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train | 001-87684 | ENG | UKR | ADMISSIBILITY | 2,008 | VOVK v. UKRAINE | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych | The first applicant, Mr Volodymyr Kuzmych Vovk, is a Ukrainian national who was born in 1954 and resides in the village of Slabyn in the Chernigiv region. The second applicant, Mr Vasyl Ivanovych Trykashnyy, was a Ukrainian citizen born in 1948 who died on 13 February 2004. By letter of 16 August 2007, the applicant’s son informed the Court that he wished to pursue the application. The applicants were represented before the Court by Mr I. Uvarov, a lawyer practising in Chernigiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. The facts of the case, as submitted by the parties, may be summarised as follows. On 16 October 1999 the first applicant brought a car registered in Lithuania (a 1985 BMW-323) into the customs territory of Ukraine. When crossing the border he undertook an obligation to re-export the car before 16 October 2000. He failed to do so, however. On 22 April 2002, after several unsuccessful attempts to summon the applicant, the Chernigiv Customs Office, in the applicant’s absence, drew up a report on an infringement of customs regulations due to the applicant’s failure to remove the above car from the customs territory of Ukraine (Article 113 of the Customs Code). On 13 June 2002 the applicant was summoned to the Novozavodsky District Court of Chernigiv. Having heard the applicant, who explained that the impugned car had broken down and he had given it to a friend who had taken it away, the court found the first applicant guilty of having failed to re-export the car in violation of Article 113 of the Customs Code. The court ordered the confiscation of the vehicle, but given that the car’s location was unknown, it replaced the confiscation with payment of 7,025.24 Ukrainian hryvnyas (UAH) (about 1,448.16 euros (EUR)), which corresponded to the value of the car, in accordance with Article 149 § 3 of the Customs Code. On 9 July 2002 the President of the Chernigiv Regional Court of Appeal refused the applicant’s request to initiate supervisory review proceedings in the case. On 23 June 1999 the second applicant brought a car registered in Lithuania (a 1985 Mercedes Benz-100) into the customs territory of Ukraine. When crossing the border he undertook an obligation to re-export the car before 23 June 2000. He failed to do so, however. On 11 May 2002, in the applicant’s absence, the Chernigiv Customs Office drew up a report on an infringement of customs regulations due to the applicant’s failure to remove the above car from the customs territory of Ukraine (Article 113 of the Customs Code). On 18 June 2002 the second applicant was summoned to the Novozavodsky District Court of Chernigiv. Having heard the applicant, who explained that he had given the car to a certain Ms S. in payment for debts, but refused to give her address, the court returned the case to the customs authorities because of a number of procedural mistakes made by the latter in drawing up the report on an infringement of customs regulations. The customs authorities drew up a new report and sent it to the court. On 25 October 2002 the court examined the case and found the second applicant guilty of having failed to re-export the car, in violation of Article 113 of the Customs Code. The court ordered the confiscation of the vehicle but, given that the car’s location was unknown, replaced the confiscation with payment of UAH 9,805.24 (about EUR 1,947.97), which corresponded to the value of the car, in accordance with Article 149 § 3 of the Customs Code. On 3 December 2002 the President of the Chernigiv Regional Court of Appeal refused the applicant’s request to initiate supervisory review proceedings in the case. The relevant domestic law is summarised in the case of Nadtochiy v. Ukraine (no. 7460/03, §§ 13-14, 22 April 2008.) | 0 |
train | 001-72869 | ENG | RUS | ADMISSIBILITY | 2,006 | MAMONOV v. RUSSIA | 4 | Inadmissible | Christos Rozakis | The applicant, Mr Vladimir Maksimovich Mamonov, is a Russian national who was born in 1953 and lives in Kaliningrad. The applicant is a retired military serviceman entitled to a pension allowance. He questioned the accuracy of the method employed for calculation of his pension. On 14 September 2004 the applicant brought a civil action against his former employer, a local commissariat of the Ministry of Defence of Russia, claiming recalculation of his pension from 1 January 2000. He insisted on employing a particular method of recalculation. On 17 November 2004 the Leningradskiy District Court of Kaliningrad granted his claims in part and ordered the recalculation of the pension for the period between 1 January 2000 and 1 December 2000. In particular, the court ordered an increase in the amount due and the payment of the arrears. The method employed for the recalculation differed from the one sought by the applicant, which provided for a more significant increase. On 23 December 2004 the applicant appealed against the judgment claiming that the first-instance court had wrongfully applied domestic law. On 30 March 2005 the Kaliningrad Regional Court dismissed the appeal and upheld the first-instance judgment in full. | 0 |
train | 001-107989 | ENG | HRV | CHAMBER | 2,011 | CASE OF AJDARIC v. CROATIA | 3 | Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed | Anatoly Kovler;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen | 4. The applicant was born in 1953 and lives in Lepoglava. 5. In October 1998 three persons, R.S., G.C. and I.Š., were killed in their house in Kutina, Croatia, and a sum of at least 960,000 Croatian kuna (HRK) was taken from the house. 6. In April 1999 one M.G. was indicted before the Sisak County Court (Županijski sud u Sisku) on three counts of the above-mentioned murder. He was initially acquitted, but on 1 June 2005 the Supreme Court (Vrhovni sud Republike Hrvatske) ordered a retrial. 7. On an unspecified date in 2005 the applicant was arrested on suspicion of having committed a car theft in Croatia and placed in detention in Remetinec Prison in Zagreb (Zatvor u Remetincu). 8. On 29 December 2005 he fell ill and was transferred to Zagreb Prison Hospital. He shared room no. 206 with seven other inmates, including M.G. and S.Š. The latter was a former policeman. He had already been sentenced to seven years’ imprisonment for attempted murder but his conviction had not yet become final. On an unspecified date S.Š. wrote to the Bjelovar Police Department, informing it that he had knowledge of the circumstances concerning a murder of three persons committed in Kutina. 9. On 3 March 2006 S.Š. gave his evidence before an investigating judge of the Bjelovar County Court (Županijski sud u Bjelovaru). He said that he had overheard conversations between the applicant and M.G. in which they had discussed the murder of three persons of which M.G. had been accused and which had revealed that the applicant had been an accomplice in these crimes. The relevant part of the written record of his statement reads: “Owing to health problems I was placed in Zagreb Prison Hospital between 23 November 2005 and 13 January 2006. ... The day after I had been admitted to the Hospital, M.G. arrived and was placed in the same room. His bed was next to mine. ... About five to six days after that Nedjeljko Ajdarić was placed in the same room. ... His bed was next to the one occupied by M.G. so that M.G. was between the two of us. When Nedjeljko Ajdarić came into the room he exchanged greetings with M.G. and their conversation gave me the impression that they had known each other for years. ... M.G. and Nedjeljko Ajdarić had secret conversations for days. They sat on their beds and talked and since my bed was next to theirs, although they were talking in lowered voices, I could hear what they were saying. I heard Nedjeljko Ajdarić saying that he had prospered from that money and that his business was going well, and I heard M.G. saying: ‘We did it all well, only I made a mistake by placing the money into a container’, but he did not explain what container. They also mentioned that about 960,000 Croatian kuna (HRK) had been found in the house, some in foreign currency, and some in HRK. I heard Nedjeljko Ajdarić saying that he had been afraid to go to the border crossing between Stara Gradiška and Bosanska Gradiška and that in the end he had crossed [the State border] in Davor, and he also mentioned that he had been accompanied by a woman, but I could not understand whether it had been his wife or the wife of M.G. I also heard Nedjeljko Ajdarić telling M.G. that he had had to walk around in Bosnia for a whole day, in Banja Luka, in order to send a signal from a mobile telephone to Bjelovar, [which would show] that M.G. had been in Bosnia.. Nedjeljko Ajdarić also mentioned that he had gone to a hill known as ‘Veseli Brijeg’ in order to send the signal, but he had not succeeded [...] and in the end had sent a signal from the ‘Motajica’ mountain. When they talked about sending that signal from a mobile telephone, I heard M.G. telling Nedjeljko Ajdarić that if anything happened, Nedjeljko would testify that he had been in Bosnia and from their conversation I concluded that Nedjeljko Ajdarić had gone to Bosnia with the mobile telephone of M.G. and that he, by making some telephone calls, had created an alibi for M.G., [in other words], that he had been in Bosnia. When I listened to these secret conversations between [M.]G. and Ajdarić I also heard them mentioning how they had been surprised to find three people in the house and that they had not expected a third person, and that therefore they had waited for a long time in front of the house for someone to come out and take the children away. They also mentioned that they had seen a woman taking the children out of the house, but I did not hear whether they referred to one child only or to more than one. I also heard [M.]G. telling Ajdarić that his wife worked with the military as a dentist or dental technician, I did not understand this very well, and that after the event at issue she had said something in town and that that had contributed most to his discovery and detention. From the above-mentioned secret conversations between [M.]G. and Ajdarić, in the course of which they mentioned that they had been surprised to find a third person in the house, I concluded that a financial transaction had taken place in that house and that a third person was involved. From their conversations I also concluded that M.[G.] had grown up with the owner of the house, who had had a money exchange office and who had been killed, and I concluded that they had had conflicts. I remember that Ajdarić told [M.]G. that he had not dared to cross the border between Stara Gradiška and Bosanska Gradiška because of increased security and that therefore he had crossed at Davor by boat or ferry. I also remember that they mentioned that in a container in [M.]G.’s [house] the sum of HRK 460,000 had been found, while the rest of the money had ended up with Ajdarić. Nedjeljko Ajdarić also told [M.]G. that he had spent his part of the money on opening his car-dealing business in Banja Luka. I also heard Nedjeljko Ajdarić telling [M.]G. that his company had sold stolen cars and had been involved in life insurance and car insurance and that the wife of Nedjeljko Ajdarić was also employed there and that there were other employees. I also heard Ajdarić telling [M.]G. that it was possible to obtain a car through his company, with all the documents, without going to the police. I asked Ajdarić about ‘Veseli Brijeg’ because I wanted to know something about it and he told me that Roma lived in that area and that was the reason why it was known as ‘Veseli Brijeg’. I do not know where that place is and I have never been there. I also heard Ajdarić saying that he was afraid of being found out since he had only four months to serve and then M.G. answered that there was nothing to worry about because one witness, a woman who was the key prosecution witness, had changed her testimony and had given a completely different statement than before.” 10. On 4 April 2006 S.