust the remuneration of judges in accordance with the general economic indicators was suspended did not, therefore, infringe the Constitution. | 0 |
train | 001-59860 | ENG | TUR | CHAMBER | 2,001 | CASE OF AKCAM v. TURKEY | 4 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Elisabeth Palm;Feyyaz Gölcüklü;Gaukur Jörundsson | 9. On 17 November 1980 police officers from the Ankara Security Directorate arrested the applicant on suspicion of membership of an illegal armed organisation, the Dev-Yol (Revolutionary Way). 10. On 20 February 1981 the Ankara Martial Law Court (sıkıyönetim mahkemesi) ordered the applicant’s detention on remand. 11. On 26 February 1982 the Military Public Prosecutor filed a bill of indictment with the Martial Law Court against the applicant and 722 other defendants. The Public Prosecutor accused the applicant, inter alia, of membership of the Dev-Yol, whose object was to undermine the constitutional order and replace it with a Marxist-Leninist regime. The prosecution sought the death penalty under Article 146 § 1 of the Turkish Criminal Code. 12. On 14 December 1988 the Ankara Martial Law Court ordered the applicant’s release pending trial. 13. In a judgment of 19 July 1989 the Martial Law Court convicted the applicant of membership of the Dev-Yol. It sentenced the applicant to 16 years’ imprisonment under Article 168 § 1 of the Turkish Criminal Code, permanently debarred him from employment in the civil service and placed him under judicial guardianship. 14. As the applicant’s sentence exceeded 15 years’ imprisonment, his case was automatically referred to the Military Court of Cassation (askeri yargıtay). 15. Following promulgation of the Law of 27 December 1993, which abolished the jurisdiction of the Martial Law Courts, the Court of Cassation (yargıtay) acquired jurisdiction over the case and on 26 December 1994 the case file was transmitted to it. 16. On 27 December 1995 the Court of Cassation quashed the applicant’s conviction on the ground that he should have been convicted of the offence under Article 146 § 1 of the Turkish Criminal Code. It referred the case to the Ankara Assize Court (ağır ceza mahkemesi). The criminal proceedings are still pending before the latter court. 17. Article 146 § 1 of the Turkish Criminal Code provides: “Whosoever shall attempt to alter or amend in whole or in part the Constitution of the Turkish Republic or to effect a coup d’état against the Grand National Assembly formed under the Constitution or to prevent it by force from carrying out its functions shall be liable to the death penalty.” 18. Article 168 of the Criminal Code reads: “Any person who, with the intention of committing the offences defined in Articles ..., forms an armed gang or organisation or takes leadership ... or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years’ imprisonment. The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years’ imprisonment.” | 1 |
train | 001-76137 | ENG | AUT | CHAMBER | 2,006 | CASE OF ZEMAN v. AUSTRIA | 3 | Violation of Art. 14+P1-1;Not necessary to examine P1-1 alone;Pecuniary damage - reserved;Costs and expenses - reserved | Christos Rozakis | 8. The applicant was born in 1939 and lives in Vienna. 9. At the time of the events the applicant was a civil servant in the administration of the Vienna Municipality. On 21 June 1988 the applicant’s wife, who was also a civil servant in the administration of the Vienna Municipality, died. During her working life she had paid contributions to the pension scheme established under the Pension Act (Pensionsordnung) and the Pension Allowance Act (Ruhe- und Versorgungsgenuβzulagen-gesetz). 10. By decision of 22 August 1988 the Vienna Municipality (Stadtwerke) granted the applicant a survivor’s pension (Versorgungsgeld- und Versorgungsgeldzulage) under the relevant provisions of the Pension Act of 1966, and the Pension Allowance Act. Section 15 of the Pension Act in force at the relevant time provided for a survivor’s pension in the amount of 60 % of the retirement pension of the applicant’s late wife. Hereto was added a proportionate supplementary allowance under Section 6 of the Pension Allowance Act. 11. According to the transitory provision contained in Article II of the Pension Act the monthly payments to which the applicant was entitled amounted to one-third of the survivor’s pension from 1 July 1988, two-thirds of the survivor’s pension from 1 January 1989 and the full survivor’s pension from 1 January 1995. 12. On 1 January 1995 the fourteenth amendment of the Pension Act of 1966 came into force and Article II became invalid with effect from that day. 13. According to Section 15 of the amended Pension Act the survivor’s pension amounted to between 40 and 60% of the retirement pension of the deceased civil servant, the concrete percentage to be calculated on the basis of the retirement pensions of both spouses. 14. According to Section 64e of the Amended Pension Act, former Section 15 was still applicable to entitlements to a widow’s pension or a pension of a widower who was incapable of gainful employment and indigent, which had been acquired prior to 1 January 1995. 15. On 2 January 1995 the Vienna Municipality reduced the amount of the applicant’s survivor’s pension to 40% of his late wife’s retirement pension. 16. On 16 January 1995 the applicant appealed against this decision. He submitted that, had he been a woman in a similar position, former Section 15 of the Pension Act would have applied to him and he would have been entitled to a survivor’s pension in the amount of 60% of his late wife’s retirement pension instead of the 40% which he received now under the amended Pension Act and the Pension Allowance Act. This violated his constitutional right to equal treatment. 17. On 16 May 1995 the Appeals Board of the Vienna Municipality (Berufungssenat) dismissed the appeal. 18. On 13 July 1997 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof). 19. On 8 October 1997 the Constitutional Court declined to deal with the applicant’s complaint for lack of prospects of success. 20. On 19 December 2001 the Administrative Court (Verwaltungs-gerichtshof) to which the case had been transferred upon the applicant’s request, dismissed the applicant’s complaint. 21. It referred, inter alia, to case-law of the Constitutional Court concerning similar provisions of the Pension Act 1965. The Constitutional Court had found that in the light of continuing change in attitudes towards the equality of sexes, an exclusion of a widower from survivor’s payments would, as a rule, constitute a violation of the principle of equal treatment. 22. There was, however, no constitutional concern about provisions which, in the course of an adjustment process, provided for equal rights of widows and widowers to a survivor’s pension as of a certain date, but maintained differences as regards the entitlement to survivor’s pensions acquired prior to that date. This decision was served on the applicant’s counsel on 25 January 2002. 23. In its 1986 version the relevant provisions of the Vienna Pension Act (Pensionsordnung für Wien, LGBl Nr. 34/1986) read as follows: "The surviving spouse of a civil servant is entitled to a monthly pension if the civil servant himself had such a claim on the day of his death, or if he would have had such a claim upon retirement on that day." “ A survivor’s pension shall amount to 60 % of the civil servant’s retirement pension......” "The monthly instalments to which the widower or the former husband are entitled, are - from 1 August 1986 onwards the amount of one third; - from 1 January 1989 onwards the amount of two thirds; - and from 1 January 1995 onwards the full amount. If the widower or former husband is incapable of gainful employment and indigent, this restriction does not apply." 24. On 1 January 1995, when the fourteenth amendment to the Pension Act came into force, the relevant provisions of this Act were amended as follows: “1. A survivor’s pension shall amount to a certain percentage of the civil servant’s retirement pension ... 3. ...the percentage shall lie between 40 and 60 ...” “Provided the entitlement [to a survivor’s pension] had been acquired before 1 January 1995, Section 15 of the Pension Act as in force on 31 December 1994 is still applicable - to the survivor’s pension of a widow... - to the survivor’s pension of a widower, if he is incapable of gainful employment and indigent.....” 25. The Pension Act has meanwhile repeatedly been amended. Current Section 72 § 1 reads: “Provided the entitlement [to a survivor’s pension] had been acquired before 1 January 1995, Section 15 of the Pension Act as in force on 31 December 1994 is still applicable - to the survivor’s pension of a widow... - to the survivor’s pension of a widower, if he is incapable of gainful employment and indigent.....” 26. Section 6 of the Pension Allowance Act (Ruhe- und Versorgungs-genuβzulagengesetz) grants a survivor entitled to a survivor’s pension [under the Pension Act] a supplementary pension allowance amounting to a certain percentage of the civil servant’s retirement supplementary allowance. The percentage corresponds to the percentage relied on when calculating the survivor’s pension under the Pension Act. | 1 |
train | 001-4811 | ENG | TUR | ADMISSIBILITY | 1,999 | BÖLÜKBAS AND OTHERS v. TURKEY | 4 | Inadmissible | Elisabeth Palm;Gaukur Jörundsson | The applicants, whose names appear in the appendix, are Turkish nationals. They are represented before the Court by Mr Vural Soytekin, a lawyer practising in İstanbul (Turkey). s, may be summarised as follows. The applicants, accused of being members of the illegal organisation Dev-Yol (Revolutionary Way), were taken into police custody on various dates between August 1980 and October 1980. In 1983, the military public prosecutor instituted criminal proceedings against the applicants in the Erzincan Martial Law Court. It was alleged that the applicants were members of an illegal organisation aiming to undermine the constitutional order and to replace it with a Marxist-Leninist regime. The prosecution called for the applicants to be sentenced pursuant to Section 146 of the Turkish Criminal Code, which regulates felonies against the state. The applicants were released pending trial (Saim Bölükbaş on 25 February 1987, Hasan Salbaş on 3 May 1988, Mesut Uygun on 9 June 1983 and Mustafa Sarıtaş on 26 January 1984). On 24 August 1988 the Martial Law Court delivered its judgment. It convicted Saim Bölükbaş and Hasan Salbaş as charged and sentenced them to imprisonment. The Court further decided that Mustafa Sarıtaş and Mesut Uygun be acquitted of the charges against them. On 17 December 1990 the decision as to the acquittal of Mesut Uygun became final, as the public prosecutor did not appeal against him. The public prosecutor challenged the judgment of the first instance court as regards Mustafa Sarıtaş. The other two applicants, Saim Bölükbaş and Hasan Salbaş also appealed against their conviction. Pursuant to the law No. 3953, promulgated on 30 December 1993 the case-file was transferred to a non-military court, namely, the Court of Cassation. On 4 July 1995 the Court of Cassation delivered its decision. It upheld the sentence of Hasan Salbaş. As to the applicants Saim Bölükbaş and Mustafa Sarıtaş, the Court of Cassation ordered that the criminal proceedings be terminated on the ground that the statutory time-limit under Section 102 of the Turkish Criminal Code had expired. The decision was not officially served on the applicants. However, the applicants’ lawyer obtained a copy of this decision in July 1995. | 0 |
train | 001-5518 | ENG | DEU | ADMISSIBILITY | 2,000 | DAMLA AND OTHERS v. GERMANY | 4 | Inadmissible | Antonio Pastor Ridruejo | The first applicant, Besse Damla, born in 1953, is the mother of the second to seventh applicants, Dilek Damla, born in 1977, Nadire Damla, born in 1981, Veysi Damla, born in 1983, Nurullah Damla, born in 1987, Emrullah Damla, born in 1988, and Veysel Damla, born in 1991. They are Turkish nationals of Kurdish origin and live currently in Norden (Germany). In the proceedings before the Court they are represented by Mr Reinhard Marx, a lawyer practising in Frankfurt am Main. In 1996 the applicants entered the Federal Republic of Germany together with the first applicant’s husband, respectively the other applicants’ father. On 7 October 1996 they applied for asylum. On 8 October 1996 when heard before the Federal Office for Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge) they declared that there were Yezidis. The first applicant stated that she had been kidnapped in 1977 by Moslems, but that after two or three days she escaped. According to Yezidi customs a kidnapped girl could not return to her family. She therefore went to Batman where she met her future husband who, although being officially a Muslim, belonged to the Yezidi community. In 1992 her husband’s brother, the head of the village of Feqira, was murdered. Thereafter they were harassed by members of the State security service and their Muslim neighbours. In 1995 the first applicant’s husband was arrested for three days by members of the security forces and asked him for the reasons of his conversion to the Yezidi religion. A further stay in Turkey had been impossible for them. On 15 October 1996 the Federal Office for Refugees dismissed the applicants’ request as being manifestly ill-founded and invited them to leave the German territory within one week. The Federal Office did not consider that the evidence they adduced in support of fear of persecution to be reliable and doubted the credibility of their asylum claim. According to the Federal Office, the first applicant had ceased being a Yezidi at the moment of her marriage with a Moslem. She was not recognised as a Yezidi neither by the members of her family nor by the people surrounding her. The applicants could therefore not be considered as Yezidis. Finally the applicants had not alleged to be victims of political persecution as Kurds. On 28 October 1996 the applicants filed an action against the refusal of asylum and their envisaged expulsion and applied for an interim injunction (einstweilige Anordnung) requesting to stay their expulsion pending the administrative court proceedings. They repeated their previous submissions and referred to pending asylum proceedings of close members of their family some of which had been successful. They further stressed that on several occasions they had been interrogated and threatened by the Turkish police. Also their neighbours had treated them as Yezidis and the children had been insulted in school. Since Moslem fundamentalists had a strong influence in Batman, their situation there became unbearable. On 11 November 1996 the Hannover Administrative Court (Verwaltungsgericht) dismissed their request for an interim injunction. Confirming the findings of the Federal Office, the Administrative Court added that being a Yezidi was a matter of birth, not of faith. A marriage with a person belonging to a different religion was considered as a sin and sanctioned by the exclusion from the Yezidi community. The applicants were not Yezidis. There was no indication that their life was determined by this religion that their neighbours considered them as Yezidis. Unlike Yezidis practising their religion, the applicants were not subjected to persecution in Turkey. On 16 February 1998 the applicants renewed their request to be granted political asylum (Asylfolgeantrag). They alleged that their submissions in the previous asylum proceedings had not been correctly understood due to linguistic problems. The first applicant’s husband submitted that he too was born by Yezidi parents. When he was two years old, his mother had been kidnapped by Moslems. He then lived together with his mother and his Moslem stepfather. However, he and his mother had always maintained close contacts with the Yezidis in their surroundings and he had been brought up according to the Yezidi traditions. On 25 February 1998 the parish of the Norden Evangelic-Lutheran church granted the applicants church asylum. The first applicant’s husband was expelled to Turkey on 17 March 1998. On 26 February 1998 the Hannover Administrative Court dismissed the applicants’ renewed asylum request. The court observed that the applicants had failed to show that they had been prevented, through no fault of their own, from filing their new submissions in the previous proceedings. On 1 October 1999 the Hannover Administrative Court dismissed the action filed by the applicants on 28 October 1996 against the refusal of asylum and their envisaged expulsion. The Court considered the applicants’ submissions as unsubstantiated and contradictory. The first applicant’s submission, according to which she had been kidnapped by Moslems when she was young, was irrelevant for the purposes of being granted asylum, since this event occurred too long a time ago. Moreover, even if it were true that her uncle had been murdered, there was no evidence that the applicants were persecuted for their religious beliefs. It was true that Yezidis manifesting their religion were persecuted in Turkey. However, if in a case such as the present where the religion had not been practised or where after the marriage with a person belonging to a different religion the membership in the Yezidi community had come to an end, there was no likelihood of persecution. Accordingly, there was no need to take further evidence in this respect. Furthermore, persons of Kurdish origin had the possibility to live in the Western parts of Turkey, in particular in larger cities, where they did not risk direct or indirect persecution or an existence under the poverty level. On 16 December 1999 the Court of Appeal of Lower Saxony (Niedersächsisches Oberverwaltungsgericht) refused the applicants’ application for leave to appeal. The court considered that the Administrative Court had correctly assessed the evidence and had rejected the applicants’ requests to take further evidence in a convincing manner. The Administrative Court had not arbitrarily concluded that the applicant’s submissions were unsubstantiated. The Court furthermore found that the Kurds from the Eastern regions had generally a possibility to live in the West of Turkey. As to the question whether Yezidis who practised their religion in an Moslem environment, had to fear persecution by Moslems, the Court pointed out that this question had been answered affirmatively in the past but was irrelevant in the present case because the applicants were not Yezidis. On 17 March 2000 the applicants requested to reopen the asylum proceedings. When interviewed on 6 April 2000 before the Federal Office for Refugees, they submitted that the first applicant’s husband was a Yezidi. He had been excluded from his family when his mother married a Moslem. However, he and the first applicant lived according to the Yezidi faith. After the murder of the first applicant’s uncle in 1992 their neighbours realised that they were Yezidis. They were then harassed by the resident population and had to move house about ten times. Following the introduction of compulsory religious instruction in school, it became clear that the children were not Moslems and they were insulted and beaten. The applicants maintained that in case of their expulsion to Turkey their would face a real risk of being murdered. On 12 May 2000 1998 the Federal Office for Refugees refused to conduct new asylum proceedings. It took the view that the applicants’ submissions did not constitute new facts. Furthermore, the Federal Office did not consider the evidence they adduced in support of their fear of persecution to be reliable and doubted the credibility of their asylum claim. The applicants filed an action with the Oldenburg Administrative Court and applied for an interim injunction (einstweilige Anordnung) requesting to stay their expulsion pending the administrative court proceedings. On 29 May 2000 the Oldenburg Administrative Court dismissed this request on the ground that the applicants submissions were contradictory and not credible. Their claims had to be considered as completely fabricated. There was no evidence showing that they were of Yezidi origin and that they were persecuted when they had left their country nor was there a sufficient likelihood that they would be persecuted if they were to return to their country. However, there were no grounds justifying to quash the final judgments given by the Hannover Administrative Court. According to the Oldenburg Administrative Court, the applicants merely alleged an erroneous appreciation of the law and facts by the previous court instances. Their earlier and new submissions concerning their membership in the Yezidi community being unsubstantiated, there was no need to take further evidence in this respect. The applicants filed a constitutional complaint against the refusal of the requested interim injunction. On 10 July 2000 a panel of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) declined to accept the applicants’ constitutional complaint for adjudication. | 0 |
train | 001-58182 | ENG | ITA | CHAMBER | 1,997 | CASE OF GALLO v. ITALY | 4 | Art. 6 inapplicable | C. Russo;N. Valticos;R. Pekkanen | 7. Mr Alcide Gallo is a caretaker employed by the Student Welfare Centre (“the centre”) in Trieste, where he lives. 8. On 28 August 1986 he instituted proceedings against the centre in the Friuli-Venezia Giulia Regional Administrative Court (“the RAC”) seeking judicial review of a disciplinary penalty imposed on him by decision of the chairman of the centre's board of governors on 12 August 1986. The latter, having obtained the advice of the disciplinary board, had suspended the applicant for one month, on the ground that he had failed in his duty of diligence and perturbed “the continuity and regularity of the service” by taking sick-leave which was considered to be unjustified. The applicant forfeited all but a fraction of his salary. 9. In a judgment of 9 April 1987, the text of which was deposited with the registry on 28 May 1987, the RAC gave judgment in the applicant's favour. 10. The centre appealed on 5 October 1987. In a judgment of 12 June 1992, the text of which was deposited with the registry on 8 January 1993, the Consiglio di Stato reversed the lower court's judgment and dismissed Mr Gallo's application. | 0 |
train | 001-61668 | ENG | ITA | CHAMBER | 2,004 | CASE OF POLLIFRONE v. ITALY | 4 | Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 4. The applicant was born in 1962 and lives in Livorno. 5. Her grandmother was the owner of a flat in Livorno, which she had let to I.B.C. 6. In a registered letter of 6 May 1987, the applicant's grandmother informed the tenant that she intended to terminate the lease on expiry of the term on 1 January 1988 and asked her to vacate the premises by that date. 7. The tenant told the applicant's grandmother that she would not leave the premises and she fell in rent arrears. 8. In a writ served on the tenant on 11 July 1989, the applicant's grandmother reiterated her intention to terminate the lease and summoned the tenant to appear before the Livorno Magistrate. 9. By a decision of 31 July 1989, which was made enforceable on the same day, the Livorno Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 1 January 1991. 10. On 9 August 1991, the applicant's grandmother died and the applicant inherited the apartment. 11. On 6 November 1991, the applicant served notice on the tenant requiring her to vacate the premises. 12. On 22 January 1992, she informed the tenant that the order for possession would be enforced by a bailiff on 19 February 1992. 13. On 12 November 1992, the applicant made a statutory declaration that she urgently required the premises as accommodation for herself. 14. Between 19 February 1992 and 3 October 2000, the bailiff made fourteen attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession. 15. In the meanwhile, on 10 July 1997, the applicant made a second statutory declaration that she urgently required the premises as accommodation for herself. 16. On an unspecified date of June 2001, the applicant recovered possession of the flat. 17. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V. Lastly, for some cases, a suspension of the enforcement of the orders for possession until 30 June 2004 was introduced by Legislative Decree no. 147 of 24 June 2003, which became Law no. 200 of 1 August 2003. 18. As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows. 19. The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation. 20. The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies. Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price. 21. Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents. 22. The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat. In this regard, Article 1591 of the Italian Civil Code provides: “The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages.” 23. However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law no. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat. 24. In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional. Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages. 25. The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant. | 1 |
train | 001-102216 | ENG | DEU | ADMISSIBILITY | 2,010 | HOFMANN v. GERMANY | 4 | Inadmissible | Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Mr Heinz Wolfgang Hofmann, is a German national who was born in 1952 and lives in Roßlau. On 20 July 2007 the applicant and his wife were involved in a fist fight with a neighbour. Both the applicant’s wife and the neighbour pressed criminal charges for assault. On 18 June 2007 the police summoned the applicant as witness in relation to the assault charges against the neighbour. On 2 July 2007 the police ordered that the applicant’s fingerprints, photographs and a saliva sample be taken for the police records pursuant to section 81b of the Code of Criminal Procedure (see “Relevant domestic law” below) in connection with assault charges against the applicant. On 1 August 2007 counsel requested legal aid for a complaint against the order of 2 July 2007. On 21 August 2007 the police withdrew the order insofar as it related to a saliva sample. On 10 April 2008 the Dessau-Roßlau Administrative Court, sitting as a chamber composed of three judges, granted the legal aid request on the ground that it was doubtful whether the order had been lawful. The applicant had not concealed his identity during previous incidents that had resulted in criminal investigations against him. There were no indications that he would do so in the future and that the taking of fingerprints or photographs for the police records would help in criminal investigations. On 17 July 2008 the Administrative Court, sitting in single judge formation, dismissed the complaint, holding that the conditions of section 81b of the Code of Criminal Procedure had been met. In view of previous criminal investigations against the applicant and his aggressive behaviour, the court found sufficient grounds to believe that it was likely that the applicant would be suspect in criminal investigations concerning assault in the future. The court further held it to be irrelevant that the applicant had always been known to the victims in the past and that his identification had not posed problems for the police, since the suspects for assault were not always known to the victims and it could not be ruled out that potential victims would be unaware of the applicant’s identity in the future. Counsel requested legal aid for the appeal proceedings and requested leave to appeal. On 16 March 2009 the Administrative Appeals Court of the Land Saxony-Anhalt refused legal aid for lack of prospect of success as well as leave to appeal. It noted that the taking of fingerprints and photographs for the police records was a preventive measure aimed at facilitating future criminal investigations against unknown suspects. It further noted that the administrative court had sufficiently established that the conditions of section 81b of the Code of Criminal Procedure had been met in view of the incident of 20 July 2007 and eight other criminal investigations against the applicant concerning assault, defamation, coercion, child abuse and abuse of a position of trust, none of which had resulted in charges being preferred against the applicant. The Administrative Appeals Court rejected the applicant’s submission that the conditions of section 81b of the Code of Criminal Procedure had not been met in view of the incident of 20 July 2007 alone, since all nine criminal investigations against the applicant had to be taken into account. On 7 April 2009 the applicant, acting pro se, lodged a constitutional complaint with the aim that the Administrative Appeals Court’s “wrong decision” be set aside on the grounds that the administrative courts had not been independent; that the single judge had not duly considered the decision of three judges to grant legal aid; that the courts had wrongly taken into account criminal investigations against him since he had never been convicted; that the aims of the authorities had been to debase, to criminalise, to dishonour and to humiliate him; and that the authorities had attempted to further increase his debts by ordering him to pay excessive court fees. He submitted that the police had coerced the administrative court into perverting the course of justice and that the courts had covered up the illegal actions of the police. He lastly asserted that Saxony-Anhalt was not a Land based on the rule of law and that everyone who was willing to complain about illegal police actions like himself was discriminated, unjustly persecuted and silenced using methods of the Staatssicherheitsdienst (the secret service of the former German Democratic Republic). On 22 May 2009 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint for examination without giving further reasons (no. 1 BvR 860/09). Pursuant to section 81b of the Code of Criminal Procedure photographs and fingerprints of the accused may be taken, even against his will, and measurements may be made of him and other similar measures taken which are required for the purposes of conducting the criminal proceedings or of the police records department. The constitutional right to privacy, enshrined in Articles 1 § 1 and 2 § 1 of the Basic Law, read together, guarantees that an individual may decide what personal information to disclose and to whom; it also protects individuals from unlimited investigations as well as storage and passing on of personal data without their consent. Infringements of this right are only permissible in the general interest, on the basis of an act of parliament or delegated legislation, and insofar as the impugned measure is proportional to the legitimate aim pursued (see, amongst many others, Federal Constitutional Court, judgment of 15 December 1983, published in BVerfGE 65, p. 1 (at pp. 41 et seqq.)). According to Section 92 of the Federal Constitutional Court Act the reasons for the complaint shall specify the right which is claimed to have been violated and the act or omission of the organ or authority by which the complainant claims to have been harmed. | 0 |
train | 001-5633 | ENG | DEU | ADMISSIBILITY | 1,999 | OLBERTZ v. GERMANY | 1 | Inadmissible | null | The applicant [Mr Bernhardt Olbertz] is a German national who was born in 1945 and lives in Munich. He was represented before the Court by Mr C. Lenz, of the Stuttgart Bar. The facts of the case, as put forward by the applicant, may be summarised as follows. The applicant was originally from the Federal Republic of Germany (FRG), where he had first worked as a chartered accountant and later managed an office for a firm of tax consultants. In 1984 he set up his own business, specialising in advising and rescuing companies in difficulty. In 1990, before Germany’s reunification, which came into effect on 3 October 1990, he moved to Potsdam in the German Democratic Republic (GDR) with the intention of setting up a tax consultancy there although he had not taken the examination required in the FRG for carrying on the occupation of a tax consultant (Steuerberater). Also in 1990 the applicant acquired East German citizenship so as to be able to set up his tax consultancy in the GDR. In a decision taken on 6 September 1990 the Ministry of Finance (Finanzministerium) of the GDR, acting through the Director of the Tax Department (Leiter der Abteilung Besitz- und Verkehrsteuern), granted the appointment (Bestellung) of tax consultant to the applicant although he had not taken the examination likewise normally required in the GDR for the practice of that profession. The applicant then set up his tax consultancy, which was quite successful. In 1995 he had seventeen employees and an annual turnover of 1,600,000 German marks (DEM). After reunification, the Berlin tax authorities (Senatsverwaltung für Finanzen) stated in a note (Vermerk) of 14 March 1991 that the applicant’s appointment had been lawful and that none of the grounds for revocation referred to in section 46(1) of the FRG’s Tax Consultants Act 1990 (Steuerberatungsgesetz 1990 – see Relevant domestic law and practice below) existed. In a decision of 13 April 1993 the tax authorities of the Land of Brandenburg (Landesfinanzverwaltung) revoked the appointment pursuant to section 46(1) as amended in the Tax Consultants Act 1992 (Steuer- beratungsgesetz 1992 – see Relevant domestic law and practice below) on the ground that the appointment had been made in breach of the statutory provisions then in force in the GDR. They said that conditions of appointment at the relevant time, – namely, the requirement of fifteen years’ previous experience as a tax consultant in the GDR – as set out in Article 15 §§ 1 and 2 of the GDR’s Tax Consultants Order 1990 (Steuerberatungs-ordnung – see Relevant domestic law and practice below) had not been satisfied. According to the tax authorities, that Order did not take into account experience gained as a tax consultant in the FRG. The purpose of the Order was, in fact, to facilitate access to the occupation of tax consultant by citizens of the GDR who had the knowledge of the subject required in the GDR, not to allow citizens of the FRG to use it as a roundabout way of gaining appointment without taking the requisite examination. The applicant appealed against that decision. According to him, his appointment as a tax consultant by the Finance Ministry of the GDR was permanent and lawful. By virtue of section 40a(1) of the Tax Consultants Act 1990 (see Relevant domestic law and practice below), tax consultants appointed between 6 February 1990 and 1 January 1991 had been granted provisional appointments until at least 1997; and the subsequent amendment of the Act in 1992 was unconstitutional because in section 46 a new ground for revocation had been added, one not mentioned in the previous Act (see Relevant domestic law and practice below). Moreover, he had acted in good faith since he had given all the requisite details to the Finance Ministry, which in full knowledge of the facts had appointed him as a tax consultant. He had then, he said, made substantial investments in the running of his firm and he could not at the time foresee that his appointment would be revoked following subsequent legislative amendments. In a judgment of 18 April 1996 the Tax Court (Finanzgericht) dismissed the applicant’s appeal and upheld the decision of the tax authorities on the same grounds. It stated, inter alia, that the provisions of Article 15 § 2 of the GDR’s Tax Consultants Order were clear, as was apparent from the settled case-law of the Federal Tax Court (Bundesfinanzhof) in similar cases, and that the provisions excluded any experience gained in the FRG. At the time of the applicant’s appointment in September 1990, there might have been isolated instances of East German civil servants who, given the general “end-of-an-era” state of the regime, had made appointments based on their own interpretations of the relevant statutory provisions, but that had not in any way reflected a general practice. In a decision of 14 November 1996 the Federal Tax Court refused to allow an appeal on points of law by the applicant, on the ground that it did not raise a new question of law. In a decision of 5 February 1997 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a bench of three judges, refused to stay execution of the decisions of the lower courts. It held that neither the interpretation nor the application of the relevant legislative provisions by the Tax Court, which had relied on settled case-law of the Federal Tax Court, infringed the applicant’s fundamental rights. That applied both to the Tax Court’s analysis of the initial conditions to be met for the applicant’s appointment and to its belief that the applicant must, in view of section 46(1) of the Tax Consultants Act, have known why his appointment was illegal. In a decision of 18 February 1997 the Federal Constitutional Court refused to consider the merits of the applicant’s appeal. In late 1997, as a result of those decisions and in accordance with section 40a(1) of the 1992 Tax Consultants Act (see Relevant domestic law and practice below), the applicant had to close his firm of tax consultants. He subsequently sold his firm and his good will. The GDR’s Tax Consultants Order (Steuerberatungsordnung) was issued by the Cabinet (Ministerrat) in the State’s final months. It was dated 27 June 1990 and came into force on 27 July 1990. In Article 13 § 1 it provided that in order to be appointed as a tax consultant, a candidate had to have taken an examination for tax consultants or have been granted an exemption. Under Article 14 of the Order, two of the conditions for being appointed as a tax consultant were that the candidate was a citizen of the GDR and resided there. Article 15 provided: “Conditions of exemption from the examination (1) Candidates shall be exempted from the examination for tax consultants if they satisfy the conditions set out in Article 14 § 1 and 1. ... 2. ... 3. establish that they have fifteen years’ experience as a ‘skilled worker’ in the area of tax consultancy as their main occupation. (2) The following shall be deemed to be carrying on their main occupation in the area of tax consultancy: 1. assistant accountants admitted under Article 107a of the Tax Code, 2. former directors and executives of ‘people’s enterprises’ in accountancy and business consultancy and of the financial bodies, 3. authorised tax agents, in accordance with Article 19 of this Order. (3) ... (4) Exemption from the examination shall be subject to the consent of the supervisory authority.” (“Voraussetzungen für die Befreiung von der Prüfung (1) Von der Steuerberaterprüfung sind die Bewerber zu befreien, die die Voraussetzungen gemäß § 14 Absatz 1 erfüllen und 1. ... 2. ... 3. als Facharbeiter mindestens eine fünfzehnjährige hauptberufliche Tätigkeit auf dem Gebiet des Steuerwesens nachweisen. (2) Eine hauptberufliche Tätigkeit auf dem Gebiet des Steuerwesens üben aus: 1. praktizierende Helfer in Steuersachen, die über eine Zulassung gemäß § 107a der Abgabenordnung (Sonderdruck Nr. 681 des Gesetzblattes) verfügen, 2. ehemalige verantwortliche und leitende Mitarbeiter der VEB Rechnungsführung und Wirtschaftsberatung sowie der Finanzorgane, 3. Steuerbevollmächtigte gemäß § 19 dieser Verordnung. (3) ... (4) Die Befreiung von der Prüfung bedarf der Zustimmung durch die Aufsichtsbehörde.”) As a result of the German Unification Treaty (Einigungsvertrag) of 31 August 1990, all the FRG’s legislation was extended to cover the territory of the GDR. This was also true of the FRG’s Tax Consultants Act whose provisions applied to the former GDR from 1 January 1991. Reunification itself took effect on 3 October 1990. After the treaty had been signed, the 1975 version of the FRG’s Tax Consultants Act (Steuerberatungsgesetz) was twice amended: once in 1990 and once in 1992. In the 1990 version section 40a(1), first paragraph, was worded as follows: “A tax consultant shall be regarded as having been appointed provisionally (vorläufige Bestellung) if he was appointed in the former GDR after 6 February 1990 and before 1 January 1991 in accordance with the legislative provisions then in force. This provisional appointment shall allow him to practise his profession in the district in which he was appointed. After 31 December 1994 the highest Land authority shall decide on his permanent appointment after consulting with the relevant Chamber of Tax Consultants (Steuerberaterkammer). Permanent appointment cannot be refused if the candidate has successfully completed a training course. ...” (“Als vorläufig bestellt gelten Steuerberater und Steuerbevollmächtigte, die nach dem 6. Februar 1990 und vor dem 1. Januar 1991 bestellt worden sind. Steuerbevollmächtigte haben mit der vorläufigen Bestellung das Recht zur uneingeschränkten Hilfe in Steuersachen für das Gebiet des Bezirks, in dem sie bestellt worden sind. Über die endgültige Bestellung entscheidet die zuständige oberste Landesbehörde im Benehmen mit der zuständigen Steuerberaterkammer nach dem 31. Dezember 1994. Die endgültige Bestellung darf nicht versagt werden, wenn der Berufsangehörige an einem Übergangsseminar erfolgreich teilgenommen hat. ...”) In the 1992 version the following two sentences were added to section 40a(1): “... Permanent appointment also presupposes that none of the grounds set out in section 46(1), second sentence, for revoking a provisional appointment exists. Provisional appointments shall expire on 31 December 1997 at the latest. ...” (“... Die endgültige Bestellung setzt ferner voraus, daß Gründe für eine Rücknahme der vorläufigen Bestellung nach § 46 Abs. 1 Satz 2 nicht vorliegen. Eine vorläufige Bestellung erlischt spätestens mit dem 31. Dezember 1997. ...”) In the 1990 version section 46(1) read: “The appointment shall be revoked if the tax consultant secured it by means of intentional deception, threat or bribery or by supplying information that was incorrect or incomplete in a material respect.” (“Die Bestellung ist zurückzunehmen, wenn der Steuerberater ... die Bestellung durch arglistige Täuschung, Drohung oder Bestechung oder durch Angaben erwirkt hat, die in wesentlicher Beziehung unrichtig oder unvollständig waren.”) In the 1992 version a second sentence was also inserted in section 46(1) which provided: “... A provisional appointment of a tax consultant (section 40a) shall be revoked if it was unlawful (rechtswidrig) and the person knew or should have known the circumstances giving rise to the unlawfulness...” (“... Eine vorläufige Bestellung (§ 40a) ist zurückzunehmen, wenn sie rechtswidrig war und der Begünstigte die Umstände kannte oder kennen mußte, die die Rechtswidrigkeit begründen...”) In the following years the finance ministries of the various Länder carried out a general check on the provisional appointments made during the transitional period. | 0 |
train | 001-58459 | ENG | AUT | CHAMBER | 2,000 | CASE OF JOSEF PRINZ v. AUSTRIA | 3 | Preliminary objection joined to merits (non-exhaustion of domestic remedies);No violation of Art. 6-1+6-3-c | null | 6. On 4 October 1993 the Krems Regional Court (Landesgericht), sitting with two professional and two lay judges (Schöffengericht), having held an oral hearing in the presence of the Public Prosecutor, the applicant and his official defence counsel, ordered that the applicant be detained in an institution for mentally ill offenders (Anstalt für geistig abnorme Rechtsbrecher), pursuant to section 21 § 1 of the Criminal Code (Strafgesetzbuch). The Regional Court found that the applicant had intimidated numerous persons by threats of murder, but that he could not be held responsible because he was suffering from a mental illness. The applicant had, in several letters addressed to judicial authorities and lawyers, respectively, stated his intention to murder particular judges and lawyers, mentioning also either his "list of death" or details of the threatened offence. 7. In its decision, the Regional Court noted that the applicant had twelve previous convictions, inter alia, of intimidation, coercion, bodily injury and property offences. The offences at issue in the pending proceedings had started in the context of civil proceedings, which had been instituted by the Austrian Auditor-General's Department (Finanzprokuratur), claiming compensation for damages of Austrian schillings (ATS) 2,000 caused by the applicant in the context of a burglary. In a judgment of October 1991, the St. Pölten District Court (Bezirksgericht) had decided against the applicant. The applicant had filed counter-claims for compensation in respect of an illness suffered while serving a prison sentence and had threatened terrorist attacks. Following the institution of criminal proceedings against him concerning this threat, the applicant addressed written threats of murder to various persons involved in these criminal proceedings, in particular to judges and lawyers. 8. Furthermore, having heard two psychiatric experts, the Regional Court considered that the applicant suffered from a mental illness, namely paranoia querulans. He had a system of fixed ideas and a missionary devotion to the implementation of his plans. His mental disturbances, combined with the further symptoms of aggressiveness, his cruelty and recklessness, entailed a high risk for third persons. The Regional Court regarded a faculty opinion on these matters as unnecessary, taking into account that the two experts largely concurred in their opinions and that there were no contradictions or shortcomings, within the meaning of the relevant provision of the Code of Criminal Procedure (Strafprozeßordnung). 9. Moreover, the Regional Court considered that it had not been required to hear the judges and other victims concerned, as requested by the applicant. In this respect, the Regional Court observed that the question of whether these persons had in fact been intimidated was irrelevant for legal reasons, the offence of intimidation being committed in case of threats of such a nature as to intimidate third persons in general, if the offender intended to intimidate. The Regional Court, having regard to the details stated in the applicant's various letters, found that his threats of murder were of such a nature as to intimidate third persons in general, and he had in fact intended to intimidate the persons concerned. Considering his mental illness, there was also a risk of further offences of the same kind. 10. The written judgment was served upon the applicant's official defence counsel on 29 October 1993. 11. The applicant, assisted by his official defence counsel, filed a plea of nullity (Nichtigkeitsbeschwerde) with the Supreme Court (Oberster Gerichtshof), challenging the dismissal of his requests for the taking of further evidence as well as the part of the legal reasoning and the findings as to his dangerousness in future. He further lodged an appeal (Berufung). Defence counsel did not file any grounds of appeal, and did not request that the applicant be permitted to attend the Supreme Court hearing. 12. On 15 February 1994 the applicant personally filed submissions with the Supreme Court. According to the applicant, he also requested the Supreme Court for leave to attend the hearing of his plea of nullity and appeal, but this request was to no avail. 13. On 2 March 1994 the Supreme Court held the hearing on the plea of nullity and the appeal in the absence of the applicant, who was represented by his official defence counsel. The Supreme Court rejected the plea of nullity as well as the appeal. 14. The Supreme Court, in its judgment, found that the rejection by the trial court of the applicant's requests for the taking of evidence did not impair the rights of the defence. In particular, the Supreme Court confirmed the reasoning of the trial court that the applicant had failed to show any contradictions or shortcomings in the expert opinions which would be the only reason to justify a faculty opinion. Moreover, the question of whether the victims had in fact been intimidated had been irrelevant. The Supreme Court also confirmed the legal qualification of the offences committed by the applicant. 15. Finally, the Supreme Court proceeded of its own motion to an examination of the applicant’s appeal. While noting that the applicant had not submitted any grounds of appeal, it examined the arguments challenging the trial court’s findings as to his dangerousness in the future, which he had submitted in his plea of nullity. In this respect, the Supreme Court considered that the prognosis was reliably founded on the expert psychiatric opinions and was confirmed by the general impression conveyed by the applicant's criminal acts. 16. The decision was received at the registry of the Krems District and Regional Court on 17 March 1994. 17. Section 21 of the Austrian Criminal Code (Strafgesetzbuch) provides as follows: "1. If a person commits an offence punishable with a term of imprisonment exceeding one year, and if he cannot be punished for the sole reason that he committed the offence under the influence of a state of mind excluding responsibility (section 11) resulting from a serious mental or emotional abnormality, the court shall order him to be placed in an institution for mentally ill offenders, if in view of his person, his condition and the nature of the offence it is to be feared that he will otherwise, under the influence of his mental or emotional abnormality, commit a criminal offence with serious consequences. 2. If such a fear exists, an order for placement in an institution for mentally ill offenders shall also be made in respect of a person who, while not lacking criminal responsibility, commits an offence punishable with a term of imprisonment exceeding one year under the influence of his severe mental or emotional abnormality. In such a case the placement is to be ordered at the same time as the sentence is passed." 18. The duration of these preventive measures is governed by Article 25 of the Criminal Code, which states that: “1. Preventive measures are to be ordered for an indefinite period. They are to be implemented as long as is required by their purpose ... 2. The termination of preventive measures shall be decided by the court. 3. The court must of its own motion examine at least once yearly whether the placement in an institution for mentally ill offenders ... is still necessary.” 19. A first instance court judgment given by a Regional Court, sitting with lay judges, can be challenged by a plea of nullity to the Supreme Court on the specific grounds enumerated in section 281 § 1 of the Code of Criminal Procedure. The Supreme Court’s task is mainly to control the correct application of the criminal law, but in so doing it is - as a general rule - bound by the trial court’s finding of fact. 20. In certain cases the Supreme Court may reject a plea of nullity without a public hearing (section 285 (c) of the Code of Criminal Procedure). In all other cases - such as the present - there will be a public hearing which may also be combined with a public hearing on an appeal against sentence. 21. As regards the hearing on a plea of nullity, section 286 of the Code of Criminal Procedure provides: “1. When the date of the public hearing is being fixed, the accused ... shall be summoned ... 2. If the accused is under arrest, the notice of the hearing given to him shall mention that he may only appear through counsel. ...” However, if the hearing is a combined one on a plea of nullity and an appeal against sentence, an accused who is present for the latter purpose may also exercise his rights concerning the nullity plea. 22. The sentence as such can be challenged by way of an appeal. It may concern both points of law (in particular whether mitigating or aggravating circumstances have been correctly taken into account) and factors relating to the assessment of the sentence. Where the substance of an appeal is examined, a public hearing must normally be held. 23. As regards the personal appearance of the accused at a public appeal hearing, section 296 § 3, second sentence, of the Code of Criminal Procedure provides: “An accused who is detained shall always be summoned and an accused who is detained shall also be brought before the court if he has made a request to this effect in his appeal or counter-statement, or otherwise if his personal presence appears necessary in the interests of justice.” 24. The applicant applied to the Commission on 28 March 1994. He alleged, inter alia, a violation of Article 6 §§ 1 and 3 (c) of the Convention on the ground that, in criminal proceedings against him, he was not present at the hearing before the Supreme Court. 25. The Commission declared the application (No. 23867/94) partly admissible on 10 April 1997. In its report of 20 May 1998 (former Article 31 of the Convention) it expressed, by a majority, the opinion that there had been a violation of Article 6 §§ 1 and 3 (c) of the Convention. | 0 |
train | 001-61562 | ENG | TUR | CHAMBER | 2,004 | CASE OF COLAK AND FILIZER v. TURKEY | 3 | Violation of Art. 3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Feyyaz Gölcüklü;Georg Ress | 9. The applicants were born in 1969 and 1964 respectively and live in Şanlı Urfa, Turkey. 10. Police officers from the anti-terrorist branch of the Istanbul Security Directorate arrested the applicants on suspicion of membership of an illegal organisation, the PKK (Kurdistan Workers' Party), and placed them in custody on 28 and 29 April 1995 respectively. Both applicants alleged that they had been beaten and insulted by policemen on the way to the Security Directorate Building. 11. On 29 April 1995 the public prosecutor attached to the Istanbul State Security Court ordered the extension of the applicants' custody period until 9 May 1995. 12. The applicants alleged that during their interrogation by the police, they had been kept blindfolded and forced to give information about persons they did not know. They were allegedly subjected to various forms of ill-treatment by police officers. They claimed they were beaten, strung up by the arms, threatened with death and given electric shocks. 13. On 2 May 1995 the applicants were allegedly forced to sign police statements about their activities in the PKK and their connections with other PKK members. 14. On 5 May 1995 the applicants were examined by the Istanbul Forensic Medicine Institute's medical expert along with fourteen other detainees. In his report, the institute's doctor noted that there were no signs of beating, force or violence on the bodies of the applicants, whereas he had spotted certain signs of injury on the bodies of two other detainees. 15. On 22 May 1995 the first applicant underwent a second medical examination in prison. According to the prison doctor's report, the applicant had fading bruises on his body and ecchymoses on his left foot. The applicant was later transferred to Fatih Forensic Medicine Institute where another medical expert examined him. In a report dated 20 June 1996, it was concluded that the applicants' injuries, as cited in the report of the prison doctor, would prevent him from carrying out his work for two days. 16. On 18 May 1995 the prison doctor also examined the second applicant. In his report, the doctor noted the presence of abrasions on the penis, pain in the chest and ecchymoses under the left eye. He also noted that the applicant had described a feeling of pain while chewing and pain on both shoulders. 17. On 5 May 1995 the applicants were brought before the public prosecutor attached to the Istanbul State Security Court. In their questioning they denied their police statements and rejected the allegations against them. 18. On 6 May 1995 they were brought before the State Security Court, where they repeated their denials in relation to the statements taken by the public prosecutor. The court ordered the applicants' detention on remand on account of the nature of the accusations against them and of the evidence already available. 19. On 22 June 1995 the public prosecutor initiated criminal proceedings against the applicants in the Istanbul State Security Court and charged them with carrying out acts aimed at the separation of a part of the State territories. 20. On 1 June 1995 the applicants filed a complaint with the Fatih public prosecutor's office alleging that they had been subjected to various forms of ill-treatment during their detention in police custody. 21. By decisions of 19 and 21 September 1995 the Fatih public prosecutor declined to bring any criminal proceedings against the police officers, because of a lack of evidence against them. 22. On 13 October 1995 the applicants filed an appeal with the Istanbul Beyoğlu Assize Court against this decision. 23. On 14 December 1995 the Assize Court dismissed the appeal lodged by the second applicant on the ground that there was insufficient evidence to commit the police officers for trial. The court, however, upheld the appeal in respect of the first applicant. 24. On 8 June 1998 the Istanbul Chief Public Prosecutor filed an indictment with the Istanbul Assize Court accusing two police officers from the Istanbul Security Directorate of inflicting ill-treatment on the first applicant. 25. On 27 October 1999 the Istanbul Assize Court acquitted the two police officers on the ground that there was no sufficient and convincing evidence which would enable the court to convict the accused. The court reasoned that the complainant could not identify the police officers since he had allegedly been kept blindfolded while being tortured and that the Istanbul Forensic Medical Institute's report stated that no lesions had been seen on his body. It further noted that the Fatih Forensic Medicine Institute's report had been given fifteen days after the alleged incident and that the accused had denied the allegations. 26. The Criminal Code makes it a criminal offence to subject an individual to torture or ill-treatment (Articles 243 and 245 respectively). | 1 |
train | 001-21912 | ENG | AUT | ADMISSIBILITY | 2,001 | TALIRZ v. AUSTRIA | 4 | Inadmissible | Nicolas Bratza | The applicant is an Austrian national, born in 1939 and living in Innsbruck. He is represented before the Court by Mr P. Wallnöfer, a lawyer practising in Innsbruck. The facts of the case, as submitted by the parties, may be summarised as follows. On 25 April 1991 the Innsbruck Regional Court instituted preliminary investigations against the applicant on suspicion of having committed aggravated fraud (schwerer Betrug) and fraudulent conversion (Untreue). In particular, he was suspected of having manipulated a call for tenders (Ausschreibung) for the construction of a tunnel in favour of a specific company. On 6 May 1991 the applicant was questioned by the Investigating Judge about these charges for the first time. Subsequently, the charges against the applicant were extended to more than 15 counts of aggravated fraud and fraudulent conversion. In 1992 the Investigating Judge appointed experts on geology and explosives. On 13 July 1992 the Investigating Judge ordered the tapping of the applicant’s telephone. On 19 August 1992 the telephone tapping was terminated. Subsequently, the applicant introduced an application with the European Commission of Human Rights against this measure (Application no. 21837/93), which was declared inadmissible by the Commission on 2 March 1994. In June and July 1993 two reports by the court appointed experts on geology and explosives submitted their reports to the Investigating Judge. A third one on geology was submitted in September 1994. In February 1994 the Public Prosecutor’s Office at the Innsbruck Regional Court lodged the first bill of indictment. In June 1994 the second bill of indictment was lodged. The Innsbruck Court of Appeal dismissed the applicant’s objections (Einspuch) against these indictments. On 6 November 1995 the trial before the Innsbruck Regional Court commenced. On 26 January 1996, after 40 court hearings, the applicant was convicted of two counts of aggravated fraud and fraudulent conversion and acquitted of the other charges. He was sentenced to 4 years’ imprisonment. On 13 December 1996 the Supreme Court dismissed the applicant’s plea of nullity, but granted the plea of nullity lodged by the Public Prosecutor and quashed the applicant’s acquittal on five charges. Although the applicant’s conviction in respect of two counts had become final, the Supreme Court remitted the case to the Regional Court in respect of five counts of fraud and fraudulent conversion. Thereupon, the Regional Court resumed the preliminary investigations concerning these charges. On 13 August 1997 the Innsbruck Regional Court partially granted the applicant’s request for the re-opening of the proceedings (Wiederaufnahme). On 30 April 1998 the Innsbruck Court of Appeal, on the applicant’s appeal, ordered a complete retrial, including all charges against the applicant. On 12 October 1998 the Innsbruck Regional Court acquitted the applicant of all the charges against him. Section 91 of the Courts Act (Gerichtsorganisationsgesetz), which has been in force since 1 January 1990, provides as follows. "(1) If a court is dilatory in taking any procedural step, such as announcing or holding a hearing, obtaining an expert’s report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time-limit for the taking of the particular procedural step; unless sub-section (2) of this section applies, the court is required to submit the request to the superior court, together with its comments, forthwith. (2) If the court takes all the procedural steps specified in the request within four weeks after receipt, and so informs the party concerned, the request is deemed withdrawn unless the party declares within two weeks after service of the notification that it wishes to maintain its request. (3) The request referred to in sub-section (1) shall be determined with special expedition by a chamber of the superior court consisting of three professional judges, one of whom shall preside; if the court has not been dilatory, the request shall be dismissed. This decision is not subject to appeal." | 0 |