Š. gave his evidence at a hearing held before the Sisak County Court in the criminal proceedings against M.G. The relevant part of his statement reads: “I am currently detained in Bjelovar Prison because I have been sentenced to seven years’ imprisonment by the Bjelovar County Court on charges of attempted murder and causing a risk to life and assets through dangerous activity, which conviction has not yet become final. Owing to health problems I was sent to Zagreb Prison Hospital where I was placed in room no. 206 between the end of November 2005 and 13 January 2006. I saw the accused for the first time in Zagreb Prison Hospital when he was transferred to the same room. Before that he had been in the surgical ward and was transferred to a non-smoking room. I do not recall the exact date when he was transferred to my room, but I remember that it was sometime in December 2005, and as a result we spent a lot of time in the same room. Immediately upon his arrival we started to get to know each other and to talk and I told him right away for which criminal offence I was detained, but at the beginning he did not want to tell me what he was accused of. In our discussions we had an argument about a defence lawyer in the present case, since the same counsel was defending us both, and I did not like the fact that the accused had criticised her. Sometime in mid December 2005, I do not remember the exact date, Nedjeljko Ajdarić was also transferred to the same room from Remetinec Prison. I immediately noticed that the accused and Nedjeljko Ajdarić greeted each other as if they had known each other for a long time. The bed occupied by Nedjeljko Ajdarić was in the middle, that is to say, between the one that I occupied and the one occupied by the accused. There were six inmates in the room, and they often changed. Since the bed occupied by the accused was next to the one occupied by Nedjeljko Ajdarić and the distance between the beds was twenty to thirty centimetres, they often talked to each other. They firstly talked about the occupation of Nedjeljko Ajdarić in Banja Luka. I mostly heard these conversations when lying on my bed reading the newspapers and doing crossword puzzles. I remember clearly that the accused and Nedjeljko Ajdarić started to discuss the criminal offence Ajdarić was accused of and I remember that Ajdarić had bought a car somewhere near Karlovac, which had been stolen, and Ajdarić and his wife and another person had been arrested on that account. Ajdarić had stayed in detention while his wife had been released. Ajdarić said that he had been sentenced to one year’s imprisonment and that he had had four more months to serve, after which he would be released and I remember that he had expressed some fear, and that the accused had comforted him. Also, Ajdarić said that he had been dealing in smuggled cars, licence plates and car insurance documents and that he had bought a machine in Germany for identifying the codes of expensive cars. From their conversations I heard that the accused had family in Banja Luka and that they knew each other from Banja Luka. I also remember that Ajdarić said that the man from whom he had bought the car had died. He said that it was lucky that he had died because otherwise it would have been discovered how he had committed a criminal offence. Another inmate, J.M., reacted to that story since he knew the man who had died. After that the two of them started to talk about the mobile telephone. Ajdarić said that he had gone to Kutina with S. – I do not know that person – and that they had waited for a long time for a woman to return to the house, a woman who had left the house with one child or more children – I did not understand this very well. I also heard them saying that they had no knowledge about the third person in that house. I remember that they said that they had waited to enter the house, and that the wife of the accused had also been there and that it [sic] concerned a money exchange office where a childhood friend of the accused had worked. From what Ajdarić was saying, I understood that he was worried and I remember the accused telling him that a woman, who was the key prosecution witness in the proceedings, had changed her statement in their favour. They also discussed the money and I remember Ajdarić saying that he would pay for the defence of the accused and they also mentioned that the first lawyer who had defended the accused in these proceedings had later on engaged the services of lawyer B.J. After I left the [Zagreb Prison] Hospital, I contacted the Bjelovar Police and they asked if I wished to be a witness in the proceedings against the accused and I told them that I firstly wished to consult lawyer B.J, who was both my defence counsel and the defence counsel of the accused. I consulted her and she came to visit me to prison and asked me if I knew anything about the event at issue. I told her that the accused had said that he had been found out as a result of what his wife had been telling [other people] in the town and the lawyer asked me for whom I was working. I told her that I did not work for anyone and that I had decided to testify because of the children who had been left behind. The lawyer told me to be careful what I was saying and that I might be ‘swallowed by the dark’. She said that when I mentioned the name S. I would also like to add that I heard the accused and Ajdarić saying that later on it had been a problem for them to reach Banja Luka and that Ajdarić and the wife of the accused had crossed the state border at Davor because the wife of the accused had to return the mobile telephone of the accused back to Croatia, while S. crossed the state border in Stara Gradiška. Ajdarić and the wife of the accused had taken the money and two mobile telephones, while the accused had returned to Bjelovar. They took mobile telephones to Bosnia and Herzegovina because they wanted to send signals to Bjelovar. They mentioned that they had [tried to] send a signal from the Motajica mountain, where the signal had been low, so they had gone to the area known as ‘Veseli Brijeg’ near Banja Luka and sent a signal from there. I also remember that they said that the money had been found in a container, but I do not know if they meant a deep freezer or something else. So, the money had been found in that container, about HRK 450,000. I would also like to mention a further detail which I noticed while in the prison hospital. It was a Sunday, visiting time and both the accused and Ajdarić had visitors. Ajdarić returned about ten minutes before the accused. The door of the room was open and I saw Ajdarić waving to someone from the open window in the hall. I approached the window to see who he was waving at and I also asked him about it and he said that he was waving at his wife. I saw the car in which his wife had arrived, it was a Golf, and I asked him how come his wife was driving such a car, since he had been bragging that he dealt in expensive cars, and he told me that the car belonged to someone in Croatia who had driven his wife there for the visit and that that man was carrying money to finance the accused’s defence. I asked him if that person was S. and he told me that it was not my business. I have nothing else to add. To a question by the Deputy State Attorney the witness answered that from the conversations between the accused and Nedjeljko Ajdarić he had understood that with his part of the [stolen] money Ajdarić had opened a ‘business’ in Banja Luka with five to six employees and that that ‘business’ was run by his wife and that that was his second wife; he had divorced the first one. To a further question by the Deputy State Attorney the witness answered that he had heard the accused saying that his wife was a doctor in dentistry, employed with the military in Bjelovar. To a specific question the witness answered that from their conversations he had heard that ‘Veseli Brijeg’ was a Roma settlement near Banja Luka and that the river Vrbas ran nearby. To a further question by the Deputy State Attorney the witness answered that he had got the impression that the accused and Nedjeljko Ajdarić had known each other from before. The accused had been in detention in Sisak and Ajdarić in Zagreb. As regards the worries of Ajdarić, they concerned his fear that he would be found out as a perpetrator of the criminal offence at issue during his detention. To a further question by the Deputy State Attorney the witness answers that the sending of a signal from a mobile telephone from Bosnia and Herzegovina had been aimed at showing that at that time the accused had been in Bosnia and Herzegovina. To a further question by the Deputy State Attorney the witness answered that he had heard that the accused had taken his part of the money to his home and that as a result of what his wife had been telling [people] in Bjelovar, the house had been searched and the police had found the money in a ‘container’. To a further question by the defence lawyer the witness answered that J.M. and V.B. had been in the same room [in Zagreb Prison Hospital] at the same time, as well as a prisoner, R., from Gospić Prison who had been transferred from Lepoglava, but that the latter stayed for a shorter time. To a further question by the defence lawyer the witness answered that the inmates had often changed beds, sometimes even several times a day. He further stated that the first bed next to the wall had been occupied by M., the bed occupied by him [the witness] had been next to his and that after that he had not changed beds. The bed next to his had been occupied by Ajdarić, which had been next to the one occupied by the accused. To a further question by the defence lawyer as to whether the other inmates heard the conversation between the accused and Ajdarić, the witness answered that he did not know, but that he had listened to them because he had been interested. He further stated that sometimes he remembered whole conversations between them, and sometimes only parts. To a further question by the defence lawyer the witness answered that the said conversations between the accused and Ajdarić had mostly taken place in the afternoons, when the inmates had been allowed to watch television in a common room, when the accused and Ajdarić had stayed in the bedroom by themselves and talked. He would only watch the news and then return [to the room] because he had been interested in what the two had been talking about. To a further question by the defence lawyer as to who made the first contact with the police the witness asked whether he had to answer that question and when told that he had to, stated that he had contacted the police through the Bjelovar Prison Administration as soon as he had returned from Zagreb Prison Hospital [to Bjelovar Prison]. He had contacted the police twice, the first time [he had spoken] to a police officer and the second time to someone from the investigation in Sisak, he did not know who. To a further question by the defence lawyer the witness answered that he had got the impression that the accused and Ajdarić had known each other for a long time from the manner of their greeting because they had shaken hands, while the other inmates had not shaken hands and it had taken them longer to get to know each other. When asked by the defence lawyer to repeat exactly what the accused and Ajdarić had said when they talked about the mobile telephone, the witness answered that he could not repeat their exact words, but that he had told [the court] what he had concluded from their conversation. To a further question by the defence lawyer the witness answered that when Nedjeljko Ajdarić had arrived in their room and greeted the accused, J.M. had also been present. To a further question by the defence lawyer the witness answered that J.M. had also been present when the accused and Ajdarić had spoken about the criminal offence committed by Ajdarić and when they had spoken about the criminal offence committed in Kutina, no one else had been present – just him, the witness, who had returned from the TV room where he had been watching the news. To a further question by the defence lawyer the witness answered that he had not been offered anything by anyone in connection with the criminal offence for which he had been convicted, but which conviction had not yet become final. He stated that lawyer B.J. had refused to continue representing him without any explanation. To a further question by the defence lawyer the witness answered that he had never been treated in a psychiatric ward and that in the proceedings against him a psychiatric examination had been carried out. After he had given his statement in the Bjelovar County Court, he had had no further contact with the police. To a question by the Deputy State Attorney the witness answered that he had heard the doctor who treated the accused say that his treatment would be long and would continue for at least six months, after which the accused had said that he suspected that he had been poisoned. There were no further questions. ... The accused objected to the statement by the witness in its entirety and explained that he himself had spoken with the witness about the particulars of the criminal proceedings against him. ...” 11. On 26 April 2006 the applicant was indicted in the Sisak County Court on three counts of murder committed together with M.G. in Kutina, Croatia, on 8 and 9 October 1998. The proceedings against the applicant were joined to those already pending against M.G. 12. At the hearing held on 26 June 2006 S.Š. gave his evidence. The relevant part of the written record of the hearing reads: “The witness gave the same evidence as noted in the written record [of the hearing held on] 4 April 2006 and had nothing to add. To a question by the Deputy State Attorney the witness answered that from the conversations between the first and the second accused he had not understood how many mobile telephones they had used during the event in question, but he had heard that the signals had been sent from the area known as ‘Veseli Brijeg’ in Kutina. To a further question by the Deputy State Attorney the witness answered that the purpose of sending the signals from mobile telephones had been to make others think that they were all in Bosnia at that time. He also stated that the first and the second accused had mostly spent time together in the evening, after dinner. He himself had also talked to Ajdarić and asked him how he had managed to do so well in Bosnia and Herzegovina and open his enterprise immediately after the war, to which the second accused had answered that he was a smart person. To a further question by the Deputy State Attorney the witness answered that he had heard them mention a place called Hrvaćani, but he did not know whether that was a village, a settlement or a mountain, where they had stopped to have a coffee. As a signal could not be sent from that place to Croatia, they had continued to the place known as ‘Veseli Brijeg’ and sent a signal to Croatia from there. To a further question by the Deputy State Attorney the witness answered that during the time he was detained in Bjelovar Prison in connection with the criminal proceedings against him on charges of attempted murder, his defence lawyer had been B.J. During one visit she had asked him about his stay at Zagreb Prison Hospital at the same time as the first accused. He had told her about what he had heard from the conversations between the first and the second accused, but a much shorter version, after which she had told him to be careful ‘not to be swallowed by the dark’, and then refused to continue to represent him in the criminal proceedings against him. To a further question by the Deputy State Attorney the witness answered that he had heard from the first accused what his wife’s profession was and that she worked with the military and that she had said certain things in Bjelovar owing to which the location of the money had been discovered. The first accused had told him that his wife was a doctor in dentistry, but later on it had turned out that she was a dentist’s assistant. To a further question by the Deputy State Attorney the witness answered that he was not giving evidence to hurt anyone, but rather because he had heard that the second accused participated in the criminal offence at issue and he was a foreigner, that is to say, a person from another country, and because by committing the criminal offence at issue he had become rich and ensured his existence by causing damage to others. Also, the second accused had said that it was good that the person from whom they had stolen the car had died, because otherwise their role in the criminal offence would have been discovered as well. To a further question by the Deputy State Attorney the witness answered that he had children of his own and was motivated to give evidence by the fact that the deceased had had children, and that now he understood their position, and that of his own children, because of the criminal offences he had himself committed. To a question by the defence lawyer of the first accused the witness answered that he had made notes about what he heard from the conversations between the first and the second accused and showed these notes to the court. The notes made by the witness are enclosed in the case file. The witness stated that these notes were a word play, that is to say, he had mixed up letters in the words. To a further question by the defence lawyer of the second accused the witness answered that he had been the first to arrive in room no 206 in Zagreb Prison Hospital, sometime in late or mid November 2005, where he had stayed until 13 January 2006. The first accused had arrived after him and ten days later the second accused had arrived. The bed occupied by the second accused had been in the middle, between the bed occupied by the first accused and the one occupied by him. The bed next to the one occupied by the first accused had been occupied by an older person from Dubrava who was shortly transferred to another room and the second accused would lie on that bed. The first accused had mostly socialised with the second accused. Once the witness had had an argument with the second accused concerning a lieutenant of the Yugoslav People’s Army ... To a further question by the defence lawyer of the second accused, the witness answered that the second accused had told him that he had been dealing in used cars, car insurance and life insurance and that that business was run by his wife, while he had often travelled with the boys in order to purchase cars. The second accused had also told him that he had a machine for deciphering codes, which he had bought in Munich. The witness had never had a conflict with the first accused. To a further question by the defence lawyer of the second accused, the witness answered that he had spoken to lawyer B.J. who had for a short time been the defence lawyer of both himself and the first accused, and that the first accused had told him that she was a good lawyer and had been representing him well and had managed to win over his first defence lawyer. ... To a further question by the defence lawyer of the second accused the witness answered that he did not know whether other inmates who shared the same room had heard what the first and the second accused were talking about, but he was sure that some of them did not care about these conversations. J.M. had avoided all contact with the first and the second accused. ... To a further question by the defence lawyer of the second accused the witness answered that he had concluded that the second accused was insecure and unstable and for that reason often spoke to the first accused. He had had the impression that the second accused was worried, and tried to relieve his worries by talking to the first accused during the last four months of his sentence. To a further question by the defence lawyer of the second accused the witness answered that he had an eighteen-year old son with whom he had no contact because the latter had been brought up by his mother and grandmother. To a further question by the defence lawyer of the first accused the witness answered that there had been six beds in that room and that later on one more bed had been brought in. There were no further questions. The second accused objected to the evidence given by the witness, stating that it was entirely fabricated. ...” 13. Both the applicant and M.G. denied that they had ever met before the applicant’s arrival at Zagreb Prison Hospital in December 2005. M.G. said that during the first few days of their stay in the same room in Zagreb Prison Hospital he and the applicant had had no contact at all and later on had talked about general topics. They had never talked about the criminal offence he had been accused of. When he had heard that he and S.Š. were being represented by the same lawyer, he had told S.Š. what he was accused of. The applicant claimed that in 1998 he had not been to Croatia at all, but had been living in Bosnia and Herzegovina, and that he had never been to Kutina in his life. He said that during their stay at Zagreb Prison Hospital S.Š. had mostly spoken to M.G. and had often complained to him. 14. At a hearing held on 18 September 2006 J.M. gave his evidence. The relevant part of the written record reads: “I met the first and the second accused in Zagreb Prison Hospital in December 2005. I remember that I was in room no. 206 together with the accused, S.Š. and two other inmates, V. and P. I was the first one to arrive and then S.Š., after him the first accused and then the second accused. We all talked together and discussed everything. I did not get the impression that the first and the second accused knew each other from before, although they socialised with each other mostly. I also spoke with the second accused who told me that he had been imprisoned because of a vehicle. I also spoke with the first accused and asked him why he was in prison; he only told me that it was a long story and that it was the second time he had been detained. ... To a question by the Deputy State Attorney the witness answered that he had not heard the first and the second accused talking about committing a criminal offence together. To a further question by the Deputy State Attorney the witness answered that he had regularly watched television and noticed that the first accused had mostly stayed in the room because he could not stand the cigarette smoke [in the television room] so he would sometimes watch the sports programme only. He had also noticed that the second accused had not watched television often. S.Š. had sometimes watched television but would soon return to the room. To a further question where the bed occupied by S.Š. had been placed the witness answered that along one side of the room there had been four beds; the first one had been occupied by him, then there had been two bedside cupboards, then the bed occupied by S.Š., then a bedside cupboard, then the bed occupied by B., then another bedside cupboard, then the bed occupied by the first accused. The bed occupied by the second accused had been placed perpendicular to the other beds. To a further question by the Deputy State Attorney the witness answered that the first and the second accused and S.Š. had had normal contact, they had talked and he had also had normal contact with them and he had never heard of or discussed with S.Š. anything that the first and the second accused allegedly talked about. To a question by the defence lawyer of the first accused the witness answered that when the first and the second accused had talked they had talked in normal voices and had never whispered or talked in lowered voices. To a further question by the defence lawyer of the second accused the witness answered that he had spent just over two weeks in room no. 206 together with the second and the first accused and the others. ... To a further question by the defence lawyer of the second accused the witness answered that the second accused had arrived in the room about a week or ten days after the first accused. To a further question by the defence lawyer of the second accused the witness answered that, as regards watching television, the first accused had behaved in the same way before and after the arrival of the second accused, namely, he could not stand the cigarette smoke [in the television room] so he had avoided watching television. ... To a question by the first accused the witness answered that the first accused had spent most of the time in bed, doing crossword puzzles or reading. To a further question by the first accused the witness answered that upon the arrival of the second accused in the said room for the first two or three days there had been no communication between the first and the second accused, or others, and only after several days had they all started to communicate with each other and to have conversations. ...” 