train | 001-113520 | ENG | SVN | CHAMBER | 2,012 | CASE OF PERUŠ v. SLOVENIA | 3 | Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Julia Laffranque;Karel Jungwiert;Mark Villiger | 6. The applicant was born in 1940 and lives in Slovenska Bistrica. 7. The case originated in a labour dispute following the applicant’s transfer to a different post within a company providing electro-installation (hereinafter referred to as “the company”). Subsequently, the applicant lodged several claims with the Maribor Labour Court requesting, inter alia, the annulment of the transfer decision, and payment of the difference in salary. 8. On 16 April 1993 the first-instance court gave a decision upholding the applicant’s claims. The company appealed. On 16 December 1993 the second-instance court upheld the company’s appeal and remitted the case for fresh examination. 9. On 16 February 1994 the Maribor Labour Court issued a decision whereby it upheld the applicant’s claims and annulled the transfer decision. It found that the transfer was related to the applicant’s involvement in trade union activities and his efforts to improve human relations in the company. The company, in the court’s view, had failed to demonstrate that there were work-related needs which called for a transfer. The court adjudicated that the applicant should be paid the difference in salary. The company appealed. 10. On 18 October 1994 the Ljubljana Higher Labour Court upheld the appeal. The three-judge panel, presided over by judge L.F., found that the first-instance court had failed to provide adequate reasoning in its decision; in particular, it had failed to explore whether lawful grounds for the transfer existed, such as an increased need for resources with respect to the applicant’s new post. In the Higher Court’s view, the lower court should examine the director and the chief of commerce as witnesses. The case was remitted for fresh examination. 11. On 25 April 1995 the Maribor Labour Court stayed the proceedings since bankruptcy proceedings had been instituted against the company. 12. Subsequently, the court repeatedly requested the applicant to inform it of the progress of the proceedings relating to the company’s bankruptcy and to specify whether he still had an interest in pursing the proceedings in his case. The applicant supplied the required information concerning the outcome of the bankruptcy proceedings on 18 January 1999, and requested that the proceedings in his case be continued. 13. On 5 March 1999 the court resumed the proceedings in so far as they concerned the allegedly unlawful transfer to another post and loss of salary, and dismissed the remaining claims. The applicant lodged an appeal and an appeal on points of law. Both were rejected. 14. On 18 February 2002 the Maribor Labour Court, after holding four hearings and examining witnesses, issued a judgment dismissing the applicant’s claims. It found that the applicant’s transfer to a different post within the company had been lawfully based on the company’s need to adapt to changes in the market, and that he was therefore not entitled to any compensation. The applicant appealed. 15. On 29 August 2002 the Ljubljana Higher Labour Court rejected the appeal and upheld the Maribor Labour Court’s judgment. The applicant lodged an appeal on points of law in which he complained about, inter alia, not being present at one of the hearings, and his claims being previously upheld but eventually rejected owing to improper conduct of the court’s proceedings. 16. On 4 November 2003 the Supreme Court, sitting as a panel of five judges, one of whom was judge L.F., rejected the appeal on points of law, finding that the lower courts had not committed any errors in the application of the procedural rules and that the applicant had been provided with an opportunity to participate in all hearings. It also noted that the previous court’s decisions had been quashed because they had been found to be erroneous. Lastly, the Supreme Court found that the relevant substantive law had been properly applied to the facts of the case as established by the lower courts. 17. On 20 January 2004, the applicant lodged a constitutional appeal in which he disputed the findings of the Supreme Court and complained that the proceedings had been biased because of the involvement of judge L.F., who had previously decided in favour of the company’s appeal. 18. On 11 March 2005 the Constitutional Court rejected the appeal on procedural grounds, stating that on account of the terminated bankruptcy proceedings against the company and the fact that the company had been deleted from the register of companies, the applicant no longer had any legal interest. The decision was served on the applicant on 15 March 2005. 19. Further to the Court’s communication of the present application to the respondent Government, the State Attorney’s Office informed the applicant that no settlement offer would be made. The Office considered that no violation of the right to a trial within a reasonable time had occurred in his case. That letter was served on the applicant on 5 February 2009. 20. On 2 November 2009 the applicant initiated proceedings before the Celje Local Court, claiming damages for undue delays in the above-mentioned labour proceedings. He referred to the Act on the Protection of the Right to a Trial without undue Delay (“the 2006 Act”) and on that basis claimed EUR 5,000 for non-pecuniary damage. He further claimed EUR 3,000 for non-pecuniary damage on the basis of the Code of Obligations. 21. The court held a hearing on 24 February 2011. On 14 March 2011 it issued a judgment rejecting the applicant’s claim for EUR 3,000, finding that it had no basis in law. As regards the claim for EUR 5,000, the court found that it had jurisdiction to decide on it as the case fell under section 25 of the 2006 Act. However, the court dismissed the claim as it had been lodged outside the six-month time-limit provided for by paragraph 2 of section 25 of the 2006 Act. It found that the applicant had received the letter from the State Attorney’s Office on 5 February 2009 and should therefore have lodged the compensation claim under the 2006 Act no later than 5 August 2009. The applicant did not appeal. 22. The relevant provisions of the Civil Procedure Code (Official consolidated version UPB1, Official Gazette no. 12/2003) read as follows: “A judge or a lay judge shall be prohibited from exercising judicial functions: ... (5) if he or she has participated in the same proceedings before a lower court ... (6) if other circumstances raise doubts about his or her impartiality.” “If a judge or a lay judge discovers that there exists a reason for exclusion mentioned in one of points 1 to 5 of section 70 of this Act, he or she must immediately cease to perform any work in the case and must notify the President of the court, who shall appoint a replacement judge. ...” 23. As regards the remedies before the Administrative Court, see paragraphs 34-35 of Mandić and Jović v. Slovenia, nos. 5774/10 and 5985/10, 20 October 2011. For the relevant provisions of the 2006 Act, see Žunič v. Slovenia, (dec.) no. 24342/04, §§ 16-26, 18 October 2007. | 1 |
train | 001-120506 | ENG | UKR | ADMISSIBILITY | 2,013 | BONDARENKO v. UKRAINE | 4 | Inadmissible | Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger | 1. The applicant, Mr Mykhaylo Valentynovych Bondarenko, is a Ukrainian national, who was born in 1978 and lives in Kyiv. He is represented before the Court by Mr K. Buzadzhy, a lawyer practising in Kyiv. 2. The Ukrainian Government (“the Government”) were most recently represented by their Agent, Mr Nazar Kulchytskyy. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On the morning of 29 August 2002 Ms D. was found dead not far from her home. Experts concluded that she had been strangled at about 1 a.m. the previous night. 5. On 6 September 2002 the applicant was arrested by the police on suspicion of Ms D.’s murder. According to the applicant, at the time of the arrest he was with his brother, who was also taken to the police station. 6. The applicant alleged that several police officers, under the leadership of officer D., had subjected him to physical ill-treatment and psychological pressure with a view to extracting a confession from him. They had allegedly handcuffed him to a table leg and beat him with rubber truncheons, punching him and kicking him in various parts of his body. The applicant also alleged that the beating had worsened when he had requested a meeting with a lawyer, so he signed a waiver refusing his right to legal assistance “for the time being”. He agreed to plead guilty, allegedly under the threat that if he did not, his brother would be tortured. The applicant referred to the fact that the police had lost the black shirt and black trousers in which he had been arrested (see paragraphs 34-35 and 40 below). According to him, the clothes in question had been left torn and bloodstained, and their loss was to be viewed as evidence in support of his allegation of ill-treatment. He also submitted that a request he had made to be examined by a doctor had been refused. 7. According to the investigation authorities, the applicant had confessed to the murder of his own free will. As to the issue regarding his clothes, it transpired that during his arrest he had been wearing the same clothes as had been worn during the night of the murder (a black shirt and black trousers). As a result, the police brought him some sportswear to change into which they had retrieved from his home, so that the clothes in which he had been arrested could be sent away for forensic expert examination with a view to establishing whether they contained any evidence linking him to the crime. 8. On 6 September 2002 the applicant confessed to the incriminated murder. According to him, he did so when he saw that his brother had been released. His confession stated that he had been having an affair with Ms D. since 25 August 2002. On 28 August 2002 he went to see her at her home. Having talked to the applicant briefly, Ms D. left under the pretext that she needed to buy some bread and asked him to wait for her. She returned an hour and a half later, which made the applicant angry. In the course of the argument that followed, Ms D. admitted that she had been having a relationship with another man and verbally insulted the applicant. A fight ensued and the applicant ended up strangling Ms D. with the strap of her handbag. 9. The case file contains a waiver by the applicant of his right to legal assistance dated 6 September 2002, with a handwritten and signed statement as follows: “I refuse legal representation for the time being. I have been informed of my rights and I understand them.” 10. The applicant repeated his confession when he was questioned as a suspect the same day. 11. On 7 September 2002 a forensic medical expert examined the applicant. The examination report, which was also signed by the applicant, reported that there were no injuries to the applicant’s body and none complained of. 12. The applicant did not mention the expert report in his submissions to the Court. According to him, following his arrest the police had unsuccessfully attempted to transfer him to Lukyanivskyy District Pre-Trial Detention Centre no. 13 (“SIZO no. 13”), the administration of which had allegedly refused to accept him on the grounds that he had serious injuries. 13. On 7 September 2002 a reconstruction of events took place, during which the applicant repeated his confession and explained how he had killed Ms D. The reconstruction took place in the presence of two attesting witnesses and was video-recorded. 14. On 10 September 2002 the applicant signed another waiver of legal assistance, similar to that of 6 September 2002. He also confirmed his earlier statements in full, adding that it had not been his intention to kill Ms D. and that she had provoked him. The applicant alleged in his submissions to the Court that he had done so having been promised a meeting with his parents. 15. Some of the documents in the case file (namely a letter from the Svyatoshynskyy District Police Department to the applicant’s mother dated 29 December 2005 and an information note of the head of the SIZO medical unit of 16 December 2011) suggest that the applicant was transferred from the police detention facility to SIZO no. 13 on 13 September 2002. However, an information note by the SIZO governor of 27 December 2005 addressed “to whom it may concern” suggests that the applicant was held in SIZO no. 13 from 23 September 2002 to 2 October 2004. The applicant also submitted that he had been transferred to the SIZO on 23 September 2002, and that before that, the SIZO had twice refused to accept him as a detainee on account of his unspecified injuries. 16. The aforementioned information note of the head of the SIZO medical unit stated that the applicant underwent clinical, laboratory and Xray examinations upon his arrival to the SIZO on 13 September 2002, with no injuries or other health-related concerns having been discovered. It also stated that the applicant never applied for medical assistance during his detention in SIZO no. 13. 17. On 20 September 2002 a lawyer, M., entered into a legal services agreement with the applicant’s parents. 18. On 23 September 2002 the investigator rejected M.’s request for a meeting with the applicant, on the grounds that the latter had waived his right to legal assistance. The investigator informed the lawyer that he would ask the applicant whether he had changed his mind about having legal representation. 19. On 24 September 2002 the applicant once again waived his right to legal assistance, stating that he refused the services of lawyers, including those of M. The investigator passed this on to M., who complained to the Kyiv City Prosecutor’s Office and to the Prosecutor General’s Office that the investigator had overstepped his competence and that the applicant’s right to legal assistance had been violated. 20. As alleged by the applicant, on an unspecified date the investigator suggested a lawyer for him who had unsuccessfully solicited a bribe from the applicant’s parents in exchange for having their son declared insane. 21. On 24 September 2002 the applicant had a meeting with his parents and complained to them that he had been ill-treated by the police. 22. On 26 September 2002 he underwent a forensic psychiatric examination, with a view to establishing whether he could be held criminally liable for his actions. He stated to the experts that he did not remember the murder, but did recall that Ms D. had been rude to him and that they had had a fight. He claimed that he could not remember any further details. 23. On 27 September 2002 the applicant stated that he wished to be represented by M., who was admitted in the proceedings the following day. 24. On 20 October 2002 the applicant retracted his earlier confessions as having been given under duress, and changed his plea to not guilty. According to his new account of the events of 28 August 2002, he had not seen Ms D. after she had left under the pretext of the need to buy some bread. Having waited for her in vain for about an hour, he had returned home at about 11 p.m. 25. On 7 November 2002 the Kyiv City Prosecutor’s Office wrote a letter to Mr M. in response to his complaint about the alleged violation of the applicant’s right to legal assistance. The letter stated that on 6 and 10 September 2002 the investigator had informed the applicant of his right to have legal representation; however, the applicant had voluntarily waived that right and had signed forms to that effect. As soon as he changed his mind, his request for legal representation was allowed. 26. On 14 November 2002 the applicant was indicted on a charge of premeditated murder and committed for trial. 27. On 7 July 2003 the Kyiv Svyatoshynskyy District Court (“the Svyatoshynskyy Court”) found the applicant guilty of premeditated murder and sentenced him to thirteen years’ imprisonment. The court mainly based its verdict on the applicant’s confession statements made during his initial police questioning. Among the witnesses examined by the court was Sh., who had known the victim for about three months before her death. In giving evidence, Sh. stated that he had met up with her on 28 August 2002 and they had had sexual intercourse after she had left the applicant under the pretext that she was going to buy some bread. As to the applicant’s allegation of ill-treatment, the court heard evidence from several police officers who denied any coercion. It also referred to the forensic medical examination report of 7 September 2002, which stated that no injuries to the applicant’s body had been discovered or complained of. Lastly, the court noted that the applicant had not raised that complaint even after he had started to be legally represented. 28. The applicant’s lawyer appealed, submitting that the verdict had been based solely on the applicant’s confessions given under duress and in the absence of a lawyer. The appeal also stated that the trial court had failed to give any consideration to the fact that the witness Sh. had been detained for about two weeks and had also been questioned as a suspect. 29. On 3 March 2004 the Kyiv City Court of Appeal (“the Court of Appeal”) quashed the above judgment and remitted the case to the same first-instance court for a fresh examination on the basis that one of the judges had started a hearing in a different case while the panel had been supposed to be in the deliberations room preparing its verdict in respect of the applicant. Accordingly, the secrecy of the deliberations had been breached. The appellate court also held that the applicant’s allegation of ill-treatment had not been duly investigated. 30. On 6 April 2004 the Svyatoshynskyy Court instructed the Svyatoshynskyy District Prosecutor’s Office (“the Svyatoshynskyy Prosecutor’s Office”) to investigate the applicant’s allegation of illtreatment. 31. On 16 April 2004 the Svyatoshynskyy Prosecutor’s Office delivered a ruling refusing to open a criminal case against the investigator and the two police officers involved in the applicant’s detention and questioning for lack of corpus delicti in their actions. The prosecutor relied, in particular, on the statements of the officers in question and on the applicant’s forensic medical examination of 7 September 2002. The ruling also stated that the applicant’s initial statements had contained such factual details that could only be known to him and could not have possibly been dictated to him by the investigator. Lastly, the prosecutor noted that the applicant had not raised any complaints of ill-treatment even after having been legally represented. Accordingly, his later complaints in that regard were considered as being a part of his attempts to escape liability. 32. On 21 May 2004 the applicant’s mother requested the Svyatoshynskyy Prosecutor’s Office to return the applicant’s clothes seized on the day of his arrest. 33. On 24 May 2004 the Svyatoshynskyy Court delivered another judgment in which it again found the applicant guilty of premeditated murder, but reduced the sentence to twelve years. It relied on the applicant’s confession, having found that it had been given in full freedom because, firstly, there were written waivers by the applicant of his right to legal assistance, and, secondly, because his allegation of ill-treatment was considered to be unsubstantiated. The court noted that the applicant had not complained of any ill-treatment by the police during the pre-trial investigation. It dismissed as untruthful the statement of the applicant’s acquaintance, who when questioned as a witness alleged having seen the applicant at the police station in the evening on 6 September 2002 wearing torn and blood-stained sportswear. The court also relied on the statements of other witnesses who, in particular, had seen the applicant waiting for Ms D. on the evening on 28 August 2002. Furthermore, the court relied on the findings of a forensic cytological expert examination, which suggested that the antigens found under his nails could have belonged to the victim. The Svyatoshynskyy Court referred to the following circumstances warranting a reduction of the applicant’s sentence: the fact that he had pleaded guilty, was remorseful and had actively assisted the police in the initial stages of the investigation, and the fact that he had a minor child and had been in gainful employment before his detention. 34. The applicant appealed against the above judgment, reiterating his earlier arguments and also contending that criminal procedure law provided that legal representation should have been afforded to him as from his very first questioning by the police, as he was Russian-speaking and did not have a good command of Ukrainian. In support of the allegation of police illtreatment, he pointed out that SIZO no. 13 had refused to accept him as a detainee several times on account of his injuries. The applicant also alleged that the police had concealed the fact that they had withheld the clothes in which he had been arrested and questioned and which bore traces of his ill-treatment. 35. On 3 June 2004 the Svyatoshynskyy Prosecutor’s Office informed the applicant’s mother, in reply to her request of 21 May 2004 (see paragraph 32 above), that there was no information in the investigation file about any clothes having being seized and that no such clothes were among the material evidence in the case. 36. On 15 September 2004 the Court of Appeal further mitigated the applicant’s sentence to ten years’ imprisonment, having taken into account the provocative behaviour of the victim and the fact that the applicant had a minor child to take care of. The appellate court ruled so in partially allowing the applicant’s appeal. At the same time, it regarded his allegations of ill-treatment in police custody and of coercion into self-incrimination as unsubstantiated. It held that no facts in support of that allegation had been established and that there was no documentary evidence to prove that the applicant had sustained any injuries. Lastly, the court noted that the applicant had never raised the issue of his insufficient command of Ukrainian during the pre-trial investigation. 37. On 13 January 2005 the Supreme Court rejected the applicant’s cassation appeal as unsubstantiated, having found that the grievances submitted therein had already been duly examined by the lower-level courts. 38. On 22 April 2005 the applicant’s mother complained to the Kyiv City Prosecutor’s Office that her son had been ill-treated. She also maintained that he had been convicted of a crime which he had not committed. 39. On 13 May 2005 the Donetsk Scientific Research Institute of Forensic Expert Examinations, on the instruction of the prosecutor, analysed the video-recording of the applicant’s police questioning and the reconstruction of events of 6 and 7 September 2002 respectively, with a view to establishing whether the applicant could be regarded as having been subjected to psychological pressure. The forensic psychologist concluded that no such pressure had been put on the applicant, who had been making his statements freely. The applicant’s behaviour and way of speaking suggested that his self-incriminating statements had been voluntary and truthful. 40. On 1 June 2005 the Kyiv City Prosecutor’s Office issued a decision refusing to open a criminal case in respect of the loss of the applicant’s clothes. It was established that the police had indeed withheld the clothes in which he had been arrested, as they had been required for a forensic examination. The loss of the clothes, although having caused some pecuniary damage to the applicant, could not be regarded as proof that he had been ill-treated. Furthermore, the pecuniary damage was not so considerable as to warrant a criminal investigation. 41. On the same date the Deputy Kyiv City Prosecutor delivered a report summarising the findings of the investigation into the applicant’s allegations of ill-treatment and the loss of his clothes, which had been verified and dismissed as inaccurate. The prosecutor referred, in particular, to the forensic medical examination of 7 September 2002 which found no injuries to the applicant’s body, and the forensic psychological examination of 13 May 2005 which gave no indication that any psychological pressure had been put on him. The applicant’s submissions that he had been refused admission to the SIZO on two occasions had been verified and dismissed as untrue. The prosecutor consulted the relevant documentation of the SIZO and questioned its medical staff, who reported that the applicant had arrived there on 13 September 2002 and had undergone extensive medical examinations the same day (see paragraphs 11, 15-16 and 39 above). 42. On 3 February 2006 the Kyiv Pecherskyy District Court upheld the prosecutor’s decision of 1 June 2005 stating that the loss of the applicant’s clothes by the police was not proof that a criminal offence had been committed. 43. On 15 June 2006 the Court of Appeal quashed the decisions of the prosecutor and first-instance court and remitted the case for additional investigation. As noted in its ruling, the applicant alleged that the loss of the clothes in question had caused damage to him far more serious than the money they cost. Namely, he argued that, because of this loss, he was not able to prove that he had suffered ill-treatment in the hands of the police. This argument had not however been duly examined. 44. On 9 August 2006 the Kyiv City Prosecutor’s Office issued another decision refusing to institute a criminal investigation into the applicant’s complaints, having found them unsubstantiated. 45. The prosecutor informed the applicant and his relatives, on several occasions, in reply to their repeated complaints about his alleged ill-treatment, that they could challenge the decision of 9 August 2006 before the higher-level prosecution authorities or the courts. It appears that no further complaints were lodged. 46. Articles 59 and 63 of the Constitution concerning the right to legal assistance and the right not to incriminate oneself can be found in the judgment on the case of Shabelnik v. Ukraine (no. 16404/03, § 25, 19 February 2009). 47. The provisions concerning the obligation to institute criminal proceedings and investigate a crime can be found in the judgment in the case of Spinov v. Ukraine (no. 34331/03, § 33, 27 November 2008). 48. A summary of relevant documents of the Council of Europe can be found in the judgment of Salduz v. Turkey ([GC] no. 36391/02, §§ 37-38, 27 November 2008). | 0 |
train | 001-88897 | ENG | TUR | CHAMBER | 2,008 | CASE OF TARIMCI v. TURKEY | 4 | Violation of Article 6 - Right to a fair trial | Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria | 4. The applicant was born in 1941 and lives in Antalya. 5. The applicant owns a flat in Antalya. Based on a construction permit issued by the Antalya Municipality on 14 February 1991, construction works were commenced on neighbouring land to build an apartment block. The limitations concerning the height of the building were not respected and, as a result, the sea view from the applicant’s flat, which is situated on the sixth floor, was blocked by the new building. 6. On an unspecified date, the applicant initiated administrative proceedings against the Antalya Municipality for the annulment of the construction permit. He maintained that the permit was in breach of city planning regulations. On 27 June 1995 the Antalya Administrative Court found in the applicant’s favour and annulled the construction permit. On 13 March 1996 the Supreme Administrative Court upheld the decision of the Antalya Administrative Court. 7. The applicant asked the Antalya Municipality to enforce the decision of the Antalya Administrative Court, but his request was rejected. 8. On 18 October 1998 the applicant initiated compensation proceedings before the Antalya Administrative Court on account of the Municipality’s failure to implement the court order of 13 March 1996. He requested both pecuniary and non-pecuniary compensation, stating that the non-enforcement of the final court decision which had annulled the construction permit had diminished his flat’s value. 9. On 19 November 1998 the Antalya Administrative Court partially upheld the applicant’s claim, awarding him pecuniary compensation, but refusing non-pecuniary damages. 10. On 26 April 2000 the Supreme Administrative Court upheld the Antalya Administrative Court’s decision in respect of pecuniary damage. However, finding that the applicant was also entitled to non-pecuniary compensation, it quashed the judgment in this respect. Subsequent to this decision, the Municipality paid the pecuniary compensation to the applicant. 11. On 1 November 2000 the Antalya Administrative Court awarded 250,000,000 Turkish liras (TRL) to the applicant in respect of non-pecuniary damage. 12. On 16 April 2002, considering the amount of non-pecuniary compensation insufficient, the Supreme Administrative Court quashed the judgment of the Antalya Administrative Court once again. 13. On 19 December 2002 the Antalya Administrative Court insisted on maintaining its judgment. The applicant appealed. 14. On 16 June 2005 the Supreme Administrative Court quashed the judgment of the Antalya Administrative Court of 19 December 2002. 15. On 29 December 2005 the Antalya Administrative Court adhered to the decision of the Supreme Administrative Court and awarded the applicant TRL 1,000,000,000 in respect of non-pecuniary compensation with statutory interest running from 18 October 1996. 16. On 27 June 2006 the Supreme Administrative Court rejected the appeal of the Municipality. The Municipality paid the due amount to the applicant. | 1 |
train | 001-114154 | ENG | GEO | ADMISSIBILITY | 2,012 | KOKHREIDZE v. GEORGIA AND RAMISHVILI v. GEORGIA | 3 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria | 1. The applicant in the first case, Mr David Kokhreidze (“the first applicant”), was born in 1961. The applicant in the second case, Mr Shalva Ramishvili (“the second applicant”), was born in 1971. Both applicants are Georgian nationals, currently live in Tbilisi and were represented before the Court by Mrs Lia Mukhashavria and Mr Vakhtang Vakhtangidze, lawyers practising in Georgia. 3. On 29 March 2006 the Tbilisi City Court convicted the applicants, who were co-founders of and shareholders in a private media company, of conspiracy to commit extortion. The first applicant was sentenced to three years and the second applicant to four years in prison (for more details concerning the criminal proceedings, see Ramishvili and Kokhreidze v. Georgia, no. 1704/06, §§ 9-42, 27 January 2009). 4. On 30 June 2006 the Tbilisi Appeal Court upheld the conviction. 5. On 16 October 2006 the Supreme Court of Georgia, sitting privately, declared the applicants’ appeal against the conviction on points of law inadmissible on the ground that it lacked significant legal content. The criminal proceedings were thus finally terminated. 6. As submitted by the applicants and confirmed by a postal receipt, the final decision of 16 October 2006 was served on them in Rustavi no. 2 Prison, where they were serving their sentences at that time, on 1 November 2006. 7. On 16 April 2007 application forms were lodged with the Court on behalf of the applicants. The forms were signed only by the applicants’ representatives and did not include authority forms issued by the applicants for their representation before the Court. 8. On 23 April 2007 as regards the first applicant’s case, and on 30 May 2007 as regards the second applicant’s case, the Court, using a standard form of preliminary correspondence, brought the representatives’ attention to the fact that the applications could not be considered to be complete, as they had neither been signed by the applicants in person nor supplemented by authority forms issued by them. The Court invited the representatives to submit the missing authority forms without undue delay, on pain of leaving their cases without examination. 9. On 4 June 2007 the representatives submitted an authority form signed by the second applicant, Mr Ramishvili. The accompanying letter did not contain any explanation for the delay. 10. With respect to the first applicant’s case, on 4 July 2007 the Court sent a second reminder to the representatives that the registration of the application could not be proceeded with in the absence of an authority form issued by the applicant. In reply, by a letter of 24 July 2007, the representatives finally submitted an authority form signed by Mr Kokhreidze. No explanation for that delay was given either. | 0 |
train | 001-72921 | ENG | SVK | ADMISSIBILITY | 2,006 | B.c. v. SLOVAKIA | 4 | Inadmissible | Nicolas Bratza | The applicant, Mrs B.Č., is a Slovakian national who was born in 1960 and lives in Košice. She is represented before the Court by Mrs I. Rajtáková, a lawyer practising in Košice. In March 1999 the applicant petitioned for divorce from her husband as their relations had disintegrated. At that time, their son, born in 1992, lived together with the applicant’s husband in one room. The applicant with her daughter born from her previous marriage lived in a different room of the same flat. All family members commonly used the living room and the kitchen. In the evening of 7 July 1999 the applicant and her daughter found her husband and the boy naked in the living room. They noticed that the penis of the boy’s father was erect. In fear that her husband had abused the boy, the applicant let him spend the night in her room and they slept at their neighbour’s place on the following night. On 9 July 1999 the child was examined by a psychologist who concluded that he had suffered a psychological trauma. According to the report, the child had made a picture resembling an erect penis when asked to draw his family. The applicant and her children started living at a different place. On 3 September 1999 the applicant filed a criminal complaint alleging that her husband had sexually abused the boy. The applicant submitted, in particular, that she had found both her husband and her son lying naked in their living room on 7 July 1999, and that her husband’s penis had been erect. On 7 October 1999 the District Court in Košice II placed the boy provisionally in the applicant’s custody. It further prohibited the father from meeting the child. On 23 December 1999 the District Office of Investigation of the Police Corps in Košice II, with reference to the child’s statement, dismissed the complaint holding that nothing indicated that an offence had been committed. The police had before them, among other documents, an opinion submitted by an expert on 19 October 1999. In it reference was made to the boy’s statement that his father had moved his penis as if playing a guitar while being naked when the boy had come to sleep in the father’s room. The child further stated that the father had wanted him to watch him, but had neither touched the boy nor had he wanted the boy to touch him. In his opinion of 19 October 1999, the expert characterised the father’s behaviour as sexually abusive. The expert later admitted that such conclusion could be drawn under the hypothetical assumption that the father’s behaviour had been erotically motivated. Otherwise that behaviour was to be qualified as socially inappropriate. The applicant filed a complaint against the above decision on 13 January 2000. She pointed out, in particular, that in his statement before an expert her son had affirmed that her husband had manipulated his sexual organ in the presence of the child. Her son displayed the syndromes of an abused child despite the fact that she and the child had moved to a different place. She also referred to the conclusion of a psychologist who had examined the child, at her request, on 9 July 1999. According to the psychologist, the child had suffered a serious psychological trauma. On 26 January 2000 the Košice II District Prosecutor quashed the investigator’s decision. In the course of the subsequent criminal proceedings the public prosecutor indicted the child’s father for the offence of sexual abuse pursuant to Article 242 (1) and (2) of the Criminal Code. According to the indictment, the accused, on 7 July 1999, had been lying naked in the living room with an erect penis and had masturbated, while his son had been lying undressed close to him. They had been found in that position by the applicant. Throughout the investigation the father denied the accusation. He explained that he and the child had watched TV before going to sleep in the evening in issue. They had undressed as it had been very hot that day. On 25 August 2000 the Košice II District Court discontinued the proceedings as no offence had been committed. It referred to documents included in the file, such as statements of the applicant, her son and daughter as well as of the accused. It also had regard to four expert opinions and the information submitted by an administrative authority. The court concluded that the action described in the indictment could not be qualified as sexual abuse under Article 242(1) and (2) of the Criminal Code. Finally, the decision stated that in criminal proceedings a court can assess only acts which are described in the indictment. On 15 November 2000 a court decreed the divorce of the applicant and her husband. On 30 November 2000 the Regional Court in Košice quashed the District Court’s decision of 25 August 2000. The Regional Court noted that two expert opinions supported the public prosecutor’s view that the applicant’s son had been sexually abused. However, the file also comprised a third expert opinion, submitted in the context of proceedings concerning parental rights and obligations. In it the expert, who had examined both the parents and the child, had reached a different conclusion. With a view to having the relevant facts established, the Regional Court instructed the prosecuting authorities to ask the Slovak Chamber of Psychologists to identify a suitable expert. It held that both parents should be examined by an expert, and that the applicant should be asked to explain why she had filed her criminal complaint nearly two months after the incident had occurred. The case was returned to the public prosecutor who re-transmitted it to the police investigator. On 9 August 2001 the District Office of Investigation in Košice II discontinued the criminal proceedings against the child’s father as the action imputed to him did not constitute an offence. The police investigator heard the two parents, the boy and the applicant’s daughter and several witnesses. According to the boy’s statements, he had often been obliged to sleep together with the father when the latter had returned home intoxicated. On one occasion, he had been obliged to sleep naked with the father as they had not found his pyjamas. His father had always locked the door. The boy stated that he had disliked sleeping with his father as the latter had been intoxicated and naked. The applicant’s daughter stated that, in the evening of 7 July 1999, she had seen that her step-father had risen from the sofa with his penis erect and had run to his room at the moment when her brother had switched on the light in the living room. She affirmed that her step-father had in the past stayed with her brother locked in the bathroom and in his room. In addition to the expert opinions mentioned above, the investigator had also regard to the opinion of a sexologist stating that the accused was heterosexually oriented and that he displayed no signs of sexual deviation. As there were discrepancies in the various expert opinions, the investigator requested, in accordance with the Regional Court’s instruction, the Research Institute of Child Psychology and Patopsychology in Bratislava to submit an opinion on the relevant issues. The experts of the institute submitted their opinion of 23 pages on 30 April 2001. The experts of the institute examined the boy, his father, the applicant and her daughter and assessed in detail the trustworthiness of their statements. They then commented on the four opinions earlier submitted by different experts. In their conclusion, the experts of the institute held that the father’s behaviour had not threatened the boy’s mental development. They considered trustworthy the boy’s statement according to which the father had neither beaten him nor had he touched his body or asked the boy to touch his genitals. As regards the alleged abuse of the child, the only reliable information represented the boy’s statement according to which his father had moved his penis as if playing a guitar. It was impossible to establish when, in what context and how often such behaviour had occurred. In the experts’ view, it was however improbable that the child had observed his father masturbating. The experts further considered disputable the quality of two expert opinions submitted earlier. As to the signs of neurosis which the boy had displayed in the past, the experts of the institute held that they did not prove that the child had been sexually abused. On the basis of the above materials the police investigator concluded, in a decision of 9 August 2001, that there was no indication that the accused had behaved in a manner which could be qualified as sexual abuse under Article 242(1) and (2) of the Criminal Code. On 27 August 2001 the applicant filed a complaint. She argued that the investigator’s decision did not correspond with the evidence taken in the criminal proceedings. On 14 September 2001 the District Prosecutor’s Office in Košice II dismissed the applicant’s complaint against the investigator’s decision on the ground that the applicant was not entitled to file it. In a separate letter of the same date the public prosecutor informed the applicant, with reference to the opinion of the experts from the research institute, that he shared the view of the police investigator according to which her former husband had not sexually abused the boy. Article 242 of the Criminal Code governs the offence of sexual abuse. Pursuant to paragraph 1, a person who has sexual intercourse with a person younger that 15 years or who sexually abuses such a person in a different manner is to be punished with a prison term between 1 and 8 years. Under paragraph 2, the prison term shall be between 2 and 10 years where a perpetrator commits the offence set out in paragraph 1 in respect of a person placed under his or her authority and in abuse of the victim’s dependence. In practice, forms of sexual abuse other than sexual intercourse within the meaning of Article 242(1) comprise satisfying one’s sexual drive by touching the body of the abused person, kissing or touching genitals provided that such actions are intensive. | 0 |
train | 001-86520 | ENG | GBR | ADMISSIBILITY | 2,008 | CAMERON v. THE UNITED KINGDOM | 4 | Inadmissible | Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä | The applicant, Mr Craig Cameron, is a British national who was born in 1964 and lives in Stamford. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office, London. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant received a notice of intended prosecution requiring him to name the driver of his car on 31 March 2003. The applicant declined to sign the form, maintaining that the car belonged to his employer. On 4 December 2003, the Magistrates’ Court convicted the applicant of an offence under section 172(3) of the Road Traffic Act 1988 for failing to give information as to the identity of the driver of his car. He was fined GBP 400 and ordered to pay GBP 160 costs, with his licence to be endorsed with three penalty points. The applicant appealed to the Crown Court, invoking Articles 6 and 10 of the Convention. It rejected his appeal after a hearing on 24 November 2004. The relevant domestic law and practice are set out in O’Halloran and Francis v. the United Kingdom [GC], nos. 15809/02 and 25624/02, §§ 2531, ECHR 2007... | 0 |
train | 001-57449 | ENG | GBR | CHAMBER | 1,989 | CASE OF BROGAN AND OTHERS v. THE UNITED KINGDOM (ARTICLE 50) | 2 | Non-pecuniary damage - finding of violation sufficient | C. Russo;J.A. Carrillo Salcedo;N. Valticos;B. Walsh | 1. The case was brought before the Court on 15 July 1987 by the European Commission of Human Rights ("the Commission") and on 3 August 1987 by the Government of the United Kingdom of Great Britain and Northern Ireland ("the Government"). It originated in four applications (nos. 11209/84, 11234/84, 11266/84 and 11386/85) against the United Kingdom which had been lodged with the Commission, on 18 October 1984, 22 October 1984, 22 November 1984 and 8 February 1985 respectively, by four British citizens, Mr Terence Brogan, Mr Dermot Coyle, Mr William McFadden and Mr Michael Tracey. As regards the facts of the case, reference is made to paragraphs 11 to 41 of the Court’s judgment of 29 November 1988 ("the principal judgment" - Series A no. 145-B, pp. 19-25). 2. In that judgment the Court held, inter alia: (a) that there had been no violation of Article 5 § 1 (art. 5-1) of the Convention, the applicants’ detention having been based on a reasonable suspicion of commission of an offence and effected for the purpose of bringing them before the competent legal authority (paragraphs 49-54 of the reasons and point 1 of the operative provisions, pp. 28-30 and 37); (b) that there had been a violation of Article 5 § 3 (art. 5-3) in respect of all four applicants, in that they had not been brought promptly before a judge or other officer authorised by law to exercise judicial power (paragraphs 55-62 of the reasons and point 2 of the operative provisions, pp. 30-34 and 37); (c) that there had been no violation of Article 5 § 4 (art. 5-4), the applicants having been entitled to take proceedings of the nature required by this provision (paragraphs 63-65 of the reasons and point 3 of the operative provisions, pp. 34-35 and 37); (d) that there had been a violation of Article 5 § 5 (art. 5-5) in respect of all four applicants, in that they had no enforceable claim for compensation before the domestic courts for the breach of Article 5 § 3 (art. 5-3) (paragraphs 66-67 of the reasons and point 4 of the operative provisions, pp. 35 and 37); (e) that there was no call to examine the application of Article 50 (art. 50) in relation to reimbursement of any costs or expenses incurred, the applicants not having submitted any claim in this respect and this not being a matter which the Court had to examine of its own motion (paragraph 70 of the reasons and point 6 of the operative provisions, pp. 36 and 37). 3. In their memorial of 18 January 1988 the applicants had claimed, under Article 50 (art. 50) of the Convention, compensation for prejudice suffered. They contended that an award of exemplary damages would be appropriate and suggested, notably, that compensation should be calculated on the basis of approximately £2,000 for each hour of wrongful detention. In the principal judgment the Court held that the question of the application of Article 50 (art. 50) in relation to this claim was not ready for decision; accordingly, it reserved the said question in that respect and invited the Government to submit their written comments within the next three months and, in particular, to notify the Court of any agreement reached between them and the applicants (paragraph 71 of the reasons and point 7 of the operative provisions, pp. 36 and 37). 4. In accordance with the foregoing invitation and the President’s directions, there were filed at the registry, on 24 February 1989, a memorial of the Government and, on 28 March 1989, observations of the applicants. These documents revealed that no agreement as aforesaid had been reached. On 14 April the Delegate of the Commission lodged observations on the question of the application of Article 50 (art. 50) in the present case. 5. The Court decided on 25 April 1989 that there was no call to hold a hearing. | 0 |
train | 001-82404 | ENG | NLD | ADMISSIBILITY | 2,007 | SEVINGER v. THE NETHERLANDS | 3 | Inadmissible | David Thór Björgvinsson | The applicants, Mr M.G. Eman and Mr O.B. Sevinger, are Netherlands nationals, born in 1961 and 1965 respectively, who are both resident in Oranjestad (Aruba). They have resided in the Netherlands (the Realm in Europe) for a number of years, but not for a period of at least ten years. They were represented before the Court by Mr A.G. Croes, a lawyer practising in The Hague. The facts of the case, as submitted by the applicants, may be summarised as follows. On 21 September and 5 October 2006 respectively the applicants requested the Municipal Executive of The Hague (College van Burgemeester en wethouders) to include them in the electoral register for the elections of members of the Lower House of the Netherlands Parliament on 22 November 2006. By decisions of 5 and 20 October 2006 respectively the Municipal Executive rejected their requests, as they had not been residents of the Netherlands for a period of at least ten years. Pursuant to Section B1 § 1 and 2 sub A of the Elections Act (Kieswet) the applicants were thus not entitled to vote. The applicants filed an appeal against these decisions with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). The applicants alleged that the Municipal Executive’s decisions were in breach of inter alia Article 3 of Protocol No. 1, submitting the following argumentation. The Lower House is a co-legislature in matters concerning the Kingdom of the Netherlands (hereinafter also referred to as: the Kingdom) and exercises political control over the establishment of general orders in council for the Kingdom (algemene maatregelen van rijksbestuur). The Netherlands Parliament, of which the Lower House is a part, in fact also acts as a “Kingdom Parliament”, thus the elections of members of the Lower House of the Netherlands Parliament imply also the elections of members of the “Kingdom Parliament”. In other words, the overlap between members of the Netherlands Parliament and the ones of the “Kingdom Parliament” implies ipso facto an overlap in respect of the elections of members of the Lower House of the Netherlands Parliament and the ones of the Lower House of the “Kingdom Parliament”. By final judgment of 21 November 2006 the Administrative Jurisdiction Division of the Council of State dismissed the applicants’ appeal, holding inter alia the following: “2.3.1. The Kingdom of the Netherlands is composed of three autonomous countries, the Netherlands, the Netherlands Antilles and Aruba. The relations within the Kingdom and the duties and responsibilities of the different countries are regulated in the Charter [for the Kingdom of the Netherlands; Statuut voor het Koninkrijk der Nederlanden, hereafter referred to as “the Charter”], which does not provide for a Kingdom Parliament. The three countries each have their own parliamentary representative body. The legislative power concerning Kingdom matters is exercised by the legislature of the Kingdom. Articles 15 to 21 of the Charter lay down the legislative procedure, providing for control over, and influence on, the legislative process for the representative bodies of the Netherlands, the Netherlands Antilles and Aruba. 2.3.2. Bills for Kingdom Acts are forwarded to the representative assemblies of the Netherlands Antilles and Aruba at the same time as they are introduced in Parliament. These [assemblies] are empowered, prior to the Bill being publicly debated in the Lower House, to examine the Bill, to issue a written report thereon and to designate one or more special delegates. Furthermore, the Ministers Plenipotentiary of the country in which the legislation is to apply – whose actions have to be accounted for in the representative assemblies of Aruba and the Netherlands Antilles –, are afforded the opportunity to attend the debate on the Bill in Parliament, to furnish information to the Upper and Lower House, to propose amendments to the Bill and to express their opinion on the Bill before a final vote is taken. If, after the Minister Plenipotentiary has stated his or her opposition to the Bill, the Lower House adopts it with a majority of less than three-fifths of the number of votes cast, the proceedings shall be suspended and further discussions on the Bill will take place in the Council of Ministers of the Kingdom. The same power is conferred on special delegates of the representative assemblies of the Netherlands Antilles and Aruba. Therefore, the Charter provides for a democratically legitimated contribution of the residents of the Netherlands, the Netherlands Antilles and Aruba on Kingdom Act legislation by the representative assemblies of the different countries, albeit that the contribution is not always organised in the same way in the countries. (...) 2.3.2. It has been established that the appellants are eligible to vote in the elections of members of the Parliament of Aruba. Therefore the rejection of their requests for registration does not constitute grounds to find a violation of the right laid down in Article 3 of Protocol No. 1 (...). That argument thus fails. 2.4. The appellants further argue that the rejection of their requests constitutes an unjustified difference in treatment, in breach of Article 14 of the Convention. They are excluded as Netherlands nationals from the right to vote in the Lower House Parliamentary elections, merely because they are residents of Aruba, whereas Netherlands nationals who are also not resident of the Netherlands do have that right. 2.4.1. This argument also fails. The legislature has chosen to grant the right to vote in elections for the Lower House also to Netherlands nationals who are not residents of the Netherlands, in order to guarantee that all Netherlands nationals have the right to vote for a representative assembly. In respect of residents of Aruba it is not in dispute that they have the right to vote for the Parliament of their country. Netherlands nationals who are not, or not any longer, residents of Aruba are ineligible, or lose their eligibility, to vote in elections for the Parliament of Aruba. In that respect the two situations are not the same, so for that reason alone there is no unjustified discrimination, within the meaning of Article 14 of the Convention. The fact that the Elections Act grants the right to vote to Netherlands nationals who are residents of the Netherlands Antilles and Aruba and who have resided in the Netherlands for ten years, thereby enabling them to vote in the election of two representative assemblies, is also not a circumstance which leads to the conclusion that there is an unjustified difference in treatment, within the meaning of the aforementioned provision. From the drafting history of Section B1 of the Elections Act (Parliamentary Documents I, 1984/1985, 18 694, nr. 232b, p. 2) it can be deduced that the legislature is of the opinion that a residence in the Netherlands of ten years or more creates a tie with the Netherlands to such an extent, that it is justified to grant the right to vote in the election of members of the Lower House [to this category of Netherlands nationals]. The residents of the Netherlands Antilles and Aruba who comply with this criterion are therefore clearly distinguishable from those who have never resided in the Netherlands. As regards residents of the Netherlands Antilles and Aruba who have resided in the Netherlands for a period of less than ten years, it cannot be held that the legislature could not reasonably have decided upon that criterion.” Apart from the proceedings above, the applicants also started proceedings against the Municipal Executive of The Hague concerning the rejection of their application for inclusion in the electoral list for the election of members of the European Parliament on 10 June 2004. In the course of those proceedings, the Administrative Jurisdiction Division of the Council of State made a reference for a preliminary ruling to the Court of Justice of the European Communities. On 12 September 2006 the Court of Justice delivered its judgment (Case C-300/04), which reads inter alia: “2. While, in the current state of Community law, there is nothing which precludes the Member States from defining, in compliance with Community law, the conditions of the right to vote and to stand as a candidate in elections to the European Parliament by reference to the criterion of residence in the territory in which the elections are held, the principle of equal treatment prevents, however, the criteria chosen from resulting in different treatment of nationals who are in comparable situations, unless that treatment is objectively justified. § 58 Here, the relevant comparison is between a Netherlands national resident in the Netherlands Antilles or in Aruba and one residing in a non-member country. They have in common that they are Netherlands nationals who do not reside in the Netherlands. Yet there is a difference in treatment between the two, the latter having the right to vote and to stand as a candidate in elections to the European Parliament held in the Netherlands whereas the former has no such right. Such a difference in treatment must be objectively justified. § 59 At the hearing, the Netherlands Government stated that the Electoral Law’s objective was to enable Netherlands nationals from the Netherlands residing abroad to vote, since those nationals are assumed still to have links with Netherlands society. However, it is also apparent from that Government’s explanations at the hearing that a Netherlands national who transfers his residence from Aruba to a non-member country has the right to vote in the same way as a Netherlands national transferring his residence from the Netherlands to a non-member country, while a Netherlands national-resident in Aruba does not have that right. § 60 In that regard, the objective pursued by the Netherlands legislature consisting in the conferment of the right to vote and to stand for election on Netherlands nationals who have or have had links with the Netherlands falls within that legislature’s discretion as regards the holding of the elections. However, the Netherlands Government has not sufficiently demonstrated that the difference in treatment observed between Netherlands nationals resident in a non-member country and those resident in the Netherlands Antilles or Aruba is objectively justified and does therefore constitute an infringement of the principle of equal treatment.” In 1986, Aruba (until then part of the Netherlands Antilles) obtained internal autonomy and became a country (separate from the Netherlands Antilles) within the Kingdom. The status of these countries and the relations between them and the Netherlands and towards the Kingdom as a whole is laid down in the Charter for the Kingdom of the Netherlands. Article 41 of the Charter provides that the three countries shall manage their internal matters independently. Therefore Aruba has its own Constitution (Staatsregeling) and its own Net and parliament, id est the Parliament of Aruba (Staten van Aruba), which body has 21 members, who are elected freely, by secret ballot and by means of proportional representation for a four year term. The legislature of the Kingdom consists of the Netherlands Parliament and the Kingdom Government (the Monarch and the Council of Ministers of the Kingdom) together. Relevant (excerpts of) articles of the Charter for the Kingdom of the Netherlands (as amended by Kingdom Act of 15 December 1994) read as follows: “Article 4 ... 2. Legislative power in Kingdom affairs shall be exercised by the legislature of the Kingdom. Kingdom Bills shall be considered with due observance of the provisions of Articles 15 to 21 inclusive. Article 15 1. The King shall forward Bills for Kingdom Acts, at the same time as they are introduced in Parliament, to the representative assemblies of the Netherlands Antilles and Aruba. ... Article 16 The representative assembly of the country in which the legislation is to apply shall be empowered, before the Bill is publicly debated in the Lower House, to examine the Bill and to issue a written report thereon, if necessary within a fixed time-limit. Article 17 1. The Minister Plenipotentiary of the country in which the legislation is to apply shall be afforded the opportunity to attend the debate on the Bill in Parliament and to furnish such information to the Upper and Lower House as he considers desirable. 2. The representative assembly of the country in which the legislation is to apply may decide to designate, for the purposes of the debate on a particular Bill in Parliament, one or more special delegates who shall likewise be empowered to attend the debates and furnish information. ... 4. The Ministers Plenipotentiary and the special delegates shall be empowered to propose amendments to a Bill during the proceedings in the Lower House. Article 18 1. Before a final vote is taken on any Kingdom Bill in the Upper and Lower House, the Minister Plenipotentiary of the country in which the legislation is to apply shall have the opportunity to express his opinion on the Bill. If, after the Minister Plenipotentiary has stated his opposition to the Bill, the Lower House adopts it with a majority of less than three-fifths of the number of votes cast, the proceedings shall be suspended and the Council of Ministers shall consider the Bill further. 2. If the meetings of the Upper or Lower House are being attended by special delegates, the power referred to in paragraph 1 shall devolve upon the delegate designated for the purpose by the representative assembly. Article 41 1. The Netherlands, the Netherlands Antilles and Aruba shall conduct their internal affairs autonomously. 2. The interest of the Kingdom shall be a matter of common concern to the countries. Article 46 1. The representative assemblies shall be elected by Netherlands nationals who are residents of the country concerned and have attained an age to be determined by the countries, which should not exceed 25 years. Each voter shall cast only one vote. Elections shall be free and by secret ballot. In case of necessity the countries may impose restrictions. ... 2. The countries may award to Netherlands nationals who are not residents of the country concerned the right to vote in elections for the representative assemblies ...” Section B1 of the Elections Act (as amended on 24 December 1998) reads as follows: “1. Members of the Lower House of Parliament shall be elected by persons who are Netherlands nationals on nomination day and have attained the age of eighteen years on polling day, with the exception of persons who have their lawful place of residence in the Netherlands Antilles or Aruba on nomination day. 2. This exception shall not apply to: (a) Netherlands nationals who have been resident in the Netherlands for at least ten years; (b) Netherlands nationals who are employed in the Netherlands public service in the Netherlands Antilles or Aruba and their Netherlands spouses or partners and children, in so far as they have joint households.” | 0 |