15. At the same hearing N.P. gave evidence. The relevant part of the written record reads: “I spent twelve days in the Zagreb Prison Hospital ... at the same time as the first and the second accused ... When I arrived in that room the first and the second accused and S.Š. were already there. ... I mostly smoked together with S.Š. ... I did not discuss any criminal offence with S.Š.. He only told me that he was hoping to return to Bjelovar and that he would be acquitted. Since I arrived in that room when the others were already there, I do remember that the first and the second accused socialised and ordered fruit in the canteen together. From my conversations with the second accused I remember that he had some problems at the state border and as for the first accused, I can say that he gave the impression of being a policeman from the former system and was very reticent. [I had the impression] that he lived in his own world. ... To a question by the Deputy State Attorney as to whether they had discussed why each of them had been in prison, the witness answered that he had told the others why he had been in prison ... but did not remember whether the others had disclosed the reason for their imprisonment, because the prison rule was not to ask such questions ... To a further question the witness answered that he had not heard any conversation between the first and the second accused, save for the usual discussions about food and similar. The first accused had talked more to the others in the room than to the second accused. To a question by the defence lawyer of the first accused the witness answered that he had not noticed that the first and the second accused would separate themselves from the others, although they had been allowed to leave the room and take walks ... To a question by the defence lawyer of the second accused the witness answered that [the beds occupied by] the first and the second accused had been next to his and [the bed occupied by] S.Š. had been on the other side. ...” 16. During the proceedings the applicant objected to the evidence given by S.Š., arguing that he had mostly spoken of his own conclusions, which could not be taken as evidence, and had been unable to repeat anything he and M.G. had allegedly talked about. The applicant also relied on a psychiatric report drawn up in respect of S.Š. for the purposes of the criminal proceedings against him. The relevant part of the report drawn up on 20 October 2004 reads: “The intellectual level of the patient is within the regular limits. His personality has emotionally unstable and histrionic characteristics. ... A more advanced assessment shows characteristics from category F60.8 (lack of restraint, immaturity, aggression); F60.4 (more traits typical of a histrionic personality – affective shallowness, instability, egocentrism, lack of concern for others, confirmation-seeking, inability to cope with loss, [tendency to] defend ego even when it causes moral damage). ... Emotionally unstable personality (F60.3 according to MKB-10) is characterised by a tendency towards impulsive behaviour without concern for consequences, and unpredictable and volatile moods. ... Histrionic personality disorder (F60.4) is characterised by shallow and unstable affection, self dramatisation, affected expression, exaggerated expression of feelings, suggestibility, egocentrism, self-indulgence, lack of concern for others, easily hurt feelings and constant seeking of approval, excitement and attention from others. Obligatory psychiatric treatment is recommended ... ...” 17. On 22 September 2006 the Sisak County Court found both M.G. and the applicant guilty of three counts of murder motivated by personal gain and sentenced each of them to forty years’ imprisonment. The judgment also held that they had taken no less than 960,000 Croatian kuna from the house of the victims. The applicant was convicted solely on the basis of the evidence given by S.Š. The relevant part of the judgment reads: “The first accused M.G. ... and The second accused Neđo Ajdarić ... are guilty in that they: 1. on the night of 8 to 9 October 1998, in accordance with their previous agreement with an unknown woman, after arriving in a Peugeot 406, licence plates BJ 406 BF, at no. 23 A.G. Matoš Street in Kutina, residence of R.S., I.Š. and G.C., and having parked the car near the house, in the knowledge that I.Š., R.S. and G.C. kept a large amount of money in the house, left the car in order to kill them and appropriate their money, while the unknown woman hid close by the car and kept guard so that nobody would find them. They entered the house in which late I.Š., R.S. and G.C. lived, through the door in an unidentified manner, approached G.C. who was asleep in his bed and from a 7.65 mm calibre Scorpion gun shot two bullets into the head of G.C. from a distance of about eighty centimetres and thus caused him two gun-shot wounds to the head ... from which he died instantly, and then took and kept an unidentified amount of money, but no less than 960,000 Croatian kuna, and distributed it between them; ... 2. immediately after the offence under point 1., at the same place and in the same manner, after they had entered the house, shot two bullets at R.S. who was asleep, from the 7. 65 mm calibre Scorpion gun from a distance of eighty centimetres, thus causing him two gun-shot wounds to the head, ... from which R.S. died instantly, and then took from the house and kept for themselves an unidentified amount of money, but no less than 960,000 Croatian kuna, which they distributed between them; ... 3. immediately after the offence described under point 1. and in the same place and at the same time from the said 7.65 mm calibre Scorpion gun, shot two bullets into the head of I.Š., who was asleep, from a distance of eighty centimetres, thus causing her two gun-shot wounds to the head ...from which I.Š. died instantly, and then took an unidentified amount of money, but no less than 960,000 Croatian kuna, which they distributed between them; ... R e a s o n i n g ... Witness S.Š. said that he had been placed in detention in Bjelovar Prison because he had been sentenced to a seven-year prison term. His conviction was not final. Owing to his health problems he had been transferred to Zagreb Prison Hospital. He had stayed there in room no. 206 from the end of November 2005 until 13 January 2006. He had met the first accused for the first time in the prison hospital. They had spent time together and he had immediately told the first accused why he had been detained, but the first accused had at first not wished to disclose the reason for his own detention. They had had an argument about the defence counsel of the first accused. He [S.Š] had been displeased by certain comments that the first accused had made about her. In mid-December of 2005 the second accused [the applicant] had been placed in the same room [having been transferred] from Remetinec Prison. [S.Š.] had noticed that the first and the second accused had greeted each other as if they already knew each other. The second accused’s bed had been placed between his and that of the first accused. The first and the second accused had talked a lot between themselves ... He had overheard their conversations while lying on his bed and reading the newspapers. ... ... he learned from these conversations that the two of them knew each other from Banja Luka. ... The first and the second accused had also talked about a mobile telephone and the second accused had said that he had come to Kutina with a certain S. and that they had waited there for a long time for a woman to return to the house. They had said that they had not known that a third person had been present in the house. From these stories he had understood that, apart from the three of them, the first accused’s wife had also been implicated, and that it [sic] had concerned an exchange office in which a childhood friend of the first accused had worked. The second accused had feared being discovered and the first accused had told him that one woman, a witness, had changed her statement in their favour. The second accused had told the first accused that he would pay for his defence ... He had also learned from their conversations that the second accused and the first accused’s wife had crossed the border to Bosnia and Herzegovina at Davor, because the first accused’s wife had had to take the mobile telephone belonging to the first accused back to Croatia, while S. had crossed to Bosnia and Herzegovina at Stara Gradiška. The money had been carried by the second accused and the first accused’s wife as well as the two mobile telephones, while the first accused had returned to Bjelovar. They had taken the mobile telephones to Bosnia and Herzegovina because it had been necessary to send signals to Bjelovar: the signals had been sent from the Motajica mountain and from Veseli Brijeg. The first and the second accused had also discussed the money which had been found in the first accused’s deep freezer, about 450,000 HRK, which was the first accused’s share. These conversations had mostly taken place in the afternoons or evenings when the inmates were allowed to watch television – the first and the second accused would stay in the room alone and talk. He [S.Š] would come back to the room instead of watching television and that is when he would overhear the conversations. ... The evidence of witness S.Š., who described in detail, convincingly and logically what he had overheard from the conversations between the first and the second accused shows that the first and the second accused had committed the criminal offence at issue. Witness S.Š. mentions a number of details about the events at issue about which the first and the second accused had talked, such as waiting for a woman (K.P.) to return to the house, calls from mobile telephones from Bosnia and Herzegovina, keeping the money in a deep freezer in the first accused’s garage, and surprise at the presence of a third person in the house where the crime had been committed (accidental presence in the house of I.Š., who was on maternity leave at the time and spent most of the time at her parent’s house in Velika Gorica). Witness S.Š. gave his evidence on three occasions; his statements were all identical in their essential part and could not have been invented, because he described small details relating to both the time before as well as after the events which correspond to the established facts. Neither has this court found any reason why witness S.Š. would testify against the first and the second accused, whom he did not know from before and had met for the first time in Zagreb Prison Hospital. It has not been established that he benefited in any manner [from giving his evidence]. The psychiatric report on S.Š. does not show that he suffers from a mental illness. [It shows that] his intellectual level is normal and therefore the veracity of his evidence has not been called into question in any manner. The accountability of witness S.Š. as an accused in other criminal proceedings was diminished, but not to a significant extent. It was diminished on account of him being drunk at the time of the crime. Against this background, this court entirely accepts the evidence of witness S.Š. as reliable. Although there is no material evidence of the participation of the second accused in the criminal offence at issue, and since his participation became known only at the beginning of 2006, there is the evidence given by witness S.Š., who stated that the second accused had been a perpetrator of the criminal offence at issue and who described the participation of the second accused in detail. ...” 18. In his appeal the applicant argued that the evidence given by S.Š. had been unreliable owing to his personality disorder and that his statements given before the investigating judge and at the trial were contradictory and illogical. Thus, he said that the applicant and M.G. had had secret conversations and had spoken in lowered voices. If the conversations had been secret, then they would not have been conducted within the hearing of a third person. As regards the placement of their respective beds, in his statement before the investigating judge S.Š. said that the bed occupied by M.G. had been in the middle, between the bed occupied by the applicant and the witness, while at the trial he said that the bed occupied by the applicant had been in the middle. As regards the time of the alleged secret conversations between the applicant and M.G., S.Š. firstly claimed that they mostly took place in the afternoon and at the hearing held on 26 June 2006 he said that they took place in the evening, after dinner. It was improbable and unconvincing that two perpetrators of such grave criminal offences would discuss the details of these offences in front of a third person. S.Š. also mentioned that a woman, the key prosecution witness in the proceedings, had altered her previous statement in favour of the accused. However, there had been no such witness in the proceedings. He also repeatedly stated that a person with the surname S. had also been implicated in the murder of the three people in question. However, the person of that name was actually one of the murder victims. S.Š. had no personal direct knowledge of the murders at issue. When giving his evidence at the trial he constantly repeated the phrase ‘I concluded’ which could not be the basis for the applicant’s conviction. The witness enclosed his so called “notes”, allegedly made during the conversations between him and M.G. However, these notes were a list of meaningless words. His statement was in contradiction to those given by inmates from the same room, J.M. and N.P. Furthermore, there was no logic to the whole story and he (the applicant) had not even been to Croatia in 1998, but had been living in Banja Luka, Bosnia and Herzegovina, where he had run his own business since 1990. He claimed that he had never met M.G. before. Finally, no material evidence found in the house where the murders had been committed had any connection with him. The applicant argued that the findings of the trial court had been completely arbitrary to the point that they ran contrary to common sense and the basic requirements of a fair trial. 19. The first-instance judgment was upheld by the Supreme Court on 14 March. The relevant part of the judgment reads: “The accused M.G. and Neđo Ajdarić in their respective appeals unsuccessfully try to challenge the evidence given by witness S.Š. However, contrary to their assertions, the first-instance court gave valid reasons for accepting the statement given by that witness and these reasons have not been called into question by the allegations in the appeals. It is firstly to be stated that the statement of witness S.Š. is not in contradiction with other evidence as the appellants wrongly claim. Witnesses J.M. and N.P., who gave more details about the circumstances in their room in Zagreb Prison Hospital than witness T.M., said that the accused M.G. and Neđo Ajdarić spent more time together than with other inmates, by which they disputed the defence put forward by the accused, in particular the allegation by Ajdarić that he spoke to M.G. less than to the other inmates. The fact that the other inmates did not hear the conversations described by S.Š. does not cast doubt on that part of his statement, because witness J.M. said that he had regularly watched television, that M.G. had mostly stayed in the room with Ajdarić and that S.Š., who had sometimes watched television, would soon return to the room. Thus, witness S.Š., as it is indirectly shown from the statement of witness J.M., often had the opportunity to be alone in the room with the accused while the other inmates were watching television and was able to hear the confidential conversations which they had obviously then held. The accused M.G. claims in his appeal that it is improbable that the perpetrators of such crimes would meet after seven years in the same room in Zagreb Prison Hospital and that it is excluded that, even if they met in such circumstances, they would discuss the crimes at issue in the presence of a third person. Such behaviour would be contradictory to the profiles of persons who conspired and planned to commit three murders in a professional manner. He also argued that he had been at large for five years and that in that period he would have had every chance to discuss the crimes at issue with the other perpetrator. However, [this court finds] that the accidental placement in the same room of persons who committed a criminal offence together cannot be regarded as impossible. The accused Neđo Ajdarić was detained in connection with a criminal offence unrelated to the one examined in these proceedings and was placed in Zagreb Prison Hospital, which only has a couple of rooms in each ward. At that time he was not yet a suspect in respect of the criminal offences which were the subject of the proceedings conducted against M.G. and therefore no formal obstacle existed for placing them in the same room. On the other hand, although the accused M.G. had indeed been at large between the year 2000 (when his detention was lifted) and the year 2005 (when he was again detained) it is certain that, since an appeal had been lodged against the first-instance judgment acquitting him (that is to say that the criminal proceedings against him were still pending), he had a reason to avoid public and frequent contact with the accomplice, the accused Ajdarić. Finally, if the accused saw each other in that period and discussed the criminal offences they had committed, it is certain that after the judgment acquitting [M.G.] had been quashed and he had been detained, in view of these new circumstances and the development of the proceedings, they had something to discuss during their stay in Zagreb Prison Hospital. The description of the conversations between the accused given by S.Š. is neither unconvincing nor illogical: the accused G. and Ajdarić, as described by S.Š, conducted these conversations when all or at least most of the other inmates were absent, that is to say that they talked in secret as far as it was possible. It is obvious that because the accused talked in lowered voices about the criminal offences in question the witness S.Š did not hear all the details of their conversations. This is precisely why the parts of the statement given by witness S.Š in which he reconstructs the content of these conversations on the basis of the parts of these conversations that he had heard do not fit with the facts established on the basis of the other evidence. Thus, witness S.Š obviously wrongly understood the role of S., whom the accused had mentioned. However, if the evidence given by S.Š had been false, as suggested by the accused M.G. in his appeal, and had relied on facts from the newspapers, he surely would not have mentioned S. in the same context, since this is not shown in the previous proceedings. Contrary to the allegations in the appeal by accused M.G., on all three occasions when he gave his statement witness S.Š. reproduced the words and sentences from the conversations of the accused in relative detail, and certain illogical details in his statements, stressed in the appeal by the accused Neđo Ajdarić, actually contradict the argument in that appeal that his statement had been fabricated, that the witness had been following instructions and had been told what to say. The accused did not specify who had [supposedly] instructed the witness and in whose interest that would be. Lastly, had the statement of that witness been fabricated and had he memorised it according to someone’s instructions, it would be expected that the memorised statement would be entirely in accordance with all the other evidence. It is precisely the contradictions about certain events (allegations of witness S.Š. about the telephone call on a mobile telephone from Bosnia, participation of S. and similar) that show that his statement was not fabricated and [that he was not] following instructions. The accused also point to the character of witness S.Š. and stress the part of the psychiatric opinion drawn up in the proceedings against him which states that he has a histrionic personality disorder, on the basis of which [the accused] concluded that he is inclined to fabricating stories. However, the accused ignore other conclusions of that report according to which the intellectual capacity of S.Š. is within normal limits and there are no indications of mental illness. Against the above background, there was no need for a further psychiatric examination of witness S.Š. ...” 20. On 28 August 2007 the Supreme Court, acting as the third-instance court, again upheld the applicant’s conviction. The relevant part of the judgment reads: “Contrary to the allegations by both accused in their respective appeals, ... the Supreme Court of the Republic of Croatia, as the third-instance court, finds that the second-instance court correctly held that the first-instance court gave a detailed analysis and assessment of the statement given by witness S.Š., who had spent some time with both accused in Zagreb Prison Hospital. Witness S.Š., contrary to the other inmates, was often alone in the room with the accused and was thus able to hear their confidential conversations, which is in accordance with the statements given by witnesses J.M. and N.P., who also gave evidence about the events in Zagreb Prison Hospital, and on whose statements both accused rely in their appeals. They said, inter alia, that the accused had spent more time together than with the other inmates, by which they rebutted the defence argument of the accused, in particular that of Neđo Ajdarić, who said that he had talked to the accused M.G. the least. Witness J.M. also confirmed that the accused and witness S.Š. had not watched television regularly because the accused M.G. had mostly stayed in the room, while the accused Neđo Ajdarić and witness S.Š. had watched television only occasionally.” 21. On 20 February 2008 the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu) acquitted the applicant of the charges of car theft. 22. The applicant’s constitutional complaint lodged in connection with the criminal proceedings whereby he had been found guilty of three counts of murder was dismissed on 24 June 2008. It was served on the applicant’s counsel on 15 September 2008. The relevant part of the Constitutional Court’s decision reads: “The constitutional right to a fair trial concerns procedural guarantees only. From that standpoint the Constitutional Court examines possible procedural violations in the court proceedings and on that basis, in view of the proceedings as a whole, assesses whether the proceedings were conducted in a manner which ensured a fair trial. In the case at issue, the applicant’s guilt was established in the criminal proceedings after the evidence had been presented before the first-instance court. The applicant was able to follow the proceedings, was legally represented, was able to comment on and to call evidence concerning the decisive facts and to carry out all lawful procedural acts. The first-instance judgment noted the evidence which was presented before it and the evidence on which it based its conclusion that the applicant had committed the criminal offence at issue. The first-instance court analysed all the evidence and facts relevant for determining the existence of the criminal offence of murder and gave valid legal reasons for its findings. The guarantees of a fair trial ... require that the proceedings be viewed as a whole (that is to say that the proceedings before the Sisak County Court and those conducted before the Supreme Court in the second and third instance are to be seen as one) and an assessment be made of whether the proceedings were conducted in a manner which assured the applicant a fair trial. Having reviewed the findings of the Supreme Court’s judgment ... of 28 August 2007, the Constitutional Court has not found any circumstances which would indicate that that judgment violated the applicant’s right to fair trial in any respect.” 23. The applicant submitted a medical report in respect of S.Š. drawn up on 2 June 1996 by the Invalidity Commission of the Croatia Pension and Invalidity Assurance Fund concerning S.Š. The relevant part of the report reads as follows: “The insured has been a member of the Croatian Army since 16 February 1994. On 18 August 1991 during an armed conflict in Grubišno Polje he broke his foot and [in addition] has had a hearing impairment since then. In 1993 he was injured in an explosion ... ... The insured ... suffers from impaired hearing as a consequence of [exposure to explosives] ...” | 1 |