train | 001-95112 | ENG | UKR | CHAMBER | 2,009 | CASE OF OKHRIMENKO v. UKRAINE | 3 | Remainder inadmissible;No violations of Art. 3 (substantive aspect);Violation of Art. 3 (substantive aspect);No violation of Art. 34;Non-pecuniary damage - award | Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 5. The applicant was born in 1968 and is currently detained in Kharkiv pre-trial detention centre No. 27 (Слідчий ізолятор № 27 м. Харкова – “the SIZO”), Ukraine. 6. On 14 March 2007 the applicant was arrested on suspicion of theft and inflicting grievous bodily harm causing the death of Mrs S. 7. On 16 March 2007 the Zmiyivskyy District Court authorised the applicant's pre-trial detention. The court indicated that the applicant was suspected of committing a serious crime, had been previously convicted on many occasions, had had negative character assessments, drank excessively and did not work. Therefore, the court was of the opinion that the applicant might abscond, commit other crimes or hinder the investigation. The applicant did not appeal against this decision. 8. On 10 May 2007, on completion of the preliminary investigation, the applicant's criminal case was sent to the court. 9. On 25 June 2007 the Zmiyivskyy District Court rejected the applicant's request for release. The parties did not submit a copy of this decision. 10. On 28 March 2007 (in some submissions the applicant refers to 23 March 2007) the applicant was placed in the SIZO. The applicant stated that he had requested his release as he was suffering from cancer. 11. Immediately on his arrival, the applicant complained about his health problems but was examined and diagnosed only a month later. 12. In April 2007 the applicant was diagnosed with liver cirrhosis and advanced cancer of the left kidney with metastasis in the lungs. The applicant received symptomatic treatment including the use of narcotic analgesics but, according to him, the quantity of analgesics was not sufficient given the advanced stage of his cancer. 13. On 26 July 2007 the Zmiyivskyy District Court ordered a medical examination of the applicant in order to establish the severity of his condition. The applicant was not provided with any medical treatment. 14. From 9 to 17 August 2007 the medical examination of the applicant took place, confirming the previous diagnosis. 15. The applicant's representative in the criminal proceedings, allegedly Mr Kh., lodged numerous requests with the court for the applicant to be released in view of his serious state of health, but to no avail. No copies of these requests or the court's refusals were submitted by the applicant. 16. On several occasions – at least four times – the applicant was escorted to court hearings which took place about 50 kilometres away from the SIZO. The applicant stated that the conditions in which he was transported, given his serious state of health, had caused him extensive suffering. In particular, he had to wait in a room measuring one square metre for the arrival of the prison van. The trip lasted approximately two hours and the applicant was not fed or provided with any medical assistance. The applicant stated that any movement had been painful for him and that being transported to the courthouse had caused him severe distress; on the last two occasions his health had seriously deteriorated as a result. 17. From 15 to 28 March 2007 the applicant stayed in Zmiyivska Central Hospital, where he received treatment for an injury to the left hand, lymphangitis (an inflammation of the lymphatic channels) of his left arm and pneumonia. 18. On 28 March 2007 the applicant was placed in the SIZO. 19. On arrival at the SIZO the applicant complained about headaches and pain in the right part of his chest. On the next day he was diagnosed with pneumonia and placed in the hospital wing of the SIZO. However, on 2 April 2007 he was transferred to Kharkiv City Clinic (Міська клінічна лікарня № 1 м. Харкова) where he stayed until 20 April 2007. During his stay in the clinic, the applicant was diagnosed with cancer. 20. On 6 and 12 April 2007 the applicant was examined in Kharkiv Oncology Hospital (Харківський обласний клінічний онкологічний диспансер) and diagnosed with cancer of the left kidney. On his discharge from the hospital he was prescribed symptomatic treatment. 21. On 20 April 2007 the applicant was returned to the SIZO. He was diagnosed with advanced cancer with metastasis, chronic hepatitis and vasculitis (a heterogeneous group of disorders that are characterised by inflammatory destruction of blood vessels) and placed in the hospital wing, where he stayed until 18 May 2007. 22. Since April 2007 the SIZO authorities have several times requested the Ministry of Internal Affairs and the Zmiyivskyy District Court to accelerate the proceedings in the applicant's case or to order the applicant's release but, apparently, to no avail. No copies of such requests or decisions taken in respect of them have been provided to this Court. 23. The applicant also stayed in the hospital wing of the SIZO from 6 to 20 June, 13 to 20 July and 31 July to 11 December 2007. 24. Between June and August 2007 the applicant frequently complained of pains in the left side of his body. He was prescribed some painkillers, antibiotics and vitamins. 25. On 4 July 2007 the applicant lodged a written request to participate in a court hearing scheduled for 5 October 2007. 26. On 26 July 2007 the Zmiyivskyy District Court, which was considering the applicant's criminal case, ordered the medical examination of the applicant. 27. From 2 August to 11 September 2007 the applicant constantly had a high body temperature (38-39o). His medical file contains a reference to a telephone conversation of 8 August 2007 during which the head doctor of Kharkiv Oncology Hospital refused to admit the applicant since “according to the medical findings of 12 April 2007, the applicant could not undergo surgery”. The applicant's condition was described as of “medium severity” (“середньої тяжкості”). 28. Between September and October 2007 the applicant's condition remained serious; however, he had no fever and his body temperature was normal. 29. On 5 and 12 October 2007 the applicant participated in court hearings. 30. On 5 October 2007 the applicant was examined by a doctor from Zmiyivska Central Hospital. The applicant requested a prescription for morphine injections. 31. On 24 October 2007 the Kharkiv City health department was requested to assist the SIZO in providing pain relief since the SIZO was not entitled to buy narcotic analgesics. 32. On 25 October 2007 the applicant underwent an examination in Kharkiv Oncology Hospital. 33. Since 1 November 2007 the applicant has been receiving morphine injections. 34. On 5 November 2007 the applicant participated in a court hearing. A doctor was called into the hearing but the applicant refused to be examined. The doctor concluded that, judging from the applicant's appearance, he could participate in a court hearing, but recommended further diagnostic tests in a specialised hospital. By a separate ruling the court decided to make enquiries with the SIZO about the applicant's state of health since “he could not participate in a court hearing after the morphine injections and refused to participate without having them”. 35. On 8 November 2007 the applicant was examined by a doctor from Kharkiv City Hospital, who recommended the use of morphine twice a day. 36. On 12 November 2007 the applicant refused blood and urine tests and requested an increase in his morphine injections. 37. On an unspecified date in November 2007 the applicant requested his transfer to a civil hospital, a course of chemotherapy and an increase in his morphine injections. He was refused on the ground that “the oncologist had not prescribed such treatment”. The applicant, however, refused further diagnosis. 38. On 21 November 2007 the applicant participated in a court hearing and was assisted by a medical professional. 39. On 23 November 2007 the applicant again refused to submit to a blood test. 40. On 30 November 2007 the applicant was examined in Kharkiv Oncology Hospital. A biopsy was prescribed, as well as analgesics. According to the Government, the applicant refused to undergo a biopsy. 41. On 5 December 2007 the Governor of the SIZO hospital wing informed the court that, given the applicant's diagnosis, his state of health was serious; he could, however, participate in the court hearings. 42. On 6 December 2007 the applicant participated in a court hearing. 43. On 11 December 2007, following the applicant's request for Rule 39 of the Rules of Court to be applied, the President of the Fifth Section of this Court decided that the Government of Ukraine should ensure that the applicant was transferred to a hospital or other medical institution where he could receive the appropriate treatment. 44. On the same day the applicant was transferred to Kharkiv Oncology Hospital. On admission he was diagnosed with cancer of the kidney (hypernephroma) in the advanced stage (T3-4 N1M1). 45. By a letter of 14 December 2007 the head doctor of Kharkiv Oncology Hospital informed the Governor of the SIZO that on 11 and 13 December 2007 the applicant had refused any diagnostic tests and requested that the prosecutor and a representative of the Kharkiv Human Rights Group be present during his examination. The applicant explained his refusal to give blood tests by saying that he “wanted to live”. The hospital personnel also complained to the hospital management that the applicant had sworn at them and insisted that they leave his ward. The head doctor stated that in the absence of any diagnosis it was not appropriate for the applicant to stay in a specialised hospital. Later, allegedly following the intervention of the applicant's lawyer, the applicant agreed to further examination. The doctors decided that the applicant should undergo a biopsy and that in the event of confirmation of the diagnosis surgery should be performed. After several refusals the applicant finally agreed to a biopsy and surgery. 46. On 24 December 2007 the court proceedings in the applicant's case were stayed because of the applicant's illness. 47. According to the applicant, from 11 December 2007 until, at the earliest, 19 September 2008, he was handcuffed to his bed. By letter of 27 December 2007 the applicant's lawyer informed this Court that he had complained about this matter to the Governor of the SIZO. 48. By a letter of 8 January 2008 the Zmiyivskyy District Court rejected Mr Kristenko's request for information concerning the applications for the applicant's release and all court decisions taken in response to those applications, since Mr Kristenko had not submitted a proper power of attorney. 49. On 11 January 2008 the applicant underwent surgery. Afterwards he continued to receive morphine injections. 50. On 23 January 2008 the applicant was diagnosed with cancer of the kidney (hypernephroma), stage T3N0M0 2/2 clinical group. 51. By a letter of 23 January 2008 the deputy head doctor of Kharkiv Oncology Hospital requested the Governor of the SIZO to remove the applicant since there was no further need for him to stay in a specialised hospital and he was currently occupying a four-bed ward as he was being guarded by three SIZO officers. 52. On 1 February 2008 the authorities of the SIZO requested the Kharkiv health department and the Kharkiv regional prosecutor's office to admit the applicant to the radiotherapy department of the Oncology Hospital since the SIZO did not have the proper equipment and personnel for the applicant's further treatment. 53. From 4 to 17 February 2008 the applicant underwent radiotherapy. Subsequently he refused to continue it. 54. By letters of 19 and 27 February 2008 the deputy chief doctor of Kharkiv Oncology Hospital informed the Governor of the SIZO that the applicant had to be discharged from the hospital since he had refused to undergo radiotherapy, and the place in the hospital was expensive and was needed by other patients. 55. On 29 February 2008 the applicant was examined by a panel of doctors who concluded that his state of health was satisfactory and that he could be discharged from the hospital but placed under the supervision of an oncologist. 56. On 29 July 2008 the Zmiyivskyy District Court resumed proceedings in the applicant's case. The court considered the request by the applicant's lawyer (Mr Kh.) to release the applicant and rejected it. The court noted that the applicant was accused of committing a serious crime. The prosecutor and the victims, S. and Ya., objected to the applicant's release. In particular, S. stated that the applicant, while in detention, had written letters in which he had threatened her son and promised to pay him to change his testimonies and to incriminate another person, M. The applicant had never been employed, had no means of supporting himself and did not maintain any ties with his relatives. 57. By letter of 12 September 2008 the hospital informed the Governor of the SIZO that the applicant was suffering from cancer of the left kidney (medium stage) but did not need hospital treatment and could be held in the SIZO. 58. On 7 October 2008 the applicant was returned to the SIZO. 59. On 20 November 2008 the President of the Fifth Section reconsidered the present application and decided to lift the interim measure previously indicated on 11 December 2007 under Rule 39 of the Rules of Court. 60. The relevant extracts from the Constitution read as follows: “Everyone has the right to respect for his or her dignity. No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ...” “Human and citizens' rights and freedoms shall be protected by the courts. Everyone is guaranteed the right to challenge in a court the decisions, actions or omissions of bodies exercising State power, local self-governing bodies, officials or officers. ...After exhausting all domestic legal remedies, everyone has a right of appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which Ukraine is a member or participant. Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.” “If a defendant ... is suffering from a mental or other serious long-term illness which makes further consideration of the case impossible, the court shall stay proceedings in the case until the defendant's recovery...” 61. Section 18 of the Act sets out rules governing the use of security measures including the use of handcuffs. Prison officers are entitled to use force and special equipment, including unarmed combat, handcuffs, truncheons, etc., with a view to putting an end to physical resistance, violence, outrage (безчинства) and opposition to the lawful directions of the authorities of the detention facility, when other means of achieving a legitimate objective prove ineffective.should be carried out so as to inflict as little injury as possible. Those persons against whom security measures have been used should undergo a medical examination. | 1 |
train | 001-57622 | ENG | GBR | CHAMBER | 1,990 | CASE OF POWELL AND RAYNER v. THE UNITED KINGDOM | 2 | No violation of Art. 13 | J.A. Carrillo Salcedo;N. Valticos | 8. The first applicant, Richard John Powell, is a director of a mining concern and lives with his family at Esher, Surrey, in a house which he bought in 1957. The property is situated several miles from Heathrow Airport, London. Since 1972 it has lain under a flight departure route from Heathrow in operation for about one third of the year, usually during the summer months. Following objections to the level of noise disturbance, the route was divided into two sections in 1975. At least until 1984 Mr Powell’s home fell just within the 35 Noise and Number Index (NNI) contour, which is considered to be a low noise-annoyance rating (see paragraph 10 below). About half a million other people live within this contour area. Since 1984 the house has been within a lower NNI contour. 9. The second applicant, Michael Anthony Rayner, farms together with other members of his family lands situated in Colnbrook, Berkshire, which have been in his family for some generations. He lives in a bungalow at Colnbrook acquired by his family as part of its land-holding in 1952. The applicant took up residence there in 1961 on the occasion of his marriage. The bungalow is situated about one and a third miles west of, and in a direct line with, Heathrow’s northern runway. It is regularly overflown during the day and to a limited extent at night. It falls within a 60 NNI contour, which is regarded as an area of high noise-annoyance for residents. According to the statistics supplied by the Government, the average height of arriving aircraft over Mr Rayner’s property is 450 feet and the average height of departing aircraft varies between 1,235 and 2,365 feet according to aircraft type. About 6,500 people around Heathrow Airport experience a noise exposure equal to or greater than that suffered by Mr Rayner and his family. 10. The NNI is a long-term average measure of noise exposure which is used in the United Kingdom to assess the disturbance from aircraft noise to communities near airports. It takes account of two features of the noise, namely the average noisiness and the number of aircraft heard during an average summer day. The flights which determine the NNI at any point on the ground are those which take place between 06.00 and 18.00 hours Greenwich Mean Time during the three busy summer months of mid-June to mid-September and which make a peak noise level exceeding 80 perceived noise decibels (PNdB) at that point. The purpose of the NNI is to represent community reaction to the level of aircraft noise so as to guide planning, development and noise control. Thus, the NNI is amongst the criteria applied in planning controls, so that land within the 35 to 39 NNI contours may be used for residential development, planning permission not being refused on noise grounds alone. However, land within the 40 to 50 NNI contours (moderate noise-annoyance zone) will not be given over to development, except for the infilling of existing built-up areas on condition that appropriate sound insulation is used. No development whatsoever is permitted within the 60 NNI and over contours (high noise-annoyance zone). It is to be noted that the NNI calculation reflects a logarithmic element in the PNdB scale, which has the result that every increase of 10 in that scale represents approximately a doubling of the loudness. 11. Heathrow Airport was formally opened in May 1946. In 1952 the first scheduled air services using jet airliners were inaugurated. Three terminals were opened in 1955, 1961 and 1968. After a public inquiry which lasted for 24 weeks and heard 125 witnesses, a fourth terminal was opened in 1986. As regards future expansion, the Government’s policy, as stated in the 1985 "Airports Policy" White Paper, is that they are "not prepared to make any commitments at this stage on the question of a fifth terminal at Heathrow but will keep the matter under review" (Command Paper, Cmnd 9542, paragraph 5.19). 12. Heathrow is one of the busiest international airports in the world. The Airport handled 3 million passengers in 1956, over one million passengers during the one month of July 1963, 22.4 million passengers on international routes and 4.4 million passengers on domestic routes in 1973, and 37.5 million passengers on international routes and 6.8 million passengers on domestic routes in 1988. There has been a corresponding increase in aircraft movements over the years. Over 22% of passengers use the airport as an interchange point. It is currently used by over 70 airlines and serves 200 destinations worldwide. It is the United Kingdom’s leading port in terms of visible trade and in 1988 handled cargo valued at £26.3 billion. Heathrow Airport contributes around £200 million to the United Kingdom’s balance of payments, provides direct employment for some 48,600 persons, in addition to the substantial number of workers employed locally in servicing the industry, and pays over £16 million in local rates and rents. 13. Compensation for the loss of value of houses and land as a result of airport noise is provided for by the Land Compensation Act 1973. However, such compensation is payable only in respect of new or altered public works first brought into use after 16 October 1969. Intensification of an existing use is, for reasons of principle and practice, not compensatable. Mr Powell and Mr Rayner would have no entitlement to compensation under this Act, there being no relevant new or altered development in the case of Heathrow Airport. 14. The British Airports Authority, being a public statutory body, did not have power to acquire property near an airport unless it could show that the acquisition of the property was necessary for the proper performance of its function. In December 1986, after the completion of the fourth terminal (see paragraph 11 above) and privatisation of the Authority, the successor company to the Authority announced a scheme for the purchase of noise-blighted properties close to Heathrow Airport. This scheme provided for purchase by the company of property severely affected by aircraft noise at Heathrow (within the 65 NNI contour) where the owner had acquired the property before 17 October 1969 and wished to sell but could not do so except at a deflated price. Claims had to be made between 1 January 1987 and 31 December 1988. By virtue of the contour limitation the applicants’ properties were excluded from the scheme. 15. An action will lie at common law for nuisance in respect of an activity which unreasonably interferes with the use and enjoyment of land, for example an activity causing annoyance through noise. If liability is established, damages may be awarded or, in certain circumstances, an injunction granted. However, the Noise Abatement Act 1960 specifically exempts aircraft noise from its protection. The liability of aircraft operators is further limited by section 76(1) of the Civil Aviation Act 1982, which reads: Section 76(2) of the 1982 Act in turn provides for strict liability - that is, liability without proof of intention or negligence - where material loss or damage to any person or property on land or water is caused by, inter alia, an aircraft in flight or an object falling from an aircraft. Provisions equivalent to section 76 existed in earlier civil aviation legislation (for example, section 9 of the Air Navigation Act 1920 and section 40 of the Civil Aviation Act 1949). Section 76 is comparable to Article 1 of the Rome Convention of 1952 on Damage Caused by Foreign Aircraft to Third Parties on the Surface, which reads: "Any person who suffers damage on the surface shall, upon proof only that the damage was caused by an aircraft in flight or by any person or thing falling therefrom, be entitled to compensation as provided by this Convention. Nevertheless there shall be no right to compensation if the damage is not a direct consequence of the incident giving rise thereto, or if the damage results from the mere fact of passage of the aircraft through the airspace in conformity with existing air traffic regulations." (United Nations Treaty Series, 1958, vol. 310, no. 4493, p. 182) As at January 1990, this Convention had been ratified by thirty-six States, including four members of the Council of Europe, namely Belgium, Italy, Luxembourg and Spain but not the United Kingdom. 16. Section 76(1) of the 1982 Act does not exclude all liability on the part of aircraft operators for trespass and nuisance caused by aircraft in flight. In the first place, the exemption applies only in respect of aircraft flying at a reasonable height above the ground. What is reasonable is a question of fact depending on all relevant circumstances. Secondly, for the exemption to apply there must be compliance with the statutory provisions referred to in section 76(1). In practice this means the Air Navigation Order 1985 as amended, the Air Navigation (General) Regulations 1981 as amended, the Rules of the Air and Air Traffic Control Regulations 1985 as amended and, of especial importance in this connection, the Air Navigation (Noise Certification) Order 1987 (and the corresponding provisions of earlier orders and regulations applicable from time to time). Thus, if, for example, an aircraft flies in a manner which is not in accordance with the applicable regulations or takes off or lands in contravention of the Air Navigation (Noise Certification) Order, its operator will not be entitled to rely upon section 76 as a defence to any action for trespass or nuisance. 17. The main forum for international co-operation seeking to make aircraft quieter is the International Civil Aviation Organisation (ICAO). The broad thrust of ICAO’s work has been towards the development of a series of standards, leading to the phasing out of aircraft unable to meet them. These standards are not operative within the ICAO member States unless and until they are given effect in national legislation. In the United Kingdom effect is given to them by means of an Air Navigation (Noise Certification) Order. Orders of 1970 and 1979 reflected the first ICAO standards developed concerning subsonic jet aircraft. A 1984 Order gave effect to new ICAO standards and to regulations based upon recommendations of the European Civil Aviation Conference. In doing so, the 1984 Order also implemented the requirements of the European Community Directives of 1979 and 1983 on "Limitation of Noise Emission from Subsonic Aircraft". It was, however, more stringent in its application inasmuch as non-compliant subsonic jets were banned from the domestic register twelve months earlier than required by the 1979 Directive. Orders of 1986 and 1987 introduced further ICAO standards. 18. In structuring its landing charges, Heathrow Airport Limited has taken account of ICAO noise certification standards to encourage the use of quieter aircraft. 19. Since 1971 restrictions have been placed on night movements of jets, with the aim of phasing out night flights of noisier aircraft. These measures have been adopted in the light of research into the relationship between aircraft noise and sleep disturbance and after consultation of all interested parties, including the Federation of Heathrow Anti-Noise Groups to which the applicants belong. 20. Monitoring of aircraft noise on take-off from Heathrow Airport was first carried out in the early 1960’s. Since 1974 automatic equipment, consisting of thirteen noise monitoring terminals linked to a central processing and control unit, has been used. The positioning of these terminals is designed to protect the first built-up area reached after take-off from noise levels in excess of the statutory limits of 110 PNdB by day (07.00-23.00 hours local time) and 102 PNdB by night (23.00-07.00 hours local time). In the event of an infringement of the noise limit, the Airport informs the airline by letter and sends a copy to the Department of Transport. According to the Government, the effect of recent bans on non-noise-certificated aircraft has been to keep the rate of compliance to around 99% by day and 98% by night. The Secretary of State is empowered by section 78 of the Civil Aviation Act to deny Heathrow’s facilities to operators who fail to comply with noise abatement measures, but to date it has not been found necessary to invoke this provision. On the other hand, night flight quotas have been reduced for infringing operators. 21. Aircraft taking off from Heathrow Airport are statutorily required to remain on a small number of specified routes, known as noise preferential routes. These routes are designed to avoid as far as possible the major built-up areas. 22. Approach procedures said to result in lower noise levels in comparison with traditional approach procedures are now standard practice. Furthermore, minimum height requirements on approach to land as well as on take-off are laid down in the regulations. In addition, since 1972 a system of regularly alternating the landing runway has been implemented at Heathrow during westerly operations, the main objective being to achieve a fair sharing of periods of relative quiet among the communities of West London affected by noise from landing aircraft. 23. A helicopter link between Gatwick Airport and Heathrow Airport was introduced in 1978. However, after public inquiries in 1978, 1979, 1983 and 1985, the Secretary of State for Transport gave directions in June 1986 for the operator’s licence to be revoked for environmental reasons. 24. Following earlier schemes in 1966, 1972, and 1975, a scheme for sound insulation of dwellings was introduced for Heathrow in 1980. Under this scheme, which cost the British Airports Authority approximately £19 million, over 16,000 house owners or occupiers applied for grants. The scheme concentrated on those localities that would still be experiencing comparatively high noise levels in the mid 1980’s and on localities where there is the greatest degree of disturbance due to aircraft noise at night. Within this area the amount of grant provided was intended to cover 100% of the reasonable costs incurred. The boundary was based on the forecast 50 NNI contour for 1985 and the composite of the 95 PNdB noise footprint for quieter aircraft. 95 PNdB is the exterior noise level below which current evidence suggests that the average person in an uninsulated room is unlikely to be awakened. After consultation and in line with a commitment by the Government to review the boundaries once the actual noise climate was known, an extension scheme to include additional areas was brought into operation in April 1989 at an estimated cost of £11.25 million. In common with other persons living within the 60 NNI contour, Mr Rayner qualifies for a full noise-insulation grant. | 0 |
train | 001-100941 | ENG | UKR | CHAMBER | 2,010 | CASE OF NAYDYON v. UKRAINE | 3 | Violation of Art. 34;No violation of Art. 34;Remainder inadmissible | Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva | 4. The applicant was born in 1962 and is currently serving a prison sentence at the Yenakiyeve Town Correctional Colony (Prison) No. 52, the Donetsk Region (“the Yenakiyeve Colony”). 5. On 23 November 1999 the applicant was arrested by the police on suspicion of burglary. According to the applicant, during his detention from 23 to 25 November 1999 and subsequent interrogations, which took place at the police station, he was subjected to various forms of ill-treatment, the aim of which was to extract a confession for grave crimes, including murder and burglary. The applicant maintained that he had received multiple bruises and abrasions on his head and body and that several ribs and teeth had been broken. The applicant did not have access to a doctor and the alleged injuries were not recorded. 6. On 25 November 1999 the applicant was given access to an official defence lawyer, appointed by the authorities, who continued to represent him until the completion of the proceedings. On the same day the applicant was transferred to the Mariupol Town Temporary Detention Centre (“the Mariupol ITU”). 7. On 29 November 1999 the applicant was transferred to the Mariupol Pre-Trial Detention Centre No. 7 (“the Mariupol SIZO”). 8. According to the applicant, he complained to the prosecutors that he had been ill-treated. His complaint was allegedly rejected as unsubstantiated by the Deputy Prosecutor of the Donetsk Region on 12 April 2000 and he did not challenge that decision before the courts. No copy of the decision was submitted to the Court. The Government did not contest these submissions, though they provided a copy of the letter from the General Prosecutor's Office of 24 January 2008 by which the Government Agent had been informed, inter alia, that the applicant had not lodged any complaints with the Donetsk Regional Prosecutor's Office claiming that unlawful investigation methods had been applied in his case (see paragraph 31 below). 9. In the course of his trial the applicant maintained his complaint of ill-treatment. In particular, the applicant alleged that his confession for having committed some of the crimes with which he had been charged had been obtained under duress. In his submissions before the courts the applicant referred to the decision of 12 April 2000, indicating where it was to be found in the domestic case file. While the Donetsk Regional Court of Appeal gave no reply to the applicant's complaint, the Supreme Court, in its decision of 26 September 2002 (see below), held, in general terms, that there was no evidence that the applicant's statements had been obtained in an arbitrary manner. The relevant parts of that decision read as follows: “... Naydyon disagrees with [his] conviction, as, in his view, it is harsh, partial and unfair. [According to him] the case was heard with the accusatory inclination; the force was used during [his] questioning; [he was] questioned in a misleading manner; [and] he did not organise a [criminal] group ... Having heard the judge-rapporteur, the prosecutor ... having examined the case materials, and having discussed the arguments in the cassation appeals, the panel of judges concluded that the appeals shall not be allowed ... There is no evidence that the statements of the convicted were obtained in a misleading or in any other unlawful manner. ...” 10. On 22 July 2001 the applicant was transferred to the Donetsk PreTrial Detention Centre No. 5 (“the Donetsk SIZO”), where he was held at least until 10 July 2004, when he was transferred to the Yenakiyeve Colony in which he is now serving his sentence. During his detention in the Donetsk SIZO the applicant requested and subsequently received dental treatment on one occasion and he also had his lungs x-rayed and examined in May 2003 and January 2004. He did not request any other medical aid. According to the applicant, the conditions of his detention in the Donetsk SIZO were poor, he was not provided with food of adequate quality and there was a person with mental health problems detained in the same SIZO building with him. 11. On 31 May 2000 the pre-trial investigations in the applicant's case were completed and the case was subsequently referred to the Donetsk Regional Court of Appeal. 12. According to the applicant, in the course of the court proceedings, he asked for several witnesses to be called and examined on his behalf. He received no reply to his request. 13. On 19 July 2001 the Donetsk Regional Court of Appeal, acting as a court of first instance, found the applicant, together with three other persons, guilty of crimes committed in 1998-99, including several counts of aggravated murder, burglary and sexual intercourse with a minor. The court sentenced the applicant to life imprisonment and confiscated all his property. The court based its judgment on the statements made before it by the defendants and their statements obtained during the pre-trial investigations in which they had confessed to having committed some of the crimes with which they had been charged; the statements of ten victims and witnesses heard by the court and the written statements of six other victims and witnesses obtained in the course of the pre-trial investigations; and the reports of fifteen experts. 14. The applicant's lawyer and the applicant himself lodged separate appeals in cassation with the same court. 15. The lawyer alleged that the first-instance court had erred in the assessment of evidence and had not applied the law correctly in the case. 16. The applicant complained that the first-instance court had failed to summon witnesses on his behalf or the expert on whose conclusions the applicant's conviction of sexual intercourse with a minor had been based. The conclusions concerned the state of sexual development of the victim. In his appeal in cassation the applicant further alleged that the court had refused to take into account his allegations of torture during his detention and subsequent interrogations in November 1999 and that it had not examined his submissions concerning various procedural violations committed by the authorities in the course of the pre-trial investigations. 17. On 26 September 2002 the Supreme Court partly amended the judgment of 19 July 2001. However, the applicant's conviction and sentence remained unchanged. The Supreme Court found that the judgment had been well-founded and that there had been no procedural irregularities during the investigation or trial. The Supreme Court's decision was communicated to the applicant on 25 October 2002. 18. On 17 April 2003 the applicant sent his first letter to the Court and the application form was received on 30 September 2003. In support of his application the applicant submitted copies of the court decisions in his criminal case, his lawyer's appeal in cassation and several letters from the authorities which the applicant had received in reply to his complaints that his conviction had been unlawful. 19. In the letters, which the Court received from the applicant in 2003, he alleged that the staff of the Donetsk SIZO had often refused or substantially delayed the dispatch of his letters, including the application form, addressed to the Court; that they had refused to provide him with copies of the documents which he had intended to submit to the Court (the applicant's complaints and procedural requests made in the course of his trial and the courts' replies to the applicant's submissions); and that they had put psychological pressure on the applicant asking him not to complain about the SIZO authorities. The applicant maintained that, because of his application to the Court, he was placed in a cell with a person suffering from the open form of tuberculosis. As a consequence, he was at risk of being infected with this disease. 20. On 27 October 2003 the Court invited the Government to submit factual information with respect to allegations contained in the applicant's letters to the Court. 21. By letter dated 3 December 2003, the Government informed the Court that there had been no interference with the applicant's correspondence. They submitted copies of the Donetsk SIZO's register of incoming and outgoing correspondence and the applicant's written statements addressed to the State Penitentiary Department, in which he had acknowledged that he had had no complaints against the Donetsk SIZO authorities and that his letters had been dispatched without delay. 22. In his letters of 22 November and 12 December 2003 the applicant alleged that on 5 November 2003 the deputy governor of the Donetsk SIZO had told him to write such statements. 23. In his letter of 22 May 2006 the applicant stated that in July 2004, just before his transfer to the Yenakiyeve Colony, an unspecified member of staff of the Donetsk SIZO had made threats against him in order to prevent him complaining about the SIZO authorities. 24. By letter dated 7 July 2006, the Court asked the applicant to submit documentary evidence in respect of his complaints under Articles 3 and 6 of the Convention. In particular, the applicant was invited to submit copies of his complaints made to the national authorities concerning the alleged illtreatment and copies of their replies to such complaints concerning the events of 23-25 November 1999, a copy of his appeal in cassation against the judgment of the Donetsk Regional Court of Appeal of 19 July 2001 and copies of his written requests to have witnesses examined by the latter court on his behalf. 25. By letter dated 1 August 2006, the applicant asked the Donetsk Regional Court of Appeal to send him copies of his appeal in cassation, the reports on his confrontation with four police officers who had allegedly illtreated him, his complaint to the Donetsk Regional Prosecutor stating that he intended to submit those copies to the Court in substantiation of his application and the latter's reply. 26. In its reply of 14 August 2006, the court refused to provide copies of the requested documents because the applicant's request had no basis in domestic law. 27. By letter dated 8 December 2006, the applicant requested the same court to send him copies of his complaints to that court about the allegedly unlawful investigations in his case. 28. The applicant received no reply to his latter request. 29. On 13 June 2007 the applicant sent a third letter to the court of appeal, requesting copies of the same documents from his case file. On 3 July 2007 he received a reply from the deputy president of the Donetsk Regional Court of Appeal. In that letter, he was informed that his request had been refused on the ground that, because his conviction had become final, he was entitled to receive copies only of the courts' decisions in his criminal case. According to the deputy president of that court, no copies of other documents from the case file were allowed to be sent to the applicant. 30. On 26 November 2007 the Court invited the Government to submit written observations on the admissibility and merits of the case (see paragraph 3 above). They were also requested to submit a copy of the applicant's appeal in cassation and relevant documents concerning his complaints about the alleged ill-treatment to the national authorities, copies of their replies to such complaints, and copies of his written motions to have witnesses on his behalf examined by the Donetsk Regional Court of Appeal. 31. On 29 February 2008 the Government sent to the Court their observations on the case and copies of the applicant's appeal in cassation of 31 August 2001 together with written amendments to his appeal dated 29 July 2002, copies of the applicant's letters to the president of the Donetsk Court of 9 and 20 February 2001 requesting copies of documents from his case file, and a copy of the letter from the General Prosecutor's Office of 24 January 2008 by which the Government Agent had been informed, inter alia, that the applicant had not lodged any complaints with the Donetsk Regional Prosecutor's Office claiming that unlawful investigation methods had been applied in his case. The Government's observations were subsequently forwarded to the applicant. 32. On 25 March 2008 the applicant informed the Court that he had found a lawyer to represent him in the proceedings before the Court and asked for legal aid. On 27 May 2008 the President of the Chamber decided that legal aid should be granted to the applicant for his representation before the Court. The lawyer prepared and submitted observations to the Court on behalf of the applicant. By a letter of 31 July 2008, the applicant informed that he did not wish the lawyer to continue representing him before the Court. 33. The Criminal Code of 1960 (repealed on 1 September 2001) provided for the death penalty as an exceptional type of punishment for particularly serious crimes, including aggravated murder. 34. By a judgment of 29 December 1999, the Constitutional Court held that the provisions of the Criminal Code concerning the death penalty were contrary to the Constitution of Ukraine. On 22 February 2000 those provisions were changed by the Verkhovna Rada, the Parliament, to the effect that the death penalty was replaced by life imprisonment. Before the changes of 22 February 2000, the maximum term of imprisonment under the Code had been twenty years. 35. Under the Code of Criminal Procedure of 1960, an accused, a defendant, their defence lawyers or non-legal representatives may familiarise themselves with materials in the criminal case file at various stages of the proceedings until their completion (Articles 43, 48, 218, 219, 222, 255, 349, 362, 384 of the Code). When studying the case file they are allowed to take notes. 36. According to section 32 of the Information Act of 1992, citizens have the right to ask the authorities to provide them with any official document, whether or not it concerns them, except in cases in which the law limits access to documents. Copies of the requested documents may be given against the payment of a fee (section 35 of the Act). 37. Regulations on case processing in courts of appeal and local courts of general jurisdiction, issued by the State Judicial Administration on 6 January and 27 June 2006 (Order nos. 1 and 68), respectively, provide for a procedure through which persons taking part in court proceedings may familiarise themselves with case files. In particular, case files should be studied at a court's premises in the presence of a member of the registry. Copies of documents included in a file, court decisions which have entered into force and written information notes are issued by registry staff upon a written request and against the payment of a court fee. Upon approval by the president or deputy president of a court, a complete case file may be sent by post to those State bodies which are entitled by the law to request it. 38. The Internal Regulations of Penitentiary Institutions, approved by the State Department for the Execution of Sentences on 25 December 2003 (Order no. 275), do not allow prisoners to keep any documents, other than copies of judgments in their criminal cases and correspondence concerning their application to the European Court of Human Rights (Annexes 6, 7 and 9 to the Regulations). Further to amendments made to the Regulations on 14 March 2007, a prison administration is required to assist prisoners who wish to obtain copies of documents concerning their applications from the State bodies. When copies of such documents are received, prisoners should be allowed to keep them and, if appropriate, to join them to their applications to the Court (Regulation 43). Under amended Regulation 92, prisoners are to be provided with photocopying services against the payment of a fee. 39. A comparative survey of national legislation in eighteen of the member States of the Council of Europe demonstrates that while there are no specific regulations on prisoners' access to their case files, other domestic legal provisions can be relied upon by prisoners to make a request for access to such documents. The most common provisions can be found in Codes of Criminal Procedure. This is the case in seven of the surveyed member States, namely, France, Greece, Italy, Latvia, Malta, Poland and the United Kingdom. In five member States, the relevant provisions can be found in Acts on the Administration of Justice or the Courts, as is the case for Bulgaria, Denmark, Estonia, Ireland and Turkey. In another four member States, namely, Georgia, Moldova, the Netherlands and Romania, Access to Public Information provisions provide the best way for a prisoner to request such documents. Finally, in one member State, Georgia, the relevant provisions can also be found in the Administrative Code of Procedure. 40. Using one or more of these legal provisions, a prisoner, who does not have a person to represent him or her outside the penitentiary institution, may have access to documents in a criminal case file once domestic proceedings have ended, usually by way of a written request to the court for photocopies of the relevant documents to be sent by post, or, as, for instance, in Poland, consultation of the file under supervision in prison. In the majority of the surveyed member States, the photocopies of the relevant documents would have to be paid for, although in some member States there is provision for an exemption for charges depending on the means of the prisoner (such as in Estonia). 41. The relevant extract from the Appendix to the Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, adopted on 11 January 2006, reads as follows: “...Legal advice ... 23.6 Prisoners shall have access to, or be allowed to keep in their possession, documents relating to their legal proceedings...” 42. According to legal commentary contained in the Council of Europe publication of the European Prison Rules (2006, p. 52), Rule 23.6 is designed to assist prisoners by giving them access to legal documents which concern them. Where for reasons of security and good order it is not acceptable to allow them to keep those documents in their cells, steps should be taken to ensure that they are able to access them during normal working hours. | 1 |
train | 001-77276 | ENG | POL | ADMISSIBILITY | 2,006 | MCKAY-KOPECKA v. POLAND | 3 | Inadmissible | Nicolas Bratza | The applicant, Ms Renata Mckay-Kopecka, was born in 1931. She is a national of Poland and the United States of America. The applicant lives in Boston. She is represented before the Court by Mr L. Hincker, a lawyer practising in Strasbourg. The respondent Government are represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. Since 1986 the applicant had been living with her uncle E.B. in a oneroom flat in Warsaw. E.B., who owned the flat, died on 6 April 1988. By a court’s decision given in October 1988 Miss M.M., who was a minor at that time, inherited the flat. The applicant travelled often to the United States but was allowed to live in the flat each time she returned to Warsaw, since this was in accordance with the last will of E.B., and M.M.’s parents were in agreement with the arrangement. In 1989 M.M.’s title to the flat was challenged before the Warsaw District Court which decided to reopen the inheritance proceedings. In 1991 M.M. applied to the Warsaw District Court for an eviction order in respect of the applicant. However, the proceedings concerning her application were stayed pending the outcome of the inheritance proceedings. In 1995 M.M. requested the applicant to leave the flat by 15 December 1995. During the applicant’s absence from Poland M.M. had changed the locks in the flat. Upon the applicant’s return, on 30 April 1996 she removed the locks with the assistance of private security agents and entered the flat. On the same day M.M. informed the police that the applicant had been living in the flat without being registered. On 7 May 1996 at 8.15 a.m. the applicant heard somebody banging on the door and shouting “Open, police”. The applicant opened the door. Two police officers entered the flat and inspected the applicant’s identity card, in particular the part concerning the applicant’s registered address (zameldowanie). The police officers informed the applicant that she should leave the flat and that M.M. should be allowed to take possession of it as she had title to it. At this point several young men who accompanied M.M. started to remove the applicant’s personal effects from the flat. They carried the applicant, dressed only in her underwear, out of the flat in an armchair. They also humiliated and insulted her. The police officers, who remained inside the flat, did not react to the behaviour of the young men and stated that the applicant had to leave the flat and that their duty was to protect her. In view of the violence used against her, the applicant decided to leave the flat taking only her documents with her. Subsequently, on 7 May 1996, M.M. changed the locks. On 9 May 1996 at 2 p.m. the applicant, accompanied by private security agents, removed the locks fitted by M.M. and entered the flat. The applicant verified the contents of the flat and discovered that USD 9,500 and a Patek watch were missing. Shortly afterwards, M.M., together with several individuals, came to the flat. She was followed by police officers. The police officers announced that the applicant had committed a burglary and started to take photographs of the flat. One of the individuals accompanying M.M., a certain Mrs T.O., insulted the applicant and pulled a telephone receiver from her hand. The police officers did not react. Moreover, the police officers did not allow the applicant’s brother to speak to her. Between 4.20 p.m. and midnight the entrance to the flat was blocked by six police officers. On 10 May 1996 M.M. removed the front door of the flat. On 12 May 1996 two police officers came to the flat and advised the applicant that she was not allowed to install a new front door. On 14 May 1996 the applicant was in the flat together with private security agents hired by her. At 10 p.m. M.M. came to the flat accompanied by several individuals and three police officers. One of the police officers was the Warsaw Ochota Deputy Police Commissioner. Initially, the security agents hired by the applicant refused them entry. However the police officers threatened that they would call for reinforcements and the agents let them in. The police officers allowed M.M. to move into the flat. M.M. remained in the flat where she lived together with the applicant until 20 May 1996. On 20 May 1996 the applicant and her belongings were removed from the flat by M.M. assisted by several individuals. The applicant immediately called the police, but the police officers who arrived at the scene did not intervene. On 7 May 1996 police officers knocked on the applicant’s door and she let them in. After having inspected her identity document the police officers informed the applicant that she had been living in the flat without being registered there, which constituted a petty offence, and summoned her to appear at the police station the following day. While the police officers were leaving, M.M., accompanied by persons who had stayed outside in the corridor, entered the flat. Both the applicant and M.M. requested the police officers to stay as they felt insecure. A police officer spoke on the telephone to the officer on duty who instructed them to remain at the scene. They remained in the corridor until about 12 o’clock. The applicant signed an agreement with M.M. to the effect that on 9 May 1996 she would move out and take all her belongings with her. Subsequently, the locks were changed and the keys were deposited with the representative of the housing cooperative. On 9 May 1996 the applicant accompanied by private security agents and a locksmith removed the locks and entered the flat. The police were informed by neighbours that there had been a burglary in the flat. Police officers came to the flat and inspected the identity documents of the persons present. They stayed in the corridor as in the meantime M.M. had arrived. Subsequently, the applicant’s brother tried to enter the flat by force and threatened M.M. with an electroshock gun (paralizator). The police intervened in order to stop him and inspected his identity documents. The applicant stated to the Police Commissioner that she wished to make a formal declaration that M.M. had committed a crime. M.M. had also requested the police to investigate the charges of burglary against the applicant, but the proceedings were discontinued on 26 March 1998. The police were called by M.M. on 10 and 12 May 1996. On both occasions they inspected the identity documents of the persons present in the corridor, but did not enter the flat. On 15 May 1996 the police were called by the applicant’s sisterinlaw who wanted to enter the flat which had been locked by M.M. and the applicant. Since M.M. did not let her in, the applicant stepped out of the flat and spoke to her sisterinlaw. Police officers were present, but did not intervene. The applicant and M.M. lived together in the flat until 20 May 1996. On that date the applicant removed her belongings and left. On 10 May 1996 the applicant’s counsel filed a request with the Warsaw Ochota District Prosecutor to prosecute the police officers who on 7 May 1996 had intervened in the dispute over the applicant’s flat. The counsel informed the prosecution service that the police officers had used force to enter the applicant’s flat and had proceeded to evict the applicant. The counsel further pointed out that he represented the applicant in several civil cases and was certain that the eviction proceedings against the applicant had been stayed pending the outcome of the inheritance proceedings. The counsel concluded that the police officers had not had an eviction order and their actions had therefore been unlawful. On 19 August 1996 the Pruszkow District Prosecutor discontinued the investigation into the applicant’s allegations. The prosecutor heard the applicant, M.M. and the police officers. He concluded that the police officers who were sent to intervene on 7 May 1996 were ordered to inspect the registration address and that they had then stayed at the request of both women who had been quarrelling. The prosecutor found that the events as alleged by the applicant did not take place. Consequently, he concluded that the actions taken by the police officers were legal and were aimed at preventing a breach of the law by the persons present. The applicant’s counsel appealed and it appears that the case was again examined by the District Prosecutor. On 18 April 1997 the Pruszków District Prosecutor again decided to discontinue the investigation into the charges brought against the police officers by the applicant. The prosecutor’s decision included the following conclusion: “The evidence collected in the case shows that the police officers intervening between 30 April and 15 May 1996 did not violate any of Mrs McKayKopecka’s rights. The police officers were only ordered to carry out an inspection of her registered address (kontrola meldunkowa). It should also be pointed out that it is difficult to agree with the victim’s claims that the police officers by their failure to act approved the removal of her personal effects and by their presence forced her to accept the new situation. The evidence taken from witnesses shows that the police officers on numerous occasions remained at the scene at the request of the victim or M.M. Moreover, the evidence does not confirm the victim’s allegations that her personal effects were taken away. In view of the above I conclude that the actions of the police officers complied with legal regulations and were aimed at avoiding breaches of the law by the individuals present at the scene.” The applicant appealed against this decision, but her appeal was dismissed on 28 November 1997 by the Warsaw Regional Prosecutor. The Regional Prosecutor’s decision concluded as follows: “As was rightly pointed out by the District Prosecutor no evidence has been collected which would confirm an abuse of power or a failure by the intervening police officers to fulfil their duty. The interventions concerned verification of the registered address and resulted from a request of the president of the housing cooperative who had misled the police with respect to the title to the flat. The applicant unsuccessfully attempted to prosecute M.M. on charges of inter alia theft and unlawful eviction. On 27 February 1997 the Warsaw District Prosecutor discontinued the investigation and found that no offence had been committed. On 26 March 1998 the District Prosecutor discontinued the investigation against the applicant, instituted upon M.M.’s request, into charges relating to inter alia the breaking down of the door of the flat. The applicant instituted civil proceedings against M.M. in which she sought restitution of the actual possession of the flat. On 25 January 1999 the Warsaw District Court dismissed the applicant’s application. She appealed against this decision, but her appeal was dismissed by the Warsaw Regional Court on 25 January 1999. Article 147 (1) of the Petty Offences Code (Kodeks Wykroczeń) provides that the failure to register one’s address is punishable by limitation of liberty (ograniczenie wolnosci), a fine or a reprimand. Articles 417 et seq. of the Civil Code (Kodeks cywilny) provide for the State’s liability in tort. “1. The State Treasury shall be liable for damage caused by a State official in the performance of the duties entrusted to him.” | 0 |