train | 001-69041 | ENG | SVK | CHAMBER | 2,005 | CASE OF Z.M. AND K.P. v. SLOVAKIA | 3 | Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1 (length of the proceedings);Not necessary to examine Art. 6-1 (access to court);No violation of Art. 8;Violation of Art. 13+6;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 8. The first applicant is the mother of the second applicant. The applicants were born in Slovakia in 1960 and 1981, respectively, and now live outside Slovakia. They both have Slovakian nationality and the nationality of the country of their permanent residence. 9. In 1985 the Bratislava 4 District Court (then Obvodný súd, at present Okresný súd) pronounced the first applicant’s divorce from Mr P., the biological father of the second applicant. The second applicant was entrusted to the care and custody of the first applicant. 10. In 1993 the first applicant married Mr O.A.M. abroad and the applicants set up their permanent residence with him there. 11. On 8 January 1996 Mrs O., the mother of the first applicant, filed an action with the Dunajská Streda District Court claiming that she should be granted the right to educate the second applicant, her granddaughter. At that time the second applicant was fourteen years old and both applicants were in Slovakia on a temporary stay. Mr P. later joined the proceedings on the side of Mrs O. 12. On 14 February 1996 the District Court appointed the Veľký Meder District Office (Okresný úrad) to look after the second applicant’s interests in the proceedings. 13. On 19 February 1996 the first applicant made several submissions to the District Court. She asserted that she and the second applicant were permanently residing outside Slovakia and that, in addition to Slovakian nationality, they also had the nationality of the country of their permanent residence. As they were staying in Slovakia only temporarily, the Slovakian courts had no jurisdiction to entertain the question of the education and care of the second applicant. The first applicant further expressed critical views as to the character of Mrs O. and Mr P. Finally, she lodged an appeal against the decision of 14 February 1996 arguing that officials of the District Office had previously failed to represent the second applicant’s interests adequately and that they could not be expected to do so properly in the future. 14. In April and May 1996 the first applicant sought to disqualify the judge dealing with the case as well as all other judges of the District Court on grounds of bias. The hearing scheduled for 13 May 1996 had therefore to be adjourned and the casefile was submitted to the Trnava Regional Court (Krajský súd) for a decision on the challenge. 15. On 27 May 1996 the first applicant filed a petition with the Bratislava Regional Court claiming that Mr P. should be deprived of his parental rights over the second applicant. According to the applicants, no decision has ever been taken in respect of this request. 16. On 31 May 1996 the District Office issued an interim measure ordering that the second applicant be temporarily placed in the care of Mrs O. The applicants claim that this measure was illegal and that it has never been served officially on them. The first applicant subsequently returned with the second applicant to their home abroad. 17. On 11 July 1996 the Trnava Regional Court sent the casefile back to the District Court instructing it to invite the first applicant to indicate which judges of the District Court she was challenging and why. Subsequently the police informed the District Court that the applicants had left Slovakia in June 1996. 18. On 26 August 1996 Mrs O. requested that the District Court issue an interim measure granting her the custody of the second applicant pending the outcome of the proceedings. The applicants have never been made officially aware of this request. 19. The casefile was again sent to the Trnava Regional Court in September 1996. The Regional Court decided that the District Court’s judges were not biased and, on 18 October 1996, returned the casefile to the latter. 20. The District Court held a hearing on 28 November 1996. 21. Following their arrival for another temporary stay in Slovakia, the District Court heard the first applicant and Mr O.A.M. on 5 December 1996 and the second applicant on 10 December 1996. 22. On 18 December 1996 the case was adjourned and on 19 December 1996 the District Court dismissed Mrs O.’s request of 26 August 1996 for an interim measure. The District Court did so observing that the applicants were living in Slovakia at that time and that, when questioned on 10 December 1996, the second applicant had expressed the wish to stay with the first applicant. The applicants maintain that at that time they were staying in Slovakia only temporarily. 23. On 14 January 1997 the first applicant filed a petition with the Dunajská Streda District Court in which she again claimed that Mr P. should be deprived of his parental rights over the second applicant. 24. On 16 January 1997 the District Court heard witnesses and on 30 January 1997 it appointed an expert in psychology to draw up a report on the second applicant. The latter filed an appeal against this decision. 25. On 3 February 1997 the District Court appointed the Dunajská Streda District Office to look after the second applicant’s interests in the proceedings. The applicants maintain that they have never been notified of the appointment. 26. On 13 February 1997 the expert informed the District Court that she was not in a position to produce the report because of a heavy workload. 27. The hearing called for 18 February 1997 had to be adjourned as the first applicant and Mr P. failed to appear. The District Court ordered that the District Office look into the upbringing environment of the second applicant and the personal and material situation of the first applicant and Mr P. 28. Mr P. requested that an interim measure be issued to prevent the second applicant from travelling abroad without his consent. On 21 February 1997 the District Court dismissed the request. 29. At a hearing held on 6 March 1997 the District Court heard the parties and a representative of the Dunajská Streda District Office. The first applicant was fined for disturbing the orderly conduct of the hearing by, as the applicants claim, objecting to the truthfulness of the testimony given by Mr P. The case was then adjourned and Mr P. was invited to submit documentary evidence. 30. On 7 March 1997 the first applicant filed an appeal “against all decisions” delivered by the District Court judge dealing with the case. 31. On 10 March 1997 Mr P. appealed against the decision of 21 February 1997. He also claimed that his right to meet the second applicant be determined by the court. 32. On 20 March 1997 the first applicant requested that further documentary evidence be taken. 33. On 27 March 1997 Mr O.A.M. lodged a request for adoption of the second applicant. It was his third request to this effect after he had withdrawn two similar requests made previously on 31 January and 19 February 1996. 34. On 13 May 1997 the District Court submitted the casefile to the Trnava Regional Court for a decision on the appeals filed by the parties. On 23 June 1996 the Regional Court returned the casefile to the District Court instructing it to ensure that the first applicant eliminated formal shortcomings in her appeal of 7 March 1997. 35. On 28 July 1997 the Trnava Regional Court dismissed the second applicant’s appeal against the decision of 30 January 1997 concerning the appointment of an expert and quashed the above District Court’s decision of 21 February 1997. 36. On 8 September and 6 October 1997 the District Court inquired of the first applicant’s father about the applicants’ whereabouts. On 15 September and 23 October 1997 he replied that the applicants were currently staying abroad where they had left on 6 May 1997. According to the applicants, they had left Slovakia on 23 April 1997 and were not present there until 6 May 1997. 37. From November 1997 to January 1998 the court attempted several times to establish the address of the applicants in the country of their residence. The police notified the address to the District Court on 29 January 1998. 38. On 24 February 1998, while both applicants were abroad, the District Court issued an interim measure prohibiting them inter alia from leaving Slovakia. On 25 March 1998 Mr O.A.M. appealed against this decision. The first applicant, Mrs O. and Mr P. also appealed. 39. On 14 April 1998 the casefile was submitted to the President of the Trnava Regional Court who returned the file on 7 May 1998. 40. On 8 July 1998, after having taken several procedural steps, the District Court resubmitted the casefile to the Trnava Regional Court for a determination of the appeals against the decision of 24 February 1998. 41. On 26 August 1998 the Trnava Regional Court quashed the District Court’s decision to the extent that it prohibited the applicants from travelling abroad and dismissed the request of Mr P. for an interim measure to this effect. The casefile was returned to the District Court on 4 September 1998. On 11 November 1998 and on 10 March 1999 the District Court judge arranged for service of the Regional Court’s decision on the parties. 42. In the meantime, on 28 October 1998, the first applicant had requested that further evidence be taken. 43. The District Court judge dealing with the case was ill for a considerable period between August 1998 and January 1999 and also between March and May 1999. 44. On 21 April 1999, on the complaint of Mrs O., the Constitutional Court found that her constitutional right to a hearing without unjustified delay had been violated in the above proceedings. In its decision the Constitutional Court admitted that, to a certain extent, the length of the proceedings was due to the behaviour of the parties. However, the case was not particularly complex and what was at stake in the proceedings called for particular diligence. The Constitutional Court further noted that the District Court had caused undue delays in the proceedings by failing to decide in a timely manner on the request for an interim measure restricting the applicants’ travel abroad, thus bringing about the need for the assistance of foreign authorities. Furthermore, by the time of the Constitutional Court’s decision the District Court judge had not yet prepared the request for assistance that was to be sent to these authorities. 45. The Constitutional Court further observed that the District Court had not proceeded with the case effectively in that it had failed to take evidence, including an expert opinion, required for a decision on the case. Delays in the proceedings had also arisen as a result of the ordinary courts’ failure to decide on the requests for interim measures within the statutory timelimit. Finally, the Constitutional Court noted that the District Court had failed to take any effective action in the case since 4 September 1998. 46. The applicants were not informed of the above proceedings before the Constitutional Court, did not take part in them and only learned of their outcome once the proceedings were completed. 47. On 3 September 1999 the District Court judge prepared a request for assistance which was to be submitted through the Slovakian Ministry of Justice to the competent authorities in the country of the applicants’ residence. In particular, the District Court sought that information be obtained from the first applicant and Mr O.A.M. as regards the care and education of the second applicant, Mr P.’s parental and visiting rights in respect of the second applicant and the second applicant’s adoption. The District Court also sought an inquiry into the general upbringing environment of the second applicant and the personal, social and material situation of the first applicant and Mr O.A.M. 48. In a letter of 26 November 1999 the Ministry of Justice invited the District Court to complete the request for assistance by submitting further information and copies of the relevant documents. 49. On 21 January 2000 the District Court took three separate decisions to discontinue the proceedings concerning, respectively, the education and care of the second applicant, the deprivation of Mr P. of his parental rights over her and her adoption by Mr O.A.M. The decisions stated that the second applicant had reached the age of majority in 1999 and that, therefore, the said matters could no longer be determined on the merits. | 1 |
train | 001-87964 | ENG | ALB | CHAMBER | 2,008 | CASE OF XHERAJ v. ALBANIA | 3 | Violation of Art. 6-1;No violation of P7-4;Remainder inadmissible;Pecuniary damage - claim rejected;Non-pecuniary damage - award | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Päivi Hirvelä | 6. The applicant was born in 1970 and is currently serving a sentence in Vicenza Prison in Italy. 7. In 1995 the prosecutor’s office for the city of Durrës charged the applicant with murder on the basis of evidence from the victim’s father, who maintained that he had been told by the victim, before his death, that the applicant was one of the murderers. The investigation in respect of three other suspects had been discontinued. 8. The applicant’s father, when interviewed by the police, stated that the applicant had been travelling to Italy with two other persons on the day when the murder was committed. 9. On 27 November 1996 the applicant, in absentia, was found guilty of murder under Article 76 of the Criminal Code and was sentenced to 20 years’ imprisonment by the Durrës Court of Appeal. His appeal to the then Court of Cassation was declared inadmissible on 10 March 1997. 10. Following the signature of an authorisation form by the applicant’s father on 10 December 1997, under Article 450 of the Code of Criminal Procedure (“the CCP”), the applicant’s counsel sought judicial review of the Court of Appeal’s judgment by a request bearing the same date. The application for judicial review reached the District Court on 11 December 1997. 11. The judicial review request stated that new evidence had emerged in favour of the applicant. Firstly, from the autopsy report it transpired that the victim had been stabbed in the heart and had died instantly; consequently, from a scientific point of view the victim had not been able to communicate. Secondly, two witnesses stated that they had been travelling with the applicant early in the morning to take the ferry to Italy at the time when the murder had occurred. 12. On 13 December 1997 the applicant authorised the same lawyer, who had already been appointed by his father on 10 December 1997, to represent him in the domestic proceedings. 13. By means of a letter of 26 August 1998 to the district prosecutor, the Directorate of Investigation and Inspection at the Prosecutor General’s Office forwarded the case file of the applicant and added that “the request for judicial review meets the legal requirements (kërkesa për rishikimin e vendimit plotëson kriteret ligjore)”. It requested the district prosecutor to examine objectively the new pieces of evidence to be submitted to the District Court. 14. The district prosecutor, who happened to be the same person who had attended the first trial, attended the hearing and requested the dismissal of the case pursuant to Article 328 (dh) of the CCP, which states that the case may be dismissed “if it transpires that the defendant has not committed the criminal offence or it cannot be proved that he committed the offence.” 15. On 27 November 1998 the Durrës District Court declared admissible the applicant’s application for judicial review. The court, deciding on the merits and after examining the new evidence and taking into account the prosecutor’s office request, quashed the Durrës Court of Appeal’s judgment of 27 November 1996 (see paragraphs 9 above) and acquitted the applicant on 14 December 1998 (“the acquittal decision”). 16. No appeal was lodged against the judgment within the 10 days allowed and it therefore became final on 24 December 1998. 17. On 8 October 1999 the prosecutor at the Durrës Court of Appeal (“the appeal prosecutor”) lodged a request for leave to appeal out of time against the acquittal decision with the Durrës District Court. The appeal prosecutor submitted as the ground for his request that shortcomings on the part of the district prosecutor had been observed. Invoking Article 26 § 1 of the CCP about the resignation of a prosecutor in cases of lack of impartiality, whose content makes reference to the resignation of a judge under Article 17 of the CCP, the appeal prosecutor maintained that the district prosecutor who had attended the first trial proceedings should not have participated in the review proceedings. Article 17 § 1 (c) of the CCP provides that a judge must resign “when he has provided advice or expressed opinion about the subject of proceedings.” 18. The appeal prosecutor contended that the victim’s family, who had been an injured party to the proceedings, had not been informed about the acquittal proceedings in accordance with Article 137 of the CCP. The appeal prosecutor became aware of the acquittal decision on an unspecified date before the end of September 1999, when the victim’s family’s complaint about the acquittal decision was forwarded to other authorities. 19. On 21 October 1999 the Durrës District Court, in the applicant’s absence and in the presence of an officially appointed defence lawyer, despite the existence of a lawyer of the applicant’s own choosing (see paragraph 12 above), granted the prosecutor leave to appeal out of time. 20. On an unspecified date the lawyer officially appointed in the proceedings before the Durrës District Court lodged an appeal with the Durrës Court of Appeal challenging the above-mentioned decision because the applicant had not been notified and the decision had not been served on him in accordance with Article 414 of the CCP. Meanwhile, in accordance with the District Court’s decision of 21 October 1999, the appeal prosecutor filed an appeal against the acquittal judgment. 21. On 15 December 1999 the Durrës Court of Appeal rejected the applicant’s officially appointed lawyer’s appeal on the ground that the decision granting the prosecutor’s request for leave to appeal out of time was not subject to appeal by virtue of Article 147 § 5 of the CCP, as it did not put an end to the criminal proceedings. It also rejected the prosecutor’s appeal as it had not been notified explicitly to the applicant in accordance with Article 414 of the CCP. On an unspecified date the prosecutor appealed to the Supreme Court. 22. On 19 April 2000 the Criminal Division of the Supreme Court quashed the Durrës Court of Appeal’s decision of 15 December 1999. It found that the requirements concerning the notification of court decisions to the applicant’s officially appointed lawyer had been satisfied since the applicant was considered a fugitive. Accordingly, the court granted the prosecutor’s request for leave to appeal out of time against the acquittal decision and remitted the case to the Durrës Court of Appeal for a fresh examination. 23. According to the submissions of the appeal prosecutor to the Durrës Court of Appeal, the acquittal had to be considered null and void in so far as the new evidence adduced by the applicant, even if it gave him an alibi, had been submitted too late. Moreover, the prosecutor who had participated in the judicial review proceedings had also taken part in the first trial. Lastly, it was alleged that the applicant’s counsel lacked standing to initiate proceedings for judicial review as the applicant had signed a form of authority two days after the application for judicial review had been lodged. 24. On 18 December 2000 the Durrës Court of Appeal confirmed the reasoning set out in the acquittal decision of 14 December 1998 and dismissed the prosecutor’s appeal. The officially appointed lawyer was notified of the decision. On an unspecified date, citing the same grounds of appeal as he had lodged with the Durrës Court of Appeal, the prosecutor appealed to the Supreme Court, claiming that the acquittal decision was null and void. 25. On 20 June 2001 the Criminal Division of the Supreme Court upheld the prosecutor’s grounds of appeal and, deciding on the merits, quashed the acquittal decision. It held that there had been a breach of the CCP’s provisions relating to the applicant’s counsel’s legal capacity to lodge an application for judicial review on 11 December 1997. It found that he was appointed to act by the applicant on 13 December 1997 i.e. 2 days after he had filed the request with the District Court. The judgment was notified to the officially appointed lawyer. 26. In 2002 the applicant, who from 1999 onwards had been serving a sentence of 16 years’ imprisonment in Vicenza Prison (Italy), imposed by the Italian courts for international drug trafficking, was notified of the Supreme Court’s judgment that had led to the review of his acquittal, following a request by the Albanian authorities for his extradition. 27. On 13 February 2002 the lawyer appointed by the applicant, who had already acted for him in the judicial review proceedings (see paragraph 12 above), lodged an appeal with the Constitutional Court, alleging a violation of the applicant’s constitutional right to a fair trial and a breach of Article 6 §§ 1 and 3 (a) and (c) of the Convention. 28. In his submissions before that court the applicant maintained that the domestic court proceedings had been unfair on the grounds that neither he nor the counsel of his own choosing had been informed of the institution of proceedings and that he had been deemed to be a fugitive despite the fact that he had appointed a lawyer, whose legal capacity formed the basis of the prosecutor’s grounds of appeal against the acquittal. 29. Moreover, the applicant submitted that in view of the fact that the Albanian authorities had addressed two requests to the Italian authorities for his extradition to Albania, there was reason to believe that the Albanian authorities had had the possibility of giving him notice of the institution of proceedings and of serving the courts’ decisions on him. 30. As to the merits of the proceedings that led to the quashing of his acquittal, the applicant maintained that his counsel’s legal standing was not open to challenge in so far as on 10 December 1997 his father had authorised the lawyer to represent the applicant before the domestic courts in the proceedings for judicial review, and he himself had confirmed that authority on 13 December 1997. 31. On 26 April 2002 the Constitutional Court decided de plano to declare the applicant’s appeal inadmissible as being outside its jurisdiction. 32. The Albanian Constitution, in its relevant parts, provides as follows: Article 31 During criminal proceedings, everyone has the right: a. to be notified immediately and in detail of the charges brought against him, of his rights, and to have the possibility to notify his family or relatives; b. to have sufficient time and facilities to prepare his defence; c. to have the assistance of a translator free of charge, when he does not speak or understand the Albanian language; ç. to present his own case or defend himself through the assistance of counsel of his own choosing; to communicate freely and privately with him, as well as to be provided free legal counsel when he does not have sufficient means; d. to examine witnesses who are present and to request the appearance of witnesses, experts and other persons who can clarify the facts. Article 32 1. No one shall be obliged to testify against himself or his family or to confess his guilt. 2. No one shall be declared guilty on the basis of evidence collected unlawfully. Article 33 1. Everyone has the right to be heard before being judged. 2. A person who is seeking to evade justice may not avail himself of this right. Article 34 No one shall be punished twice for the same criminal offence or be tried again, except when the reopening of the case is ordered by a higher court, in accordance with the law. “In the protection of his constitutional and legal rights, freedoms and interests, or in defending a criminal charge, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.” Article 43 Everyone has the right to appeal against a court decision to a higher court, save as otherwise provided in the Constitution. “State bodies shall comply with judicial decisions.” “The Constitutional Court shall decide: ... (f) in a ruling that shall be final, complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.” 