train | 001-57514 | ENG | BEL | CHAMBER | 1,989 | CASE OF LAMY v. BELGIUM | 2 | Violation of Art. 5-4;No violation of Art. 5-2 and 5-3;Not necessary to examine Art. 6-3-b;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | C. Russo;J.A. Carrillo Salcedo | 8. Mr José Lamy is a Belgian citizen who was born in 1932; he lives at Verviers and is a company director. On 29 November 1982, a private limited company ("société de personnes à responsabilité limitée - "SPRL Lamy") of which he was the manager and which built industrial premises filed a declaration of insolvency with the registry of the Verviers Commercial Court, and the court adjudged the company bankrupt on the same day. 9. On 18 February 1983, an investigating judge of the Verviers tribunal de première instance (regional court of first instance) questioned Mr Lamy and issued a warrant for his arrest. The warrant set out several grounds: the seriousness of the offences and of the adverse effects on public order and safety; the scale of the bankrupt company’s liabilities (more than 500 million BF); the needs of the investigation; the accused’s deliberate and unmistakable attempts to deprive the creditors of their security; his expenditure; and the risk of his absconding abroad. On the back of the warrant the charges listed against the applicant were: "I. That, being the majority partner in SPRL Lamy at Ensival-Verviers, which was adjudged bankrupt by the Verviers Commercial Court on 29.11.1982, and himself a trader adjudged personally bankrupt by the same court on 30.12.1982, he did at Verviers, Pepinster or elsewhere in the district or Kingdom, within the limitation period, commit: (a) ... fraudulent bankruptcy by, among other things: 1. misappropriating or concealing assets worth over 10,000,000 F; and 2. withholding his books or other accounting documents or fraudulently removing, deleting or altering their content; (b) ... ordinary bankruptcy by, among other things: 1. incurring excessive personal and household expenditure; 2. not giving notice of cessation of payments within the time-limit prescribed in Article 440 of the Commercial Code; 3. failing, in the late notice, to give the explanations and accurate information required by Article 441 of the Commercial Code; 4. paying or favouring some creditors to the detriment of the creditors as a whole, after cessation of payments. II. That as principal, joint principal or accessory, at Verviers or elsewhere in the Kingdom between 1.1.1980 and this day, he did on several occasions fraudulently or maliciously: (a) forge notarised and public documents, private documents and bank or commercial documents by means of false signatures, or by forging or altering documents or signatures, or by fabricating or inserting terms, provisions, obligations or discharges in documents, or by adding or altering clauses, statements or facts which it was the purpose of the documents to set out and record, in that he inter alia: (i) submitted a false balance sheet on 29.11.1982; (ii) kept a separate set of false accounts of his business with Algeria and Libya among others; (b) use these documents knowing them to be false; (c) fraudulently misappropriate or, to the the detriment of another, part with bills of exchange, money, merchandise, promissory notes, receipts or documents which he had been given on condition he returned them or used them for specific purposes, in particular: (i) 789,000 F due in VAT and, (ii) over 10,000,000 F to the detriment of SPRL Lamy (sale of civil-engineering equipment); (d) obtain, in order to appropriate property of another, funds, movables, obligations, receipts or discharges, by using assumed names or false status or making other false pretences to induce belief in the existence of fictitious businesses, powers or credit, engender hope or apprehension of success, or otherwise deceive in order more particularly to: (i) obtain 1,801,429 F from the VAT authority to the detriment of SPRL Lamy. III. That at Verviers or elsewhere in the Kingdom between 14 January 1974 and this day, being a trader, he did carry on a professional activity for which he was not registered in the Business Register." After receiving a copy of the warrant, Mr Lamy was taken into custody at the remand prison at Verviers. 10. On 22 February 1983, the applicant, assisted by his lawyer, appeared before the chambre du conseil of the Verviers tribunal de première instance. His counsel filed pleadings in which he disputed in particular that there were "serious and exceptional circumstances" within the meaning of section 2 of the Act of 10 April 1874 (see paragraph 23 below). He also handed over a file concerning, inter alia, the proceedings relating to the applicant’s personal bankruptcy (see paragraph 17 below). 11. After hearing the investigating judge, Assistant Crown Counsel and the defence, the chambre du conseil upheld the arrest warrant. It accepted the reasons given in the warrant and held that the interests of public safety required that the applicant should continue to be held in custody. 12. On 23 February 1983, Mr Lamy challenged the chambre du conseil’s order in the Indictments Chamber of the Liège Court of Appeal. He argued that no reasons were given for the order, the circumstances noted by the chambre du conseil were not such as to justify his detention, and the warrant of 18 February was unlawful as it did not bear any signature and was wrongly dated (18 March 1983). The prosecution filed pleadings on 28 February 1983. 13. On 10 March 1983, the Indictments Chamber set aside the order on grounds of failure to reply to the applicant’s submissions. At the same time, however, it decided that the arrest warrant should remain in force. As regards whether there was sufficient evidence of guilt and of serious and exceptional circumstances relating to public safety, the Indictments Chamber founded its judgment on the following reasons: "It is to be noted that even in his own account of the state of the firm’s affairs, given in the form of submissions, the accused conceded that the balance sheet of 29 November 1982 was inaccurate, although he denied any fraudulent intent and stated that after verification of sums owed to the firm its liabilities came to 220 million francs, against which he set primarily the expected outcome of a hypothetical action against a third party, whose value he said could ‘reasonably’ be put at 300 million francs; Account must be taken of his admissions concerning the irregular transactions referred to in report 317 of the Verviers police and in the record of his examination by the investigating judge on 18 February 1983, corroborated by the admissions of the co-accused Jungbluth, in police report 292, although the accused now denies their extent; The foregoing provides sufficient evidence of guilt to justify the impugned arrest warrant, given the extremely large sums involved, the needs of the investigation, which the accused disputed to no avail, and the risk of his attempting to evade justice despite his protestations of good faith and the good intentions he professes - all considerations which are set out in the warrant appealed against, which are serious and exceptional, and which required his arrest in the interests of public safety." As to the alleged unlawfulness of the warrant, the Indictments Chamber noted, in the first place, that the copy given to the applicant mentioned that the original identified the investigating judge and was signed by him. The court added: "It [could] not be seriously questioned ... that the copy given to the [applicant] bore the date 18 March 1983 instead of 18 February 1983 purely as a result of a clerical error of no consequence". The court concluded that these circumstances in no way made the arrest arbitrary and could not have prejudiced the rights of the defence. 14. Mr Lamy appealed on points of law to the Court of Cassation on 11 March 1983, putting forward three grounds. Firstly, he maintained that mandatory formal requirements had not been complied with, as the arrest warrant was unsigned and the attached order committing him to prison bore the date 18 March 1983. Additionally, he considered the reasoning of the Indictments Chamber’s judgment to be unclear and contradictory. Lastly, he stated that the Indictments Chamber had relied on reports 292 and 317 of the Verviers police - documents that had not been communicated to the accused; in this connection he relied on Article 6 paras. 1 and 3 (art. 6-1, art. 6-3) of the Convention. 15. The Court of Cassation dismissed the appeal on 4 May 1983. As regards the first ground of appeal, it noted that the formalities provided for in the Code of Criminal Procedure for serving an arrest warrant were not mandatory and that failure to comply with them did not entail nullity. It reiterated the Indictments Chamber’s remarks as to the lack of a signature and the error in the date and concluded that there had been no infringement of the rights of the defence or of the principle of personal liberty. With respect to the second ground of appeal, the Court of Cassation held that the reasons given for the judgment appealed against were neither unclear nor contradictory, as the judgment was based not only on the applicant’s admissions concerning the irregular transactions referred to in reports 292 and 317 but also on the extremely large sums involved, the needs of the investigation and the risk that the accused might try to evade justice. The Indictments Chamber inferred from this that there were serious and exceptional circumstances affecting public safety. As to the third ground, the Court of Cassation held that Article 6 (art. 6) of the Convention was concerned with the exercise of the rights of the defence in trial courts and not with procedure followed in the matter of detention on remand. Furthermore, the 1874 Act precluded communication of the file to the accused or his counsel at this stage in the proceedings; this was apparent from section 4, taken together with the final paragraph of section 5. The Indictments Chamber had accordingly not been able to "conclude from the non-communication of the file that there had been any infringement of the rights of the defence". 16. The chambre du conseil made reasoned orders extending Mr Lamy’s detention on remand month by month (section 5, second paragraph, of the 1874 Act - see paragraph 23 below). The applicant regained his freedom on 18 August 1983 as the vacation court, exercising the jurisdiction of the Indictments Chamber, took the view that the needs of the investigation no longer precluded his release. 17. On 24 December 1982, on an application by the trustees in bankruptcy for SPRL Lamy, the Verviers Commercial Court adjudged the applicant personally bankrupt. An application by Mr Lamy to have that judgment set aside was dismissed by the Commercial Court on 24 March 1983, but on appeal the Liège Court of Appeal, in a judgment delivered on 24 April 1985, quashed the judgment of 24 March 1983 and declared the judgment of 24 December 1982 to be null and void. 18. On 28 March 1986, the chambre du conseil of the Verviers tribunal de première instance committed Mr Lamy and five co-defendants for trial at the Criminal Court. 19. An application by Mr Lamy to have that order set aside was declared inadmissible by the Indictments Chamber in a judgment given on 10 December 1986. 20. Mr Lamy’s appeal on points of law against that judgment was dismissed by the Court of Cassation on 4 February 1987. 21. Throughout the proceedings relating to the committal for trial, the applicant pleaded various grounds of nullity. He argued in particular that his counsel had not been able to inspect the file when the arrest warrant was first confirmed by the chambre du conseil and had subsequently had only forty-eight hours’ notice of each appearance, which was not sufficient for preparing the defence. 22. On 12 November 1987, the Verviers Criminal Court convicted the defendant and sentenced him to three years’ imprisonment, suspended for five years in respect of that part of the sentence which exceeded the time already spent in custody on remand, and imposed two fines of 60,000 BF. Unlike his co-defendants, Mr Lamy did not appeal. 23. Detention on remand is governed by an Act of 20 April 1874, as amended or supplemented by, inter alia, Acts of 23 August 1919 and 13 March 1973. The main provisions relevant in the instant case are set out below: "After the examination, the investigating judge may issue an arrest warrant where the offence is punishable by three months’ imprisonment or a heavier penalty. If the accused is resident in Belgium, the investigating judge may issue such a warrant only in serious and exceptional circumstances, where necessary in the interests of public safety. ..." "In the eventuality provided for in paragraph 2 of section 1, the warrant shall state the serious and exceptional circumstances affecting public safety which justify arrest and shall specify the special features of the case or of the accused’s personality." "Immediately after the first interview with the investigating judge, the accused shall be allowed to communicate freely with his counsel. ..." "The arrest warrant shall expire unless, within the five days following the examination, the chambre du conseil renews it on the basis of the investigating judge’s report and after hearing submissions by Crown Counsel and the accused. If the accused, who shall be asked specifically about his wishes in the matter, desires the assistance of a lawyer, that fact shall be mentioned in the record of his examination by the investigating judge. In that event, the presiding judge of the chambre du conseil dealing with the case shall cause the place, date and time of the hearing to be entered in a special register at the registry at least forty-eight hours beforehand. The registrar shall notify these details by registered letter to the lawyer nominated." "If, within one month after the examination by the investigating judge, the chambre du conseil has not given a ruling on the remand, the accused shall be released unless, in a unanimous reasoned decision, after hearing submissions by Crown Counsel and the accused or his lawyer, the chambre du conseil rules that serious and exceptional circumstances affecting public safety necessitate the accused’s further remand. Such a decision shall state the relevant circumstances and the special features of the case or of the accused’s personality. The same shall apply each month thereafter if the chambre du conseil has not ruled on the remand by the end of the month. Prior to a hearing by the chambre du conseil or the Indictments Chamber, the file shall be made available to the accused’s lawyer at the registry for two days. The registrar shall notify the lawyer accordingly by registered letter." "The accused and the prosecution may appeal to the Indictments Chamber against decisions of the chambre du conseil in the cases provided for in sections 4, 5...." "Such an appeal shall be entered within the twenty-four hours following the day of the decision in the case of the prosecution and following the day on which the decision was served on him in the case of the accused. Service shall be effected within twenty-four hours. The relevant document shall advise the accused of his right of appeal and of the time-limit for exercising that right. Notice of appeal shall be lodged with the registry of the Criminal Court and recorded in the register of criminal appeals. Crown Counsel shall forward the documents to Principal Crown Counsel. Notifications to the accused’s lawyer shall be made by the Registrar. The Indictments Chamber shall give a ruling straightaway after hearing submissions by the prosecution and the accused or his lawyer. ..." 24. It should be noted that section 4 does not contain any provision corresponding to the last paragraph of section 5, which was inserted by the Act of 23 August 1919. | 1 |
train | 001-23035 | ENG | FIN | ADMISSIBILITY | 2,003 | M.V. and U-M.S. v. FINLAND | 4 | Inadmissible | Nicolas Bratza | The applicants, Ms M.V., and Ms U.-M.S., are Finnish nationals, who were born in 1930 and 1929, respectively, and live in Helsinki. The first applicant is represented before the Court by the second applicant. The facts of the case, as submitted by the applicants, may be summarised as follows. Until 31 December 1995 at the time of retirement a person was granted, inter alia, (a) an employment pension which was counted on the basis of his or her salary earned prior to the retirement, amounting to a maximum of 66 per cent of that salary, and (b) a national pension’s basic amount (kansaneläkkeen pohjaosa, folkpensionens basdel), if the person was entitled thereto on the basis of his age and/or number of years of employment. From 1955 to 1957, employees were obliged by law to deposit part of their salaries in individual accounts kept by the Social Insurance Institution for the purpose of accumulating employment pensions for their retirement. From 1957 onwards these contributions were no longer deposited on accounts earmarked for the employees themselves but went into the general pension fund. The two parts of the pension (the above-mentioned (a) and (b)) were considered together with the result that a pensioner’s employment pension was reduced by the amount of the national pension’s basic amount so that the total amount did not exceed the maximum limit of 66 per cent of his salary. The national pension’s basic amount was granted to all persons entitled to it without their requesting it (although it was apparently possible to refuse it), reducing automatically the amount of the employment pension. In 1995 the National Pension Act was amended (Act no. 1491/1995) as a budgetary savings measure to the effect that, as from 1 January 1996 onwards, the national pension such as the old-age pension was to be replaced by a pension calculated with reference to new criteria. Those whose total income in the form of other pensions and various entitlements exceeded certain ceilings would no longer be entitled to a national pension. In such a case the so-called basic amount of their national pension would be reduced by 20 per cent annually between 1996 and 2001, when payment thereof would cease. Following a public debate on the matter the Finnish Parliament passed a Compensation Act (635/2002) on 18 June 2002, according to which pensioners whose employment pension has been twice reduced on the basis of their national pension’s basic amount, are entitled to receive a compensation for their loss as from 1 October 2003 onwards. The compensatory amount will be between 5 and 50 euros per month, depending on the amount of the pension at issue. The applicants in the present case will not benefit from the new Act as their pensions were reduced only once. So they will not receive any compensation for their loss. The applicants are two retired social workers. They both worked for the City of Helsinki for a period of 35 years until their retirement in 1990 when they were granted an employment pension but no national pension’s basic amount as they had not yet reached the required age. Their employment pensions amounted to 66 per cent of their salaries. In 1995, when they reached the age of 65, they were granted a national pension’s basic amount of FIM 445 (about 75 euros) per month. The two pensions (a) and (b) were, however, considered together with the result that the total amount of the two pensions was the same as the earlier pension had already been (66 per cent of the applicants’ salaries). In 1996 their national pension’s basic amounts were affected by the Act 1491/1995 as described above. That lead to a situation in which the applicants now only receive a pension which is about 60 per cent of their salaries on which their pensions were originally based. The applicants have used all domestic remedies. The appeal instance decisions were given by the Insurance Court in October 1997. According to the decisions of the domestic courts, it is impossible to revoke the reduction of the pensions which is based on the amendment to the National Pension Act as the courts cannot override a law. The applicants have also complained to the Parliamentary Ombudsman without any success. | 0 |
train | 001-61601 | ENG | FIN | CHAMBER | 2,004 | CASE OF H.A.L. v. FINLAND | 3 | Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 9. The applicant was born in 1953 and lives in Helsinki. 10. On 4 October 1995 the local office of the Social Insurance Institution (kansaneläkelaitos, folkpensionsanstalten) granted the applicant a daily sickness allowance on account of his incapacity for work from 11 September 1995 onwards. On 16 October 1995 his allowance was extended until 31 October 1995. 11. On 16 October 1995 Dr M.M., a psychiatrist treating the applicant, considered him incapacitated for work from 11 September 1995 until 31 March 1996 on account of his depression and anxiety. On the strength of that opinion the applicant requested that he be granted a daily sickness allowance for the period 1 November 1995-31 March 1996. 12. The medical expert consulted by the local office of the Social Insurance Institution, Dr U.L., found in his opinion of 24 October 1995 that the applicant’s alleged incapacity for work was principally of a subjective nature, although the criteria for serious mental distress were not met. While not considering the applicant incapable for work, Dr U.L. recommended that an opinion be obtained from an expert in psychiatry before a new decision was reached on the applicant’s request. 13. In his opinion of 27 October 1995 Dr K.K., a psychiatrist, found on the basis of the information available that the applicant had been capable of working as of 1 January 1995. 14. Neither Dr U.L. nor Dr K.K. examined the applicant in person. Their identities and opinions were not known to the applicant until they were indicated by the Government in the course of the Convention proceedings. 15. On 15 November 1995 the Social Insurance Commission (sosiaali-vakuutustoimikunta, socialförsäkringskommissionen) of Helsinki refused the applicant’s request to have his allowance extended until 31 March 1996. The Commission, relying on section 14 of the Sickness Insurance Act (sairasvakuutuslaki, sjukförsäkringslag 364/1963), reasoned as follows: “A person who is incapacitated for work shall be entitled to a daily allowance. Incapacity for work is defined as a condition caused by an illness and during which the person is unable to perform his or her ordinary, or closely comparable, work. Your function as a tourist secretary has been regarded as your ordinary work. On the basis of the material adduced you cannot be considered unable to perform this work or a closely comparable one. For this reason, you are not entitled to a daily allowance.” 16. The applicant appealed to the Social Insurance Board (sosiaalivakuutuslautakunta, socialförsäkringsnämnden) for Southern Finland, adducing a report of 24 November 1995 in which his treating physician, Dr K.R., agreed with Dr M.M. that the applicant was incapacitated for work during the period in question, on account of his depression, panic feelings and neurosis. In its opinion to the Board dated 2 January 1996, but not forwarded to the applicant for his possible comments, the Social Insurance Commission explained the challenged decision as follows: “On the basis of medical certificates of the A category, [the applicant] was granted a daily allowance until 31 October 1995 on the basis of his incapacity for work which had commenced on 11 September 1995. Subsequently he adduced a certificate of the B category in which a psychiatrist considered him incapacitated for work until 31 March 1996 on account of his depression and undefined anxiety. In the opinion of the medical expert, a psychiatrist, the insured had to be considered fit for work. A further certificate of the B category, issued by a different doctor, has been appended to the appeal. The medical expert is of the opinion that there is no reason to amend the previous decision. Since the appellant has not adduced any new information which was not known to the [Social Insurance] Commission at the time of its decision, it is proposed that the appeal be rejected.” 17. On 29 March 1996 Dr M.M. considered that the applicant remained incapacitated for work until 30 June 1996 on account of his depression. Relying on this opinion, the applicant sought a daily allowance for the period 1 April-30 June 1996. 18. On 10 April 1996 the Social Insurance Commission refused the request for exactly the same reasons as in its decision of 15 November 1995 and again relying on section 14 of the Sickness Insurance Act. 19. The applicant appealed. In its opinion to the Social Insurance Board dated 18 April 1996, and again not forwarded to the applicant for possible comments, the Social Insurance Commission stated as follows: “[The applicant’s] earlier request for a daily allowance for the period 1 November 1995-31 March 1996 was refused and that decision has been appealed against as well. The insured sought to have his daily allowance granted for a further period, relying on a certificate of the B category issued by a psychiatrist. According to the opinion of the medical expert, the insured has to be considered fit to work. Since nothing new has been adduced in the [applicant’s current] appeal, it is proposed that it be rejected.” 20. In a further opinion of 30 May 1996 Dr M.M., without taking a position in regard to the applicant’s incapacity for work, maintained his diagnosis that the applicant was suffering from undefined anxiety. Relying on this opinion and on all previous evidence, the applicant sought a daily allowance from 1 July 1996 onwards. 21. On 4 July 1996 the Social Insurance Board rejected the applicant’s appeals against the Social Insurance Commission’s decisions of 15 November 1995 and 10 April 1996, relying on the reasons and the legal provision invoked in those decisions. According to the Board’s decision, it had taken note of the Social Insurance Commission’s opinions to the effect that no new material had been adduced which would have justified a change in the challenged decisions. The Board’s decision did not mention the existence of any opinions issued by the consulting medical experts. The applicant appealed to the Appellate Board for Social Insurance (tarkastuslautakunta, prövningsnämnden). 22. On 17 July 1996 the Social Insurance Commission refused the applicant a daily allowance from 1 July 1996 onwards, with the following reasoning: “A person who is incapacitated for work shall be entitled to a daily allowance. Incapacity for work is defined as a condition caused by an illness and during which the person is unable to perform his or her ordinary, or closely comparable, work. On the basis of the material adduced you cannot be considered unable to perform this work or a closely comparable one. For this reason, you are not entitled to a daily allowance.” 23. On 16 September 1996 the Social Insurance Board rejected the applicant’s appeal against the aforementioned decision, to which he had appended Dr K.R.’s opinion of 3 July 1996. The Board took note of the Social Insurance Commission’s opinion to the effect that no new material had been adduced which would justify a change in the challenged decision. The Board then relied on the reasons and the legal provision invoked by the Social Insurance Commission. The Board’s decision did not mention the existence of any opinion issued by the consulting medical experts. 24. The applicant again appealed to the Appellate Board for Social Insurance, inter alia adducing a fresh medical opinion of 15 October 1996 in which Dr K.R., maintaining his previous diagnosis, had considered that the applicant remained incapacitated for work until 30 May 1997. 25. On 25 March 1997 the Appellate Board for Social Insurance rejected the applicant’s appeals against the Social Insurance Board’s decisions of 4 July and 16 September 1996 by relying on the reasons given by the Social Insurance Commission in its decisions of 15 November 1995 and 10 April 1996. The Appellate Board’s decisions were dispatched to the applicant on 8 April 1997. No further appeal lay open. 26. On 13 October 1997 the Social Insurance Institution refused the applicant’s request to undergo an examination of his capacity for work by a specialist of the Social Insurance Institution’s own choosing. It recalled that the applicant’s capacity for work had been assessed on the basis of written documentation on three separate occasions and each time by different persons. The decisions refusing him an extended daily sickness allowance had been upheld by all appellate instances and concerned the years 1995-96. The applicant’s capacity for work at that point in time could no longer be assessed by a doctor who had not been treating him at the time. The applicant’s capacity for work at that time had already been assessed by doctors who knew him then, and his requests for a further allowance had been decided on the basis of their opinions. 27. According to the Sickness Insurance Act, a daily allowance shall be payable to anyone suffering a loss of income due to his or her incapacity for work. Section 14 defines such incapacity as a condition caused by an illness and during which the person is unable to perform his or her ordinary, or closely comparable, work. 28. Under section 31, subsection 1 (832/1996), of the said Act, the Social Insurance Board has a possibility to order the insured person to undergo further medical examinations and thereby request medical statements from physicians specialised in the area of medicine in question. 29. The members of the Appellate Board for Social Insurance are appointed by the Council of State (valtioneuvosto, statsrådet) for a maximum of four years but with a possibility of being re-appointed (section 54, subsections 2 and 3 of the Sickness Insurance Act). 30. According to the 1964 Decree on the Appellate Board (asetus tarkastuslautakunnasta, förordning om prövningsnämnden 422/1964), that Board shall consist of a Chairman, two Vice-Chairmen and the requisite number of further members who shall either be lawyers or medical doctors, or be experienced in the conditions of insured persons. The Chairman and the Vice-Chairmen must have a law degree and possess experience as judges (section 2, as amended by Decree no. 1121/1995). The Appellate Board may sit in chambers consisting of a Chairman, at least one lawyer and one doctor and two members experienced in the conditions of the insured (section 7, as amended by Decree no. 1121/1995). The casting vote both in plenary and chamber sessions rests with the Chairman (section 14). The Council of State may, when necessary, appoint a Chairman ad interim or appoint a member to replace a member of the Board temporarily (section 6, as amended by Decree no. 1044/1994). According to section 54, subsection 3, of the Sickness Insurance Act (as amended by Act no. 279/1999 as from 1 April 1999), the right of a member of the Appellate Board to remain in office shall be governed by the provisions concerning professional judges. 31. The rules concerning the possible bias of a member of the Appellate Board are to be found in the Code of Judicial Procedure (Oikeudenkäymiskaari, Rättegångs Balk), as read in conjunction with section 76 of the 1996 Act on Judicial Procedure in Administrative Matters (hallintolainkäyttölaki, förvaltningsprocesslag 586/1996). All members of the Appellate Board must have sworn or must swear a judicial oath before taking up office (section 9 of the 1964 Decree). 32. At the relevant time the procedural rules applicable to regular courts in principle also applied to the Appellate Board, its procedure being merely written (section 8; repealed by Decree no. 380/1999 adopted in connection with the amendment to section 54 of the Sickness Insurance Act which, in the Government’s opinion, rendered it possible to hold oral hearings before the appellate bodies in the field of social insurance). 33. According to the applicant, Finnish law never prevented social insurance bodies from holding oral hearings. Moreover, even after the 1999 amendment the law has been interpreted very narrowly as regards the need for oral hearings. The applicant refers to Supreme Court precedent no. 2003:35 by which a case was remitted to the Insurance Court with a view to an oral hearing being held for the purpose of taking testimony from a doctor who had provided a written summary of medical reports concerning the appellant. The Insurance Court had refused his request for an oral hearing, considering it manifestly unnecessary. | 1 |
train | 001-57522 | ENG | BEL | CHAMBER | 1,981 | CASE OF LE COMPTE, VAN LEUVEN AND DE MEYERE v. BELGIUM | 2 | Violation of Art. 6-1;No violation of Art. 11;Just satisfaction reserved | null | 8. Dr. Herman Le Compte, a Belgian national born in 1929 and resident at Knokke-Heist, is a medical practitioner. 9. On 28 October 1970, the West Flanders Provincial Council of the Ordre des médecins (Medical Association), which sits in Bruges, ordered that Dr. Le Compte’s right to practise medicine be suspended for six weeks. The ground was that he had given to a Belgian newspaper an interview considered by the Council to amount to publicity incompatible with the dignity and reputation of the profession. The applicant lodged an objection (opposition) against this decision, which had been given in absentia, but it was confirmed by the Provincial Council on 23 December 1970, the applicant again having failed to appear. Dr. Le Compte thereupon referred the matter firstly to the Appeals Council of the Ordre des médecins, which, on 10 May 1971, held his appeal to be inadmissible, and secondly to the Court of Cassation, on 7 April 1972, the latter declared his appeal on a point of law inadmissible, on the ground that it had been filed without the assistance of a lawyer entitled to practise before that Court. The order suspending Dr. Le Compte’s right to practise became effective on 20 May 1972 but he did not comply with it. For this reason, on 20 February 1973, the Furnes criminal court (tribunal correctionnel) sentenced him, pursuant to Article 31 of Royal Decree no. 79 of 10 November 1967 on the Ordre des médecins, to imprisonment and a fine. This decision was confirmed on 12 September 1973 by the Ghent Court of Appeal; a appeal by Dr. Le Compte on a point of law was dismissed by the Court of Cassation on 25 June 1974. 10. Concurrently with the foregoing proceedings, which are not in issue in the present case (see paragraph 36 below), further proceedings were in progress. In fact, on 30 June 1971 the Provincial Council of the Ordre des médecins had, by a decision rendered in absentia, ordered another suspension, for three months, of the applicant’s right to practise: the Council stated that he had publicised in the press the above-mentioned decisions of the disciplinary organs of the Ordre and his criticisms of those organs, such conduct constituting contempt of the Ordre. 11. Dr. Le Compte had appealed to the Appeals Council of the Ordre which had confirmed this decision although without upholding the allegation of contempt. He had then referred the matter to the Court of Cassation, where he relied on the same grounds. He contended in the first place that compulsory membership of the Ordre des médecins, without which no one may practise medicine and subjection to the jurisdiction of its disciplinary organs were contrary to the principle of freedom of association, which is guaranteed by Article 20 of the Belgian Constitution and Article 11 (art. 11) of the Convention. The Court rejected this plea in the following terms: "... compulsory entry on the register of an ordre which, like the Ordre des médecins, is a public-law institution having the function of ensuring the observance of the medical profession’s rules of professional conduct and the maintenance of the reputation, standards of discretion, probity and dignity of its members cannot be regarded as incompatible with freedom of association, as guaranteed by Article 20 of the Constitution; ... the appellant does not allege that the rule which he is challenging goes beyond the bounds of the restrictions authorised by Article 11 par. 2 (art. 11-2) of the Convention, for example for the protection of health." The applicant also alleged a violation of Articles 92 and 94 of the Constitution: the first provides that the courts of law shall have exclusive jurisdiction to determine disputes over civil rights and the second prohibits the establishment of extraordinary tribunals for the purpose of resolving such disputes. He pointed out that the decision complained of had nonetheless been taken by a disciplinary organ, set up by Royal Decree no. 79, and that it had given a ruling on a civil right, namely the right to practise medicine. The Court of Cassation replied that "disciplinary proceedings and the imposition of disciplinary sanctions are, in principle, unrelated to the disputes over which exclusive jurisdiction is reserved to the courts of law by Article 92 of the Constitution". The Court added that, since the Councils of the Ordre des médecins did not have jurisdiction to determine such disputes, "they are not extraordinary tribunals whose establishment is prohibited by Article 94". Finally, the Court observed that section 1 par. 8 (a) of the Act of 31 March 1967 (see paragraph 20 below) empowered the Crown "to reform and adapt the legislation governing the practice of the various branches of medicine" and that "the legislature was referring, inter alia, to the Act of 25 July 1938 establishing the Ordre des médecins, which Act conferred disciplinary powers on the Councils of the Ordre". Lastly, Dr. Le Compte alleged that there had been a violation of Article 6 par. 1 (art. 6-1) of the Convention. He argued that the decision complained of had been given without any public inquiry and by a tribunal composed of medical practitioners, which could not be regarded as impartial since the kind of conduct of which he was accused might harm his colleagues. The Court of Cassation confined itself to pointing out that Article 6 par. 1 (art. 6-1) did not apply to disciplinary proceedings. Accordingly, by judgment of 3 May 1974, the appeal was dismissed. 12. Dr. Le Compte did not comply with the order suspending his right to practise medicine, which became final following the Court of Cassation’s judgment. On that account he was sentenced by the Bruges criminal court on 16 September and 15 October 1974 to terms of imprisonment and fines. He lodged an appeal against the first decision and an objection against the second, which had been rendered in absentia. 13. Since that time, a number of further proceedings have been instituted, both disciplinary, for the publicity given by the applicant to his dispute with the Ordre, and criminal, for his refusal to comply with the measures imposed by its Councils. One of the disciplinary proceedings resulted in Dr. Le Compte’s being struck off the register of the Ordre with effect from 26 December 1975. In this connection he lodged a further application (no. 7496/76) with the Commission on 6 May 1976; that application, which the Commission declared admissible on 4 December 1979, is not relevant for the examination of the present case. The criminal proceedings, at first instance, led to prison sentences and to fines. 14. Dr. Frans Van Leuven and Dr. Marc De Meyere are medical practitioners, born in 1931 and 1940, respectively. Both of them reside at Merelbeke and are Belgian nationals. 15. On 20 January 1973, thirteen medical practitioners practising in and around Merelbeke filed a complaint to the effect that these two applicants had committed breaches of the rules of professional conduct; it was alleged, in particular, that they had systematically limited their fees to the amounts reimbursed by the Social Security, even when on emergency duty, and had distributed without charge to private houses a fortnightly magazine called Gezond in which general practitioners were held up to ridicule. On 14 March 1973, the applicants were heard by the Bureau of the Provincial Council of the Ordre. They admitted that they had limited the fees charged to their own clients but not the fees charged when they were on emergency duty. In addition, they pointed out that they were not the publishers of Gezond and they denied that they had lampooned their colleagues in its pages. 16. On 19 March 1973, another medical practitioner lodged a further complaint against the applicants; he alleged that, two days after their appearance before the Bureau of the Provincial Council, they had put up in the waiting rooms of the Merelbeke medical centre a notice informing the public of the first complaint and the reasons therefore. On 23 May 1973, the Bureau of the Provincial Council heard the applicants in connection with the second complaint. They declared that they were entitled to provide the public with information about the situation, especially as it was already a matter of common knowledge. 17. The East Flanders Provincial Council of the Ordre des médecins, which sits in Ghent, summoned Dr. Van Leuven and Dr. De Meyere to answer several allegations. On 24 October 1973, it directed that their right to practise medicine be suspended for a period of one month for having charged fees limited to the amounts reimbursed by the Social Security, for having contributed to the magazine Gezond and for having made therein public utterances judged offensive to their colleagues. In addition, Dr. Van Leuven was reprimanded for his behaviour when appearing before the Bureau of the Provincial Council on 14 March 1973. These various decisions were based on Articles 6 par. 2 and 16 of Royal Decree no. 79. The Provincial Council considered, on the other hand, that the posting in the waiting rooms of the medical centre of a notice judged contrary to the rules of professional conduct did not warrant a disciplinary sanction, bearing in mind that the notice had been removed following a request from the Bureau. 18. The applicants appealed to the Appeals Council. On 24 June 1974, the latter declared the appeal admissible and upheld the Provincial Council’s decision insofar as it had found established the allegations relating to the charging of fees limited to the amounts reimbursed by the Social Security and the contribution to the magazine Gezond. For the rest, the Appeals Council set aside the decision challenged and, after taking into account the complaint regarding the notice in the waiting rooms and joining it with the two other complaints, directed that the right of Dr. Van Leuven and Dr. De Meyere to practise medicine be suspended for a period of fifteen days. 19. On 25 April 1975, the Court of Cassation ruled against the applicants, who had appealed on a point of law. The Court rejected the ground of appeal based on breach of Article 11 (art. 11) of the Convention; it considered that the functions of the Ordre des médecins "are by no means unrelated to the protection of health and that compulsory entry ... on the register of an Ordre of this kind does not exceed the restrictions on freedom of association which are necessary for the protection of health". The Court in addition declared inadmissible, for want of legal interest, the ground of appeal to the effect that the limitation of fees to the amounts reimbursed by the Social Security was in conformity with both the law and the rules of professional conduct for medical practitioners; the Court found that the suspension had in fact also been imposed as a sanction for other disciplinary offences. 20. The ordre des médecins, which was established by an Act of 25 July 1938, was re-organised by Royal Decree no. 79 of 10 November 1967. This Decree was made under the Act of 31 March 1967 "investing the King with certain powers with a view to ensuring economic revival, acceleration of regional reconversion and a stable, balanced budget". The Act enabled the Crown, acting by Decrees in Council, to take "all appropriate steps ... to further the quality and ensure satisfactory provision of health care through reform and adaptation of the legislation governing the practice of the various branches of medicine" (section 1 par. 8 (a)); it specified that such Decrees could "repeal supplement, amend or replace existing legal provisions" (section 3). 21. Article 2 of Royal Decree no. 79 provides that "the Ordre des médecins shall include all physicians, surgeons and obstetricians who are permanently resident in Belgium and entered on the register of the Ordre for the Province where they have their permanent residence" and that "in order to practise medicine in Belgium, every medical practitioner" - whether Belgian or foreign - "must be entered on the register of the Ordre". Military doctors, however, are only obliged to be entered on the register if they practise outside their military duties. 22. Alongside the Ordre des médecins, there exist in Belgium private associations formed to protect the professional interests of medical practitioners. The most important of these associations are consulted and invited to take part in collective negotiations when the Government are considering the adoption of decisions affecting those interests, to propose candidates for nomination as members of certain organs and to appoint their representatives on others, and to take various measures themselves. 23. The Ordre des médecins "shall enjoy civil personality in public law" (Article 1, third paragraph, of Royal Decree no. 79). It comprises three kinds of organs, namely Provincial Councils, Appeals Councils and the National Council. 24. The Provincial Councils (of which there are ten) consist of a number, which is always even and is fixed by the Crown, of members and substitute members who are medical practitioners of Belgian nationality elected for six years by doctors entered on the register of the Ordre. There are also an assessor and a substitute assessor who are judges of first instance courts appointed for six years by the Crown; the assessor has a consultative status (Articles 5 and 8 par. 1 of Royal Decree no. 79). The Council’s functions are defined by Article 6 of Royal Decree no. 79 in the following terms: "1o to keep the register of the Ordre. They may refuse or defer entry on the register if the person applying has been guilty either of an act of such seriousness as would cause the name of a member of the Ordre to be struck off the register or of serious misconduct damaging the reputation or dignity of the profession. If the medical commission ... has decided and notified the Ordre that a medical practitioner no longer fulfils the conditions required for practising medicine or that it is necessary, for reasons of physical or mental disability, to place a restriction on the practise by him of medicine, the relevant Provincial Council shall, in the first case, remove the practitioner’s name from the register and, in the second case, make the maintenance of his name thereon subject to observance of the restriction ordered. A practitioner’s name may also be removed from the register at his own request. Reasons must be given for any decision refusing or deferring entry on the register, removing a practitioner’s name therefrom or making its maintenance thereon subject to restrictive conditions; 2o to ensure observance of the rules of professional conduct for medical practitioners and the upholding of the reputation, standards of discretion, probity and dignity of the members of the Ordre. They shall to this end be responsible for disciplining misconduct committed by their registered members in or in connection with the practice of the profession and serious misconduct committed outside the realm of professional activity, whenever such misconduct is liable to damage the reputation or dignity of the profession; 3o to give, of their own motion or on request, the members of the Ordre advice on matters of professional conduct ...; such advice shall be submitted to the National Council for approval ...; 4o to notify the relevant authorities of any acts involving illegal practice of medicine of which the Councils have knowledge; 5o to act, at the joint request of those concerned, as final arbitrator in disputes regarding the fees claimed by a medical practitioner from his client ...; 6o to reply to all requests for advice emanating from courts of law in connection with disputes as to fees; 7o to settle the annual subscription ... including the amount fixed by the National Council for each registered member." 25. The Provincial councils are distinct from the medical commissions which have been set up, outside the Ordre, in each Province and are composed in addition to medical and pharmaceutical practitioners of members of the paramedical professions and of officials of the Ministry of Public Health (Article 36 of Royal Decree no. 78). These commissions have two functions. The first is general and consists of "proposing to the authorities any measures designed to make a contribution to public health" and of "ensuring that practitioners ... (and) members of the paramedical professions collaborate effectively in the implementation of the measures laid down by the authorities for the purpose of preventing or combating diseases subject to quarantine or communicable diseases". The second, specific function comprises various responsibilities: "checking and ... approving practitioners’ diplomas"; "withdrawing approval or making its continuance in force subject to the acceptance by the person concerned of (certain) restrictions"; "ensuring that the practice of medicine (is conducted) in accordance with the laws and regulations"; "detecting and ... reporting to the prosecuting authority cases of illegal practice"; assessing the demand for emergency services and supervising their operation; "informing interested parties, whether acting in public or private capacity, of decisions taken" as regards a practitioner’s exercise of his profession; "advising the organs of the Ordres concerned of allegations of professional misconduct against practitioners"; "supervising public sales where medicines are involved" (Article 37). 26. The two Appeals Councils - one of which uses the French and the other the Dutch language - have their seat "in the Greater Brussels area". They are each composed of ten medical practitioners of Belgian nationality (five members and five substitute members) elected for six years by the Provincial Councils from among persons other than their own members, and ten Court of Appeal judges (five members and five substitute members) appointed by the Crown for the same length of time. From among these judges, the Crown designates the Chairman, who has a casting vote, and the member who is to act as rapporteur (Article 12 par. 1 and 2 of Royal Decree no. 79). The Appeals Councils hear appeals from decisions given by the Provincial Councils on matters of registration or discipline. They deal, as the body of first and final instance, with claims concerning the regularity of elections to the Provincial Councils, the Appeals Councils and the National Council. They also decide cases on which the Provincial Councils have not given a ruling within the prescribed time-limit. Finally, they settle any dispute between Provincial Councils regarding a practitioner’s place of permanent residence (Article 13). 27. The National Council comprises twenty persons (ten members and ten substitute members) of Belgian nationality who are respectively elected by each of the Provincial Councils from among medical practitioners entered on its register, and twelve persons (six members and six substitute members) appointed by the Crown from among medical practitioners nominated in lists of three candidates by the medical faculties in the country. The National Council is presided over by a judge of the Court of Cassation chosen by the Crown and consists of two sections - one French-speaking, the other Dutch-speaking - each of which elects from among its number a Vice-President (Article 14). The National Council formulates "those general principles and those rules concerning the morality, reputation, standards of discretion, probity and devotion to duty essential for practice of the profession which constitute the code of professional conduct for medical practitioners"; these principles and rules may be made compulsory by Royal Decrees in Council (a draft code failed to receive Royal approval). It keeps up to date a list of those disciplinary decisions given by the Provincial and Appeals Councils which are no longer open to appeal. It gives reasoned opinions "on general matters, on problems of principle and on the rules of professional conduct". It settles the amount of the subscription medical practitioners are asked to pay to the Ordre. More generally, it takes "all steps necessary for the achievement of the aims of the Ordre" (Article 15). 28. In the procedure relating to disciplinary and registration matters, which is primarily governed by the Royal Decree of 6 February 1970 "regulating the organisation and working of the Councils of the Ordre des médecins", the contending parties are always heard. There may be three stages: a ruling at first instance by the Provincial Council, a ruling at final instance by the Appeals Council and a review by the Court of Cassation of the legality of the decisions and the observance of formal requirements. 29. The procedure begins before the Provincial Council which "acts either on its own initiative, or at the request of the National Council, the Minister responsible for public health, the procureur du Roi or the medical commission, or on complaint by a medical practitioner or a third party" (Article 20 par. 1, first sub-paragraph, of Royal Decree no. 79). The procedure continues before the Appeals Council if it has been seised either by the practitioner concerned, or by the Provincial Council’s assessor, or by the President of the National Council acting jointly with one of the Vice-Presidents; an appeal has suspensive effect (Article 21). 30. Investigation of the matter necessarily involves the participation of a member of the judiciary: before the Provincial Council, for the purposes of the initial investigation, this will be the assessor; before the Appeals Council, for the purposes, if need be, of a supplementary investigation, it will be the Council member acting as rapporteur (see paragraphs 24 and 26 above). Furthermore, the Provincial Council member who acted as rapporteur may always be heard by the Appeals Council (Articles 7 par. 1, 12 par. 2 and 20 of Royal Decree no. 79). 31. Before the Provincial and Appeals Councils, the proceedings are conducted in private (Article 24 par. 1, sub-paragraph 3, of Royal Decree no. 79 and Article 19 of the Royal Decree of 6 February 1970). The medical practitioner concerned has the right to be informed as soon as possible of the opening of an inquiry against him (Article 24 of the Royal Decree of 6 February 1970); the procedure further provides for time-limits and formalities allowing him to have adequate time and facilities for the preparation of his defence (Articles 25 and 31); in addition, it contains guarantees concerning the use of languages (Articles 36 to 39). The practitioner is also entitled to challenge the members of the organ hearing his case; he appears in person and may be assisted by one or more counsel who, like himself, may inspect the case-file (Articles 26, 31 and 40 to 43). 32. The Provincial and Appeals Councils are bound to deliver their ruling within a reasonable time, to preserve the secrecy of their deliberations and to give reasons for their decision. The person concerned must be promptly informed of the decision and of any appeal which may have been entered. Decisions are taken by simple majority. However, a two-thirds majority is required for striking a practitioner off the register of the Ordre or for his suspension for more than a year. The same rule applies to Appeals Council decisions ordering a sanction where the Provincial Council has imposed none or increasing the severity of the sanction imposed by the Provincial Council (Article 25 in fine of Royal Decree no. 79, Articles 4, 12, 26, 32 and 33 of the Royal Decree of 6 February 1970). The sanctions which may be imposed by the Provincial Councils - and also, if appropriate, the Appeals Councils - are "warning, censure, reprimand, suspension of the right to practise medicine for a period not exceeding two years and striking off the register of the Ordre" (Article 16 of Royal Decree no. 79). 33. Under Article 23 of Royal Decree no. 79, "final decisions of the Provincial Councils or the Appeals Councils may be referred to the Court of Cassation either by the Minister responsible for public health, or by the President of the National Council acting jointly with one of the Vice-Presidents, or by the practitioner concerned, on the ground of contravention of the law" - the latter term being understood in a wide sense - "or of non-observance of a formal requirement which is either a matter of substance or laid down on pain of nullity". The Court will have before it the complete case-file (decisions at first instance and on appeal, memorials and final submissions of the parties, including a detailed statement of the facts); however, it cannot verify the findings of fact made by the Councils of the Ordre, unless it is alleged that there has been a breach of the rules of evidence. The Court does not have jurisdiction to rectify factual errors on the part of the Appeals Councils or to examine whether the sanction is proportionate to the fault. An appeal to the Court of Cassation on a point of law has suspensive effect. 34. Decisions in a disciplinary matter which have become final are notified to the Minister of Public Health; the most important ones (striking off the register of the Ordre or suspension of the right to practise) are also notified to the medical commission and to the procureur général attached to the Court of Appeal (Article 27 of Royal Decree no. 79 and Article 35 of the Royal Decree of 6 February 1970). | 1 |
train | 001-58594 | ENG | GBR | GRANDCHAMBER | 1,999 | CASE OF V. v. THE UNITED KINGDOM | 1 | Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - After conviction);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Independent tribunal);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings) | Luzius Wildhaber;Nicolas Bratza;Paul Mahoney | 7. The applicant was born in August 1982. On 12 February 1993, when he was ten years old, he and another ten-year-old boy, “T.” (the applicant in case no. 24724/94), had played truant from school and abducted a two-year-old boy from a shopping precinct, taken him on a journey of over two miles and then battered him to death and left him on a railway line to be run over. 8. The applicant and T. were arrested in February 1993 and detained pending trial. 9. Their trial took place over three weeks in November 1993, in public, at Preston Crown Court before a judge and twelve jurors. In the two months preceding the trial, each applicant was taken by social workers to visit the courtroom and was introduced to trial procedures and personnel by way of a “child witness pack” containing books and games. The trial was preceded and accompanied by massive national and international publicity. Throughout the criminal proceedings, the arrival of the defendants was greeted by a hostile crowd. On occasion, attempts were made to attack the vehicles bringing them to court. In the courtroom, the press benches and public gallery were full. The trial was conducted with the formality of an adult criminal trial. The judge and counsel wore wigs and gowns. The procedure was, however, modified to a certain extent in view of the defendants' age. They were seated next to social workers in a specially raised dock. Their parents and lawyers were seated nearby. The hearing times were shortened to reflect the school day (10.30 a.m. to 3.30 p.m., with an hour's lunch break), and a ten-minute interval was taken every hour. During adjournments the defendants were allowed to spend time with their parents and social workers in a play area. The judge made it clear that he would adjourn whenever the social workers or defence lawyers told him that one of the defendants was showing signs of tiredness or stress. This occurred on one occasion. 10. At the opening of the trial on 1 November 1993 the judge made an order under section 39 of the Children and Young Persons Act 1933 (see paragraph 32 below) that there should be no publication of the names, addresses or other identifying details of the applicant or T. or publication of their photographs. On the same day, the applicant's counsel made an application for a stay of the proceedings, on the grounds that the trial would be unfair due to the nature and extent of the media coverage. After hearing argument, the judge found that it was not established that the defendants would suffer serious prejudice to the extent that no fair trial could be held. He referred to the warning that he had given to the jury to put out of their minds anything which they might have heard or seen about the case outside the courtroom. 11. Dr Bentovim, of the Great Ormond Street Hospital for Children, interviewed the applicant and his parents on behalf of the defence in September 1993, although he did not give evidence at the trial. He found that V. showed post-traumatic effects and extreme distress and guilt, with fears of punishment and terrible retribution. V. found it very difficult and distressing to think or talk about the events in question and it was not possible to ascertain many aspects. The doctor found that he showed evidence of immaturity, behaving in many ways like a younger child emotionally, and recommended that, whatever happened, he was likely to need therapeutic care in a residential context. 12. During the trial, the prosecution presented evidence for the purpose of establishing that the two defendants were criminally responsible for their actions in that they knew that what they were doing was wrong (see paragraph 29 below). The court heard evidence from Dr Susan Bailey, a consultant psychiatrist from the Adolescent Forensic Service of the Home Office, who had written a report on the applicant on behalf of the Crown. Dr Bailey gave evidence that the applicant presented as a child of average intelligence, and would have been able in February 1993 to distinguish between right and wrong. He would have known that it was wrong to take a child from his mother, injure him and leave him on a railway line. She had seen the applicant on a number of occasions. On each occasion, he had cried inconsolably and shown signs of distress. He was not able to talk about the events in issue in any useful way. The prosecution also called the headmistress at the school attended by the two boys. She stated that from the ages of four and five children were aware that it was wrong to strike another child with a weapon. She stated that T. and the applicant would have been aware that what they were doing was wrong. Another teacher gave evidence to the same effect. 13. In addition, evidence was given by persons who had witnessed T. and the applicant in the shopping centre from which the two-year-old boy was taken and who had seen the three boys at various points between the shopping centre and the vicinity of the railway line, where the body was later found. The tapes of the interviews of the police with T. and the applicant were replayed in court. Neither the applicant nor T. gave evidence. 14. In his summing-up to the jury the trial judge noted that witnesses had arrived in court in a blaze of publicity and many had faced a bevy of photographers. They had had to give evidence in a large court packed with people and not surprisingly several of them were overcome with emotion and some had had difficulty in speaking audibly. This was one of the factors to be borne in mind in assessing their evidence. He instructed the jury, inter alia, that the prosecution had to prove beyond reasonable doubt, in addition to the ingredients of the offences charged, that the applicant and T. knew that what they were doing was wrong. 15. On 24 November 1993 the jury convicted T. and the applicant of murder and abduction. Neither applicant made any appeal to the Court of Appeal against his conviction. 16. Following their conviction, the judge modified the order under section 39 of the 1933 Act (see paragraph 10 above) to allow the applicant and T.'s names, but no other details, to be published. The following day – 25 November 1993 – their names, photographs and other particulars were published in newspapers throughout the country. On 26 November 1993 the judge granted an injunction restraining, inter alia, the publication of the addresses where the boys were being detained or any other detail which could lead to information about their whereabouts, care or treatment being revealed. 17. In January 1995 the applicant was interviewed again by Dr Bentovim for the purposes of the judicial review proceedings (see below). The doctor noted, inter alia, that V. was suffering from very high levels of fear that he would be attacked or punished for his actions. When the trial was mentioned, the applicant had described his sense of shock when he had seen the public being let in and his considerable distress when his name and photograph were published. He had been terrified of being looked at in court and had frequently found himself worrying what people were thinking about him. Most of the time he had not been able to participate in the proceedings and had spent time counting in his head or making shapes with his shoes because he could not pay attention or process the whole proceedings. He did not follow when he heard his and T.'s interviews with the police being played in court and he recalled crying at that time. Dr Bentovim commented that: “In my view, because of his immaturity, and his age when the act was committed and when he was tried, [V.] did not have the capacity to fully take in the process of the trial except for the major actions for which he was responsible. ... [W]hether ... he had an understanding of the situation such that he could give an informed instruction to his lawyer to act on his behalf ... is, in my view, very doubtful given his immaturity. Although he was chronologically over the age of ten at the time of his action, I am in no doubt that he was less mature than this as far as psychological or emotional age was concerned.” 18. In a report by Dr Bailey (see paragraph 12 above) dated November 1997, it was noted that until the trial the events during the offence were with the applicant ninety-eight per cent of the time and especially every night during the trial. It took him twelve months to get over the trial itself. He still thought of it every night. He had been most scared when in the magistrates' court on the first occasion. After the first three days at the Crown Court he had felt all right because he played with his hands and stopped listening. He had to stop listening because they played the police interviews with him and T. in front of everyone as if they were shouting it out. The press were laughing at him and he could tell from the faces of the jury that they would find him guilty. He still did not understand why the trial had been so long. 19. In a report on the applicant dated February 1998, Sir Michael Rutter, Professor of Child Psychiatry at the Institute of Psychiatry, University of London, observed: “I have also been asked to comment on the likely mental and emotional effects on children in general, and on [V.] in particular, of the prolonged trial process being in public. In my opinion there are two negative aspects of the trial process as they apply to children of [V.'s] age. First, one serious consequence of the long time involved in a trial means that there is an inevitable delay in providing the psychological care and therapeutic help that is needed. A child of ten has many years of psychological development still to come and it is most important that there is not a prolonged hiatus when this is impeded by the trial process. In particular, when children have committed a serious act, such as killing another child, it is most important that they are able to come to terms with the reality of what they have done and with all that that means. That is not possible at a time when a trial is still under way and guilt has still to be decided by the court. Thus, I conclude that the very prolonged nature of the trial process is bound to be deleterious for a child as young as ten or eleven (or even older). The fact that the trial process is held in public and that the negative public reactions (often extreme negative reactions) are very obvious is a further potentially damaging factor. While it is crucially important for young people who have committed a serious act to accept both the seriousness of what they have done and the reality of their own responsibilities in the crime, this is made more difficult by the public nature of the trial process ...” 20. Following the applicant and T.'s conviction for murder, the judge sentenced them, as required by law, to detention during Her Majesty's pleasure (see paragraph 36 below). He subsequently recommended that a period of eight years be served by the boys to satisfy the requirements of retribution and deterrence (the “tariff” – see paragraphs 40-42 below). He commented that he could not determine the boys' relative culpability, and stated: “Very great care will have to be taken before either defendant is allowed out into the general community. Much psychotherapeutic, psychological and educational investigation and assistance will be required. Not only must they be fully rehabilitated and no longer a danger to others but there is a very real risk of revenge attacks upon them by others. ... If the defendants had been adults I would have said that the actual length of deterrence necessary to meet the requirements of retribution and general deterrence should have been eighteen years. However these two boys came from homes and families with great social and emotional deprivation. They grew up in an atmosphere of matrimonial breakdown where they were exposed to, saw, heard, or suffered abuse, drunkenness and violence. I have no doubt that both boys saw video films frequently showing violent and aberrant activities. In my judgment the appropriate length of detention necessary to meet the requirement of retribution and general deterrence for the murder, taking into account all its appalling circumstances and the age of the defendants when it was committed is eight years... . Eight years is 'very very many years' for a ten or eleven year old. They are now children. In eight years' time they will be young men.” 21. The Lord Chief Justice recommended a tariff of ten years. The applicant's representatives made written representations to the Home Secretary, who was to fix the tariff period. 22. By a letter dated 16 June 1994, the Secretary of State informed the applicant that the family of the deceased child had submitted a petition signed by 278,300 people urging him to take account of their belief that the boys should never be released, accompanied by 4,400 letters of support from the public; that a Member of Parliament had submitted a petition signed by 5,900 people calling for a minimum of twenty-five years to be served; that 21,281 coupons from the Sun newspaper supporting a whole life tariff and a further 1,357 letters and small petitions had been received of which 1,113 wanted a higher tariff than the judicial recommendations. The applicant's solicitors were given an opportunity to submit further representations to the Secretary of State. 23. By a letter dated 22 July 1994, the Secretary of State informed the applicant that he should serve a period of fifteen years in respect of retribution and deterrence. The letter stated, inter alia: “In making his decision, the Secretary of State had regard to the circumstances of the offence, the recommendations received from the judiciary, the representations made on your behalf and the extent to which this case could be compared with other cases. He also has regard to the public concern about this case, which was evidenced by the petitions and other correspondence the substance of which were disclosed to your solicitors by our letter of 16 June 1994, and to the need to maintain public confidence in the system of criminal justice. The Secretary of State takes fully into account the fact that you were only ten years old when the offence was committed. He further acknowledges that a much lesser tariff should apply than in the case of an adult. The Secretary of State notes the representations which were made on your behalf regarding the relative culpability of yourself and your co-defendant. The Secretary of State notes that the trial judge was unable to determine this. The Secretary of State has reached the same conclusion. The recommendations made by the trial judge and the Lord Chief Justice were that the appropriate tariff should be eight years, and ten years respectively. The trial judge added that if the defendants had been adults then the appropriate tariff would have been eighteen years. The Secretary of State has had regard to these views. He takes the view that this was an exceptionally cruel and sadistic offence against a very young and defenceless victim committed over a period of several hours. The Secretary of State believes that if the offence had been committed by an adult then the appropriate tariff would have been in the region of twenty-five years and not eighteen years as suggested by the trial judge. For these reasons, and bearing in mind your age when the offence was committed, the Secretary of State has decided to fix a tariff of fifteen years in your case. The Secretary of State is satisfied that such a tariff is consistent with the tariffs fixed in other cases. The Secretary of State is prepared to consider any fresh representations which you or your representatives might wish to make about the length of the tariff and, in the light of such fresh representations, to reduce the tariff if appropriate.” 24. Dr Bentovim's January 1995 report (see paragraph 17 above) stated that the applicant had been distraught when told of the eight and ten year recommendations. When he was informed that a fifteen-year tariff had been fixed, he was devastated. He made comments that he would never be let out and had a preoccupation that he was like Myra Hindley. He felt that his life was no longer worth living and there was no point going on. 25. The applicant instituted judicial review proceedings challenging, inter alia, the tariff which had been set by the Secretary of State as being disproportionately long and fixed without due regard to the needs of rehabilitation. Leave was granted on 7 November 1994. 26. On 2 May 1996 the Divisional Court upheld part of the applicant's claims. On 30 July 1996 the Court of Appeal dismissed the appeal of the Secretary of State. On 12 June 1997 the House of Lords by a majority dismissed the Secretary of State's appeal and allowed the applicant's cross-appeal. A majority of the House of Lords found that it was unlawful for the Secretary of State to adopt a policy, in the context of applying the tariff system, which even in exceptional circumstances treated as irrelevant the progress and development of a child who was detained during Her Majesty's pleasure. A majority of the House of Lords also held that in fixing a tariff the Secretary of State was exercising a power equivalent to a judge's sentencing power and that, like a sentencing judge, he was required to remain detached from the pressure of public opinion. Since the Secretary of State had misdirected himself in giving weight to the public protests about the level of the applicant's tariff and had acted in a procedurally unfair way, his decision had been rendered unlawful (see further paragraph 43 below). The tariff set by the Secretary of State was accordingly quashed. 27. On 10 November 1997 the Secretary of State informed Parliament that, in the light of the House of Lords' judgment, he had adopted a new policy in relation to young offenders convicted of murder and sentenced to detention during Her Majesty's pleasure, pursuant to which, inter alia, he would keep the tariff initially set under review in the light of the offender's progress and development. The Secretary of State invited the applicant's representatives to make representations to him with regard to the fixing of a fresh tariff. 28. At the time of the adoption of this judgment, no decision has been taken in respect of the applicant's tariff. The Government in their memorial informed the Court that although the applicant V. had submitted representations regarding the appropriate length of tariff, similar representations were still awaited in respect of T., and the Home Secretary was in addition seeking independent psychiatric advice regarding both detainees. 29. Pursuant to section 50 of the Children and Young Persons Act 1933 as amended by section 16(1) of the Children and Young Persons Act 1963 (“the 1933 Act”), the age of criminal responsibility in England and Wales is ten years, below which no child can be found guilty of a criminal offence. The age of ten was endorsed by the Home Affairs Select Committee (composed of Members of Parliament) in October 1993 (Juvenile Offenders, Sixth Report of the Session 1992-93, Her Majesty's Stationary Office). At the time of the applicant's trial, a child between the ages of ten and fourteen was subject to a presumption that he did not know that what he was doing was wrong (doli incapax). This presumption had to be rebutted by the prosecution proving beyond reasonable doubt that, at the time of the offence, the child knew that the act was wrong as distinct from merely naughty or childish mischief (C. (a minor) v. the Director of Public Prosecutions [1996] Appeal Cases 1). The doli incapax presumption has since been abolished with effect from 30 September 1998 (section 34 of the Crime and Disorder Act 1998). 30. Pursuant to section 24 of the Magistrates' Courts Act 1980, children and young persons under eighteen years must be tried summarily in the magistrates' court, where the trial usually takes place in the specialist youth court, which has an informal procedure and from which the general public are excluded. The exceptions are children and young persons charged with murder, manslaughter or an offence punishable if committed by an adult with fourteen or more years' imprisonment, who are tried in the Crown Court before a judge and jury. 31. Where a child is tried in the youth court, section 49 of the 1933 Act imposes an automatic prohibition restraining the media from reporting the child's name or personal details or from publishing his photograph or any other information which might lead to his identification. The court has a discretion to dispense with the restriction following conviction if it considers it in the public interest to do so. 32. Where a child is tried in the Crown Court, there is no restriction on the reporting of the proceedings unless the trial judge makes an order under section 39 of the 1933 Act, which provides: “(1) In relation to any proceedings in any court ... the court may direct that – (a) no newspaper report of the proceedings shall reveal the name, address or school, or include any particulars calculated to lead to the identification of any child or young person concerned in the proceedings, either as being the person by or against or in respect of whom the proceedings are taken, or as being a witness therein; (b) no picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid; except in so far (if at all) as may be permitted by the direction of the court. (2) Any person who publishes any matter in contravention of any such direction shall on summary conviction be liable in respect of each offence to a fine ...” This provision was extended by section 57(4) of the Children and Young Persons Act 1963 to cover sound and television broadcasts. The Court of Appeal interpreting section 39 has held that, since Parliament intentionally distinguished between trial in a youth court, where there is a presumption against publicity, and trial in the Crown Court, where the presumption is reversed, there should be a good reason for the making of an order under section 39 of the 1933 Act (R. v. Lee (a minor) 96 Criminal Appeal Reports 188). 33. An accused is “unfit to plead” if by reason of a disability, such as mental illness, he has “insufficient intellect to instruct his solicitors and counsel, to plead to the indictment, to challenge jurors, to understand the evidence, and to give evidence” (R. v. Robertson 52 Criminal Appeal Reports 690). The question whether or not a defendant is fit to plead must be decided by a jury upon the written or oral evidence of at least two medical experts. Where a jury has found the defendant unfit to plead, either the same or another jury may be required to proceed with the trial and decide whether the accused did the act or made the omission charged against him as the offence, in which case the court may make a hospital order against him (Criminal Procedure (Insanity) Act 1964, sections 4, 4A and 5). Alternatively, the trial may be postponed indefinitely until the accused is fit to plead. 34. In the case of Kunnath v. the State ([1993] 1 Weekly Law Reports 1315), the Privy Council quashed the conviction of an uneducated peasant from Kerala in southern India who had been sentenced to death for murder after a trial in Mauritius conducted in a language he did not understand and where the evidence was not translated for him by an interpreter. The Privy Council stated, inter alia: “It is an essential principle of the criminal law that a trial for an indictable offence should be conducted in the presence of the defendant. The basis of this principle is not simply that there should be corporeal presence but that the defendant, by reason of his presence, should be able to understand the proceedings and decide what witnesses he wishes to call, whether or not to give evidence and if so, upon what matters relevant to the case against him.” 35. In England and Wales, adults convicted of murder are subject to mandatory life imprisonment (Murder (Abolition of Death Penalty) Act 1967). Adults convicted of certain violent or sexual offences, for example manslaughter, rape or robbery, may be sentenced to life imprisonment at the discretion of the trial judge, if he or she considers that (i) the offence is grave and (ii) there are exceptional circumstances which demonstrate that the offender is a danger to the public and that it is not possible to say when that danger will subside. 36. Offenders under the age of eighteen who are convicted of murder are automatically to be detained during Her Majesty's pleasure, in accordance with section 53(1) of the Children and Young Persons Act 1933 (as amended), which provides: “A person convicted of an offence who appears to the court to have been under the age of eighteen years at the time the offence was committed shall not, if he is convicted of murder, be sentenced to imprisonment for life nor shall sentence of death be pronounced on or recorded against any such person but in lieu thereof the court shall ... sentence him to be detained during Her Majesty's pleasure, and if so sentenced he shall be liable to be detained in such a place and under such conditions as the Secretary of State may direct.” Until the age of eighteen a child or young person detained during Her Majesty's pleasure will be held at a children's home or other institution providing facilities appropriate to his age. At the age of eighteen the detainee becomes liable to be transferred to a Young Offenders' Institution and, at the age of twenty-one, to detention in the same institution as an adult sentenced to life imprisonment for murder. 37. At the time of the applicant's conviction, the effect of the sentence of detention during Her Majesty's pleasure was that the child or young person was detained for an indeterminate period, the duration of which was wholly within the discretion of the Home Secretary. The Secretary of State had a discretion to refer the case of a detained child to the Parole Board for its advice and, if so advised by the Parole Board, had a discretion to decide to order the child's release (Criminal Justice Act 1991 (“the 1991 Act”), sections 35(2) and (3) and 43(2); see the speech of Lord Browne-Wilkinson in the House of Lords, R. v. Secretary of State for the Home Department, ex parte V. and T. [1998] Appeal Cases 407 at p. 492A-F, hereafter “Ex parte V. and T.”). 38. On 1 October 1997 section 28 of the Crime (Sentences) Act 1997 was brought into force in order to implement the judgments of the European Court in the Hussain and Singh cases (Hussain v. the United Kingdom judgment of 21 February 1996, Reports of Judgments and Decisions 1996-I, p. 252, and Singh v. the United Kingdom judgment of 21 February 1996, Reports 1996-I, p. 280). The section provides that, after the tariff period has expired (see paragraphs 40-42 below), it shall be for the Parole Board, and not, as previously, for the Secretary of State, to decide whether it is safe to release on licence an offender serving a sentence of detention during Her Majesty's pleasure for an offence of murder committed before the age of eighteen. 39. A person detained during Her Majesty's pleasure who is released on licence is liable to be recalled throughout his or her life, subject to the decision of the Parole Board. 40. Over the years, the Secretary of State has adopted a “tariff” policy in exercising his discretion whether to release offenders sentenced to life imprisonment. This was first publicly announced in Parliament by Mr Leon Brittan on 30 November 1983 (Hansard (House of Commons Debates) cols. 505-507). In essence, the tariff approach involves breaking down the life sentence into component parts, namely retribution, deterrence and protection of the public. The “tariff” represents the minimum period which the prisoner will have to serve to satisfy the requirements of retribution and deterrence. The Home Secretary will not refer the case to the Parole Board until three years before the expiry of the tariff period, and will not exercise his discretion to release on licence until after the tariff period has been completed (per Lord Browne-Wilkinson, Ex parte V. and T., op. cit., at pp. 492G-493A). 41. Pursuant to section 34 of the 1991 Act, the tariff of a discretionary life prisoner is fixed in open court by the trial judge after conviction. After the tariff has expired, the prisoner may require the Secretary of State to refer his case to the Parole Board which has the power to order his release if it is satisfied that it is no longer necessary to detain him for the protection of the public. 42. A different regime, however, applies under the 1991 Act to persons detained during Her Majesty's pleasure or serving a mandatory sentence of life imprisonment. In relation to these prisoners, the Secretary of State decides the length of the tariff. The view of the trial judge is made known to the prisoner after his trial, as is the opinion of the Lord Chief Justice. The prisoner is afforded the opportunity to make representations to the Secretary of State who then proceeds to fix the tariff and is entitled to depart from the judicial view (R. v. Secretary of State for the Home Department, ex parte Doody [1994] 1 Appeal Cases 531; and see the Home Secretary, Mr Michael Howard's, policy statement to Parliament, 27 July 1993, Hansard (House of Commons Debates) cols. 861-864). 43. In the judicial review proceedings brought by the applicant (Ex parte V. and T., op. cit.), the House of Lords gave consideration, inter alia, to the nature of the tariff-fixing exercise in respect of sentences of detention during Her Majesty's pleasure. Lord Steyn held: “The starting point must to be inquire into the nature of the power to fix a tariff which the Home Secretary exercises. Writing on behalf of the Home Secretary the Home Office explained that: 'The Home Secretary must ensure that, at all times, he acts with the same dispassionate fairness as a sentencing judge.' The comparison between the position of the Home Secretary, when he fixes a tariff representing the punitive element of the sentence, and the position of the sentencing judge is correct. In fixing a tariff the Home Secretary is carrying out, contrary to the constitutional principle of the separation of powers between the executive and the judiciary, a classic judicial function. Parliament entrusted the underlying statutory power, which entailed a discretion to adopt a policy and fix a tariff, to the Home Secretary. But the power to fix a tariff is nevertheless equivalent to a judge's sentencing power.” Lord Hope held: “But the imposition of a tariff, which is intended to fix the minimum period in custody is, in itself, the imposition of a form of punishment. This has, as Lord Mustill observed in R. v. Secretary of State for the Home Department, ex parte Doody at p. 557A-B, the characteristics of an orthodox judicial exercise, which is directed to the circumstances of the offence and those of the offender and to what, having regard to the requirements of retribution and deterrence, is the appropriate minimum period to be spent in custody. The judge, when advising the Secretary of State about the tariff, must and does confine his attention to these matters ... If the Secretary of State wishes to fix a tariff for the case – in order to replace the views of the judiciary with a view of his own about the length of the minimum period – he must be careful to abide by the same rules ...” Lord Hope also commented on the imposition of a tariff on a child offender: “A policy which ignores at any stage the child's development and progress while in custody as a factor relevant to his eventual release date is an unlawful policy. The practice of fixing the penal element as applied to adult mandatory life prisoners, which has no regard to the development and progress of the prisoner during this period, cannot be reconciled with the requirement to keep the protection and welfare of the child under review throughout the period while he is in custody.” Lord Goff stated, inter alia: “... if the Secretary of State implements a policy of fixing a penal element of the sentence of a mandatory prisoner pursuant to his discretionary power under section 35, he is to this extent exercising a function which is closely analogous to a sentencing function with the effect that, when doing so, he is under a duty to act under the same restraints as a judge will act when exercising the same function. In particular, should he take into account public clamour directed towards the decision in the particular case which he has under consideration, he will be having regard to an irrelevant consideration which will render the exercise of his discretion unlawful. In so holding I wish to draw a distinction in the present context between public concern of a general nature with regard to, for example, the prevalence of certain types of offence, and the need that those who commit such offences should be duly punished; and public clamour that a particular offender whose case is under consideration should be singled out for severe punishment ...” 44. On 10 November 1997 the Secretary of State announced that, in the light of the House of Lords' decision, he would adopt the following policy in respect of fixing the tariff for young offenders convicted of murder and detained during Her Majesty's pleasure: “I shall continue to seek the advice of the trial judge and that of the Lord Chief Justice in deciding what punishment is required in any case of a person convicted under section 53(1) of the Children and Young Persons Act 1933. I shall then set an initial tariff with that advice, and the offender's personal circumstances, in mind; I shall continue to invite representations on the prisoner's behalf and give reasons for decisions. Officials in my Department will receive annual reports on the progress and development of young people sentenced under section 53(1) whose initial tariff has yet to expire. Where there appears to be a case for considering a reduction in tariff, that will be brought to the attention of Ministers. When half of the initial tariff period has expired, I, or a Minister acting on my behalf, will consider a report on the prisoner's progress and development, and invite representations on the question of tariff, with a view to determining whether the tariff period originally set is still appropriate ...” 45. The Beijing Rules were adopted by the United Nations General Assembly on 29 November 1985. These Rules are not binding in international law; in the Preamble, States are invited, but not required, to adopt them. They provide, as relevant: “4. Age of criminal responsibility 4.1 In those legal systems recognising the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity. Commentary The minimum age of criminal responsibility differs widely owing to history and culture. The modern approach would be to consider whether a child can live up to the moral and psychological components of criminal responsibility; that is, whether a child, by virtue of her or his individual discernment and understanding, can be held responsible for essentially antisocial behaviour. If the age of criminal responsibility is fixed too low or if there is no lower age limit at all, the notion of criminal responsibility would become meaningless. In general, there is a close relationship between the notion of responsibility for delinquent or criminal behaviour and other social rights and responsibilities (such as marital status, civil majority, etc.). Efforts should therefore be made to agree on a reasonable lowest age limit that is applicable internationally. ... 8. Protection of privacy 8.1 The juvenile's privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling. 8.2 In principle, no information that may lead to the identification of a juvenile offender shall be published. ... 17. Guiding principles in adjudication and disposition 17.1 The disposition of the competent authorities shall be guided by the following principles: (a) The reaction taken shall always be in proportion not only to the circumstances and gravity of the offence but also to the circumstances and the needs of the child as well as to the needs of the society; (b) Restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum; ... (d) The well-being of the juvenile shall be the guiding factor in the consideration of her or his case. ... Commentary ... Rule 17.1(b) implies that strictly punitive approaches are not appropriate. Whereas in adult cases, and possibly also in cases of severe offences by juveniles, just desert and retributive sanctions might be considered to have some merit, in juvenile cases such considerations should always be outweighed by the interest of safeguarding the well-being and future of the young person. ...” 46. This treaty (hereafter “the UN Convention”), adopted by the General Assembly of the United Nations on 20 November 1989, has binding force under international law on the Contracting States, including all of the member States of the Council of Europe. Article 3 § 1 of the UN Convention states: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Article 37 (a) and (b) provides: “States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without the possibility of release shall be imposed for offences committed by persons below eighteen years of age; (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time ... ” Article 40 provides, as relevant: “1. States Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society. 2. To this end ... the States Parties shall, in particular, ensure that: ... (b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees: ... (vii) To have his or her privacy fully respected at all stages of the proceedings. 3. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions, specifically applicable to children alleged as, accused of, or recognised as having infringed the penal law, and, in particular: (a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law; (b) Whenever appropriate and desirable, measures for the dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected. ...” 47. In its concluding observations in respect of the United Kingdom (CRC/C/15/add. 34) dated 15 February 1995, the Committee set up by the United Nations to monitor compliance with the UN Convention stated, inter alia: “35. The Committee recommends that law reform be pursued to ensure that the system of the administration of juvenile justice is child-oriented ... 36. More specifically, the Committee recommends that serious consideration be given to raising the age of criminal responsibility throughout the areas of the United Kingdom ...” 48. The Covenant provides in Article 14 § 4, which broadly corresponds to Article 6 of the European Convention, that: “In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.” 49. The above recommendation, adopted by the Committee of Ministers on 17 September 1987, states, inter alia: “The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe, ... Considering that social reactions to juvenile delinquency should take account of the personality and specific needs of minors, and that the latter need specialised interventions and, where appropriate, specialised treatment, based in particular on the principles embodied in the United Nations Declaration of the Rights of the Child; Convinced that the penal system for minors should continue to be characterised by its objective of education and social integration ...; ... Having regard to the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), Recommends the governments of member states to review, if necessary, their legislation and practice with a view: ... 4. to ensuring that minors are tried more rapidly, avoiding undue delay, so as to ensure effective educational action; 5. to avoiding committing minors to adult courts, where juvenile courts exist; ... 8. to reinforcing the legal position of minors throughout the proceedings ... by recognising, inter alia: ... the right of juveniles to respect for their private lives; ...” 50. The age of criminal responsibility is seven in Cyprus, Ireland, Switzerland and Liechtenstein; eight in Scotland; thirteen in France; fourteen in Germany, Austria, Italy and many eastern European countries; fifteen in the Scandinavian countries; sixteen in Portugal, Poland and Andorra; and eighteen in Spain, Belgium and Luxembourg. | 1 |
train | 001-23971 | ENG | AZE | ADMISSIBILITY | 2,004 | GULIYEV v. AZERBAIJAN | 2 | Inadmissible | Christos Rozakis | The applicant, Mr Rasul Guliyev, is an Azerbaijani national, who was born in 1947 and lives in New York, USA. He was represented before the Court by Mr O. Kazimov and Mr H. Sadaddinov, lawyers practising in Baku. The facts of the case, as submitted by the applicant, may be summarised as follows. (a) Criminal proceedings against the applicant. From 1990 to 1993 the applicant held a number of the highest managerial posts in the country's oil sector, including the “Azerneftyağ” Production Union and the State Oil Company of Azerbaijan. For a few months in 1993 he worked as a First Deputy Prime Minister and, later, from 1993 to 1996 he was the Speaker of the Milli Mejlis (the Parliament). In 1996 he resigned from his office, allegedly in protest of the Government's policies, and left the country. While abroad, he founded and led the Democratic Party of Azerbaijan (the “DPA”) with its headquarters in Baku. He currently resides in the United States. As a result of the criminal investigation commenced in 1996, in 1998 the Prosecutor General indicted the applicant for misappropriation of public funds, abuse of power and fraud during his work in the oil companies and in the government. The Prosecutor General sought the applicant's arrest and trial. On 10 October 2000 the Sabail District Court, based on the Prosecutor General's bill of indictment, issued an order for the applicant's detention on remand pending trial. On 17 October 2000 the Court of Appeal upheld the district court's order. However, the applicant was not actually arrested, because he had never returned to Azerbaijan since his departure in 1996. Believing that if he returned home he would be immediately arrested, the applicant lodged, through his lawyer, a petition with the Sabail District Court, asking for the substitution of the detention on remand by a house arrest pending trial. Under this condition, he would agree to return home and stand trial. On 5 July 2002 the Sabail District Court dismissed the applicant's petition. It held that the detention on remand was the proper pre-trial measure, because of the gravity of the alleged crimes, the applicant's continued “escape from the investigation,” as well as the reasonable grounds to believe that the applicant would influence other parties to the proceedings in order to hinder the pre-trial investigation and the trial. The applicant appealed against this decision to the Court of Appeal. On 23 July 2002 the Court of Appeal refused to consider the appeal in substance. In accordance with its interpretation of the domestic criminal procedure law, the court held that no appeal could lie against a first instance court's decision concerning a petition on replacement of a pre-trial detention by a house arrest. At present, the applicant resides in the United States as a political refugee. The criminal proceedings against him are still pending and the order on his detention on remand is still in force. It follows that the applicant would be arrested and detained upon his return to Azerbaijan. (b) Rejection of the applicant's candidacy for the presidential elections. In the summer of 2003 the DPA nominated the applicant as a candidate for the presidential elections of 15 October 2003. However, on 2 July 2003 the Central Election Commission (the “Commission”) rejected the applicant's nomination based on Article 100 of the Constitution and Article 54 § 8 of the Election Code. The DPA filed a lawsuit in the Court of Appeal, requesting the court to quash the Commission's decision as unlawful. On 7 July 2003 the Court of Appeal rejected this request, holding that the Commission's decision was lawful for two reasons. Firstly, it found that the registration documents submitted to the Commission were not properly certified and legalised and, thus, were not in conformity with the Election Code's requirements. Secondly, the applicant failed to submit evidence of the fact that he had no obligation before any foreign state (in his case, the United States). Upon the DPA's further appeal, on 14 July 2003 the Supreme Court upheld the Court of Appeal's decision. Constitution of the Republic of Azerbaijan of 1995 Section II. Fundamentals of the State. According to Article 7, the state power in the Republic of Azerbaijan shall be based on the principle of separation of powers. The legislative, executive and judicial branches of the government shall be independent within the framework of their respective authority. Section V. Legislative Power. In accordance with Article 81, the legislative power shall be exercised by the Milli Mejlis (the Parliament) of the Republic of Azerbaijan. Article 93 authorizes the Milli Mejlis to pass laws, constitutional laws and resolutions on the matters within its competence. Pursuant to Article 94, the Milli Mejlis has competence to establish rules, by way of passing laws, with regard to all the major spheres of state regulation including, inter alia, the human rights and freedoms, elections, judicial system, status of natural and legal persons, civil law issues, criminal responsibility, litigation procedure, enforcement of judgments, family law issues, labour and social security, finance and banking, taxation and customs, communications and transport, commercial transactions, defence and military service, ratification and denunciation of treaties, and the like. Section VI. Executive Power. In accordance with Article 99, the executive power shall be exercised by the President of the Republic of Azerbaijan. Under Article 109, the President is empowered, inter alia, to sign and publish laws passed by the Milli Mejlis as well as deal with matters not expressly referred to the authority of the Milli Mejlis by the Constitution. Article 110 provides the President with a right to veto the laws passed by the Milli Mejlis. The Milli Mejlis may overturn the presidential veto by a qualified majority of votes. In accordance with Article 113, the President shall issue decrees and orders with regard to matters within his competence. Section X. Legislative System. In accordance with Article 149, the laws (legislative acts) of the Milli Mejlis shall have the superior legal authority over any other normative legal acts, except the Constitution and acts adopted by public referendum. The presidential decrees and orders shall not contradict the laws passed by the Milli Mejlis. | 0 |
train | 001-93286 | ENG | BGR | ADMISSIBILITY | 2,009 | VIHRA NIKOLOVA AND OTHERS v. BULGARIA | 4 | Inadmissible | Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Pavlina Panova;Peer Lorenzen;Rait Maruste;Renate Jaeger | The applicants, Ms Vihra Nikolova and her children, Ms Maglena Gorchilova and Mr Danko Nikolov, are Bulgarian nationals who were born in 1923, 1943 and 1950 respectively and live in Sofia. They were represented before the Court by Ms S. Margaritova-Vuchkova, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agents, Mrs N. Nikolova and Mrs S. Atanasova, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. In 1975 the first applicant and her husband purchased from the Sofia municipality a three-room flat covering 106 square metres. The property had belonged to a private person until the nationalisations carried out by the communist regime in Bulgaria in 1947 and the following several years. In February 1993 the heirs of the former pre-nationalisation owners brought proceedings against the first applicant and her husband under section 7 of the Restitution Law. In 1997 the first applicant’s husband passed away. The second and third applicants, being his heirs, became parties to the proceedings. By judgment of 12 June 2001 of the Supreme Court of Cassation the applicants’ title was declared null and void with final effect on the ground that the 1975 contract had not been signed by the mayor personally. It had been signed by another official of the municipality. The proceedings continued as regards other alleged grounds for nullity but were eventually terminated on 8 November 2001 as the plaintiffs did not maintain their claim in this respect. The applicants vacated the flat in October 2001. In April 2003 they were granted the tenancy of a two-room municipal flat which needed renovation. In 2004 the applicants purchased the flat at regulated prices below market value, as applicable for the sale of municipal flats to their tenants. They paid 20,000 Bulgarian levs (approximately EUR 10,200). On 21 December 2001 the applicants filed a request for compensation bonds. In July 2007 the applicants inquired about the examination of their request. On 29 August 2007 the regional governor refused to grant it stating that it had been submitted outside the relevant two-month time-limit. The governor considered that the time-limit ran from 12 June 2001, the date of the final judgment of the Supreme Court of Cassation. Upon the applicant’s appeal, on 14 February 2008 the Sofia Administrative Court quashed the governor’s refusal, accepting that the time-limit had run from 8 November 2001. In May 2008 a court-appointed expert submitted her report according to which the value of the applicants’ former flat, assessed in accordance with the applicable rules, was BGN 81,983 (the equivalent of approximately EUR 42,050). By a judgment of 26 June 2008 the Sofia Administrative Court, noting, inter alia, that the parties had not contested the expert’s assessment, ordered that the applicants should receive compensation bonds for this amount. The relevant background facts and domestic law and practice have been summarised in the Court’s judgment in the case of Velikovi and Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01, and 194/02, 15 March 2007. In May 2007 the Government published regulations implementing section 7 (3) of the Restitution Law (State Gazette no. 37 of May 2007). The regulations enabled persons currently in possession of housing compensation bonds to obtain payment at face value from the Ministry of Finance. | 0 |
train | 001-22260 | ENG | SWE | ADMISSIBILITY | 2,002 | AVETISSOV v. SWEDEN | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Serguei Avetissov, is a Russian national of Chechen origin, who was born in 1971. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant arrived in Sweden on 10 April 2000 but continued immediately to Norway where he was stopped at the border. He applied for asylum but was sent back to Sweden in accordance with the Nordic Passport Control Agreement. He then applied for asylum in Sweden. The applicant claimed that he is an intelligence officer at the Ministry of State Security of Chechnya and that he has taken part in the hostilities between Chechen and Russian forces, including the Chechen defence of the city of Grozny. He stated that he had sent several letters to President Putin and other Russian politicians, protesting against the war and calling the President, inter alia, a bandit and a criminal. He left Russia to escape from the Russian security police which, allegedly, had threatened his life and was searching for him. During the autumn of 1999, he had been arrested by the Russian police and detained in a psychiatric clinic for two weeks. Also, on one occasion, the flat where he lived had been under fire. He continued to send letters to President Putin while waiting for his asylum application to be determined. He maintained that he would be arrested and executed upon his return to Russia. On 15 January 2001 the Migration Board (Migrationsverket) rejected the asylum application and ordered the applicant’s expulsion to Russia. The Board considered that the applicant’s fears were exaggerated and that his political activities were not such as to constitute a ground for asylum or otherwise demonstrate that he was in need of protection in Sweden. The applicant appealed, adding to what he had previously stated that he would risk imprisonment for eight years due to the contents of the letters he had sent. On 21 June 2001 the Aliens Appeals Board (Utlänningsnämnden) rejected the appeal. The Board considered that the letters in question could have given the Russian security police occasion to check the applicant, maybe even to keep him under surveillance. However, no further interest from the security police could be expected. The Board concluded that neither the nature of the applicant’s activities, his possible encounters with the security police nor the possible future trial and sentence under ordinary Russian law for statements made in the letters could be considered as grounds for asylum. On 6 July 2001 the Court indicated to the respondent Government, under Rule 39 of the Rules of Court, that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to expel the applicant to Russia pending clarification of the facts submitted by the applicant. The same day the Court was informed by the Swedish Ministry of Foreign Affairs that the applicant, on 5 July, had returned to Russia voluntarily. Following the Court’s request for certain factual information, under Rule 49 § 2 (a) of the Rules of Court, the respondent Government submitted that the applicant had voluntarily attended a meeting with the Migration Board on 28 June 2001 to discuss his return to Russia. As the applicant expressed hesitation about the return, it was decided that he was to be accompanied to the airport on the day of departure by two officials from the Board. These officials were not authorised to compulsorily enforce the deportation, however. The applicant was at the time staying at one of the Migration Board’s reception centres but was not detained or subjected to other restrictions. On 5 July 2001, at 12.05 p.m., the applicant, who had a valid Russian passport, travelled by plane to St. Petersburg. He was supposed to continue the journey to his home town Vladikavkaz the next day by plane and bus. In reply, the applicant claimed that he was deported to Russia by force. Upon arrival in St. Petersburg he was arrested but he was released after he bribed the border guards. He then returned to Vladikavkaz. By a letter of 4 December 2001 he informed the Court that he had travelled without a visa to Germany, where he was detained with a view to his deportation back to Russia. On 10 January 2002 the District Court (Amtsgericht) of Güstrow prolonged his detention until 21 February 2002. | 0 |
train | 001-88561 | ENG | GBR | ADMISSIBILITY | 2,008 | PATTERSON v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | The applicant, Mr Henry Patterson, is a British national who was born in 1942 and lives in Liverpool. He was represented before the Court by Mr J. Benton, a Member of Parliament for a constituency in Liverpool. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 25 July 1986, leaving two dependant children. His claim for widows’ benefits was made on 11 July 2002 and was rejected on 16 July 2002 on the ground that he was not entitled to widows’ benefits because he was not a woman. This decision was confirmed by an appeal tribunal on 10 February 2003. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law. The applicant was not in receipt of child benefit at the time of his claim. The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007. | 0 |
train | 001-87209 | ENG | POL | CHAMBER | 2,008 | CASE OF PIASKOWSKI AND OTHERS v. POLAND | 4 | Violation of Article 6 - Right to a fair trial | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | 4. The applicants were born in 1947, 1953, 1953 and 1953 respectively and live in Łódź. 5. On 7 December 2001 the Consumer Protection Association (Związek Obrony Konsumentów) acting on behalf of the applicants lodged a claim for payment with the Warszawa Regional Court (Sąd Okręgowy). 6. In a letter of 22 May 2003 the applicants’ legal adviser complained about the delay in the proceedings and asked for a hearing date to be fixed. 7. On 15 December 2003 the court held the first hearing. 8. From January to March 2003 the court held 2 hearings. 9. On 10 February 2004 the Warszawa District Court (Sąd Rejonowy) declared the defendant insolvent. Consequently, at a hearing held on 4 March 2004 the trial court stayed the proceedings ex lege. 10. The proceedings were resumed on 9 May 2007. 11. On 11 May 2007 the Warszawa Regional Court discontinued the proceedings in the case. 12. On 4 February 2005 the Consumer Protection Association acting on behalf of the applicants lodged a complaint with the Warszawa Court of Appeal (Sąd Apelacyjny) under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). 13. The applicants sought a ruling declaring that the length of the proceedings before the Warszawa Regional Court had been excessive. They asked for an award of just satisfaction in the amount of 10,000 Polish zlotys (PLN) (approx. EUR 2,500). 14. On 15 March 2005 the Warszawa Court of Appeal dismissed the complaint. The court found that the 2004 Act produced legal effects as from the date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied. It acknowledged that there had been a delay at the initial stage of the proceedings but found that this situation had ceased to exist when the 2004 Act entered into force. 15. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII. | 1 |
train | 001-89269 | ENG | TUR | CHAMBER | 2,008 | CASE OF ZÖHRE AKYOL v. TURKEY | 4 | Violation of Article 6 - Right to a fair trial | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | 4. The applicant was born in 1958 and lives in Ankara. 5. On 1 November 1990 the applicant had an accident while entering a lift in the Balıkçıoğlu Business Centre in Ankara. The applicant subsequently learned that the lift had been under repair at the material time, despite the lack of any warning signs to this effect in the building, and that the accident had been caused by her attempt to operate the lift under those circumstances. 6. Following the accident the applicant was taken to the Ankara Numune Hospital where she received medical treatment. According to the report drawn up by an orthopaedist in that hospital on 20 August 1991, the applicant suffered a thoracic vertebral fracture as a result of the accident, was unfit for work for 45 days and was required to undergo 180 days of treatment. 7. Criminal proceedings were subsequently brought against the two workers who had been repairing the lift at the time (case no. 1990/986), on charges of causing injury through professional negligence. 8. On 11 March 1993 the Ankara Criminal Court acquitted the workers, holding that they were not responsible for the injuries which the applicant had suffered. 9. The Ankara public prosecutor then brought criminal proceedings before the Ankara Criminal Court of First Instance against the manager and the concierge of the Balıkçıoğlu Business Centre, on charges of causing injury through negligence (case no. 1993/678). 10. Meanwhile, on 8 April 1992 the applicant brought civil proceedings (case no. 1992/284) before the Ankara Civil Court against the management of the Balıkçıoğlu Business Centre and Elmas Elektrik Sanayi Ticaret A.Ş. (the lift maintenance company), seeking compensation for the pecuniary and non-pecuniary damage that she had suffered as a result of the accident. 11. On 4 February 1993 the first-instance court dismissed the case in so far as it concerned the management of the Balıkçıoğlu Business Centre, as the latter had no legal status. 12. Following the decision of 4 February 1993, on 24 May 1993 the applicant brought a second case before the Ankara Civil Court against the owners of the apartments in the Balıkçıoğlu Business Centre and its manager (case no. 1993/452). 13. Case no. 1993/452 was subsequently joined to case no. 1992/284. 14. On 2 February 1994 the Ankara Civil Court ordered that the file concerning case no. 1993/678 be obtained from the Ankara Criminal Court. 15. Between 2 February 1994 and 22 March 1995 the Ankara Civil Court postponed the hearings pending receipt of the aforementioned file. 16. On 22 March 1995, after receiving the file in question, the firstinstance court decided to await the outcome of the criminal proceedings. 17. On 3 March 2000 the applicant’s representative informed the firstinstance court that on 2 November 1999 the criminal proceedings had been terminated as the statutory timelimit under Article 102 of the Criminal Code had expired. 18. Between 3 March 2000 and 21 March 2001, the Ankara Civil Court collected further evidence in the case. 19. On 21 March 2001 the first-instance court decided to send the case file to an expert for an assessment of the amount of pecuniary damage allegedly sustained by the applicant as a result of the accident. 20. On 25 April 2001 the expert submitted his report. 21. Subsequently, on 17 October 2001 the applicant filed a petition with the first-instance court, amending the amount of compensation she had previously claimed, in order to reflect the expert’s findings in his report of 25 April 2001. 22. On 21 May 2002 the Ankara Civil Court ordered Elmas Elektrik Sanayi Ticaret A.Ş. and the owners of the apartments in the business centre to pay compensation to the applicant for the pecuniary and non-pecuniary damage she had suffered. 23. On 12 May 2003 the Court of Cassation quashed the judgment of 21 May 2002. It noted that one of the persons ordered to pay compensation was not an apartment owner in the business centre at the time of the accident and that the first-instance court should have duly established the names of the owners before rendering its judgment. The Court of Cassation further noted that the applicant’s petition of 17 October 2001 should have been served on all the defendants. 24. On 10 December 2003 the Court of Cassation dismissed the parties’ requests for rectification of its decision of 12 May 2003. 25. On 22 March 2005 the Ankara Civil Court rendered a new judgment in the light of the Court of Cassation’s decision of 12 May 2003, ordering Elmas Elektrik Sanayi Ticaret A.Ş. and seven persons who were apartment owners at the time of the accident to pay the applicant compensation in the amount of 3,145,941,990 Turkish liras (TRL), with interest running from 1 November 1990. 26. On 23 June 2005 the Court of Cassation upheld the judgment of 22 March 2005. 27. On 6 December 2007 the applicant received a payment of 21,032.60 new Turkish liras (TRY). | 1 |
train | 001-71692 | ENG | UKR | ADMISSIBILITY | 2,005 | KUKTA v. UKRAINE | 4 | Inadmissible | null | The applicant, Mr Petr Petrovich Kukta, is a Ukrainian national who was born in 1959 and lives in Dniprodzerzhynsk. The facts of the case, as submitted by the parties, may be summarised as follows. On 5 October 2001 the Zavodskyi District Court of Dniprodzerzhynsk ordered the Elektrotekhservice Collective Enterprise, a private company, to pay the applicant UAH 2,623.92 in salary arrears and compensation for pecuniary and non-pecuniary damage. On 7 November 2001 the Zavodskyi District Bailiffs’ Service of Dniprodzerzhynsk instituted enforcement proceedings. On 1 March 2003 the applicant was paid UAH 1,623.92. On 7 October 2004 the Bailiffs’ Service terminated the enforcement proceedings in view of the debtor’s lack of funds. The applicant did not challenge that decision before the domestic courts. The judgment of 5 October 2001 remains partially unenforced (UAH 1,000). In February 2003 the applicant lodged with the Zavodskyi District Court of Dniprodzerzhynsk two separate defamation claims against the newspapers “Litsa” and “Dneprovskaya Pravda”, and a journalist Mrs Z. The applicant sought refutation of the information contained in two articles published by the defendants and compensation for non-pecuniary damage. The applicant failed to provide any further information as to the outcome of these proceedings. | 0 |
train | 001-102393 | ENG | LVA | CHAMBER | 2,010 | CASE OF JASINSKIS v. LATVIA | 2 | Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Non-pecuniary damage - award | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall | 5. The applicant was born in 1933 and lives in Balvi. He is the father of Mr Valdis Jasinskis (“the applicant's son”), a Latvian national who was born in 1962 and who died on 28 February 2005. 6. On 26 February 2005 the applicant's son (who had been deaf and mute since birth) and several of his friends were drinking beer in a bar in Balvi. Witness statements differ somewhat as to how much alcohol the applicant's son consumed that night. After the applicant's son's death, a forensic expert took into the account witness testimonies and used Widmark's equation to arrive at the estimate that, after finishing his last drink, the alcohol concentration in the applicant's son's blood would have been 4.52 ‰, which meant that all traces of alcohol would have left his body approximately thirty hours later. The expert, however, noted that this figure was approximate. The applicant disagreed with the estimate, noting that such a concentration of alcohol would be deadly. 7. After leaving the bar, the applicant's son and his friends walked to a nearby school where a party was taking place. In front of the school entrance M.I. – a minor – pushed the applicant's son, who fell backwards down the stairs in front of the school, hit his head against the ground and lost consciousness for several minutes. The persons present then tried to attract the attention of the security guards, who were inside the school, by knocking on the locked doors. In the process a glass pane of the entrance doors was cracked. It appears from the subsequent investigation that the glass was broken by one of the students of the school. 8. The security guards came outside and saw the applicant's son lying unconscious on the ground. They called an ambulance and the police. After the applicant's son had regained consciousness, the security guards sat him down on the stairs of the school. 9. The police arrived on the scene at 1.40 a.m. They later reported that the applicant's son had been unable to stand up on his own and had been flailing his arms. Upon their arrival the officers were informed that the applicant's son was deaf and mute and that he had fallen down the stairs. They were also told that he was probably responsible for breaking the glass of the entrance doors. 10. The policemen decided not to wait for the ambulance that had been called and took the applicant's son to the Balvi District Police station in order to initiate administrative proceedings for petty hooliganism and public drunkenness. The policemen alleged that in the car on the way to the police station the applicant's son had behaved aggressively and had been flailing his arms and kicking. 11. The record of the administrative detention of the applicant's son indicates that the reason for the detention was to “sober up” the detainee. The only injury that was noted was a graze on his face. The same record also notes that at 5.50 p.m. on the following day the applicant's son was released from detention because he had “sobered up” (but see paragraph 16 below). 12. The policemen alleged that on the premises of the police station the applicant's son had continued to behave aggressively by flailing his arms. The applicant submits that it is probable that his son was trying to communicate with the policemen by using gestures, because they had taken away the notebook he normally used to communicate with persons who did not understand sign language. 13. Shortly afterwards the ambulance crew contacted the police station. The officer on duty informed them that no medical aid was necessary, since the applicant's son was merely intoxicated. He was then placed in the sobering-up room. For a while he kept knocking on the doors and walls but stopped doing so after a while and went to sleep. 14. At 8.40 a.m. in the morning the duty officers tried to wake the applicant's son but he only opened his eyes and, according to the conclusions of the internal investigation of the police, “did not want to wake up”. 15. Approximately fourteen hours after the applicant' son had been brought to the police station (at approximately 3.30 p.m.) one of the policemen considered that he had been “sleeping for too long” and called an ambulance. The doctors apparently refused to take Valdis Jasinskis to a hospital (during the internal investigation the officers reported that the ambulance crew had indicated that he was “faking” and was healthy). The Government dispute that fact, observing that it had not been mentioned in the report on the quality of medical care provided to the applicant's son (see below, paragraph 18). Nevertheless, the fact of the ambulance crew's initial refusal is confirmed by the statements of the police officers who were present at the police station at the time, which have been recounted in several documents, such as the conclusions of the internal inquiry of 4 April 2005 (see below, paragraph 19), the report of the additional internal inquiry of 5 August 2005 (see below, paragraph 22), the 2 November 2005 decision to terminate the criminal proceedings (see below, paragraph 23) and others. 16. The applicant's son was taken to hospital only after repeated requests from his father, who had at that time been informed of his son's arrest and had arrived at the police station. From the reports of the internal investigation it appears that the transfer took place at 5.30 p.m. on 27 February 2005. Upon arrival at the hospital it was noted that the applicant's son was conscious but “non-communicative”. His condition was characterised as “serious” and he was diagnosed with severe intoxication with unknown alcohol surrogates. At 9.10 p.m. the applicant's son lost consciousness and his condition was described as “very serious”. At 11.30 p.m. the medical report was updated to note that the presence of an intracranial haematoma could not be excluded but that because of his condition the patient could not be transported for a CT scan (which was only available at a hospital in Rēzekne, some eighty kilometres from Balvi). The applicant's son died at 2.00 a.m. on 28 February 2005. 17. A post-mortem examination of the applicant's son's body was carried out on 28 February 2005. It disclosed fractures of the frontal, parietal and occipital bones of the applicant's son's cranium, oedema in the brain as well as multiple other injuries to the head and brain. The expert concluded that those injuries had been the cause of death. It was further established that neither the blood nor the urine of the applicant's son contained any traces of alcohol. 18. On 9 May 2005 an expert of the Inspectorate of Quality Control for Medical Care and Working Capability (“MADEKKI”) issued a report on the quality of medical aid provided to the applicant's son before his death. The report noted several shortcomings in the treatment of the applicant's son at the police station. In particular, it was noted that no information was available concerning the health condition of the applicant's son during the time spent in the police station or when he was placed in the sobering-up room. It was further concluded that the ambulance had been called to the police station belatedly. The final conclusion of the report was that the death of the applicant's son was not attributable to any lack of professionalism on behalf of the doctor who had treated him in the hospital but rather to the severity of his injuries. 19. After the death of the applicant's son the Balvi District Police Department launched an internal inquiry. On 4 April 2005 the final report of the inquiry was approved by the head of that department. The report concluded that the policemen present at the police station during the night in question had acted in accordance with the internal guidelines and the legislation governing police work. The report further referred to an article in the local newspaper in which a surgeon had expressed the opinion that injuries such as the ones sustained by the applicant's son were difficult to detect, in particular if the injured person was intoxicated. The final conclusion was that the staff of the department had committed no infractions. 20. On 26 May 2005 an investigator of the Balvi District Police Department adopted a decision to terminate the criminal proceedings against M.I., which had been initiated on 2 March 2005. In this decision several witness testimonies were recounted and some of them seemed to indicate that the security guards who had been on duty during the party at the school had hit the applicant's son in the head with a rubber truncheon. It was also found that upon the applicant's son's arrival at the police station the policemen had noted that he did not have any visible injuries and that he was heavily intoxicated. The decision further remarked that at 5.30 p.m. at the police station a doctor had observed that the applicant's son was conscious and had no traces of having been hit on his body or head. There was some dried blood in one of his nostrils. However, considering that the applicant's son was deaf and mute and thus unable to communicate orally any complaints about his health, he had been diagnosed as being intoxicated with alcohol surrogates and taken to the Balvi hospital. It was further noted that the internal inquiry of the Balvi District Police Department had established that the policemen in charge had not committed any offence. Lastly it was established that M.I.'s actions did not constitute corpus delicti. Therefore, the criminal proceedings concerning the death of the applicant's son were terminated. 21. On 17 June 2005 the Balvi District Public Prosecutor's Office decided to quash the decision of 26 May and remitted the case for additional investigation. Among other things, the public prosecutor indicated that it was necessary to determine whether it would have been possible to correctly diagnose the applicant's son's injuries had he been taken to hospital earlier than he was, whether the police had adequately taken into account the fact that he was deaf and mute, and whether there were any visible external signs of the injuries that eventually caused his death. 22. On 5 August 2005 the head of the Balvi District Police Department approved a report drawn up in the context of an additional internal inquiry that had been prompted by the decision of 17 June. Once again no wrongdoings on the part of the police officers were established. In particular, it was noted that even though an internal police instruction concerning sobering-up rooms prohibited the placement therein of persons with visible physical injuries, the applicant's son did not fall within that category. The report confirmed that his injuries had not been obvious, in that regard referring to the visit of the ambulance crew to the police station at 3.50 p.m. on 27 February 2005, during which no injuries had been noted. 23. On 2 November 2005 the Balvi District Police Department terminated the criminal proceedings for the second time. The decision pointed out, inter alia, that even if the applicant's son had been taken to hospital sooner, it was not certain that he would have received the correct diagnosis due to the absence of a CT scanner and a specialist neurologist at Balvi hospital. It was also established that since the applicant's son's injuries were not visible, the police officers in question had not breached the law. 24. On 8 November 2005 the Balvi District Public Prosecutor's Office decided to quash the decision of 2 November 2005 on the ground that the evidence had not been examined. 25. On 10 November 2005 the Balvi District Police Department decided to terminate the criminal proceedings. The text of the decision was practically identical to that of 2 November 2005. 26. As of 19 September 2006 the applicant was represented by a lawyer. Pursuant to a request by the applicant's representative, on 1 November 2006 a prosecutor of the Office of the Prosecutor General quashed the decision of 10 November 2005 and sent the case to the Bureau of Internal Security of the State Police (Valsts policijas Iekšējās drošības birojs) for continued investigation. The decision of 19 September focused, inter alia, on the actions of the policemen before and after the applicant's son's arrest as well as on the legality and permissibility of his detention as such. It was suggested that the question of the potential liability of the policemen of the Balvi District Police Department for criminal inaction (section 319(2) of the Criminal Law, see below, paragraph 34) needed to be resolved. 27. On 18 January 2007 that Bureau decided to split the criminal proceedings into two parts, one regarding the actions of M.I. and the other concerning the inaction of the Balvi District policemen. The first part was transferred back to the Balvi District Police Department and the second remained with the Bureau of Internal Security. 28. On 7 March 2007 the Balvi District Police Department decided to terminate the criminal proceedings against M.I. due to lack of corpus delicti. The applicant did not appeal against that decision. 29. On 23 August 2007 the Bureau of Internal Security of the State Police decided to terminate the criminal proceedings against the officers of the Balvi District Police Department for want of corpus delicti. During the course of the investigation statements were taken from all five officers who had been present at the police station during the night of the applicant's son's arrest and the following day. The officers who had arrested the applicant's son confirmed that the security guards at the school had informed them that he had fallen backwards down the stairs but they had not waited for the ambulance that had been called because he had behaved in a way that was typical of an intoxicated person and had had no visible injuries. The officers who had been on duty on 27 February 2005 pointed out that they had tried to wake up the applicant's son on several occasions without success, but that after they had eventually succeeded, the applicant's son had gotten up without any help and walked to the reception area of the police station where he had been seen by a doctor who had arrived in an ambulance. The doctor had then allegedly proclaimed that the applicant's son was “faking” and was still drunk. He had only been taken to hospital after the applicant had persuaded the doctor to do so. The decision also pointed out that it was “obvious” that a mistake had been made by the doctors, who had failed to correctly diagnose the applicant's son's injuries before his death. 30. On 26 September 2007 a public prosecutor of the Balvi District Public Prosecutor's Office dismissed the applicant's representative's appeal against the decision of 23 August 2007. 31. On 24 October 2007 a senior prosecutor of the same office rejected the applicant's representative's appeal against the decision of 26 September 2007. In addition to upholding the conclusions of the decision of 23 August 2007, it was pointed out that no causal link existed between the decision of the officers present at the scene to transport the applicant's son to the police station without waiting for the ambulance and the applicant's son's death, since the death had occurred despite the fact that the applicant's son had eventually been placed under medical supervision. 32. In a final decision of 31 January 2008 a senior prosecutor of the Public Prosecutor's Office attached to the Latgale Regional Court dismissed the applicant's complaint about the decision of 24 October 2007. 33. The fifth paragraph of section 5 of the Law on Police provides one of the basic principles for organising the work of the police is safeguarding the health of persons in police custody, which includes carrying out emergency measures to provide medical assistance. The duty of police officers to provide medical and other assistance to injured persons is repeated in section 10(3) of the Law on Police. That section specifically provides for a duty to provide assistance to anyone, even persons who, because of their state of inebriation, have lost the ability to move or who pose a danger to themselves or others. 34. Section 319(2) of the Criminal Law provides that state officials' can be held criminally liable for intentional or negligent failure to perform acts which are compulsory by law or are part of the duties assigned to the official in question. In order to engage criminal responsibility such dereliction of duties has to have caused substantial harm to the state or to the rights and interests of individuals. 35. On 1 February 2004 the Law of Administrative Procedure entered into force. That law, among many other things, provides for a mechanism for complaining about the legality of de facto actions of state institutions to administrative courts. 36. The Law on Compensation for Damage Caused by State Institutions came into force on 1 July 2005. It provides for practical implementation of the rights guaranteed by the Constitution and the Law of Administrative Procedure to receive compensation for damage caused by unlawful administrative acts issued by state institutions or for unlawful de facto actions of those institutions. Pursuant to section 14(3) of that law, the maximum compensation for non-pecuniary damage that can be awarded is 20,000 Latvian lati (LVL) approximately 28,200 euros (EUR). 37. As to the consequences of awarding compensation, section 32 of the Law on Compensation for Damage Caused by State Institutions provides as follows: “1) In order to establish the circumstances that have caused or fostered the infliction of the damage to be compensated, an authority hierarchically superior to the one which has caused the damage shall evaluate each individual case when damage has to be compensated pursuant to a decision of the authority or a court. 2) After evaluating all the circumstances pertinent to the compensation for damage, a hierarchically superior authority shall adopt a decision concerning forwarding the materials in the case file to a competent authority, which shall decide whether the official responsible for causing the damage ought to be held disciplinarily, administratively or criminally responsible.” 38. Section 22 of the Law of Criminal Procedure contains a general principle according to which that Law provides for procedural opportunities for persons who have suffered harm as a result of criminal acts to request compensation for pecuniary and non-pecuniary damage. The specifics of the implementation of that principle are contained in various sections throughout the Law. 39. The general standards contained in the Second General Report [CPT/Inf (92) 3] by the Council of Europe's Committee for the Prevention of Torture (CPT) provide that persons detained by the police should have the right of access to a doctor, including the right to be examined, if the person detained so wishes, by a doctor of his own choice (in addition to any medical examination carried out by a doctor called by the police authorities) (§ 36). Persons taken into police custody should be expressly informed without delay of the above rights (§ 37). The results of the medical examination and relevant statements by the detainee and the doctor's conclusions should be formally recorded by the doctor and made available to the detainee and his lawyer (§ 38). 40. Article 14(2) of the United Nations Convention on the Rights of Persons with Disabilities (“the CRPD”), which entered into force on 3 May 2008, was signed by Latvia on 18 July 2008 and ratified on 1 March 2010, provides as follows: “States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.” 41. The Interim Report of the Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatment or punishment, submitted on 28 July 2008 by the Office of the United Nations High Commissioner for Human Rights to the 63rd session of the General Assembly of the UN (A/63/175) in its paragraphs 50 and 54 provides as follows: “Persons with disabilities often find themselves in ... situations [of powerlessness], for instance when they are deprived of their liberty in prisons or other places ... In a given context, the particular disability of an individual may render him or her more likely to be in a dependant situation and make him or her an easier target of abuse ...” and “The Special Rapporteur notes that under article 14, paragraph 2, of the [Convention on the Rights of Persons with Disabilities], States have the obligation to ensure that persons deprived of their liberty are entitled to 'provision of reasonable accommodation'. This implies an obligation to make appropriate modifications in the procedures and physical facilities of detention centres ... to ensure that persons with disabilities enjoy the same rights and fundamental freedoms as others, when such adjustments do not impose disproportionate or undue burden. The denial or lack of reasonable accommodation for persons with disabilities may create detention ... conditions that amount to ill-treatment and torture.” | 1 |
train | 001-69136 | ENG | POL | CHAMBER | 2,005 | CASE OF SILDEDZIS v. POLAND | 3 | Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award | Nicolas Bratza | 9. On 11 March 1997 the applicant acquired a car – a Renault 21 Nevada - at an auction organised by the Białystok Tax Office. Having subsequently had certain technical defects of the car repaired, the applicant applied to the Białystok Municipal Office for registration. On an unspecified date the Director of the Office refused to do so on the ground that the car was unfit for use and could therefore be used only as scrap-metal. After numerous entreaties of the applicant, the Director orally agreed to register the car on condition that the applicant replaced the engine and a part of the chassis. On 17 March 1997 the applicant requested the Białystok Tax Office to reimburse the costs involved in the acquisition of the new engine and chassis. On 15 April 1997 the Białystok Tax Office declined the applicant’s request on unspecified grounds. Subsequently, the applicant ordered a new engine and chassis and made an advance payment in the amount of PLN 3000. 10. On 20 March 1997 the applicant was served with a decision of the Director of the Białystok Municipal Office refusing his request to register the car. The Director referred to the fact that the identification numbers of the engine and chassis had been forged and that that it was therefore impossible to find out who had owned car before its acquisition by the applicant. Therefore, the car could not be considered as a “recovered stolen car” within the meaning of the Annex No. 7 to the ministerial Order of 12 October 1995 (§ 28 below), which was a prerequisite for obtaining new identification numbers. On 23 April 1997 the Białystok Governor upheld the contested decision on the same grounds. 11. In a letter of 5 May 1997 the Warsaw-Śródmieście District Prosecutor expressed regret for the administrative authority’s refusal to register the applicant’s car and remarked on the lack of consistency in the interpretation of the relevant provisions by the authorities handling the applicant’s case. He also suggested that the applicant request the prosecuting authorities, in their capacity as guardians of legal order, to join administrative proceedings on his behalf. On 7 May 1997 the Białystok Municipal Office informed the applicant that pursuant to the relevant regulations a car of unknown origin could not be registered. 12. On 3 July 1997 the Białystok District Prosecutor refused to institute proceedings against the public servants who had issued the administrative decisions in the applicant’s case, finding that they had no case to answer. 13. In reply to the applicant’s request, on 27 August 1997 the Ombudsman refused to act on his behalf, considering that the law only allowed new identification numbers to be engraved and the registration to be obtained on conditions which were not met in the applicant’s case. 14. On 8 September 1997 the Warszawa-Śródmieście District Prosecutor informed the applicant that the car in question, being “the subject of a criminal offence”, had been handed over to the Białystok Tax Office on the basis of a decision concerning exhibits, with a view to selling it at an auction under §§ 1 and 4 of the Regulation of the Council of Ministers of 6 March 1971 (§ 27 below). 15. On 2 October 1997 the Supreme Administrative Court quashed the decisions of 20 March 1997 and 23 April 1997. It found that the administrative authorities had failed to provide any reasons for their refusal of registration. In respect of the new chassis and engine identification numbers, the court noted that a conclusion as to whether “the stolen car has been recovered” had to be based on the final decision given either in the investigative or in the judicial proceedings. 16. By a decision of 13 February 1998 the Białystok Municipal Office stayed the proceedings concerning the permit to engrave new car identification numbers until the question whether the car had been “recovered” within the meaning of the applicable law was settled. 17. By a letter of 17 March 1998 to the Białystok Municipal Office, the Warsaw-Śródmieście District Prosecutor expressed the opinion that, in view of the fact that the Białystok Tax Office had been the legitimate vendor and the applicant, who had purchased the car in good faith, was its legitimate owner, there was no reason for a further delay in registering the car. In reply, the Białystok Municipal Office informed the prosecutor on 31 March 1998 that there was no possibility of registering a vehicle of unknown origin, that is, one lacking original factory numbers. 18. In a letter to the applicant dated 7 May 1998 the Białystok Appellate Prosecutor considered that there were no grounds on which disciplinary proceedings could be instituted against the Białystok prosecutors. All the same, he acknowledged that the case was “a complex one.” It could not be denied that the applicant was a legitimate owner of the car which he had purchased from a legitimate vendor. In the prosecutor’s view, the difficulty in registering the car stemmed from deficiencies in the legal provisions in specifying the necessary conditions that had to be fulfilled for a car to be registered. These conditions were defined by the Regulation of the Minister of Transport and Maritime Economy of 1 February 1993 (§ 27 below). He further observed that, according to the Supreme Administrative Court’s opinion expressed in the judgment of 2 October 1997, a final decision given either in the investigative or in the judicial proceedings, stating that the car had been stolen, should provide a sufficient basis for its registration (§ 15 above). 19. On 29 May 1998 the Białystok District Prosecutor informed the applicant that there were no grounds for instituting criminal proceedings against the public servants at the Białystok Municipal Office, because it had not been shown that when acting in the applicant’s case they had abused their powers. As for the charge of lack of diligence, this could not be proceeded with, given that the applicant had not suffered pecuniary damage which was sufficiently serious, that is in an amount exceeding 50 average salaries. On the same date the Białystok District Court rejected the applicant’s civil claim against the State Treasury for a declaratory judgment. The court considered that the applicant’s ownership was not in dispute. Nonetheless, the claim to establish that the car met the legal requirements for its registration could not be examined by a civil court. This would constitute an unacceptable way of controlling the lawfulness of an administrative decision, and it was only the Supreme Administrative Court which had jurisdiction to do so. 20. On 15 June 1998 the Białystok Regional Prosecutor requested the Minister of Transport and Maritime Economy to consider the possibility of granting the applicant, by way of exception, a permit for engraving new car identification numbers. It was argued that in all likelihood the car had been stolen by someone in obscure circumstances to the detriment of an unknown person and subsequently handed over to the tax office to be sold. The fact that the applicant could not be granted the permit to have new car identification numbers engraved had adversely affected his property rights in a manner which, give could not be accepted. This request was later refused by a decision of 24 November 1998. 21. By a decision of 6 August 1998 the Białystok Regional Court quashed the decision of 29 May 1998 given by the Białystok District Court (§ 19 above), considering that since the applicant had not specified his claim, the question whether the civil courts had jurisdiction to entertain his case remained open. By a decision of 14 October 1998 the Białystok District Court rejected the applicant’s civil claim on the same grounds as those relied on in its first decision of 29 May 1998. 22. On 17 December 1998 the Białystok District Court dismissed the applicant’s new claim against the State Treasury for a declaratory judgment, considering that a claimant in declaratory civil proceedings could request the court to determine the existence of a right or of a legal relationship, but that it was not open to the claimant to seek findings of fact in such proceedings. 23. On 23 January 1999 the Warsaw District Prosecutor discontinued the proceedings, instituted at the applicant’s request, concerning the theft of the car and the forging of its identification numbers, on the ground that the perpetrator of the offence was unknown. By a decision of 8 March 1999 the Białystok Municipal Office refused the Białystok Regional Prosecutor’s request to resume the stayed proceedings concerning the permit for engraving new car identification numbers (§ 16 above), considering that the original factory car numbers had not been conclusively established. On 18 March 1999 the Białystok Regional Prosecutor lodged an appeal against this decision with the Regional Self-government Board of Appeal, submitting that since a preliminary question concerning the theft of the car had already been determined, the administrative authority was obliged to register the car. By a decision of 22 March 1999 the Board allowed the appeal and quashed this decision. 24. On 15 April 1999 the Białystok Municipal Office again refused to grant the applicant a permit for engraving new identification numbers, concluding that the car could not be considered “recovered by the owner or by an insurance company” since its factory numbers and the original owner had not been established in the course of the investigation. The applicant and the Białystok Regional Prosecutor appealed. The Prosecutor, in his appeal of 5 May 1999, referring to the failure to establish the original owner of the car and its factory numbers, expressed the opinion that the Annex No. 7 to the Order of the Minister of Transport and Maritime Economy of 12 October 1995 did not lay down such a requirement for registration and that therefore the first-instance organ had failed to interpret it correctly. 25. On 3 July 1999 the Białystok Self-government Board of Appeal quashed the impugned decision and referred the case back to the first-instance organ for re-examination, observing that the request should be examined in the light of a new legal situation which had in the meantime changed as a new Regulation had been enacted (see § 29 below). 26. By a decision of 19 July 1999 the Białystok Municipal Office consented to the engraving of new car identification numbers and, as a consequence, registered the applicant’s car. 27. Pursuant to §§ 1 and 4 of the Regulation of the Council of Ministers of 16 March 1971 (Rozporządzenie Rady Ministrów z dnia 27.031971 w sprawie orzekania o przejściu depozytów na własność Państwa) courts, prosecutors, administrative authorities, state authorities, state enterprises and banks are entitled to decide on the seizure of unclaimed objects by the State. Those objects, the prolonged storage of which would create a risk of destruction or a substantial loss in value, or the storage of which would be too costly or whose non-use would be against the public interest, shall be sold. The relevant part of the Regulation of the Minister of Transport and Maritime Economy of 1 February 1993 on technical conditions and examination of vehicles (Rozporządzenie Ministra Transportu i Gospodarki Morskiej z 1.02.1993 w sprawie warunków technicznych i badań pojazdów) provided: “§ 10. Every vehicle must be equipped with 1) a plate affixed permanently in a easily accessible place, indicating at least: .... c) the vehicle identification number (VIN), this number should also be engraved on the chassis (bodywork) of a car, ...” 28. Annex No. 7 to the Order of the Minister of Transport and Maritime Economy of 12 October 1995 - Instruction on allocating and engraving chassis (bodywork) numbers and car engines numbers and on manufacturing substitute plates (Załącznik nr 7 do zarządzenia Ministra Transportu i Gospodarki Morskiej z 12.10.1995 - Instrukcja w sprawie nadawania i wybijanaia numerów na podwoziach (nadwoziach) i silnikach oraz wykonywania tabliczek zastępczych) reads as follows: “§ 2.1. New [identification] numbers shall be allocated and engraved with the permission of the relevant registering authorities only in the following cases: ...... 4) where the chassis (bodywork) numbers or engine numbers of a recovered stolen car have been obliterated or forged.” 29. The Regulation of the Minister of Transport and Maritime Economy of 19 June 1999 on registration and identification of vehicles (Rozporządzenie Ministra Transportu i Gospodarki Morskiej w sprawie rejestracji i oznaczania pojazdów 19.06.1999) which entered into force on 1 July 1999 provides that the owner of a car to be registered is not required to submit a certificate of registration (of a car that has been already registered) or a vehicle card (if it has been already issued) in a case where the car has been purchased at a public auction or from a person executing an order for forfeiture of the vehicle to the State Treasury. | 0 |
train | 001-23031 | ENG | IRL | ADMISSIBILITY | 2,003 | NEE v. IRELAND | 2 | Inadmissible | Georg Ress | The applicant, Mr Gary Nee, is an Irish national, who was born in 1974 and lives in London. He was represented before the Court by Ms E. Joyce of James B. Joyce & Co., solicitors practising in Galway, Ireland. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s father (PK) and mother were not married when he was born and did not subsequently marry. PK did not have any other children. PK died intestate on 21 November 1987, leaving an estate with a net value of IR£ 32,641.26. On 24 May 1988 the applicant’s solicitor wrote to the solicitor acting for PK’s parents pointing out that the applicant was PK’s son and noting that in May 1975 PK had paid a lump sum to the applicant’s mother in response to her maintenance requests. The applicant’s solicitor requested a declaration recognising PK as the applicant’s father. It was accepted that under Irish law the applicant could not, as a child born outside wedlock, inherit on his father’s death intestate (O’B v. S (1984 IR 316)). However, he wished to complain to this Court about that unequal treatment and, in default of receiving the requested declaration, the applicant would issue proceedings to obtain a declaration of paternity from the courts. In June 1988 the applicant’s solicitor received a negative response to his request. Letters of administration were granted to the deceased’s brother on 17 May 1989. On 26 June 1989 the applicant’s solicitor wrote to the Chief State Solicitor requesting a declaration recognising that the applicant was PK’s son so that the applicant could take a case to this Court about the differing treatment on intestacy of children, in default of which the applicant would issue proceedings. On 30 June 1989 the Chief State Solicitor responded that according to section 35 of the Status of Children Act 1987 (“the 1987 Act”) the Attorney General, for whom the Chief State Solicitor acted, could only be introduced to the proceedings by way of court order without which the Attorney General had no role in the matter. On 7 December 1989 the applicant issued proceedings in the Circuit Court against PK’s mother and against the Attorney General. He claimed that his inability to inherit on intestacy was discriminatory and that he was desirous of bringing proceedings before the European Court of Human Rights. He sought a declaration, pursuant to section 35 of the 1987 Act or pursuant to the equitable jurisdiction of the Court, to the effect that PK was his father. In May 1990 an order was made striking out the applicant’s claim against the Attorney General and identifying the Administrator of PK’s estate as the sole appropriate defendant. By letter dated 30 May 1990 to the Chief State Solicitor, the applicant put the Attorney General on notice that the terms of any declaration of parentage would be relied on by him in an application before this Court. On 1 May 1991 the applicant issued amended proceedings in accordance with the court order of May 1990. The applicant was unsuccessful before the Circuit Court and appealed to the High Court. In December 1993 the High Court ordered that blood samples be taken from the applicant and from PK’s mother and brother. The matter was finally heard on 30 January 1998 and, by judgment delivered on that day, the High Court declared, pursuant to section 35 of the 1987 Act and to its equitable jurisdiction, that PK was the father of the applicant. It ordered the Administrator of the estate of PK to pay to the applicant the costs of the proceedings. At common law, an “illegitimate” child had no succession rights to either of his parents. The Legitimacy Act 1931 gave an “illegitimate” child and his mother limited reciprocal succession rights on the other’s intestacy. The Succession Act 1965 did not change the position. Section 67 of the 1987 Act provided that the estate of a deceased is to be distributed in specified portions between any surviving spouse or “issue”. By judgment of 20 January 1984 (O’B v. S (1984 IR 316)), the Supreme Court found that the word “issue” did not include children who were not the issue of a lawful marriage, the latter having therefore no right to inherit on the intestacy of a natural parent. It also found that sections 67 and 69 of the 1965 Act did not infringe the principle of equality guaranteed by Article 40(1) of the Irish Constitution. The 1987 Act was enacted on 14 December 1987 and came into force on 14 June 1988. The purpose of this legislation was to equalise the rights of children whether born within or outside marriage and Part V of the 1987 Act makes the relevant amendment to the law relating to, inter alia, succession on intestacy. Upon the death intestate of a parent, a non-marital child would have the same intestacy rights as a child born to married parents. Section 29(5) of the 1987 Act makes it clear that the changes to the rights of inheritance on intestacy of children brought about by the 1987 Act “shall not affect any rights under the intestacy of a person dying before the commencement of Part V” of the 1987 Act. | 0 |
train | 001-117877 | ENG | TUR | COMMITTEE | 2,013 | CASE OF MEHMET SALİH UÇAR v. TURKEY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | András Sajó;Nebojša Vučinić;Peer Lorenzen | 4. The applicant was born in 1965 and lives in Batman. 5. In October 2000 the applicant lodged a case with the Diyarbakır Administrative Court against the Ministry of Interior for the annulment of an administrative decision refusing his request for compensation of disability. 6. On 20 October 2000 the court issued a decision of non-jurisdiction and transferred the case to the Ankara Administrative Court, which dismissed the applicant’s claim on 10 March 2003. 7. On 22 March 2005 the Supreme Administrative Court upheld the judgment of 10 March 2003. 8. On 12 July 2006 the applicant’s request for rectification introduced on 25 March 2005 was rejected by the Supreme Administrative Court. 9. On 24 August 2006 the judgment was notified to the applicant. | 1 |
train | 001-108250 | ENG | HUN | COMMITTEE | 2,011 | CASE OF JANOS TOTH v. HUNGARY | 4 | Violation of Art. 6-1 | András Sajó;Paulo Pinto De Albuquerque | 4. The applicant was born in 1951 and lives in Budapest. 5. In or about November 1993 the applicant and his wife brought an action against several respondents before the Budapest XVIII/XIX District Court, seeking ownership of a real estate and protection against trespass. 6. The District Court held numerous hearings between 27 June 1994 and 29 June 1995. 7. On 5 July 1995 the District Court delivered a partial judgment, dismissing the plaintiffs’ claim for protection against trespass. This decision was upheld on appeal by the Budapest Regional Court on 13 March 1996. 8. On 8 June 1998 the District Court appointed an expert who filed an opinion on 29 November 1998. 9. The final first-instance judgment was delivered on 14 September 1999. On appeal, the Budapest Regional Court decided the case on 20 March 2002. 10. The applicant lodged a petition for review with the Supreme Court. It quashed the previous judgments and remitted the case to the first-instance on 25 April 2005. 11. In the resumed proceedings the applicant notified the domestic courts that one of the respondents had died on 2 November 2002. On 22 February 2006 the Supreme Court thus established that the review proceedings had been discontinued on this account, and annulled its previous judgment of 25 April 2005 (see paragraph 10 above). The same day, the Supreme Court remitted the case to the first-instance. 12. Between 16 October 2007 and 12 March 2008 the proceedings were stalled because the applicant did not cooperate with a court-appointed expert. 13. On 16 May 2008 the case was transferred to the Buda Central District Court, due to bias of the judges at the Pest Central District Court. 14. On 12 December 2008 the latter court delivered a partial judgment. On 13 November 2009 the Budapest Regional Court held a hearing on appeal. It appears from the documents available in the case file that the case is still pending before the Regional Court. | 1 |
train | 001-75437 | ENG | ITA | CHAMBER | 2,006 | CASE OF FODALE v. ITALY | 1 | Violation of Art. 5-4;Pecuniary damage - claim rejected;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Corneliu Bîrsan;Egbert Myjer;John Hedigan;Lucius Caflisch;Vladimiro Zagrebelsky | 7. The applicant was born in 1947 and lives in Trapani. He is an oil producer. 8. On an unspecified date criminal proceedings were brought against the applicant, who was charged with attempted extortion, attempted arson and arson, and (under Article 416 bis of the Criminal Code) with being a member of a mafia-type criminal association based in Sicily. 9. By an order of 12 July 1999, the Palermo preliminary investigations judge (giudice per le indagini preliminari), considering that there were “substantial indications” of the applicant’s guilt, remanded him in custody. As to the existence of special requirements (esigenze cautelari) justifying his detention pending trial under Article 274 of the Code of Criminal Procedure, the preliminary investigations judge observed that on account of his involvement in a criminal organisation the applicant had contacts which might enable him to reoffend, abscond, or pervert the course of justice. Moreover, given that the applicant had also been charged with the offence provided for under Article 416 bis of the Criminal Code, the requirements referred to in Article 274 of the Code of Criminal Procedure were to be presumed to have been met unless there was proof to the contrary. 10. The applicant appealed against the order of 12 July 1999. 11. By an order of 2 August 1999, the division of the Palermo District Court responsible for reviewing precautionary measures (“the Specialised Division”), finding that the preliminary investigations judge had not correctly assessed the evidence of the applicant’s guilt, set aside the order of 12 July 1999 and ordered the applicant’s release. 12. The public prosecutor’s office appealed on points of law. It alleged in particular that the Specialised Division had given the reasons for its decision in an illogical and contradictory manner. 13. The Court of Cassation set the case down for a hearing on 15 February 2000. No summons to appear was served on the applicant or his lawyer. 14. The hearing was held on the scheduled date. 15. In a judgment of 15 February 2000, the Court of Cassation quashed the order of 2 August 1999, finding it to have been illogical and contradictory. It remitted the case to the Specialised Division, indicating the legal principles to which the Division should adhere. 16. The Specialised Division set the case down for a hearing on 4 April 2000. On that date Mr Oddo sought leave to produce additional evidence. He also argued that the judgment of 15 February 2000 was null and void as he had not been informed of the date of the hearing. He alleged that Article 627 § 4 of the Code of Criminal Procedure, which provided that grounds of nullity that had not been examined previously could not be submitted before the court to which the case was remitted, breached the rights of the defence. Consequently, he requested that the provision in question be waived. 17. The Specialised Division agreed to the inclusion of the new evidence requested by Mr Oddo. Relying on Article 627 § 4 of the Code of Criminal Procedure, it dismissed the objection that the judgment of 15 February 2000 was null and void. 18. On 13 April 2000 the Specialised Division upheld the preliminary investigations judge’s order of 12 July 1999 in respect of two of the charges and set aside the remaining provisions. 19. The applicant was then arrested and remanded in custody. 20. On 15 May 2000 the applicant appealed to the Court of Cassation, again claiming that the judgment of 15 February 2000 was null and void, and alleging that Article 627 § 4 of the Code of Criminal Procedure was unconstitutional and breached the rights of the defence. 21. In a judgment of 11 December 2000, the Court of Cassation, considering that the decision appealed against had been logically and properly reasoned, dismissed the applicant’s appeal on points of law. It considered manifestly ill-founded the objection that Article 627 § 4 of the Code of Criminal Procedure was unconstitutional. 22. In the meantime, in a judgment of 20 July 2000, the Palermo preliminary hearings judge (giudice dell’udienza preliminare) had convicted the applicant. The length of the sentence is not known. 23. The applicant lodged an appeal. 24. In a judgment of 17 May 2001, the Palermo Court of Appeal acquitted the applicant on the ground that he had not committed the offences with which he had been charged (per non aver commesso il fatto). 25. The public prosecutor at the Palermo Court of Appeal lodged an appeal on points of law, which was dismissed in a judgment of 23 May 2002. The applicant’s acquittal thus became final. | 1 |
train | 001-98471 | ENG | BGR | CHAMBER | 2,010 | CASE OF KABAKCHIEVI v. BULGARIA | 4 | Violation of Art. 6-1;Violation of Art. 13+6-1 | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 5. The applicants were born in 1917, 1947 and 1957 respectively and live in Sofia. 6. In 1993 the heirs of the pre-nationalisation owners of an apartment, purchased by the first applicant's husband from the State in 1968, brought an action for restitution against the latter, seeking a declaration that the 1968 transaction had been null and void and that therefore the apartment should be restored to its original owners before the nationalisation. 7. On 18 October 1995 the Sofia District Court granted the restitution claim. 8. On appeal, on 14 July 1997 the Sofia City Court quashed the District Court's judgment and dismissed the claim of the pre-nationalisation owners' heirs. 9. The heirs of the pre-nationalisation owners submitted a petition for review (cassation). 10. By a final judgment of 22 February 1999 the Supreme Court of Cassation quashed the Sofia City Court's judgment and upheld the District Court's judgment. As a result, the title of the first applicant's husband to the apartment at issue was declared null and void. 11. The number of hearings held in the course of the proceedings is not clear. 12. On 6 May 1999 the first applicant's husband died. The first applicant and her two sons (the second and third applicants) were his heirs. 13. On 20 May 1999 the first applicant, who had not been a party to the 1993-1999 proceedings, submitted a request for reopening, stating that in accordance with the Code of Civil Procedure she should have been cited as a party since she was the owner of one half of the apartment at issue and the judgment of 22 February 1999 was binding on her. 14. The second and third applicants also became parties to these proceedings as they replaced their deceased father, being his heirs. 15. By a judgment of 30 January 2001 the Supreme Court of Cassation quashed the judgment of 22 February 1999, reopened the case and remitted it to another panel of the Supreme Court of Cassation. The court found that, in violation of the relevant provisions of the Code of Civil Procedure, the first applicant had not taken part in the 1993-1999 proceedings. 16. At least two hearings were held before the Supreme Court of Cassation - one on 15 May 2001 and one on 6 November 2001, the first of them was adjourned upon the first applicant's request. 17. By a judgment of 13 November 2001 the Supreme Court of Cassation quashed the judgment of 14 July 1997 and remitted the case to the Sofia City Court for new examination. 18. The first hearing before the City Court was scheduled for 27 May 2002 and was adjourned upon the first applicant's request. The following hearing was held on 6 February 2003. At least three more hearings were held - on 13 March 2003, 20 November 2003 and 9 February 2004, the first of which was adjourned because the third applicant had not been properly summoned as his address had changed. 19. On 1 March 2004 the Sofia City Court quashed the Sofia District Court's judgment of 18 October 1995 and decided to refer the case for renewed examination by the Sofia District Court. 20. On an unspecified date in March or in April 2004 the heirs of the pre-nationalisation owners appealed before the Supreme Court of Cassation, which held a hearing on 11 March 2005. By judgment of 24 March 2005 the Supreme Court of Cassation quashed the lower court's judgment, as the reopened case fell to be examined by the Sofia City Court. 21. The Sofia City Court held a hearing on 14 November 2005. 22. On 9 January 2006 the Sofia City Court found that the 1968 transaction was null and void, having regard to the fact that the apartment at issue had largely exceeded the applicants' family's needs as determined by the relevant housing regulations. 23. On 21 February 2006 the applicants appealed. The first hearing was scheduled for 18 April 2007 but was adjourned upon the first applicant's request. Another hearing was held on 20 June 2007. 24. By a judgment of 9 July 2007 the Supreme Court of Cassation upheld the previous court's judgment. 25. Until July 1999 Bulgarian law did not provide for any remedies in respect of length of civil proceedings. 26. A new procedure, “complaint about delays”, was introduced in July 1999, by virtue of Article 217a of the Code of Civil Procedure 1952, in force until 2007. Pursuant to this procedure, a litigant aggrieved by the slow examination of the case could file a complaint before the president of the higher court. The latter had the power to issue mandatory instructions for faster processing of the case. | 1 |
train | 001-97859 | ENG | MKD | ADMISSIBILITY | 2,010 | JOVANOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger | The applicant, Mr Dimče Jovanov, is a Macedonian national who was born in 1976 and lives in Krupishte. He was represented before the Court by Mr P. Dokuzov, a lawyer practising in Štip. 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 17 June 2003 the public prosecutor requested an investigating judge of the Štip Court of First Instance (“the trial court”) to open investigations against Mr T.A., Mrs S.A., Mr A.P., Mr A.A. and the applicant on account of having been in possession of weapons and explosives (недозволено држење на оружје и распрскувачки материјали). He also requested that the accused be examined and remanded in custody. On the same date, the investigating judge examined the accused. The applicant stated, inter alia: “... Yesterday, while I was walking through the city, I met with R. [the first name of Mr Dz., as established in the course of the domestic proceedings, later referred to as Mr R.Dz.], an acquaintance of mine, last name and address I don’t know, who told me that he needed explosives to kill fish. I told him that I knew a person, Mr A.P., who knew a third person who could provide explosives. R. suggested me that that person could bring the explosives firstly to the V.P. petrol station and then in the village of Tri Češmi ... I hired a taxi and went to meet Mr A.P. ... I told him about the potential buyer, without specifying the quantity and price of the required explosives. It was something for him to agree upon with R. Mr A.P. accepted ... I called Mr A.A. to ask him, if possible, to come in his car ... I stayed in the village of D. Balvan in order to meet with R. whom I met at the petrol station. We stayed there for half an hour, until Mr A.P. and Mr A.A. arrived. We had a coffee ... when Mr A.A. and Mr A.P. arrived, I got into the car and continued towards Tri Češmi. There, we were stopped by police. They also stopped the car, which R. had got into at the petrol station, but they let it go on straight away. They searched our car and found the explosives ...” Mr A.P. stated, inter alia: “... We (the applicant and I) are former schoolmates ... we often see each other ... yesterday at around 1 p.m. [the applicant] came to my house in a taxi and told me that he had found a customer for the explosives ... He called Mr A.A. from my phone asking him to come in his car ... [The applicant] did not want to come with us to Zletovo village, but said that he would wait at the V.P. petrol station where he would meet the buyers ... When we arrived at the petrol station, [the applicant] joined us and told us to follow a car ... [The applicant] promised me 100 German marks (DEM) as a reward for my part ...” Mr A.A. stated, inter alia: “... At around 10 or 11 am. on 16 June 2003, [the applicant] came into my shop asking for a favour, namely to transfer him to a place, without specifying where and for what purpose. He left and at around 2 pm. he called me again. I told him to call back in fifteen minutes... [The applicant] called me on my mobile phone ... it was around 2.20 p.m. when [the applicant] called me again. I took my car and went in the village of G. Balvan. There, [the applicant] and .... Mr A. waited for me. While he was driving [the applicant] said that something had come up, that I would have to leave him in the village of D. Balvan, but that I would have to take Mr A. on to Zletovo and that he would pay me for the petrol... When we arrived at the petrol station, [the applicant] was waiting for us in the restaurant alone. He joined us in the car. I immediately started to argue with him, asking why he had not told me about the matter. With a smile on his face he told me: ‘don’t worry mate, I’m with you. I just want to ask for one more favour: to take us with the explosives to Tri Češmi. Mr A. and I will go on and you’ll go back and we’ll pay for the petrol...” On 26 June 2003 the public prosecutor filed an indictment with the trial court against Mr T.A., Mrs S.A., Mr A.P., Mr A.A. and the applicant. The applicant was charged with acting as an accomplice in concert with Mr A.P. and Mr A.A. and with obtaining explosives with the intention of selling them to an unknown buyer. According to depositions taken on 23 June 2003 in the pre-trial proceedings, the applicant, who was assisted by counsel, confirmed his statement of 17 June 2003. At a hearing of 18 July 2003, the trial court examined all the co-accused, including the applicant. Mr A.P. stated, inter alia: “... [the applicant] engaged Mr A.A. [The applicant] knew that Mr A.A. and I would buy explosives from Zletovo. [The applicant] knew who the buyers were, but I did not ...” The applicant confirmed his statements given in the pre-trial proceedings. Asked by his representative, he stated that he would not have taken part in any of the activities had it not been for R., who had incited him to find explosives. In his concluding remarks, the applicant’s representative stated that R., acting as an agent provocateur, had instigated the offence. He further argued that the prosecution had failed to secure R.’s attendance at the trial so that evidence could be taken from him. On 21 July 2003 the trial court found the applicant guilty and sentenced him to one year’s imprisonment. It established that Mr T.A. had taken explosives in 2001 from a mine where he had worked. On the morning of 16 June 2003, the applicant had agreed with Mr A.P. and Mr A.A. to sell the explosives to R. The transaction was supposed to take place in the village of Tri Cesmi. The same day, Mr A.P. and Mr A.A. went to Mr T.A.’s house and obtained the explosives from the latter’s wife, Mrs S.A. They put the explosives in their car and drove towards Stip. The applicant joined them in the car at the V.P. petrol station near Stip. They were stopped by police on their way to the village of Tri Cesmi, where the sales transaction, which had earlier been agreed between the applicant and R., should have taken place. Mr A.A. was driving the car and the explosives were found behind the right-hand front seat. The police issued Mr A.P. with a receipt for temporarily seized objects (потврда за привремено одземени предмети). The trial court stated that evidence of the alleged crime was provided by the statements of Mr T.A., Mr A.P. and the applicant and by the actual actions taken by each of them. The court also referred to documentary evidence, namely two expert reports, several search reports, photo evidence and the explosives and detonators found. The trial court rejected the applicant’s allegations of being entrapped by an agent provocateur as “ill-founded” and “irrelevant”. On 11 September 2003 the applicant, through his representative, complained that, inter alia, the trial court had not provided reasons for rejecting his request to examine the key witness on his behalf, namely the agent provocateur. He argued that there was considerable evidence that he had been incited by a police informer to uncover the person who was able to obtain explosives, even though the police had already known about the latter. He further alleged that the whole series of events had been planned in advance and monitored by the police. He considered it crucial for the court to establish whether it was the applicant who had approached the police informer of his own accord or whether it was the agent provocateur who had taken the initiative. He regarded it as inhuman for the investigating authorities to have taken advantage of his poor standard of living to ensure a successful police operation. He therefore concluded that the trial court had erred in rejecting his request to examine the buyer whose identity, in fact, he did know. That person was Mr R.Dz. The applicant also provided his address and requested the Court of Appeal to examine him regarding the circumstances surrounding the applicant’s involvement in the crime. At a session (седница) held on 25 February 2004, the Štip Court of Appeal allowed the applicant’s appeal in part and reduced his sentence to a term of eight months’ imprisonment. It upheld the remainder of the trial court’s decision. At the session, the applicant requested acquittal and stated that he would not have had any involvement in the crime had it not been for the agent provocateur. The Court of Appeal established that the fact that no items had been confiscated from the applicant did not rule out his guilt. It further found that evidence adduced by the trial court, namely the statements given by the applicant, Mr A.A. and Mr A.P., together with other evidence, corroborated the contention that the applicant, before arriving at the petrol station, had instructed the other two accused to obtain the explosives with the intention of selling them to the buyer Mr R.Dz., with whom he had arranged the transaction. It concluded, therefore, that the applicant’s defence rights had not been violated. The court further rejected the applicant’s allegations that he had been incited to commit the offence by an agent provocateur, on the grounds that the applicant himself had stated in the pre-trial proceedings that, having been asked by his acquaintance, Mr R.Dz., whether he knew anyone selling explosives, he had offered the latter explosives, which he had said he would secure through another person. The applicant had then agreed to bring the explosives to the petrol station and take them to the village of Tri Češmi afterwards. The court further relied on Mr A.P.’s statement, according to which the applicant had promised him a reward of DEM 100, to be deducted from the selling price of the explosives after the transaction. Finally, the court concluded that the trial court had established all facts relevant to the case and that accordingly, examination of Mr R.Dz., the alleged agent provocateur, was not necessary. On 9 April 2004 the applicant lodged with the Supreme Court an appeal on points of law (барање за вонредно преиспитување на правосилна пресуда). He complained that the lower courts had erred in rejecting his request for examination of the alleged agent provocateur as irrelevant. Relying on Article 6 of the Convention, the applicant complained that the lower courts had failed to consider the arguments in his defence. On 18 May 2004 the Supreme Court dismissed the applicant’s appeal on points of law. It found that the lower courts had adduced sufficient evidence to establish the truth and that the applicant’s arguments had not been such as to undermine their credibility. It further stated that the applicant’s conviction had not been based, as he alleged, on inadmissible evidence. The applicant’s allegations had been examined by the Court of Appeal, which had provided sufficient reasons to satisfy the Supreme Court. As to the applicant’s allegations that there had been a violation of Article 6 of the Convention as his conviction had been based on evidence which could not serve that purpose, namely the evidence of an agent provocateur, the Supreme Court stated: “... the court does not accept this allegation ... given that, in order for there to have been a violation of Article 6 of the Convention concerning the right to a fair trial, the lower courts’ decisions must have been based solely on evidence provided by a socalled agent provocateur. The lower courts’ decisions were not based on any such evidence ... On the contrary, the defence insisted that evidence should be heard from such a witness. The witness in question was not examined and the courts’ decisions were in no way based on statements made by him. The lower courts adduced sufficient evidence and provided sufficient reasons in relation to all the defence arguments. There has, accordingly, been no violation of Article 6 of the Convention.” | 0 |
train | 001-114635 | ENG | GBR | ADMISSIBILITY | 2,012 | KRAJISNIK v. THE UNITED KINGDOM | 4 | Inadmissible | George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva | 1. The applicant, Mr Momčilo Krajišnik, is a Bosnia and Herzegovina national who was born in 1945 and is currently detained at HM Prison Belmarsh. He was represented before the Court by Bhatt Murphy Solicitors, a firm of solicitors based in London. 3. In September 1990 the applicant was elected to the Bosnia-Herzegovina Assembly as a member of the Serbian Democratic Party (“SDS”). In December 1990 he became the President of the Assembly pursuant to a power-sharing agreement between the three principal political parties. 4. In October 1991, the Bosnia-Herzegovina Assembly, in the absence of the applicant, adopted a declaration asserting the sovereignty of BosniaHerzegovina. The SDS subsequently established the Assembly of the Serbian People of Bosnia-Herzegovina (“the Bosnian-Serb Assembly”). The applicant was elected President of the Bosnian-Serb Assembly. He remained President of the Bosnian-Serb Assembly until November 1995. He was also a member of the National Security Council and, from 12 May until 17 December 1992, he was an active member of the Presidency of the Bosnian-Serb Republic. 5. On 21 February 2000 an indictment was first issued against the applicant by the International Criminal Tribunal for the former Yugoslavia (“ICTY”) in the Hague. 6. The applicant was arrested on 3 April 2000 by the Stabilisation Force in Sarajevo and transferred to the Hague on the same day. 7. In an amended indictment dated 7 March 2002 the applicant was charged with eight counts, including genocide and complicity in genocide, persecution, extermination, murder, deportation and inhumane acts. Criminal responsibility was charged under Articles 7(1) and 7(3) of the Statute of the ICTY (see paragraph 30 below). The Prosecutor alleged that the applicant had participated, as a co-perpetrator or aider and abettor, in a joint criminal enterprise which had as its objective the permanent removal, by force or other means, of Bosnian Muslims and Bosnian Croats from large portions of Bosnia-Herzegovina through the commission of the crimes mentioned above. The crimes were alleged to have taken place in all thirty-five municipalities of Bosnia-Herzegovina between 1 July 1991 and 30 December 1992. 8. On 27 September 2006 the Trial Chamber of the ICTY found the applicant responsible, pursuant to Article 7(1) of the ICTY Statute, for participating in a joint criminal enterprise to achieve the permanent removal of Bosnian Muslims and Bosnian Croats from large portions of Bosnia-Herzegovina through the commission of crimes. It convicted the applicant of five counts of crimes against humanity under Article 5 of the ICTY Statute (see paragraph 29 below), namely persecution, extermination, murder, deportation and inhumane acts (forcible transfer). He was sentenced to twenty-seven years’ imprisonment, but granted credit for the time spent in detention, which at the date of judgment amounted to 2,369 days. 9. The prosecution filed an appeal against the applicant’s sentence on 26 October 2006. On 12 February 2007 the applicant filed a notice of appeal arguing that his convictions should be quashed or that a re-trial should be ordered. An amicus curiae was appointed by the Appeals Chamber and, on 8 June 2007, he also filed a notice of appeal arguing for the quashing of the convictions or a retrial. The appeals were heard on 21 August 2008. 10. On 17 March 2009 the Appeals Chamber allowed some of the grounds of appeal lodged by the applicant and by the amicus curiae. It reversed many of the applicant’s convictions for persecution, extermination, murder and deportation. However, it upheld his convictions for crimes against humanity in respect of specific instances of persecution, deportation and inhumane acts (forcible transfer). As to whether a retrial should be ordered, the judgment of the Appeals Chamber noted: “799. ... [T]he convictions for the majority of crimes, of which Krajišnik had been found guilty, have been quashed. However, convictions for persecution, deportation and forcible transfer have been upheld, and the gravity of these crimes requires a severe and proportionate sentence. Therefore, in the circumstances of this particular case, the Appeals Chamber considers that it is not in the interests of justice to remit the case for further proceedings.” 11. The Appeals Chamber considered the various relevant factors set out in Article 24 of the ICTY Statute and Rule 101 of the Rules of Procedure and Evidence (“the Rules”) in determining the appropriate length of sentence (see paragraphs 10-11, 31 and 38 below). It noted inter alia that the crimes of which the applicant had been found guilty were among the most severe crimes known to mankind. It further identified relevant aggravating and mitigating features. The Appeals Chamber imposed a sentence of twenty years’ imprisonment, subject to credit for the time spent in detention, which at the date of the appeal judgment amounted to 3,271 days. 12. The applicant remained in detention in the Hague throughout the trial and appeal proceedings. 13. On 4 September 2009 the applicant was transferred to the United Kingdom to serve his sentence pursuant to an order of the President of the ICTY dated 24 April 2009. His transfer was governed by an agreement between the United Nations and the United Kingdom (“the UN-UK agreement on enforcement of sentences” – see paragraphs 34-37 below). 14. Pursuant to the terms of the agreement, the United Kingdom was bound by the duration of the sentence imposed and the conditions of imprisonment were governed by the law of the United Kingdom, subject to the supervision of the ICTY. 15. The UN-UK agreement on enforcement of sentences and the ICTY Statute provided that the United Kingdom was required to notify the ICTY if, pursuant to its law, the applicant became eligible for early release. The decision on early release would be taken by the President of the ICTY on the basis of the interests of justice and the general principles of law. 16. On 16 March 2010 the ICTY was notified by the United Kingdom authorities that the applicant would be eligible on 2 April 2010 for consideration for release on parole licence, after having served half of his sentence. A Seconded Probation Report dated 24 February 2010, a Sentence Planning and Review Report dated 25 February 2010 and a Prison Assessment for the Parole Board dated 9 February 2010 were attached to the notification. These were forwarded by the ICTY to the applicant for comment. 17. The applicant made submissions in reply, referring to the terms of the ICTY Practice Direction on the procedure for determining applications for pardon, commutation of sentence and early release (see paragraphs 41-42 below). He emphasised that he had been acquitted of charges of extermination, murder, genocide and complicity in murder in breach of the rules and conventions of war. He referred to the sentence imposed on, and time spent in detention by, his co-accused at trial, for the purposes of comparison. He also expressed remorse for the crimes committed and indicated his willingness to co-operate with the ICTY Prosecutor. Finally, he emphasised that his behaviour while in detention had been excellent. 18. The President of the ICTY handed down his decision on the applicant’s early release on 26 July 2010. He noted at the outset that although the applicant had served more than half of his sentence, it was the practice of the ICTY to consider convicted persons to be eligible for early release when they had served at least two thirds of their sentences. In the applicant’s case, this would be on 3 August 2013. 19. The President examined each of the factors set out in the Practice Direction on early release in turn. As regards comparison with similarly-situated prisoners, he rejected the applicant’s suggestion that the case of his co-accused supported his early release, observing that his co-accused had, unlike the applicant, entered into a plea agreement with the prosecution and had served at least two thirds of her sentence when she was released. 20. As regards the gravity of the applicant’s crimes, the President referred to the Appeals Chamber’s finding that the convictions were among the most severe crimes known to mankind and that their gravity required a severe and proportionate sentence. He concluded that the very high gravity of the applicant’s offences was a factor that weighed against his early release. 21. In so far as rehabilitation was concerned, the President reviewed the applicant’s behaviour while in prison, his statements of remorse and the information he had provided regarding his plans post-release. He found that the applicant had demonstrated some rehabilitation, which militated in favour of his early release. 22. Finally, concerning cooperation with the Prosecutor, the President found the applicant’s assertion that he had assisted the Prosecutor by providing documents and encouraging officials to give statements to be unsubstantiated. It could not therefore be considered a positive factor in respect of his early release. The applicant’s willingness to assist post-conviction was, in the absence of any instance where his assistance had been requested, found to be a neutral factor. 23. The President concluded: “33. While Mr. Krajišnik has displayed some evidence of rehabilitation, I am of the view that there remain significant factors that weigh against granting him early release. Mr. Krajišnik’s crimes are of a very high gravity, involving a widespread displacement of the non-Serb population in Bosnia and Herzegovina, which caused great suffering. Moreover, in respect of the requirement that the President shall take into account the treatment of similarly-situated prisoners, the practice of the Tribunal is to consider the eligibility of a convicted person only after he has served two-thirds of his sentence; therefore, the fact that Mr. Krajišnik has only recently completed serving half of his sentence does not weigh in favour of his early release. 34. Taking all of the foregoing into account and having considered those factors identified in Rule 125 of the Rules [see paragraph 40 below], I am of the view that Mr. Krajišnik should not be granted early release. 35. I note that my colleagues unanimously share my view that Mr. Krajišnik should be denied early release.” 24. No appeal was possible against the President’s decision. 25. At the relevant time, section 33(2) of the Criminal Justice Act 1991 provided that as soon as a long-term prisoner had served two thirds of his sentence, it would be the duty of the Secretary of State to release him on licence. Section 33(5) defined “long-term” prisoner as a person serving a sentence of imprisonment for a term of four years or more. 26. Section 35 provided to the Secretary of State an additional discretionary power to release long-term prisoners before the two-thirds point of their sentence and provided that: “(1) After a long-term prisoner has served one-half of his sentence, the Secretary of State may, if recommended to do so by the [Parole] Board, release him on licence.” 27. Under the Parole Board (Transfer of Functions) Order 1998 the Secretary of State transformed his section 35 discretion to release longterm prisoners serving a sentence of imprisonment for a term of less than fifteen years into a duty. For those serving sentences of fifteen years or more, the Secretary of State retained his discretion to order early release after the halfway point and before two thirds of the sentence had been served. 28. Article 1 of the Statute provides that the ICTY has the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991. 29. Article 5 provides: “The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population: (a) murder; (b) extermination; (c) enslavement; (d) deportation; (e) imprisonment; (f) torture; (g) rape; (h) persecutions on political, racial and religious grounds; (i) other inhumane acts.” 30. Pursuant to Article 7(1), a person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in, inter alia, Article 5 is to be considered individually responsible for the crime. Article 7(3) provides that the fact that any of the relevant acts were committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts, or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators. 31. Article 24 sets out factors relevant to determining the appropriate length of sentence. It provides that the ICTY must have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia and should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person. 32. Article 27 addresses enforcement of sentences and provides that imprisonment will be served in a State designated by the ICTY from a list of States which have indicated their willingness to accept convicted persons. It further provides that such imprisonment will be in accordance with the applicable law of the State concerned, subject to the supervision of the ICTY. 33. Article 28 deals with pardon or commutation of sentences. It provides: “If, pursuant to the applicable law of the State in which the convicted person is imprisoned, he or she is eligible for pardon or commutation of sentence, the State concerned shall notify the International Tribunal accordingly. The President of the International Tribunal, in consultation with the judges, shall decide the matter on the basis of the interests of justice and the general principles of law.” 34. The UN-UK agreement on enforcement of sentences was adopted following the United Kingdom’s confirmation of its willingness, pursuant to Article 27 of the ICTY Statute, to enforce sentences imposed by the ICTY. 35. Article 3 of the Agreement provides: “1. In enforcing the sentence pronounced by the International Tribunal, the competent national authorities of the United Kingdom shall be bound by the duration of the sentence. 2. The conditions of imprisonment shall be governed by the law of the United Kingdom, subject to the supervision of the International Tribunal ... 3. The conditions of imprisonment shall be equivalent to those applicable to prisoners serving sentences under the law of the United Kingdom and shall be in accordance with relevant human rights standards.” 36. Pursuant to Article 7(1)(d) the United Kingdom is required to notify the registrar of the ICTY six months prior to the point at which early release would be considered for an equivalent domestic sentence in the jurisdiction of the United Kingdom. 37. Article 8 of the agreement, which deals with early release, pardon or commutation of sentence, provides: “1. If, pursuant to the applicable national law of the United Kingdom, the sentenced person is eligible for early release, pardon or commutation of the sentence, the United Kingdom shall notify this to the Registrar, in advance of such eligibility, and shall include in any such notification all the circumstances pertaining to the eligibility for early release, pardon or commutation of the sentence. 2. The President of the International Tribunal shall determine, in consultation with the Judges of the International Tribunal, whether any early release, pardon or commutation of the sentence is appropriate ... If the President determines that an early release, pardon or commutation of the sentence is not appropriate, the United Kingdom shall act accordingly.” 38. Rule 101 sets out the factors relevant to determining the appropriate length of sentence, namely the factors to which Article 24 of the State refers; any aggravating or mitigating circumstances, including substantial cooperation with the Prosecutor before or after conviction; the general practice regarding prison sentences in the courts of the former Yugoslavia; and the extent to which any penalty imposed by a court of any State for the same act has already been served. Credit must be given for time spent in pre-trial detention. 39. Part nine of the Rules makes provision for pardon and commutation of sentences. Rule 123 requires the State of imprisonment to notify the ICTY, in accordance with Article 28 of the ICTY Statute, if a convicted person is eligible for pardon or commutation of sentence. Pursuant to Rule 124, the President shall determine whether pardon or commutation is appropriate. 40. Rule 125 provides: “In determining whether pardon or commutation is appropriate, the President shall take into account, inter alia, the gravity of the crime or crimes for which the prisoner was convicted, the treatment of similarly-situated prisoners, the prisoner’s demonstration of rehabilitation, as well as any substantial cooperation of the prisoner with the Prosecutor.” 41. The President of the ICTY, after consultation with other judges, the prosecutor and the registrar, issued the Practice Direction on early release in order to establish an internal procedure for the determination of applications for pardon, commutation of sentence, and early release of persons convicted by the tribunal. 42. The Practice Direction provides that the State of imprisonment is required, where practicable, to notify the ICTY at least forty-five days prior to the date on which a convicted person becomes eligible for early release. The Practice Direction also sets out the applicable procedure and includes guidance on requests for reports, participation of the convicted person and consultation with other judges. 43. Paragraph 8 of the Practice Direction explains that the President shall determine whether to grant early release having regard to the criteria specified in Rule 125 of the Rules and any other relevant information, and after consultation with other judges. 44. The appendix to the Council of Europe’s Recommendation on conditional release contains principles intended to guide States in their legislation, policies and practice on conditional release. 45. Principle 18 provides: “The criteria that prisoners have to fulfil in order to be conditionally released should be clear and explicit. They should also be realistic in the sense that they should take into account the prisoners’ personalities and social and economic circumstances as well as the availability of resettlement programmes.” 46. Principle 20 provides: “The criteria for granting conditional release should be applied so as to grant conditional release to all prisoners who are considered as meeting the minimum level of safeguards for becoming law abiding citizens. It should be incumbent on the authorities to show that a prisoner has not reached that level.” 47. Paragraph 18 of the Explanatory Memorandum accompanying the Recommendation notes: “In a discretionary release system the most important decision to be made is which criteria will be used to determine whether a prisoner can or cannot be granted release. The primary aim of these criteria should be to identify those prisoners who can be released without posing an unbearable risk to safety in the community. Whether and which of these criteria have been fulfilled will also be a relevant consideration in deciding on the conditions or supervision measures to be imposed. The personality and socio-economic circumstances of the prisoner should always be taken into account. The criteria should be clear and explicit so as to avoid erratic decisions or disparities in decision-making. This requirement is also in the interest of the prisoners and the staff involved in the preparation of release. The lack of clear and explicit criteria might lead to reduced confidence in the system and less motivation on the part of prisoners to participate actively in the preparation for conditional release. A similar lack of confidence or motivation would be produced if the criteria were felt to be unrealistic, in other words, impossible to fulfil given the prisoner’s personal and social circumstances (such as age, family situation, health, professional qualifications etc) and the unavailability of resettlement programmes Care should also be taken to avoid criteria that are too closely related to the type of the offence committed, or the dangerousness of the offender at the start of his/her prison sentence. It has to be recalled that such criteria have already been used to decide on the length of the sentence and the classification and sentence plan of the prisoner. The decision to grant conditional release should be based on realistic criteria related to the present situation and prospects of the prisoner.” | 0 |
train | 001-104983 | ENG | RUS | CHAMBER | 2,011 | CASE OF KHODORKOVSKIY v. RUSSIA | 2 | No violation of Art. 3 (substantive aspect);No violation of Art. 3 (substantive aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 5-1-b;No violation of Art. 5-1-c;Violation of Art. 5-3;No violation of Art. 5-4;Violation of Art. 5-4;Violation of Art. 5-4;No violation of Art. 5-4;Violation of Art. 5-4;No violation of Art. 5-4;Violation of Art. 5-4;No violation of Art. 18;Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 6. The applicant was born in 1963. He was detained in a penal colony in Krasnokamensk, Chita Region, and he is currently detained in Moscow in connection with another criminal case pending against him. 7. Before his arrest in 2003 the applicant was a businessmen and one of the richest persons in Russia. Thus, he was a board member and the major shareholder of Yukos, a large oil company (hereinafter “the company”, liquidated in 2007). He also controlled several other mining, industrial and financial companies affiliated with Yukos (hereinafter referred to as “the Yukos group”). Most of those companies were created as a result of the privatisation of State-controlled enterprises in the mid-1990s. 8. In the period 2002-2003 the Yukos group was pursuing a number of large-scale business projects. Thus, Yukos was engaged in merger talks with Sibneft, another large Russian oil company, and with the US-based company Exxon Mobil. Yukos was also planning to build a pipeline to the Arctic Ocean in order to export natural gas to the western part of Europe. Lastly, Yukos and the State company Rosneft were involved in a public struggle for control of certain oilfields. 9. At the same time the applicant became involved in politics. At the beginning of 2003 he announced that he would allocate significant funds to support the opposition parties Yabloko and SPS (Soyz Pravykh Sil) He also made certain public declarations criticising alleged anti-democratic trends in Russian internal policy. The applicant funded a non-profit NGO, “Open Russia Foundation” in order to promote certain political values in Russian society. 10. One of the companies affiliated with Yukos was Apatit, a large mining enterprise, producing apatite concentrate. Yukos controlled a 20 % shareholding in Apatit. 11. Apatit was privatised in 1994. In the following years the authorities made several attempts to return Apatit to State control, claiming that the money due under the privatisation contract had not been paid by the buyers. In March 2002 Mr Lebedev, one of the top managers in the Yukos group and the applicant’s personal friend, proposed a friendly settlement of the dispute on behalf of the buyers. The State privatisation authority having accepted that offer, on 19 November 2002 a friendly settlement was reached. It was approved by a commercial court. 12. In November 2002 the governors of the Smolensk Region, the Tula Region and the Tambov Region wrote a letter to the then General Prosecutor of the Russian Federation, Mr Ustinov. In that letter they complained that Apatit was abusing its dominant position on the apatite concentrate market and boosting prices of phosphate fertilisers, which, in turn, increased food prices. They also alleged that Apatit was using various schemes to evade or minimise taxes. They urged General Prosecutor Ustinov to return Apatit to State control and to apply anti-trust measures in order to make Apatit reduce prices. 13. In December 2002 the governor of the Pskov Region wrote to the then President of the Russian Federation, Mr Putin. He drew the President’s attention to the friendly settlement in respect of the Apatit shares and claimed that its terms were contrary to the interests of the State, since the amount received by the State in pursuance to that settlement was significantly lower than the market price of the shares. 14. On 16 December 2002 the then President Putin issued Directive No. Pr-2178 requiring reports to be obtained in relation to the acquisition of the Apatit shares. In particular, he inquired whether there had been “violations of the existing legislation committed during the sale of shares in Apatit plc” and whether the State had suffered any loss as a consequence of the friendly settlement that had been approved by the Commercial Court of Moscow in 2002. 15. A wide ranging investigation then took place involving the Prime Minister, the General Prosecutor, the Ministry of Finance, the Ministry of Natural Resources, the Ministry of Industry and Science, and the Ministry of Taxes. In January 2003 the General Prosecutor wrote to the President that the privatisation of Apatit and its business activities had been suspicious, and that further inquiry was needed. 16. On 28 April 2003 the General Prosecutor wrote to the President informing him that the General Prosecutor’s Office (GPO) had concluded that there was no need to take further action. The inquiry had not established that Apatit had been abusing its position on the market or that the amount of the friendly settlement reached with the State privatisation agency had been unfair. The terms of the friendly settlement had been approved by the Prime Minister, Mr Kasyanov. Apatit’s tax payments had been constantly monitored by the Ministry of Taxes; although Apatit and its affiliates had been subjected to various penalties and financial sanctions in the past, and a new audit was underway, the General Prosecutor’s Office did not see any reason to start criminal proceedings in this respect. 17. Nonetheless, on 20 June 2003 a criminal case was opened against Apatit; the situation concerning the acquisition of the Apatit shares later formed one of the main charges against the applicant. In the following months the scope of the investigation was broadened: the investigative team discovered evidence of tax evasion and business fraud in the business activities of the companies affiliated with Yukos. 18. On 2 July 2003 Mr Lebedev was arrested in connection with the Apatit case. 19. On 4 July 2003 the applicant was summoned to the General Prosecutor’s Office and interviewed as a witness in the Apatit case. 20. In the summer and autumn of 2003 the prosecution carried out several searches of the premises of Yukos and the offices of the applicant’s lawyer, Mr Drel, and also searched the headquarters of the political party Yabloko. Further, several leading executives of Yukos and affiliated companies were arrested; several others left Russia. Some of those who had left then settled in the United Kingdom. The prosecution authorities sought their extradition to Russia, but the British courts refused on the grounds that their prosecution was politically motivated and they would not receive a fair trial in Russia. The applicant produced copies of the decisions of the British courts in those extradition proceedings. 21. At the same time senior officials in the General Prosecutor’s Office publicly declared that charges might be brought against other senior managers of Yukos and affiliated companies. The applicant did not leave the country and continued his activities, including business trips in Russia and abroad. 22. On 23 October 2003, whilst the applicant was away from Moscow on a business trip to eastern Russia, an investigator summoned him to appear in Moscow as a witness on 24 October 2003 at noon. The summons was delivered to the applicant’s office on 23 October at 3 p.m. by investigators Mr F. and Mr Sh. The applicant’s staff told them that the applicant was away from Moscow until 28 October 2003. Yukos staff also sent the General Prosecutor’s Office a telegram explaining the reasons for the applicant’s absence from Moscow. 23. On 24 October 2003 Mr F. and Mr Sh. wrote a report to the leading investigator, Mr K., in which they informed Mr K. about the applicant’s absence. On the same day, the applicant having missed the appointment, the investigator K. ordered his enforced attendance for questioning and instructed the police to implement that order. 24. In the early morning of 25 October 2003 a group of armed law-enforcement officers approached the applicant’s aeroplane on an airstrip in Novosibirsk, apprehended him, and flew him to Moscow. 25. The applicant’s lawyer complained about the enforced attendance order to the Basmanniy District Court of Moscow. He asserted that the applicant had had a good reason for missing the interview: he had been out of town on a business trip and had not personally received the summons. As a witness he had been free to travel. On 27 January 2004 the court dismissed the complaint. The court stated that it had been impossible to hand over the summons of 23 October 2003 directly into the applicant’s hands, so the applicant had been notified about the questioning through the Yukos headquarters. The court concluded that the decision of 24 October 2003 to bring the applicant to Moscow for questioning had been issued in compliance with the Code of Criminal Procedure and the Constitution. 26. Once in Moscow the applicant was brought before the investigator at 11 a.m. on 25 October 2003. The investigator explained to the applicant why he had been apprehended and interviewed him as a witness in connection with the applicant’s personal income tax payments for the years 1998-2000. Thereafter the applicant was informed that he was being charged in connection with a number of crimes, namely the fraudulent acquisition of the Apatit shares in 1998, misappropriation of the Apatit proceeds, misappropriation of Yukos assets and corporate tax evasion and personal tax evasion schemes allegedly used by Yukos and the applicant personally in 1999-2000. The investigator drew up a charge sheet describing the essence of the charges against the applicant. It was 35 pages long and was read out to the applicant at 2.20 p.m. The applicant was then interviewed as a defendant in that case but refused to testify since one of his lawyers was absent. Following the interview, at 3 p.m. on 25 October 2003 the investigator requested the Basmanniy District Court to detain the applicant pending investigation. The request was nine pages long and, according to the applicant, had been prepared in advance. 27. The court heard this request at 4.35 p.m. The applicant was assisted by one of his lawyers, Mr Drel. The prosecution requested the proceedings to be held in camera, referring to the materials of the case file which should not be disclosed. The defence requested a public hearing, but the court, on an application by the prosecutor, decided to hold the hearing in camera, referring to a need to guarantee the defendant’s rights. The court heard the public prosecutor, the applicant and the applicant’s counsel and examined certain documents from the case file produced by the prosecution. The defence submitted that the applicant had attended promptly for questioning when he had first been requested to do so, in July 2003, and that he had been unable to attend the second questioning for legitimate reasons, as he had had no personal knowledge of the summons. The defence pleaded in favour of the applicant’s release on bail. However, as the Government indicated, the defence did not indicate the amount of the proposed bail. 28. At the end of the hearing, which lasted about five hours, the court issued a detention order, referring to Articles 108 of the Code of Criminal Proceedings (see the “Relevant domestic law” part below). The court summarised the charges against the applicant, the arguments put forward by the parties and the procedural history of the case. The main reasons for the detention were as follows: “[The applicant] is accused of serious crimes punishable by over two years’ imprisonment, committed in concert with others and over a long period. The circumstances of the crimes, [the applicant’s] personality, and his position as head of Yukos suggest that, if he remained at large, the applicant may influence witnesses and other participants in the trial, hide or destroy evidence ..., or commit further crimes. [The applicant’s] accomplices have fled from the prosecution. [The applicant] might also flee because he has a travel passport and money in foreign banks”. 29. The court referred to the applicant’s family situation, his residence in Moscow and his health condition, and found that there was no reason for choosing a milder measure of restraint. As to the applicant’s assertion that the prosecution had produced no evidence of his implication in the impugned crimes, the court noted as follows: “This argument ... shall not be examined on the merits, since the criminal case is still at the stage of the pre-trial investigation, and the court cannot express its opinion as to the guilt [of the applicant], proof of his guilt or the correctness of the legal qualification of Mr Khodorkovskiy’s acts”. 30. The court order did not establish the duration of the applicant’s pre-trial detention. 31. On 3 November 2003 the applicant resigned from his position as Chief Executive of Yukos. 32. On 5 November the applicant’s lawyer handed over the applicant’s foreign travel passports to the prosecution. 33. On 6 November 2003 the applicant’s lawyers appealed against the detention order. They asserted, among other things, that the reasons for the detention were insufficient, that the hearing in camera had been unlawful and that the applicant had not committed any criminal offences. 34. On 11 November 2003 the Moscow City Court upheld the detention order. The hearing took place in camera, without the applicant but in the presence of his lawyers. The city court expanded on the district court’s reasons: “[The applicant] owns a large stake in Group Menatep Ltd., a company registered in Gibraltar ..., has financial influence, [and] enjoys prestige with public bodies and companies. Employees of companies controlled by [the applicant] depend on him financially and otherwise....” 35. The City Court also found that the materials of the case file contained sufficient evidence to suspect the applicant of having committed the impugned offences. It established, further, that the domestic law allowed the detention hearing to be held in camera, in order to keep the materials of the pre-trial investigation secret and protect the interests of the defendant. The City Court also failed to fix the duration of the period of detention. 36. On 10 November 2003 the applicant was charged with a number of additional crimes, including abuse of trust, misappropriation of property, tax evasion, large-scale fraud and forgery of official documents. 37. On 11 November 2003 Ms Artyukhova, one of the applicant’s lawyers, visited him in prison. As she was leaving, guards searched her and seized a handwritten note with ideas about the case she had prepared overnight and a typed draft of the legal position in Mr Lebedev’s case. 38. According to the Government, Ms Artyukhova had received a note from the applicant entitled “Written directions to the defence”. These “directions” contained the following instructions (it appears that the Government quoted from this note): “to ensure that Mr Lebedev gives negative or vague answers about the participation in the RTT, to speak to the witnesses about their testimony of 6 November 2003, to check the testimonies of the defence witnesses to ensure that they do not contain any indication as to intent”. It also contained directions as to investment activities and tax payments. The prison officials also seized from Ms Artyukhova a 16-page typewritten memo entitled “Preliminary criminal-law analysis of the charges in the case of Mr Lebedev P.P.”. 39. The Government produced a report dated 11 November 2003 by a prison officer who had participated in the search. According to the report, the search had been ordered by inspector B. In the report inspector B. indicated that he had ordered the search because he had sufficient grounds to believe that Ms Artyukhova was carrying prohibited goods. The Government also produced a report by inspector F., who informed his superiors that he saw that the applicant and Ms Artyukhova “exchanged a notebook with some notes, and also made notes in it” during their meeting. 40. According to the applicant, the handwritten note was drafted by Ms Artyukhova It stated as follows: “- Kodirov [the applicant’s cell-mate]: expects a second visit by the lawyer Solovyev; - to work on the question of sanctions concerning violation of rules on keeping in custody SIZO (active <-> passive forms of behaviour (ex. hunger strike); - to work on the question of receiving money for consultancy fees on the purchase of shares by various companies involved in investment activities; - expert analysis of signatures, to work on this question because the documents submitted are not the originals but photocopies (expert analysis of photocopies of signatures of M.B.); - to work through questions with witnesses Dondonov, Vostrukhov, Shaposhnikov (questioning on 06.11.03 - according to circumstances); - concerning participation in RTT Lebedev must give negative (indecisive) answer; - prerogatives of executives of Rosprom and Menatep - to show the scope of their prerogatives, how promotions are made; - check witnesses of the defence (former managers and administration of Rosprom, Menatep position about 100, the essence of testimonies 1) absence of intention; 2) absence of instructions, advise on methods of investment and tax activity; It is necessary to work on testimonies of witnesses Fedorov, Shaposhnikov, Michael Submer, tax people; Other - to conduct, by Western audit and law firms, audit of personal fortune, in the following context ‘I have right to receive income in accordance with decision of meeting of shareholders ‘ counsel. ... in the case ...”. 41. On 25 November 2003 the applicant’s lawyers were informed that the pre-trial investigation had finished. The defence was given access to the materials of the investigation file for examination and preparation for the trial. 42. The Government produced a copy of a report by investigator Mr. K. to Mr B., the Head of the General Department of the Ministry of Justice, concerning the episode of 11 November 2003. Mr K. informed Mr B. about the content of the note seized from Ms Artyukhova According to Mr K., that note contained the applicant’s instructions to the defence team as to the tactics of the defence and, in particular, was aimed at ensuring coordination with Mr Lebedev, the applicant’s co-accused. According to Mr K., the applicant “dictated” the note to Ms Artyukhova. Mr K. concluded that this note had evidentiary value in the applicant’s criminal case. 43. On 28 November 2003 the defence made an application to the General Prosecutor for the measure of restraint to be changed, arguing that as the pre-trial investigation had finished and all the witnesses had been questioned there was no longer even a theoretical possibility that the applicant might interfere with the proceedings. They also argued that there was no reason to believe that the applicant would resume his alleged criminal activities or that he would flee jurisdiction. Sureties and bail were also offered. On 3 December 2003 the prosecution dismissed the application for release. 44. On 17 December 2003 the prosecution requested the Basmanniy Court to extend the applicant’s detention until 30 March 2004. The prosecution referred to the “note seized from one of the lawyers [of the applicant] containing instructions from Khodorkovskiy to exert pressure on witnesses for the prosecution”. The prosecutor was apparently referring to the note seized from Ms Artyukhova. The prosecution’s application for an extension was lengthy and carefully reasoned; it ran to over three hundred pages. 45. In the evening of Friday 19 December 2003 the applicant’s lawyers learned that the court would hear the request at 10 a.m. on Monday, 22 December 2003. The lawyers did not receive a copy of the request before the hearing. 46. The hearing began at 3.05 p.m. on 22 December 2003. The defence sought an adjournment of the hearing to 24 December, but the court instead allowed the lawyers a two-hour break to prepare their pleadings. During those two hours the lawyers stayed in the courtroom and took instructions from the encaged applicant in the presence of guards and court staff. 47. The court decided to hold the hearing in camera. The applicant’s lawyers objected, referring, in particular, to the fact that the General Prosecutor had previously publicly stated that there was nothing in the applicant’s case that would lead to the necessity for any hearings in camera. The court refused the applicant’s request that the hearing be in public, without giving any reasons. 48. In the course of the hearing the defence produced documents in support of their view that the applicant was no longer a board member of Yukos, that he had no shares in Yukos or other companies which, according to the prosecution, had been involved in the impugned scam operations, and that before his arrest he had permanently resided in the Moscow Region. On that basis, the defence asserted that the applicant would not abscond. However, the court refused to examine the documents provided by the defence. 49. In the evening of 22 December 2003 the hearing was adjourned. It was resumed on 23 December 2003. On that day the defence obtained a copy of the prosecution’s request for an extension of the detention. At the same time the prosecution filed with the court new pieces of evidence, including the note seized from Ms Artyukhova. The court admitted Ms A’s note in evidence. The defence sought an adjournment for a day to examine those documents. They also contested their admissibility, claiming that the documents had been obtained in breach of the privilege pertaining to lawyer-client communications. They claimed, further, that they had not enough information about the origin of this document. However, the court ruled that a one-hour adjournment would suffice. 50. The next day the applicant’s representative, Ms Moskalenko, requested the court to adjourn the hearing for one day in order to allow the defence to study new materials submitted by the prosecution. The court ordered a one-and-a-half hour break but refused to adjourn the hearing to the next day. 51. On 23 December 2003 the court extended the detention until 25 March 2004, essentially for the same reasons it had relied on before. The District Court examined the applicant’s family situation, and the “personal sureties” proposed by several individuals who guaranteed the applicant’s appearance at the trial. However, those elements did not persuade the District Court that the applicant could be released. The District Court referred to the fact that the applicant’s presumed accomplices had fled from trial, and that the applicant controlled business structures which were implicated in the alleged crimes and could therefore use them to continue his criminal activities or influence witnesses who worked in those structures. The court noted that the applicant had a foreign passport and personally owned shares in a foreign company and through a trust company. In addition, the court stated that the applicant had tried to intimidate witnesses. It did not refer directly to Ms A’s note in its analysis, although it mentioned it when summarising the submissions by the prosecution. The court also had regard to the necessity of carrying out further investigative actions. It concluded that, if released, the applicant might flee from justice, influence witnesses and continue his activities. 52. On 30 December 2003 the applicant’s lawyers appealed against this decision. The appeal was received by the Moscow City Court from the first-instance court on 14 January 2004. 53. On 15 January 2004 the Moscow City Court upheld it. The hearing in the Moscow City Court took place in public in the presence of the applicant’s lawyers. The applicant was absent from that hearing. From that moment on the detention hearings in the applicant’s case were held in public. In the decision of 15 January 2004 the Moscow City Court held, inter alia, that the lower court had had evidence that the applicant had tried to exert pressure on witnesses. 54. On an unspecified date the prosecution requested the Basmanniy District Court to extend the applicant’s detention again because the applicant needed more time to study the prosecution files. In support of his request the prosecutor mentioned in his submissions the “seizure from one of the defendants of the written notes containing the instruction of Khodorkovskiy to put pressure on the witnesses for the prosecution”. 55. On 19 March 2004 the court held a hearing. The defence lawyers complained that they had been unable to see the applicant in private to take instructions as the applicant had only been informed that day of the hearing and had had insufficient time to review the new case materials submitted by the prosecutor. They themselves had only been informed of the hearing on the previous day. They asked for an adjournment of three days. They also submitted to the court an expert handwriting analysis report showing that the document seized from Ms A had been written by her and not by the applicant. The defence claimed, further, that the applicant would not abscond. In support of that claim, the defence referred to one of the co-accused, Mr K., who had signed a written undertaking not to leave his city of residence and had not absconded. The defence indicated that the applicant’s passports had been handed over to the prosecution and that his family were once again offering to put up bail for him. In the opinion of the defence it was absurd to suggest that the applicant would continue with criminal activity, since he was not charged with crimes of violence but with economic crimes: it would be impossible for him to commit such crimes if bailed on condition of house arrest. The prosecution objected to the applicant being granted bail on the condition of house arrest. 56. After having examined the materials of the case file and having heard the parties, the court extended the detention until 25 May 2004 essentially for the same reasons as before. In support of its conclusions, the court referred to the fact that some of the applicant’s co-defendants had fled from Russia, that the applicant had several foreign passports, that he owned a considerable amount of shares in a foreign company, and that he had tried to exert pressure on the prosecution witnesses. The court also referred to the fact that some of the witnesses were dependent on the applicant. In the detention order the court did not, however, refer to the risk that, if released, the applicant would engage in criminal activities. The District Court also held that the detention could not be replaced by personal sureties because the court was not entitled to take such a decision under Article 109 of the CCrP. 57. The Government maintained that the applicant’s appeals against the detention order of 19 March 2004 were received by the District Court on 25 March (appeal by Mr Padva) and 2 April 2004 (appeal by Ms Moskalenko). On 27 April 2004 the materials of the case were forwarded by the District Court to the Moscow City Court. The parties were informed of the date and venue of the appeal court hearing. On 12 May the Moscow City Court upheld the decision of 19 March 2004. 58. On 14 May 2004 the prosecution submitted the case to the Meshchanskiy District Court for trial. 59. On 20 May 2004 the Meshchanskiy District Court decided to hold a preliminary hearing on 28 May and ordered that the applicant should stay in prison. The decision was taken in camera and without the attendance of either the applicant or his lawyers or the prosecution. No reasons for the continued detention of the applicant were given and the period of detention was not specified. 60. On 26 May 2004 one of the applicant’s lawyers, Ms Moskalenko, lodged an appeal against the decision of 20 May 2004. She complained, inter alia, that the detention hearing had been held without the applicant or his lawyer, and that the decision extending the detention did not contain any reasons. After having obtained a reply from the prosecution, the Meshchanskiy District Court forwarded the appeal to the Moscow City Court. The applicant’s appeal against the decision of 20 May 2004 was dismissed by the Moscow City Court on 21 June 2004. It appears that neither the applicant nor his lawyers were present at the hearing of 21 June 2004. According to the Government, the summons was sent to six lawyers representing the applicant; however, the summons was not sent to Ms Moskalenko, as her power of attorney did not entitle her to represent the applicant before the appeal court. The Government did not produce copies of the summons. The Moscow City Court found that the decision of 20 May 2004 had been taken by a competent court in compliance with the relevant legislation. It did not specify the reasons for extending the applicant’s detention. 61. Preliminary hearings in the trial court took place on 28 May and 8 June 2004. On the latter date the court decided to open the trial on 16 June 2004 and to join the cases of the applicant and Mr Lebedev. It also ordered that the applicant should stay in prison pending trial. No reason for that decision was given and the court did not specify the period of detention. Ms Moskalenko appealed against that decision, claiming, inter alia, that the decision of 8 June 2004 to detain the applicant had not been reasoned. On 29 July 2004 the detention order of 8 June 2004 was upheld by the Moscow City Court. The City Court in its decision indicated that it had reviewed the materials of the case file, examined the submissions of the parties, and concluded that the detention order by the first-instance had not violated the criminal procedure law. The City Court also indicated that, taking into consideration the materials available in the case file, the first-instance court had not found any grounds to reverse or modify the measure of restraint in the form of detention pending trial. According to the applicant Ms Moskalenko was unable to participate in the hearing on medical grounds. However, the applicant, several of his lawyers and the lawyers representing Mr Lebedev were present at that hearing. 62. On 16 June 2004, when the trial started, the applicant’s lawyer requested the trial court to release the applicant because he was detained unlawfully. The court dismissed that request. In its ruling the court established that during the investigation the detention had been ordered and extended by the Basmanniy District Court. The Meshchanskiy District Court declared itself incompetent to reassess those detention orders. The Meshchanskiy District Court further noted that on 20 May 2004, following receipt of the case file from the prosecution, it had maintained the measure of restraint imposed earlier. That decision was later confirmed on 8 June 2004. Those decisions were not quashed, and only an appeal court could examine the lawfulness of previously imposed detention orders. The court concluded that it did not detect any “breaches of the existing legislation that would prevent the applicant’s detention”. 63. Ms Moskalenko appealed against that ruling, but on 29 July 2004 the Moscow City Court upheld both the above decision and the earlier decision of the same court of 8 June 2004 (cf. above). 64. On an unspecified date the prosecution requested the court to extend the applicant’s detention because the trial was continuing. 65. On 1 November 2004 the Meshchanskiy District Court held a public hearing, in the presence of the applicant and his lawyers. During the hearing the applicant’s lawyers asked the court to consider alternative measures of restraint. Having examined the parties’ submissions the District Court extended the applicant’s detention until 14 February 2005, essentially for the same reasons that the Basmanniy Court had given earlier, at the pre-trial stage (without, however, mentioning the applicant’s property abroad). The detention order indicated that there was a risk that the applicant would try to put pressure on witnesses, and that the detention was the only appropriate option. 66. On 9 November 2004 the applicant appealed against the extension order. The appeal was rejected by the Moscow City Court on 1 December 2004. 67. On 28 January 2005 the Meshchanskiy District Court extended the applicant’s detention until 14 May 2005, repeating the reasons given in the earlier decisions in that regard. The court repeated in particular that the applicant had tried to influence witnesses in the case, that many witnesses worked in companies affiliated with him, that the applicant had international connections, and that other suspects had fled Russia. The applicant’s lawyers during the hearing asked the court to consider alternative preventive measures. The applicant’s appeal against that decision was rejected by the Moscow City Court on 17 February 2005. 68. On 24 March 2005 the court extended the applicant’s pre-trial detention until 14 July 2005, again with essentially the same reasoning. In the detention order the District Court noted that by that time both parties had completed presenting their evidence and the proceedings were reaching the stage of oral pleadings (preniya), which would then be followed by the closing address of the accused persons and the court’s deliberations. However, it was still possible for the court to re-open the judicial examination of evidence, if need be. Further, the court assumed that the pleadings, addresses and deliberations could take a long time, given the complexity of the case and the number of parties involved. The appeal by the applicant against this decision was also unsuccessful, as the Moscow City Court rejected it on 21 April 2005. 69. On 31 May 2005 the applicant was found guilty of the charges brought against him and sentenced to nine years’ imprisonment. On 22 September 2005 the Moscow City Court upheld the judgment in the main, excluded several charges and reduced the sentence to eight years. Some time afterwards the applicant was transferred to a correctional colony in the Chita Region, where he is currently serving his sentence. 70. From 25 until 27 October 2003 the applicant was detained at remand prison no. 77/1 in Moscow, known as “Matrosskaya Tishina”. From 27 October 2003 until 8 August 2005 the applicant was detained at remand prison no. 99/1 in Moscow, which is a special-purpose block of the “Matrosskaya Tishina”. Thereafter, and until his transferral to the penal colony the applicant was again detained at remand centre 77/1. On 9 October 2005 the applicant was sent to serve his sentence at penal colony FGU IK-10 in the town of Krasnokamensk, Chita Region. 71. The applicant indicated that from 27 October 2003 to 18 June 2005 he had been held in cells 501, 503 and 506. In those cells the partition dividing the toilet from the rest of the cell was no more than 85 cm high. The applicant insisted that the partition was not high enough to ensure his privacy when using the toilet. He insisted that the toilet had not been separated or soundproofed and allowed inmates to see and hear everything happening in the toilet. The smell from the toilet pervaded the cell. The applicant had to eat his meals in the cell in such conditions. The prison authorities did not supply curtains to separate the toilet from the rest of the cell. He noted that no such curtain (or curtain mark) was visible in the photographs of cells 501, 503 and 506 provided by the Government. The applicant’s bed was very close to the lavatory. It was only on 18 June 2005, after the end of the trial and the applicant’s conviction, that he was transferred to the refurbished cell no. 610, where the partition was 175 cm high. 72. According to the applicant, his cell in remand centre no. 99/1 housed four or five persons. Thus, each detainee had at the most four square metres of space in the cell, which contained beds, a worktable that also served as a dining table and the toilet bowl and washbasin. The applicant was incarcerated in such a cell for 23 hours a day for almost two years. At remand centre 77/1 the applicant shared a cell with about fifteen people. 73. In summer the unventilated cells of the remand centres became too hot – over 30 degrees – and in winter too cold – about 18 degrees. The effect of the lack of ventilation was particularly acute on the applicant because he was a non-smoker and was constantly forced to inhale tobacco smoke. On many days the applicant was unable to have his one-hour walk as he had to attend court. Moreover the walking areas were totally enclosed roofed yards at the top of the remand centre. The applicant therefore never had any access to fresh air on these walks. The dimensions of some of the walking areas were very small: between twelve and sixteen square metres. Additionally, the applicant was only permitted weekly washing facilities. 74. The applicant further submitted that the authorities had consistently denied independent observers the opportunity to inspect the conditions of his detention. Thus, the authorities had refused to grant permission to the PACE Special Rapporteur to visit the applicant; the head of the remand centre had refused a Russian member of Parliament access to visit the applicant and inspect the conditions of his detention. On 22 January 2004 a Russian Member of Parliament, Mr Stolyarov, sent a request to the then Head of IZ-99/1 asking to inspect the “incarceration conditions of Mikhail Borisovich Khodorkovskiy”. Under Russian law members of parliament have an unfettered right to visit remand prisons and penal colonies. However, when Mr Stolyarov visited the remand centre on 30 January 2004 the head of the remand prison unlawfully refused him access to the applicant. Further, the applicant was denied access to his doctors in connection with his gastric problems. 75. On 9 November 2004 and 7 February 2005, in his appeals to the Moscow City Court against the decisions of 1 November 2004 and 28 January 2005 extending his detention pending trial, the applicant described the poor conditions in which he was detained. On 1 December 2004 and 17 February 2005 the Moscow City Court dismissed the applicant’s complaints. Those decisions did not contain any analysis of the applicant’s allegations about the conditions of his detention. The applicant also described the conditions of his detention in his cassation appeal against the judgment of the Meshchanskiy District Court of 31 May 2005. 76. According to the Government, in remand centre IZ-77/1 the applicant was detained in cells nos. 276 and 144. Cell no. 276, where the applicant was placed for three days after his arrival, measured 20.44 square metres. The applicant was detained there with four other people. Cell no. 144 measured 52.7 square metres. The applicant was detained there between 8 August 2005 and 9 October 2005 with thirteen other people. 77. The cells in remand centre no. 99/1 were also not overcrowded. In remand centre no. 99/1 the applicant had an individual sleeping place and 4.4-5.9 square metres of personal space in each cell where he was detained. They produced a report indicating the surface area and number of sleeping places in each cell in which the applicant was detained. According to the information provided by the Government, an average cell measured approximately 3 metres by 5 metres. The applicant was detained in cells nos. 501, 503 and 506. On 18 June 2005 the applicant was transferred to newly refurbished cell no. 610. 78. Each cell had windows, electric lighting, hot and cold water, a lavatory and a toilet pan. Although the electric light was on during the night, it was of a lesser intensity than the daytime lighting. The toilet pan was separated from the rest of the cell by a partition measuring 175 cm (cell no. 610) and 85 cm (cells nos. 501, 503, 506), so that the person using the toilet pan was not seen by his cellmates or from the spy-hole in the door. The Government submitted photos of the cells in which the applicant had been detained and of the toilet cubicles. In their post-admissibility submissions the Government indicated that in all cells the partition was at least one metre high. 79. All the cells were equipped with a TV-set, a fridge, an electric kettle and a ventilator, in addition to the standard furniture (bunk beds, stools, table, food locker, coat-hanger, garbage bin, and washing bowls). The cells were properly heated, and ventilated through open windows and through a forced ventilation system, which was always in order. The cells were inspected on the daily basis by the prison staff, who checked that all systems functioned properly. The applicant did not make any complaints about temperature or ventilation in the cell where he was detained. 80. The applicant was given bed linen and cutlery and was allowed to have his own bed linen. 81. The applicant could have a one-hour daily walk in one of the ten courtyards equipped with a metal shelter and benches. When he had arrived at the remand prison late after the court hearings, he had been unable to take exercise. According to the information provided by the Government, remand centre no. 99/1 had ten walking yards (the smallest measured 15.9 square metres, the largest 36.6 square metres; the average area was about 29 square metres). Each walking yard was equipped with a roof and benches. The Government also produced several reports showing the number of people from each cell who could have a walk outside; these reports concerned about two dozen cells and were dated 18-19 November 2003, 28-29 April, and 30-31 July, 28-29 September 2004 and 6-7 August 2005. The Government also produced documents on the quality and quantity of food distributed to detainees. They submitted, further, a copy of the applicant’s medical history showing that the applicant, while in detention, had not had major health problems, although there had been some medical incidents and the applicant had on many occasions been examined by doctors. 82. The applicant could also take a shower for fifteen minutes once a week, and, for additional payment, take a shower more often, go to a fitness room, wash his underwear and bed linen, and receive other extra services. Thus, he visited the fitness room of the prison 59 times. In the fitness room he was also able to take a shower. The last visit to the fitness centre was dated 23 July 2005. 83. Three times a day he was given hot food of an appropriate standard. On court days the applicant received dry food or, alternatively, was allowed to take food sent to him by his relatives. 84. The Government indicated that while in the remand centres the applicant had been examined by a doctor with the use of special medical equipment. In particular, doctors examined him in order to define whether further examination of the internal organs was necessary. 85. In support of their submissions the Government also submitted reports from prison officials, dated 2006, which certified the above information on the sanitary conditions in the cells where the applicant had been detained. The Government also submitted a copy of the applicant’s personal cash account, which showed that he had been receiving money from his relatives and was able to spend it on, among other things, food, extra visits to the shower room or the sports room or renting additional equipment. During the trial the applicant sat on a wooden bench in a small cage in the courtroom. He had to instruct his lawyers through the bars, while a convoy officer was always present next to him. Whenever the applicant left the cage, he was handcuffed to convoy officers. According to the applicant, on court days he received little food, no exercise, and no fresh air. The Government submitted that on court days the applicant had been unable to have a walk because he had regularly arrived at the remand centre late, when all the walking yards had been closed. The applicant was always provided with hot food, and, depending on the time of his departure from the remand centre, with a travel ration. The applicant’s case attracted considerable public attention in Russia and abroad. In the course of the trial and afterwards many prominent public figures and influential organisations expressed their doubts as to the fairness of the criminal proceedings against the applicant and his colleagues. The applicant submitted documents to that effect. Thus, according to the applicant, his allegations were endorsed by the comments of leading Russian politicians and foreign governments; the findings of the Special Rapporteur of the Parliamentary Assembly of the Council of Europe; the Parliamentary Assembly, which concluded that the circumstances of the applicant’s case went “beyond the mere pursuit of criminal justice, and include elements such as the weakening of an outspoken political opponent, the intimidation of other wealthy individuals and the regaining of control of strategic economic assets” (Resolution 1418 (2005), adopted on 25 January 2005); the judgment of the London Extradition Court in the case of Chernysheva and Maruev v. Russian Federation, in which the judge concluded that “it is more likely than not that the prosecution of Mr Khodorkovskiy is politically motivated” and that “President Putin had directed that ... Mr Khodorkovskiy should be prosecuted”; the granting on 6 April 2005 by the United Kingdom authorities of political asylum to other individuals closely linked to the applicant who had also been granted refugee status. The applicant also referred to the decisions of the Nicosia District Court (Cyprus) of 10 April 2008 in an extradition case concerning former Yukos managers, and to some other European jurisdictions. The applicant considered that in those proceedings the courts had established that his prosecution and that of his colleagues was politically motivated. 86. The Code of Criminal Procedure of 2001 provides: “1. Having chosen a measure of restraint ... the court ... renders a ruling which should specify the charges against the suspect or accused persons, and the grounds for applying the measure of restraint.” “1. Pre-trial detention shall be applied as a measure of restraint by a court only where it is impossible to apply a different, less severe precautionary measure ... When the court decides to apply pre-trial detention as a measure of restraint it should specify in its ruling the specific facts which lead the court to reach such a decision. ... 3. Where it is necessary to apply detention as a measure of restraint ... the investigating officer shall apply to the court accordingly... 4. [The request] shall be examined by a single judge of a district court ... with the participation of the suspect or the accused, the public prosecutor and defence counsel, if one has been appointed to act in the proceedings. [The request shall be examined] at the place of the preliminary investigation, or of the detention, within eight hours of receipt of the [request] by the court.... The non-justified absence of parties who were notified about the time of the hearing in good time shall not prevent [the court] from considering the request [for detention], other than in cases of absence of the accused person. ... 7. Having examined the request [for detention], the judge shall take one of the following decisions: (1) apply pre-trial detention as a measure of restraint in respect of the accused; (2) dismiss the request [for detention]; (3) adjourn the examination of the request for up to 72 hours so that the requesting party can produce additional evidence in support of the request. ... 9. Repeated requests to extend detention of the same person in the same criminal case after the judge has given a decision refusing to apply this measure of restraint shall be possible only if new circumstances arise which constitute grounds for taking the person into custody.” “1. A period of detention during the investigation of criminal offence shall not last longer than two months. 2. If it is impossible to complete the preliminary investigation within two months and there are no grounds for modifying or lifting the preventive measure, this time-limit may be extended by up to six months by a judge of a district or military garrison court of the relevant level in accordance with the procedure provided for in Article 108 of the present Code. This period may be further extended up to 12 months in respect of persons accused of committing grave or particularly grave criminal offences only in cases of special complexity of the criminal case, and provided that there are grounds for application of this preventive measure, by a judge of the same court upon an application by the investigator, filed with the consent of a prosecutor... 3. The period of detention may be extended beyond 12 months and up to 18 months only in exceptional cases and in respect of persons accused of committing grave or particularly grave criminal offences by [a judge] on an application by an investigator filed with the consent of the Prosecutor General of the Russian Federation or his deputy. 4. Further extension of the time-limit shall not be allowed. ... 13. Examination of [the prosecution’s] request for extension of the detention is not allowed, except where the suspect or accused is undergoing in-hospital psychiatric examination or in other circumstances which exclude his participation in the court hearing, which should be supported by appropriate documents. In any event the participation of the defendant’s lawyer is mandatory.” “1. A preventive measure shall be lifted when it ceases to be necessary or replaced by a stricter or a more lenient one if the grounds for application of a preventive measure ... change. 2. A preventive measure shall be lifted or modified by an order of the person carrying out the inquiry, the investigator, the prosecutor or the judge or by a court decision. 3. A preventive measure applied at the pre-trial stage by the prosecutor, the investigator or the person carrying out the inquiry, on his written instructions, may be lifted or modified only with the prosecutor’s approval.” “1. If a witness fails, without reasonable excuse, to attend court when summoned ... he or she may be brought forcibly. 2. Enforced attendance ... shall consist of the person being brought by force before the inquirer, the investigator or the public prosecutor, or the court. 3. If there are reasons preventing their appearance in response to the summons at the designated time, the persons mentioned in paragraph 1 of this Article shall immediately notify the authority by which they have been summoned accordingly. 4. A person who is to be forcibly brought before the relevant authority shall be notified accordingly by an order of the person carrying out the inquiry, the investigator, the public prosecutor or the judge, or a ruling of the court, and this notification shall be confirmed by his signature on the order or ruling. 5. Enforced attendance cannot be carried out at night-time, except in circumstances when the matter cannot wait. 6. Underage persons who have not reached fourteen years of age, pregnant women and sick persons who cannot leave their place of residence on account of poor health, which shall be certified by a doctor, shall not be forced to attend. ...” “Actions (omissions) and decisions of the agency conducting the inquiry, the person conducting the inquiry, the investigator, the prosecutor or the court may be appealed against in accordance with the procedure set forth in the present Code by participants in the criminal proceedings or other persons, to the extent that the procedural actions carried out and procedural decisions taken affect their interests.” “... 3. A person who is summoned for questioning shall attend at the appointed time or notify the investigator in advance of any reason preventing him from attending. If a person summoned for questioning fails to appear without any valid reasons he may be brought forcibly ...” “1. When a criminal case is submitted [to the court], the judge shall decide either (i) to forward the case to an [appropriate] jurisdiction; or (ii) to hold a preliminary hearing; or (iii) to hold a hearing. 2. The judge’s decision shall take the form of an order... 3. The decision shall be taken within 30 days of submission of the case to the court. If the accused is detained, the judge shall take the decision within 14 days of submission of the case to the court...” “Where a criminal case is submitted for trial, the judge must ascertain the following points in respect of each accused: (i) whether the court has jurisdiction to deal with the case; (ii) whether copies of the indictment have been served; (iii) whether the measure of restraint should be lifted or modified; (iv) whether any applications filed should be granted ...” “1. When there are no grounds to take one of the decisions described in sub-paragraphs (i) or (ii) of the first paragraph of Article 227, the judge shall set the case down for trial ... In the order ... the judge shall decide on the following matters: ... (vi) The measure of restraint, except for cases where pre-trial detention or house arrest are applied...” “1. During the trial the court may order, modify, or lift a precautionary measure in respect of the accused. 2. If the defendant has been detained before the trial, his detention may not exceed six months from the time the court receives the case for trial to the time when the court delivers the sentence, subject to the exceptions set forth in § 3 of this Article. 3. The court ... may extend the accused’s detention during trial. It is possible to extend detention only in respect of a defendant charged with a serious crime or an especially serious crime, and each time for a period of up to 3 months...” “1. Having received the criminal case with the notice of appeal ... the judge shall fix the date, time and venue of the [appeal] hearing. 2. The parties shall be notified of the date, time and venue [of the appeal hearing] no later than fourteen days beforehand. The court shall decide whether the convicted detainee should be summoned to the hearing. 3. A convicted detainee who has expressed a wish to be present [at the appeal hearing] shall have the right to be present personally or to submit his arguments by video link. The court shall decide in what form the participation of the convicted person in the hearing is to be secured. ...” “1. Trials of criminal cases in all courts shall be public, with the exception of the cases indicated in the present Article. 2. Judicial proceedings in camera are admissible on the basis of a determination or a ruling of the court in the event that: (i) proceedings in the criminal case in open court may lead to disclosure of a State or any other secret protected by the federal law; (ii) the criminal case being tried relates to a crime committed by a person who has not reached sixteen years of age; (iii) the trial of criminal cases involving a crime against sexual inviolability or individual sexual freedom, or another crime where the trial may lead to disclosure of information about the intimate aspects of the life of the participants in the criminal proceedings or of humiliating information. (iv) this is required in the interest of guaranteeing the safety of those taking part in the trial proceedings and that of their immediate family, relatives or persons close to them; Where a court decides to hold a hearing in camera, it shall indicate the specific circumstances in support of that decision in its ruling on this point. ...” 87. On 8 April 2004 the Constitutional Court of the Russian Federation delivered decision no. 132-O in which it held that Articles 108 and 109 of the CCrP should be interpreted as guaranteeing to the accused the right to participate in any detention hearing, in particular when the judge sets down the case for the trial under Article 231 of the Code. 88. On 22 March 2005 the Constitutional Court of the Russian Federation adopted Ruling no. 4-P. In particular, the Constitutional Court held: “Since deprivation of liberty ... is permissible only pursuant to a court decision, taken at a hearing ... on condition that the detainee has been provided with an opportunity to submit his arguments to the court, the prohibition on issuing a detention order ... without a hearing shall apply to all court decisions, whether they concern the initial imposition of this measure of restraint or its confirmation.” 89. On 22 January 2004 the Constitutional Court delivered decision no. 66-O on a complaint about the Supreme Court’s refusal to permit a detainee to attend the appeal hearings on the issue of detention. It held: “Article 376 of the Code of Criminal Procedure, which regulates the presence of a defendant remanded in custody before the appeal court ... cannot be interpreted as depriving the defendant held in custody... of the right to express his opinion to the appeal court, by way of his personal attendance at the hearing or by other lawful means, on matters relating to the examination of his complaint about a judicial decision affecting his constitutional rights and freedoms...” 90. The Pre-trial Detention Act of 1995 (Federal Law on the Detention of Suspects and Defendants, no. 103-FZ of 15 July 1995), as in force at the material time, provides in section 18 that a detainee has a right to confidential meetings with his lawyers. That section does not define whether the lawyer and the client are entitled to make notes during such meetings and to exchange any documents. The meeting should be conducted out of the hearing of prison staff, but the prison staff should be able to see what is happening in the hearing room. Section 18 establishes that a meeting can be interrupted if the person meeting the detainee tries to hand him “prohibited objects, substance, or food stuff” or to give him “information which may obstruct the establishment of truth in the criminal case or facilitate criminal acts”. 91. Section 20 establishes that all correspondence by detainees goes through the prison administration, which may open and inspect the mail. Correspondence addressed to the courts, to the ombudsman, to the prosecuting authorities, to the European Court of Human Rights, etc., is free from perusal but lawyers are not mentioned in this list (for more details see Moiseyev v. Russia, no. 62936/00, § 117, 9 October 2008). It appears (see the paragraphs immediately below) that the Pre-trial Detention Act was routinely interpreted by the prison authorities as allowing the former to seize and inspect correspondence between a detainee and his lawyer. 92. Section 34 of the Pre-trial Detention Act establishes as follows: “Where there are sufficient reasons to suspect that a person entering or leaving the prison carries prohibited objects, substances [or] food stuff, the prison officials may search their clothes and belongings ... and seize the objects, substances and food stuff ... which [detainees] are not allowed to have or to use.” 93. The Internal Regulations for Remand Prisons, introduced by Decree no. 189 of the Ministry of Justice of 14 October 2005, contained section 146, which established that lawyers cannot use computers, audio- and video-recording equipment, copying machines, etc., during meetings with their clients in remand prisons unless authorised by the prison administration. On 31 October 2007 the Supreme Court of the Russian Federation struck down that provision as unlawful (decision confirmed on 29 January 2008). 94. On 29 November 2010 the Constitutional Court of the Russian Federation interpreted the above provisions of the Pre-trial Detention Act in their constitutional meaning. The Constitutional Court held that the law may legitimately introduce certain limitations on the lawyer-client confidentiality, including perusal of their correspondence. However, such limitations should not be arbitrary, should pursue a legitimate aim and be proportionate to it. Legitimate aims may include preventing further criminal activity by the accused, and preventing him from putting pressure on witnesses or otherwise obstructing justice. The general rule is that the lawyer-client correspondence is privileged and cannot be perused. Any departure from this rule is permissible only in exceptional circumstances where the authorities have valid reasons to believe that the lawyer and/or his client are abusing the confidentiality rule. Further, the Constitutional Court specified that the prison authorities should have “sufficient and reasonable grounds to believe” that the correspondence contains unlawful content and that they may peruse such correspondence only in presence of the persons concerned and on the basis of a written motivated decision. The results of the inspection of the mail should also be recorded. At the same time the Constitutional Court ruled that any correspondence addressed by a detainee to his lawyer but not submitted “through the prison administration”, as provided by the federal law, can be checked by the prison administration. | 1 |
train | 001-108686 | ENG | AUT | CHAMBER | 2,012 | CASE OF KOPF AND LIBERDA v. AUSTRIA | 4 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life) | Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska | 5. The applicants were born in 1953 and 1943 respectively and live in Vienna. 6. In 1997 the biological mother of F., then two years old and born out of wedlock, set her apartment on fire after having consumed drugs. The mother and her child were rescued and, on 19 December 1997, the Vienna Youth Welfare Office (Amt für Jugend und Familie) handed F. over to the applicants as foster parents. 7. The applicants subsequently tried to obtain custody of F. and wanted to adopt him. F.’s mother recovered and was at first allowed access to visit her son. She then tried to obtain custody of F., which led to arguments between her and the applicants. Since these disputes were to the detriment of F., he was given to a “crisis foster family” (Krisenpflegefamilie) on 25 October 2001 for approximately eight weeks. After that period F. was handed over to his biological mother, who obtained provisional custody of him following a decision of the Vienna Juvenile Court (Jugendgerichtshof) on 19 December 2001. This decision entered into force on 18 December 2002, when the Supreme Court rejected an appeal by the applicants (Revisionsrekurs). 8. In the meantime on 20 December 2001 the applicants requested the right to visit F. Thereupon the Juvenile Court asked the Vienna Youth Welfare Office for their observations on the applicants’ request. 9. The Vienna Youth Welfare Office submitted observations on 31 December 2001, stating that because of the long-lasting relationship between F. and the applicants it would be inappropriate not to allow access to the foster parents. 10. On 31 January 2002 the Juvenile Court heard the biological mother, who opposed the granting of visiting rights to the applicants because F. was in the process of getting used to her again. 11. On 8 February 2002 the applicants requested the acceleration of the proceedings (Fristsetzungantrag) under Section 91 of the Austrian Court Act. 12. On 28 March 2002 the Vienna Juvenile Court Assistance Office (Wiener Jugendgerichtshilfe) submitted their observations to the Juvenile Court. In the following months both parties repeatedly filed written observations on that report. The applicants also requested that an expert for child psychology be appointed. 13. On 2 December 2002 the applicants complained about the length of the proceedings and requested the opinion of an expert on child psychology. The biological mother objected to this request. 14. On 4 December 2002 the Juvenile Court asked the applicants whether they were maintaining their request for the appointment of an expert, given that meanwhile a report by the doctor with whom F. had had therapy had been obtained. On 10 December 2002 the applicants informed the court that they insisted on the appointment of an expert and proposed further questions to be put to the expert appointed. 15. On 17 February 2003 the Juvenile Court designated Dr. Sp. as the expert. The biological mother filed objections against Dr. Sp. 16. In July 2003 the court file was transferred to the Vienna Regional Court for Civil Matters, which was dealing with an appeal lodged by the applicants in the custody proceedings concerning F. lodged on 23 May 2003. On an unspecified date the Vienna Regional Court transferred the file to the Wiener Neustadt Regional Court as it considered that that court was competent to decide on the appeal. The Wiener Neustadt Regional Court did so on 19 and 29 January 2004; the file was then forwarded to the Mödling District Court, which had meanwhile become competent to deal with custody and visiting-rights proceedings. 17. On 16 December 2003 Dr Sp asked the District Court for leave to be discharged from the duty to prepare an expert report. He submitted that a report was not feasible because he had not been given the opportunity to examine F. thoroughly by F.’s mother. 18. The Mödling District Court held a hearing with the parties on 1 April 2004 in order to discuss how to proceed further with the case. The judge informed the applicants and the biological mother that he would ask the Youth Office of the Mödling District Administrative Authority (Jugendamt der Bezirkshauptmannschaft) for a final report on the issue of visiting rights. 19. P., who was the officer in charge at the Youth Office of the Mödling District Administrative Authority, submitted the report on 29 July 2004. She recommended refusing visiting rights to the applicants, because the reestablishment of contact with F. after it had been interrupted for more than two years might harm the psychological stability of the child. On 17 August and 16 September 2004 the parties submitted their comments on that report. 20. On 3 August 2004 Dr. Z. of the Niederösterreich Child and Youth Psychological Consulting Office (Kinder- und jugendpsychologischer Beratungsdienst) also suggested that the applicants should not be granted access to F., explaining that F. was aware of the difficulties between his mother and the applicants and therefore, as a protective measure, had said that he did not want to see the applicants. Dr. Z. further stated that not seeing the applicants was not to the detriment of the child. The applicants submitted observations regarding these recommendations. 21. On 9 November 2004 the Mödling District Court rejected the applicants’ request to visit F. and found that failure to provide for personal contact (Unterbleiben des persönlichen Verkehrs) between the applicants and F. did not endanger his well-being. 22. It found that under Article 148 (4) of the Civil Code a court, upon the request of a parent, the child, a youth welfare body or of its own motion had to take the necessary measures if failure to provide for personal contact between the child and the third person would endanger his or her well-being. Third persons, in contrast to parents or grandparents, had no legal right to be granted contact rights and consequently no legal standing in related court proceedings. They could merely suggest to the court (anregen) that it examine the matter of its own motion, and a court could only grant contact rights if failure to do so would endanger the child’s well-being. 23. Taking the applicants’ request as such a suggestion, visiting rights could not be granted. From all the material in the possession of the District Court it was evident that F. was vehemently opposed to meeting the applicants, while at the same time he had developed a close and positive relationship with his mother. The District Court acknowledged that the applicants had a genuine concern for F.’s well-being; however, in the present situation the interests of the applicants did not coincide with the child’s best interests. Given that F. had not been in contact with his foster parents for more than three years, the District Court would follow the conclusions in the reports of P., from the Youth Office of the Mödling District Administrative Authority, and Dr. Z., from the Niederösterreich Child and Youth Psychological Consulting Office. It was quite possible that immediately after F. had been placed with the “crisis foster family” in October 2001 the granting of visiting rights to the applicants might have been useful. However, this was no longer the case and it now served the best interests of the child, who was living with his biological mother, not to put him back in a situation of divided loyalties (Loyalitätskonflikt) between her and his “former family”, the applicants. 24. On 6 December 2004 the applicants appealed against the District Court’s decision. They argued that the refusal of visiting rights breached their rights under Article 8 of the Convention. 25. The Regional Court dismissed the applicants’ appeal on 17 February 2005. It found that foster parents could file requests in proceedings concerning the foster child and also had the right to appeal against decisions. The status of a foster parent was, however, a matter which depended rather on whether the person actually cared for the child and whether a lasting emotional link similar to the one between parents and children had developed. Even though the applicants had lived with F. for approximately forty-six months in the same household with the intent to develop such emotional ties, it was actually more than forty months since they had had care of him and they could now no longer be considered his foster parents. Nevertheless, their appeal had to be considered on its merits, and, for the reasons given by the District Court, granting visiting rights to them was not in the best interests of F. The appeal was therefore unfounded. 26. On 25 May 2005 the Supreme Court dismissed an extraordinary appeal by the applicant (außerordentlicher Revisionsrekurs). That decision was served on the applicants’ counsel on 7 July 2005. 27. Article 148 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) reads as follows: “(1) If one parent does not live in a common household with a minor child, then the child and this parent have the right to be in personal contact with each other. The exercise of this right shall be regulated by mutual consent between the child and the parents. Whenever such an agreement cannot be reached, the court shall regulate the exercise of this right in a manner appropriate for the welfare of the child, upon an application by the child or a parent, giving due consideration to the needs and wishes of the child. (2) If necessary, the court shall restrict or not permit the exercise of the right to personal contact, especially if the authorised parent does not comply with his/her obligation under Section 145b. (3) Paragraphs (1) and (2) shall apply by analogy to the relationship between grandchildren and their grandparents. However, the exercise of the right of grandparents shall also be restricted or not permitted to such an extent that this would otherwise disturb the family life of the parents (a parent) or their relationship to the child. (4) Where the absence of personal contact between the minor child and a third party that is ready to engage in such contact may jeopardise the child’s welfare, the court shall issue the disposition necessary to regulate the personal contact upon an application by the child, a parent, the youth welfare agency, or of its own motion.” | 1 |
train | 001-57891 | ENG | DNK | GRANDCHAMBER | 1,994 | CASE OF JERSILD v. DENMARK | 2 | Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | C. Russo;N. Valticos;R. Pekkanen | 9. Mr Jens Olaf Jersild, a Danish national, is a journalist and lives in Copenhagen. He was at the time of the events giving rise to the present case, and still is, employed by Danmarks Radio (Danish Broadcasting Corporation, which broadcasts not only radio but also television programmes), assigned to its Sunday News Magazine (Søndagsavisen). The latter is known as a serious television programme intended for a well-informed audience, dealing with a wide range of social and political issues, including xenophobia, immigration and refugees. 10. On 31 May 1985 the newspaper Information published an article describing the racist attitudes of members of a group of young people, calling themselves "the Greenjackets" ("grønjakkerne"), at Østerbro in Copenhagen. In the light of this article, the editors of the Sunday News Magazine decided to produce a documentary on the Greenjackets. Subsequently the applicant contacted representatives of the group, inviting three of them together with Mr Per Axholt, a social worker employed at the local youth centre, to take part in a television interview. During the interview, which was conducted by the applicant, the three Greenjackets made abusive and derogatory remarks about immigrants and ethnic groups in Denmark. It lasted between five and six hours, of which between two and two and a half hours were video-recorded. Danmarks Radio paid the interviewees fees in accordance with its usual practice. 11. The applicant subsequently edited and cut the film of the interview down to a few minutes. On 21 July 1985 this was broadcast by Danmarks Radio as a part of the Sunday News Magazine. The programme consisted of a variety of items, for instance on the martial law in South Africa, on the debate on profit-sharing in Denmark and on the late German writer Heinrich Böll. The transcript of the Greenjackets item reads as follows [(I): TV presenter; (A): the applicant; (G): one or other of the Greenjackets]: (I) "In recent years, a great deal has been said about racism in Denmark. The papers are currently publishing stories about distrust and resentment directed against minorities. Who are the people who hate the minorities? Where do they come from? What is their mentality like? Mr Jens Olaf Jersild has visited a group of extremist youths at Østerbro in Copenhagen. (A) The flag on the wall is the flag of the Southern States from the American Civil War, but today it is also the symbol of racism, the symbol of the American movement, the Ku Klux Klan, and it shows what Lille Steen, Henrik and Nisse are. Are you a racist? (G) Yes, that’s what I regard myself as. It’s good being a racist. We believe Denmark is for the Danes. (A) Henrik, Lille Steen and all the others are members of a group of young people who live in Studsgårdsgade, called STUDSEN, in Østerbro in Copenhagen. It is public housing, a lot of the inhabitants are unemployed and on social security; the crime rate is high. Some of the young people in this neighbourhood have already been involved in criminal activities and have already been convicted. (G) It was an ordinary armed robbery at a petrol station. (A) What did you do? (G) Nothing. I just ran into a petrol station with a ... gun and made them give me some money. Then I ran out again. That’s all. (A) What about you, what happened? (G) I don’t wish to discuss that further. (A) But, was it violence? (G) Yes. (A) You have just come out of ... you have been arrested, what were you arrested for? (G) Street violence. (A) What happened? (G) I had a little fight with the police together with some friends. (A) Does that happen often? (G) Yes, out here it does. (A) All in all, there are 20-25 young people from STUDSEN in the same group. They meet not far away from the public housing area near some old houses which are to be torn down. They meet here to reaffirm among other things their racism, their hatred of immigrants and their support for the Ku Klux Klan. (G) The Ku Klux Klan, that’s something that comes from the States in the old days during - you know - the civil war and things like that, because the Northern States wanted that the niggers should be free human beings, man, they are not human beings, they are animals, right, it’s completely wrong, man, the things that happened. People should be allowed to keep slaves, I think so anyway. (A) Because blacks are not human beings? (G) No, you can also see that from their body structure, man, big flat noses, with cauliflower ears etc., man. Broad heads and very broad bodies, man, hairy, you are looking at a gorilla and compare it with an ape, man, then it is the same [behaviour], man, it’s the same movements, long arms, man, long fingers etc., long feet. (A) A lot of people are saying something different. There are a lot of people who say, but ... (G) Just take a picture of a gorilla, man, and then look at a nigger, it’s the same body structure and everything, man, flat forehead and all kinds of things. (A) There are many blacks, for example in the USA, who have important jobs. (G) Of course, there is always someone who wants to show off, as if they are better than the white man, but in the long run, it’s the white man who is better. (A) What does Ku Klux Klan mean to you? (G) It means a great deal, because I think what they do is right. A nigger is not a human being, it’s an animal, that goes for all the other foreign workers as well, Turks, Yugoslavs and whatever they are called. (A) Henrik is 19 years old and on welfare. He lives in a rented room in Studsgårdsgade. Henrik is one of the strongest supporters of the Klan, and he hates the foreign workers, ‘Perkere’ [a very derogatory word in Danish for immigrant workers]. (G) They come up here, man, and sponge on our society. But we, we have enough problems in getting our social benefits, man, they just get it. Fuck, we can argue with those idiots up there at the social benefit office to get our money, man, they just get it, man, they are the first on the housing list, they get better flats than us, man, and some of our friends who have children, man, they are living in the worst slum, man, they can’t even get a shower in their flat, man, then those ‘Perkere’-families, man, go up there with seven kids, man, and they just get an expensive flat, right there and then. They get everything paid, and things like that, that can’t be right, man, Denmark is for the Danes, right? It is the fact that they are ‘Perkere’, that’s what we don’t like, right, and we don’t like their mentality - I mean they can damn well, I mean ... what’s it called ... I mean if they feel like speaking Russian in their homes, right, then it’s okay, but what we don’t like is when they walk around in those Zimbabwe-clothes and then speak this hula-hula language in the street, and if you ask them something or if you get into one of their taxis then they say: I don’t know where it is, you give directions right. (A) Is it not so that perhaps you are a bit envious that some of the ‘Perkere’ as you call them have their own shops, and cars, they can make ends ... (G) It’s drugs they are selling, man, half of the prison population in ‘Vestre’ are in there because of drugs, man, half of those in Vestre prison anyway, they are the people who are serving time for dealing drugs or something similar. They are in there, all the ‘Perkere’, because of drugs, right. [That] must be enough, what’s it called, there should not be drugs here in this country, but if it really has to be smuggled in, I think we should do it ourselves, I mean, I think it’s unfair that those foreigners come up here to ... what’s it called ... make Denmark more drug dependent and things like that. We have painted their doors and hoped that they would get fed up with it, so that they would soon leave, and jumped on their cars and thrown paint in their faces when they were lying in bed sleeping. (A) What was it you did with that paint - why paint? (G) Because it was white paint, I think that suited them well, that was the intended effect. (A) You threw paint through the windows of an immigrant family? (G) Yes. (A) What happened? (G) He just got it in his face, that’s all. Well, I think he woke up, and then he came out and shouted something in his hula-hula language. (A) Did he report it to the police? (G) I don’t know if he did, I mean, he won’t get anywhere by doing that. (A) Why not? (G) I don’t know, it’s just kid’s stuff, like other people throwing water in people’s faces, he got paint in his. They can’t make anything out of that. --- (A) Per Axholt, known as ‘Pax’ [(P)], is employed in the youth centre in Studsgårdsgade. He has worked there for several years, but many give up a lot sooner because of the tough environment. Per Axholt feels that the reasons why the young people are persecuting the immigrants is that they are themselves powerless and disappointed. What do you think they would say that they want, if you asked them? (P) Just what you and I want. Some control over their lives, work which may be considered decent and which they like, a reasonable economic situation, a reasonably functioning family, a wife or a husband and some children, a reasonable middle-class life such as you and I have. (A) They do many things which are sure to prevent them from getting it. (P) That is correct. (A) Why do you think they do this? (P) Because they have nothing better to do. They have been told over a long period that the means by which to achieve success is money. They won’t be able to get money legitimately, so often they try to obtain it through criminal activity. Sometimes they succeed, sometimes not, and that’s why we see a lot of young people in that situation go to prison, because it doesn’t work. --- (A) How old were you when you started your criminal activities? (G) I don’t know, about 14 I guess. (A) What did you do? (G) The first time, I can’t remember, I don’t know, burglary. (A) Do you have what one might call a criminal career? (G) I don’t know if you can call it that. (A) You committed your first crime when you were 14. (G) Well, you can put it that way, I mean, if that is a criminal career. If you have been involved in crime since the age of 15 onwards, then I guess you can say I’ve had a criminal career. (A) Will you tell me about some of the things you have done? (G) No, not really. It’s been the same over and over again. There has been pinching of videos, where the ‘Perkere’ have been our customers, so they have money. If people want to be out here and have a nice time and be racists and drink beer, and have fun, then it’s quite obvious you don’t want to sit in the slammer. (A) But is the threat of imprisonment something that really deters people from doing something illegal? (G) No, it’s not prison, that doesn’t frighten people. (A) Is that why you hear stories about people from out here fighting with knives etc., night after night. Is the reason for this the fact that they are not afraid of the police getting hold of them? (G) Yes, nothing really comes of it, I mean, there are no bad consequences, so probably that’s why. For instance fights and stabbings and smashing up things ... If you really get into the joint it would be such a ridiculously small sentence, so it would be, I mean ... usually we are released the next day. Last time we caused some trouble over at the pub, they let us out the next morning. Nothing really comes of it. It doesn’t discourage us, but there were five of us, who just came out and then we had a celebration for the last guy, who came out yesterday, they probably don’t want to go in again for some time so they probably won’t commit big crimes again. (A) You would like to move back to Studsgårdsgade where you grew up, but we know for sure that it’s an environment with a high crime rate. Would you like your child to grow up like you? (G) No, and I don’t think she will. Firstly, because she is a girl, statistics show that the risk is not that high, I mean they probably don’t do it, but you don’t have to be a criminal because you live in an environment with a high crime rate. I just wouldn’t accept it, if she was mugging old women and stealing their handbags. (A) What if she was among those beating up the immigrants etc. What then? (G) That would be okay. I wouldn’t have anything against that. --- (I) We will have to see if the mentality of this family changes in the next generation. Finally, we would like to say that groups of young people like this one in STUDSEN at Østerbro, have been formed elsewhere in Copenhagen." 12. Following the programme no complaints were made to the Radio Council, which had competence in such matters, or to Danmarks Radio but the Bishop of Ålborg complained to the Minister of Justice. After undertaking investigations the Public Prosecutor instituted criminal proceedings in the City Court of Copenhagen (Københavns Byret) against the three youths interviewed by the applicant, charging them with a violation of Article 266 (b) of the Penal Code (straffeloven) (see paragraph 19 below) for having made the statements cited below: "... the Northern States wanted that the niggers should be free human beings, man, they are not human beings, they are animals." "Just take a picture of a gorilla, man, and then look at a nigger, it’s the same body structure and everything, man, flat forehead and all kinds of things." "A nigger is not a human being, it’s an animal, that goes for all the other foreign workers as well, Turks, Yugoslavs and whatever they are called." "It is the fact that they are ‘Perkere’, that’s what we don’t like, right, and we don’t like their mentality ... what we don’t like is when they walk around in those Zimbabwe-clothes and then speak this hula-hula language in the street ..." "It’s drugs they are selling, man, half of the prison population in ‘Vestre’ are in there because of drugs ... they are the people who are serving time for dealing drugs ..." "They are in there, all the ‘Perkere’, because of drugs ..." The applicant was charged, under Article 266 (b) in conjunction with Article 23 (see paragraph 19 below), with aiding and abetting the three youths; the same charge was brought against the head of the news section of Danmarks Radio, Mr Lasse Jensen. 13. In the City Court counsel for the applicant and Mr Jensen called for their acquittal. He argued that the conduct of the applicant and Mr Jensen could in no way be compared to that of the other three defendants, with whose views they did not sympathise. They sought merely to provide a realistic picture of a social problem; in fact the programme only provoked resentment and aroused pity in respect of the three other defendants, who had exposed themselves to ridicule on their own terms. Accordingly, it was by no means the intention of Danmarks Radio to persuade others to subscribe to the same views as the Greenjackets, rather the contrary. Under the relevant law a distinction had to be drawn between the persons who made the statements and the programme editors, the latter enjoying a special freedom of expression. Having at that time a broadcasting monopoly, Danmarks Radio was under a duty to impart all opinions of public interest in a manner that reflected the speaker’s way of expressing himself. The public also had an interest in being informed of notoriously bad social attitudes, even those which were unpleasant. The programme was broadcast in the context of a public debate which had resulted in press comments, for instance in Information, and was simply an honest report on the realities of the youths in question. Counsel, referring inter alia to the above-mentioned article in Information, also pointed to the fact that no consistent prosecution policy had been followed in cases of this nature. 14. On 24 April 1987 the City Court convicted the three youths, one of them for having stated that "niggers" and "foreign workers" were "animals", and two of them for their assertions in relation to drugs and "Perkere". The applicant was convicted of aiding and abetting them, as was Mr Jensen, in his capacity as programme controller; they were sentenced to pay day-fines (dagsbøder) totalling 1,000 and 2,000 Danish kroner, respectively, or alternatively to five days’ imprisonment (hæfte). As regards the applicant, the City Court found that, following the article in Information of 31 May 1985, he had visited the Greenjackets and after a conversation with Mr Axholt, amongst others, agreed that the three youths should participate in a television programme. The object of the programme had been to demonstrate the attitude of the Greenjackets to the racism at Østerbro, previously mentioned in the article in Information, and to show their social background. Accordingly, so the City Court held, the applicant had himself taken the initiative of making the television programme and, further, he had been well aware in advance that discriminatory statements of a racist nature were likely to be made during the interview. The interview had lasted several hours, during which beer, partly paid for by Danmarks Radio, was consumed. In this connection the applicant had encouraged the Greenjackets to express their racist views, which, in so far as they were broadcast on television, in itself constituted a breach of Article 266 (b) of the Penal Code. The statements were broadcast without any counterbalancing comments, after the recordings had been edited by the applicant. He was accordingly guilty of aiding and abetting the violation of Article 266 (b). 15. The applicant and Mr Jensen, but not the three Greenjackets, appealed against the City Court’s judgment to the High Court of Eastern Denmark (Østre Landsret). They essentially reiterated the submissions made before the City Court and, in addition, the applicant explained that, although he had suspected that the Greenjackets’ statements were punishable, he had refrained from omitting these from the programme, considering it crucial to show their actual attitude. He assumed that they were aware that they might incur criminal liability by making the statements and had therefore not warned them of this fact. 16. By judgment of 16 June 1988 the High Court, by five votes to one, dismissed the appeal. The dissenting member was of the view that, although the statements by the Greenjackets constituted offences under Article 266 (b) of the Penal Code, the applicant and Mr Jensen had not transgressed the bounds of the freedom of speech to be enjoyed by television and other media, since the object of the programme was to inform about and animate public discussion on the particular racist attitudes and social background of the youth group in question. 17. With leave the applicant and Mr Jensen appealed from the High Court judgment to the Supreme Court (Højesteret), which by four votes to one dismissed the appeal in a judgment of 13 February 1989. The majority held: "The defendants have caused the publication of the racist statements made by a narrow circle of persons and thereby made those persons liable to punishment and have thus, as held by the City Court and the High Court, violated Article 266 (b) in conjunction with Article 23 of the Penal Code. [We] do not find that an acquittal of the defendants could be justified on the ground of freedom of expression in matters of public interest as opposed to the interest in the protection against racial discrimination. [We] therefore vote in favour of confirming the judgment [appealed from]." Justice Pontoppidan stated in his dissent: "The object of the programme was to contribute to information on an issue - the attitude towards foreigners - which was the subject of extensive and sometimes emotional public debate. The programme must be presumed to have given a clear picture of the Greenjackets’ views, of which the public was thus given an opportunity to be informed and form its own opinion. In view of the nature of these views, any counterbalancing during or immediately before or after would not have served a useful purpose. Although it concerned a relatively small group of people holding extreme views, the programme had a fair degree of news and information value. The fact that the defendants took the initiative to disseminate such views is not of paramount importance for the assessment of their conduct. In these circumstances and irrespective of the fact that the statements rightly have been found to be in violation of Article 266 (b), I question the advisability of finding the defendants guilty of aiding and abetting the violation of this provision. I therefore vote in favour of the defendants’ acquittal." 18. When the Supreme Court has rendered judgment in a case raising important issues of principle it is customary that a member of the majority publishes a detailed and authoritative statement of the reasons for the judgment. In keeping with this custom, Justice Hermann on 20 January 1990 published such a statement in the Weekly Law Journal (Ugeskrift for Retsvæsen, 1989, p. 399). As regards the conviction of the applicant and Mr Jensen, the majority had attached importance to the fact that they had caused the racist statements to be made public. The applicant’s item had not been a direct report on a meeting. He had himself contacted the three youths and caused them to make assertions such as those previously made in Information, which he knew of and probably expected them to repeat. He had himself cut the recording of the interview, lasting several hours, down to a few minutes containing the crude comments. The statements, which would hardly have been punishable under Article 266 (b) of the Penal Code had they not been made to a wide circle ("videre kreds") of people, became clearly punishable as they were broadcast on television on the applicant’s initiative and with Mr Jensen’s approval. It was therefore beyond doubt that they had aided and abetted the dissemination of the statements. Acquitting the applicant and Mr Jensen could only be justified by reasons clearly outweighing the wrongfulness of their actions. In this connection, the interest in protecting those grossly insulted by the statements had to be weighed up against that of informing the public of the statements. Whilst it is desirable to allow the press the best possible conditions for reporting on society, press freedom cannot be unlimited since freedom of expression is coupled with responsibilities. In striking a balance between the various interests involved, the majority had regard to the fact that the statements, which were brought to a wide circle of people, consisted of series of inarticulate, defamatory remarks and insults spoken by members of an insignificant group whose opinions could hardly be of interest to many people. Their news or information value was not such as to justify their dissemination and therefore did not warrant acquitting the defendants. This did not mean that extremist views could not be reported in the press, but such reports must be carried out in a more balanced and comprehensive manner than was the case in the television programme in question. Direct reports from meetings which were a matter of public interest should also be permitted. The minority, on the other hand, considered that the right to information overrode the interests protected by Article 266 (b) of the Penal Code. Finally, Justice Hermann noted that the compatibility of the impugned measures with Article 10 (art. 10) of the Convention was not raised during the trial. 19. At the relevant time Article 266 (b) of the Penal Code provided: "Any person who, publicly or with the intention of disseminating it to a wide circle ("videre kreds") of people, makes a statement, or other communication, threatening, insulting or degrading a group of persons on account of their race, colour, national or ethnic origin or belief shall be liable to a fine or to simple detention or to imprisonment for a term not exceeding two years." Article 23, paragraph 1, reads: "A provision establishing a criminal offence shall apply to any person who has assisted the commission of the offence by instigation, advice or action. The punishment may be reduced if the person in question only intended to give assistance of minor importance or to strengthen an intent already resolved or if the offence has not been completed or an intended assistance failed." 20. The 1991 Media Liability Act (Medieansvarsloven, 1991:348), which entered into force on 1 January 1992, that is after the events giving rise to the present case, lays down rules inter alia on criminal liability in respect of television broadcasts. Section 18 provides: "A person making a statement during a non-direct broadcast (forskudt udsendelse) shall be responsible for the statement under general statutory provisions, unless: (1) the identity of the person concerned does not appear from the broadcast; or (2) [that person] has not consented to the statement being broadcast; or (3) [he or she] has been promised that [he or she] may take part [in the broadcast] without [his or her] identity being disclosed and reasonable precautions have been taken to this effect. In the situations described in paragraph 1, sub-paragraphs (1) to (3) above, the editor is responsible for the contents of the statements even where a violation of the law has occurred without intent or negligence on his part ..." Pursuant to section 22: "A person who reads out or in any other manner conveys a text or statement, is not responsible for the contents of that text or statement." 21. Provisions relating to the prohibition of racial discrimination and the prevention of propaganda of racist views and ideas are to be found in a number of international instruments, for example the 1945 United Nations Charter (paragraph 2 of the Preamble, Articles 1 para. 3, 13 para. 1 (b), 55 (c) and 76 (c)), the 1948 Universal Declaration of Human Rights (Articles 1, 2 and 7) and the 1966 International Covenant on Civil and Political Rights (Articles 2 para. 1, 20 para. 2 and 26). The most directly relevant treaty is the 1965 International Convention on the Elimination of All Forms of Racial Discrimination ("the UN Convention"), which has been ratified by a large majority of the Contracting States to the European Convention, including Denmark (9 December 1971). Articles 4 and 5 of that Convention provide: "States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in Article 5 of this Convention, inter alia: (a) shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof; ..." "In compliance with the fundamental obligation laid down in ... this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: ... (d) ... viii. the right to freedom of opinion and expression; ..." The effects of the "due regard" clause in Article 4 has given rise to differing interpretations and the UN Committee on the Elimination of Racial Discrimination ("the UN Committee" - set up to supervise the implementation of the UN Convention) was divided in its comments on the applicant’s conviction. The present case had been presented by the Danish Government in a report to the UN Committee. Whilst some members welcomed it as "the clearest statement yet, in any country, that the right to protection against racial discrimination took precedence over the right to freedom of expression", other members considered that "in such cases the facts needed to be considered in relation to both rights" (Report of the Committee to the General Assembly, Official Records, Forty-Fifth Session, Supplement No. 18 (A/45/18), p. 21, para. 56). | 1 |
train | 001-61416 | ENG | ITA | CHAMBER | 2,003 | CASE OF RISPOLI v. ITALY | 4 | Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 4. The applicant was born in 1940 and lives in Salerno. 5. He is the owner of a flatt in Salerno, which he had let to R.C. 6. In a writ served on the tenant on 3 May 1990, the applicant informed the tenant of his intention to terminate the lease on expiry of the term on 30 November 1990 and summoned her to appear before the Salerno Magistrate. 7. By a decision of 15 May 1990, which was made enforceable on 1 June 1990, the Salerno Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1991. 8. On 28 January 1992, the applicant served notice on the tenant requiring her to vacate the premises. 9. On 6 April 1992, he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 21 April 1992. 10. On 21 April 1992 the bailiff made one attempt to recover possession that proved unsuccessful as, under the statutory provisions providing for the suspension, the applicant was not entitled to police assistance in enforcing the order for possession. 11. On 27 January 1997, the applicant made a statutory declaration that he urgently required the premises as accommodation for himself. 12. Pursuant to article 6 of Law no. 431/98, the Salerno Magistrate suspended the eviction proceedings until 19 November 1999. 13. On 20 October 1999, he served a second notice on the tenant informing her that the order for possession would be enforced by a bailiff on 19 November 1999. 14. On 19 November 1999, the applicant recovered possession of the flat. 15. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V. 16. As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows. 17. The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation. 18. The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies. Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price. 19. Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents. 20. The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat. In this regard, Article 1591 of the Italian Civil Code provides: “The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages.” 21. However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law no. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat. 22. In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional. Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages. 23. The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant. | 1 |
train | 001-75101 | ENG | AUT | CHAMBER | 2,006 | CASE OF I.H. AND OTHERS v. AUSTRIA | 3 | Violation of Art. 6;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention and domestic proceedings | Christos Rozakis | 11. The applicants, four in all, are Austrian nationals of Turkish origin, born in 1978, 1959, 1959 and 1961 respectively, and are living in Lustenau (Austria). The second applicant is the first applicant’s father, the third applicant his mother and the fourth applicant his uncle. On 21 March 1997 the Feldkirch Public Prosecutor filed a bill of indictment against the applicants charging them with rape under section 201 § 2 of the Penal Code, coercion and deprivation of liberty. The public prosecutor stated that since September 1995 the first applicant had been the fiancé of F.D. Their future marriage had been arranged by their respective fathers. After the death of F.D.’s father in May 1996, F.D. considered herself no longer bound by the promise of betrothal given by her father. She told this to the first applicant and his parents who, however, refused to accept her change of mind. 12. Ever since the death of F.D.’s father the second applicant regularly brought F.D. by car to her place of work and drove her home again after work. On 22 July 1996, around 5.00 a.m., the second applicant, accompanied by the first and third applicant, picked up F.D. and brought her to the home of the fourth applicant. The second applicant told her that she was going to have sexual intercourse with the first applicant. He also told her that if she resisted she would be held by the second and fourth applicants and that the third applicant would force her legs apart. She was accompanied to the bedroom. The first applicant attempted to have sexual intercourse with her, but this attempt failed because of F.D.’s resistance. Thereupon, the first applicant requested the third applicant to help him. The third applicant tied F.D.’s hands with adhesive tape and stuck a strip of adhesive tape over her mouth. She then held F.D.s arms while the first applicant had intercourse with F.D. Thereafter, F.D. was constrained to spend the rest of the day with the first applicant in the house. 13. The second and third applicants phoned her mother and told her that F.D. had been kidnapped by them and that she should not contact the police, otherwise F.D. would be killed. Nevertheless, F.D.’s mother informed the police about the incident. Around 8.00 p.m. F.D. was allowed to phone her mother. Soon afterwards police officers arrived at the house and arrested all four applicants. 14. On 23 May 1997 the applicants’ trial was held before the Feldkirch Regional Court. The applicants, assisted by counsel, Mr. Weh, maintained their innocence and claimed that F.D. had accompanied them voluntarily in order to become closer acquainted with the first applicant’s uncle and that, on this occasion, she had had sexual intercourse with the first applicant of her own free will. No violence whatsoever had been used against her. The court heard the applicants and several witnesses, including the victim, her mother and a doctor who had examined the victim at the hospital. F.D. repeated to the court the statements she made to the police and the investigating judge, but added that her family and the applicants’ family had meanwhile settled the matter and that she had received a payment of 50,000 ATS from the applicants’ family. 15. On the same day the Regional Court convicted the applicants of rape under section 201 § 1 of the Penal Code and of deprivation of liberty. The first and second applicants were also convicted of aggravated coercion. The first applicant was sentenced to one year’s imprisonment, the second applicant to two years, the third applicant to twenty months and the fourth applicant to eighteen months of imprisonment. In its judgment, the court described the course of the events in the same terms as in the bill of indictment. 16. As regards the classification of the offence in law, the court found that from the facts established it was apparent that F.D. had been exposed to and had been threatened with acts of serious violence. It therefore had to convict the applicants of rape under Section 201 § 1 of the Penal Code. 17. On 24 July 1997 the applicants filed pleas of nullity (Nichtigkeits-beschwerde) and appeals against sentence (Berufung). The applicants complained, inter alia, that their conviction for rape had gone beyond the terms of the indictment (Anklageüberschreitung) as they were convicted of rape under section 201 § 1 of the Penal Code while the bill of indictment had charged them with rape under section 201 § 2 of the Penal Code. In the applicants’ submission, if the Regional Court had been of the opinion that the public prosecutor’s indictment had not corresponded to all the elements of the case it should have given the public prosecutor the opportunity to amend the indictment. This would at the same time have given the applicants the opportunity to react to the amendment and to dispute the existence of any aggravating circumstances. 18. On 2 December 1997 the Supreme Court rejected the applicants’ appeal under section 285d § 1 of the Code of Criminal Procedure without holding a hearing. As regards the complaint that the judgment had exceeded the terms of the indictment with respect to the charge of rape, the Supreme Court found that a ground of nullity could only be made out if the applicants had been found guilty of an offence which had not been the subject matter of the indictment. The subject matter of an indictment was a specific act or event which, in the eyes of the public prosecutor, had brought about a punishable result. If, on the basis of the evidence taken, the event which formed the basis of the indictment had, in certain details, occurred in a manner different from that assumed by the prosecution, the court had to apply the correct law to the established facts even if the result was that the legal qualification then applied differed from the one made by the public prosecutor. It was only where the taking of evidence showed a course of events which was entirely different from the events described in the indictment such that it could no longer be considered covered by the terms of the indictment, that a conviction would pre-suppose the prior amendment of the indictment. In the present case, the act with which the applicants were charged was identical to the established facts as set out in the judgment. The trial court had merely come to a different legal qualification on the facts. However, this did not exceed the terms of the indictment (Anklageüberschreitung). Moreover, the different legal qualification given to the offence was not in breach of the Convention. It was the main purpose of Article 6 § 3 (d) of the Convention to achieve equality of arms between the prosecution and the defence. However, it could not be considered that a legal qualification in the judgment which differed from the one in the indictment infringed this or any other provision of the Convention. The Supreme Court remitted the applicants’ appeal against sentence to the Innsbruck Court of Appeal. 19. On 11 February 1998 the Court of Appeal dismissed the applicants’ appeal and confirmed the sentences fixed by the Regional Court. 20. Section 201 of the Penal Code (Strafgesetzbuch) reads as follows: “1. Anyone who compels another person, by use of serious violence or threats of immediate serious danger to life or limb, to have sexual intercourse or to perform a sexual act which amounts to sexual intercourse shall be punished by imprisonment of one to ten years. Rendering unconscious also qualifies as use of serious violence. 2. Anyone who, except for the case under paragraph 1, compels another person, by use of violence, deprivation of liberty or threats of danger to life or limb, to have sexual intercourse or to perform a sexual act which amounts to sexual intercourse shall be punished by imprisonment of six months to five years. 3. If the violence resulted in serious bodily harm to the victim, or if the victim has endured great pain for a prolonged period or has been particularly humiliated, the perpetrator of the offence shall be punished by imprisonment of five to fifteen years in the case of paragraph 1 and by imprisonment of one to ten years in the case of paragraph 2. If the violence resulted in the death of the victim the perpetrator of the offence shall be punished by imprisonment of ten to twenty years in the case of paragraph 1 and by imprisonment of five to fifteen years in the case of paragraph 2.” 21. Under the Code of Criminal Procedure the remedies against a judgment by a chamber of a Regional Court are, on the one hand, a plea of nullity (Nichtigkeitsbeschwerde) and, on the other, an appeal against sentence (Berufung). A plea of nullity has to be addressed to the Supreme Court while an appeal against sentence has to be addressed to the Court of Appeal. Section 281 enumerates exhaustively the various grounds for nullity which can be invoked in a plea of nullity. They comprise such elements as participation of an excluded judge (S. 281 § 1 (1)), lack of proper assistance by a defence counsel (S. 281 § 1 (1a)) or breach of a provision of the Code of Criminal Procedure for which the sanction of nullity is expressly provided for (S. 281 § 1 (3). Moreover, it is a ground for nullity if, due to incorrect interpretation, an inapplicable legal provision has been applied to the act underlying a judgment (s. 281 § 1 (10)). In a plea of nullity the assessment of evidence by the Regional Court cannot be challenged unless in the judgment the assessment of evidence is not set out, or if it is unclear, illogic, or in contradiction to the case file (S. 281 § 1 (5) and (5a). | 1 |
train | 001-79655 | ENG | RUS | CHAMBER | 2,007 | CASE OF SYPCHENKO v. RUSSIA | 4 | Violation of Art. 6;Violation of P1-1 | Christos Rozakis | 5. The applicant was born in 1955 and lives in Bataysk in the Rostov Region. 6. In 2004 the applicant sued the Bataysk Town Administration for provision of housing. He had by this time for several years suffered from a grave form of infectious tuberculosis and was entitled to housing according to the relevant provisions of the domestic law. 7. On 19 November 2004 the Batayskiy City Court allowed the applicant's claim and ordered the town administration: “...to grant Mr. Sypchenko, whose family comprises five members, well-equipped housing according to the sanitary-technical requirements, with a living surface of no less than 70 square meters and a total surface of no less than 90 square meters”. 8. On 9 February 2005 the judgment was upheld on appeal by the Rostov Regional Court, and entered into force. The decision was to be implemented by way of providing the applicant with an occupancy voucher (ордер на жилое помещение) from the local municipal authority. The voucher served as the legal basis for taking possession of the flat designated therein and for the signing of a tenancy agreement between the landlord, the tenant and the housing maintenance authority. 9. On 9 March 2005 the enforcement proceedings were opened. However, the judgment could not be enforced because the town administration allegedly possessed no available housing of the indicated size or financial resources to purchase it. 10. Following the Town Administration's request to review the case by way of supervisory review due to the impossibility to enforce it, on 28 March 2005 the Rostov Regional Court decided to obtain the case-file from the Batayskiy City Court and to stay the enforcement proceedings until its examination by way of supervisory review. 11. On 17 June 2005 the Rostov Regional Court granted the request for supervisory review lodged by the Mayor of Bataysk and remitted the matter for examination on the merits to the Presidium of the Rostov Regional Court. 12. On 7 July 2005 the Presidium of the Rostov Regional Court amended the judgment of 19 November 2004 as upheld on 9 February 2005. It found that the previous instances had misapplied certain provisions relating to the rules for calculating the living surface and thus awarded the applicant the maximum possible surface per person (12m² per person) instead of applying the minimum standard (9m² per person) without giving any reasons. The Presidium of the Rostov Regional Court ordered the Town Administration: “...to grant [the applicant] ... housing... with the living space of no less than 45 square meters”. 13. On 18 October 2005 the Mayor of Bataysk issued an order which granted the applicant a social tenancy voucher for a three room flat with a living surface of 50.5 square meters. The applicant contested the order in court, expressing general discontent with the flat. On 15 March 2006 the Rostov Regional Court in final instance dismissed the applicant's complaint. 14. On 5 June 2005 the Batayskiy City Court obliged the applicant to sign the social tenancy agreement for the awarded flat. The applicant, however, refused to sign the agreement. 15. The RSFSR Housing Code (Law of 24 June 1983, effective until 1 March 2005) provided that Russian citizens were entitled to possess flats owned by the State or municipal authorities or other public bodies, under the terms of a tenancy agreement (section 10). Certain “protected” categories of individuals (disabled persons, war veterans, Chernobyl victims, police officers, judges, etc.) had a right to priority treatment in the allocation of flats. 16. Flats were granted for permanent use (section 10). 17. Section 14 § 5 of the Law on the Prevention of Spread of Tuberculosis in the Russian Federation (Law no.77-FZ of 18 June 2001) provides that those suffering from infectious tuberculosis who do not have a separate living space but share it with other tenants (family members), shall be provided with such by a local authority within one year from the date of lodging their application. 18. A judicial decision becomes legally binding after the appeal court has examined the matter (Article 209 § 1). A judicial decision must be enforced once it became legally binding, unless the law provides for its immediate enforcement (Article 210). 19. The relevant provisions governing the supervisory-review proceedings read as follows: “1. Courts may issue judicial decisions in the form of judicial orders, judgments and interim decisions...” “1. Judicial decisions that have become legally binding, with the exception for judicial decisions by the Presidium of the Supreme Court of the Russian Federation, may be appealed against... to a court exercising supervisory review, by parties to the case and by other persons whose rights or legal interests have been adversely affected by these judicial decisions. 2. Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding...” “An application for supervisory review must contain: (1) the name of the court to which it is addressed; ... (4) a reference to the first-instance, appeal or cassation courts that examined the case and a summary of their decisions; (5) a reference to the judgment or decision which is being appealed against...” “2. Having examined an application for supervisory review, the judge issues an interim decision on – (1) obtaining the case file if there exist doubts as to the lawfulness of the judicial decision; (2) refusing to obtain the case file if the arguments in the application for supervisory review may not, in accordance with the federal law, result in quashing of the judicial decision. ... 6. The President of the regional Supreme Court... may disagree with the judge's decision refusing to obtain the case file. In such case the President issues his own decision on obtaining the case file.” “2. Having examined the case file obtained by the supervisory-review court, the judge issues an interim decision on – – refusing to remit the case for examination on the merits by the supervisory-review court; – remitting the case for examination of the application for supervisory review on the merits by the supervisory-review court.” “2. The President of the regional Supreme Court... may disagree with the judge's decision refusing to remit the case for examination on the merits by the supervisory-review court. In such case the President issues his own decision on remitting the case for examination on the merits by the supervisory-review court.” “1. A judicial decision on remitting the case for examination on the merits by a supervisory-review court must contain: (7) a reasoned description of the grounds for remitting the case for examination on the merits...” “Judicial decisions of lower courts may be quashed or altered by way of supervisory review on the grounds of substantial violations of substantive or procedural legal provisions.” “1. Having examined the case by way of supervisory review, the court may ... (5) quash or alter the judicial decision issued by a court of first, second or supervisory-review instance and issue a new judicial decision, without remitting the matter for a fresh examination, if substantive legal provisions have been erroneously applied or interpreted.” 20. Once instituted, enforcement proceedings must be completed within two months upon receipt of the writ of execution by the bailiff (Section 13). | 1 |
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