33. The relevant parts of the Code of Criminal Procedure (“the CCP”), as in force at the material time, provided as follows. 34. Article 26 § 1 of the CCP required a prosecutor to resign when there were grounds to fear partiality in the cases envisaged under Article 17 of the CCP. Article 17 made reference to the resignation of a judge from adjudicating an existing case. Article 17 § 1 (c) required a judge to resign when he had given advice or expressed an opinion on the subject of the proceedings. 35. Article 48 of the Code of Criminal Procedure (“the CCP”) provided that the defendant should choose his counsel by means of oral submissions at a court hearing or an authority form to be sent by registered mail. The defendant’s relatives could also choose a lawyer to represent the defendant who had been detained, arrested or convicted and sentenced to imprisonment, by the above-mentioned methods, unless the defendant had already chosen his representative. 36. Article 58 of the Code of Criminal Procedure gave the injured party resulting from the criminal offence or his heirs the right to request the prosecution of the offender and compensation for damage. Article 409 permitted the injured party to file an appeal him/herself or through his/her representative, in respect of criminal and civil aspects. 37. Under Article 147 § 1 of the CCP, a party to proceedings who had failed, owing to unforeseen events or force majeure, to lodge an appeal against a judgment within the prescribed time, could seek leave to appeal out of time. Under Article 147 § 2 a defendant convicted in absentia may be granted leave to appeal out of time against a court decision, if he has established that he had no effective knowledge of it. Under Article 147 §3, the request for leave to appeal out of time had to be lodged within ten days of the date on which the party was notified of the judgment. Under Article 147 § 5 the decision to allow a request for leave to appeal out of time could be appealed against in conjunction with the decision on the merits of the case. 38. Under Article 414 an appeal could be filed with the Court of Appeal within 10 days starting from the day of the pronouncement or notification of the decision. 39. Articles 449 and 451 of the CCP provided that an application for review of the case on account of a newly discovered circumstance should be lodged by a party to the proceedings with the same court that had delivered the original judgment. Such an application should be lodged within five years from the delivery of an acquittal judgment. | 1 |
train | 001-23803 | ENG | AUT | ADMISSIBILITY | 2,004 | LIEDERMANN v. AUSTRIA | 4 | Inadmissible | Christos Rozakis | The applicant, Mr Gabriel Liedermann, is an Austrian national who was born in 1958 and lives in Vienna. He is a practising lawyer by profession and presents his own case before the Court. The facts of the case, as submitted by the parties, may be summarised as follows. On 14 June 1997 the car, of which the applicant is the registered owner, was parked illegally in a street in the nineteenth district of Vienna. Two sets of proceedings ensued. On 26 September 1997 the Vienna Municipal Authority (Magistrat der Stadt Wien) ordered the applicant pursuant to section 103 § 2 of the Motor Vehicles Act (Kraftfahrzeuggesetz) to disclose the full name and address of the person who had driven the car on 14 June. The applicant replied that he had not left the car to anybody on that date. On 28 January 1998 the Vienna Municipal Authority issued a penal order (Straferkenntnis) in which it sentenced the applicant under sections 103 § 2 and 134 § 1 of the Motor Vehicles Act to pay a fine of 1,200 Austrian schillings (ATS) with 29 hours' imprisonment in default. It found that he had failed to give the requested information. The applicant appealed on 20 February 1998, submitting in particular that any obligation to give more detailed information than he had given would be incompatible with his right not to incriminate himself as well as with the presumption of innocence as guaranteed by Article 6 of the Convention. In submissions of 24 March 1998 the applicant added that meanwhile on 2 March the Vienna Municipal Authority had issued a penal order for illegal parking against him (see below). He argued that the information he had actually given had, thus, had the effect of incriminating him. On 2 April 1998 the Vienna Independent Administrative Panel (Unabhängiger Verwaltungssenat) dismissed the applicant's appeal. Referring to the wording of section 103 § 2 of the Motor Vehicles Act, it found that the applicant, by stating that he had not left the car to anyone at the material time, had failed to give the information requested. As to the applicant's argument that the obligation to disclose who had been driving his car at a certain time violated his right not to incriminate himself, the Panel observed that the relevant sentence in section 103 § 2 had constitutional rank. In this connection it also referred to the Constitutional Court's judgment of 29 September 1988 (see below – relevant domestic law and practice). Subsequently, the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). He argued that if the Independent Administrative Panel's view was correct he would be obliged to incriminate himself by stating that he had driven the car. On 29 September 1998 the Constitutional Court refused to deal with the applicant's complaint. Having regard to its judgment of 29 September 1988, it considered that the applicant's complaint did not offer sufficient prospects of success. This decision was served on the applicant on 25 November 1998. The applicant did not lodge a complaint with the Administrative Court. On 18 August 1997 the Vienna Municipal Authority issued a provisional penal order against the applicant, finding that he had parked his car contrary to section 24 § 1 (a) and 99 § 3 (a) of the Road Traffic Act (Strassenverkehrsordnung) on 14 June 1997 and imposed a fine of ATS 700 with 17 hours' imprisonment on him. The applicant filed an objection. Subsequently, on 26 September 1997 the Vienna Municipal Authority ordered him pursuant to section 103 § 2 of the Motor Vehicles Act to disclose the full name and address of the person who had driven the car on 14 June 1997 (see above). On 2 March 1998 the Vienna Municipal Authority issued a penal order against the applicant, finding that he had illegally parked his car on 14 June 1997. He had thereby violated sections 24 § 1 (a) and 99 § 3 (a) of the Road Traffic Act and was liable to pay a fine of ATS 700 with 17 hours' imprisonment in default. The applicant appealed on 24 March 1998. On 2 July 1998 the Independent Administrative Panel dismissed the applicant's appeal. It noted, inter alia, that the applicant had not contested that he had parked the car. It found that the imposition of a fine for failure to disclose the driver of the car did not in all circumstances prevent the authority from imposing a fine for the traffic offence in respect of which the request to disclose the driver had been made. On 23 February 1999 the Constitutional Court refused to deal with the applicant's complaint for lack of sufficient prospects of success. This decision was served on the applicant on 16 April 1999. Again, the applicant did not lodge a complaint with the Administrative Court. By virtue of Article 130 of the Federal Constitution (Bundesverfassungsgesetz), the Administrative Court has jurisdiction to hear, inter alia, applications alleging that an administrative decision is unlawful. Pursuant to Article 131 the application may be brought by any person claiming a violation of his or her rights by the administrative decision, provided that all other remedies have been exhausted. Pursuant to section 33a of the Administrative Court Act (Verwaltungsgerichtshofsgesetz), in the version in force at the material time, the Administrative Court could decline to deal with an application against a decision of the Independent Administrative Panel, if the fine imposed did not exceed ATS 10,000 and if no important legal problem was at stake. An important legal problem arises in particular, if the Independent Administrative Panel deviated from the Administrative Court's case-law, if case-law on the issue does not exist, or if the Administrative Court's case-law on the issue is not uniform. Section 42 of the same Act provides that, save as otherwise provided, the Administrative Court must either dismiss an application as ill-founded or quash the impugned decision if it is unlawful, by reason of its contents, because of a lack of jurisdiction by the authority which gave it, or on account of a breach of procedural rules. Section 63 (1) of the same Act provides that, if the Administrative Court quashed the impugned decision the administrative authorities are bound by its legal view. Section 103 (2) of the Motor Vehicles Act as amended in 1986 (Kraftfahrgesetz) provides as follows: The ultimate sentence of this provision was enacted as a provision of constitutional rank after the Constitutional Court had, in its judgments of 3 March 1984 and 8 March 1985 quashed previous similar provisions on the ground that they were contrary to Article 90 § 2 of the Federal Constitution which prohibits inter alia that a suspect be obliged on pain of a fine to incriminate himself. In its judgment of 29 September 1988 (VfSlg. 11.829) the Constitutional Court found that the first to third sentences of section 103 § 2 of the Motor Vehicles Act as amended in 1986 were, like the previous provisions, contrary to the right not to incriminate oneself which flowed from Article 90 § 2 of the Federal Constitution and from Article 6 of the European Convention of Human Rights but were saved by the ultimate sentence of that provision which had constitutional rank. In reaching that conclusion the Constitutional Court had examined whether the ultimate sentence of section 103 § 2 was contrary to the guiding principles of the constitution, but had found that this was not the case. Section 134 § 1 of the Motor Vehicles Act, in the version in force at the material time, provided that a fine of up to ATS 30,000 with up to six weeks' imprisonment in default could be imposed on a person who violates the regulations of this Act. Section 24 § 1 (a) of the Road Traffic Act (Strassenverkehrsordnung) provides that it is prohibited to stop or park a vehicle within any area delimited by the traffic sign “stopping and parking prohibited”. Section 99 § 3 (a) of the Road Traffic Act in the version in force at the material time, provided that anyone who, as driver of a vehicle, violated the regulations of this Act committed an administrative offence and was liable to a fine of up to ATS 10,000 with up to two weeks' imprisonment in default. | 0 |
train | 001-87441 | ENG | TUR | CHAMBER | 2,008 | CASE OF TURGUT AND OTHERS v. TURKEY | 2 | Preliminary objections dismissed (ratione temporis, six month period, non-exhaustion of domestic remedies);Violation of P1-1;Just satisfaction reserved | Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky | 8. The applicants were born in 1926, 1923, 1924, 1930, 1935, 1912 and 1957 respectively. They live in Istanbul and Ankara. 9. According to information in the case file, a plot of land measuring 45,000 sq. m (45 dönüm) in the village of Kefken, Kandıra, close to the forest and the Black Sea, was registered in the land register (plot no. 135) in August 1911 in the name of Tevfik Beyzade Hurşit Bey, an ascendant of the applicants. 10. On 9 July 1960 a plot of land measuring 102 500 sq. m, in the village of Kefken, Kandıra, close to the forest and the Black Sea, was registered in the land register (plot no. 135) by the cadastral commission in the names of Tasfire Güneş, Reşat Güneş, Saffet Güneş and Turan Güneş, the heirs of Tevfik Beyzade Hurşit Bey. Following the death of Reşat Güneş in 1977, of Tasfire Güneş in 1978 and of Turan Güneş in 1982, the respective shares were transferred to their successors and registered in the land register: Nihal Ayser Turgut, Tevfik Güneş and Turgay Güneş are the heirs of Reşat Güneş; Nermin Solmaz Güneş and Ayşe Ayata are the heirs of Turan Güneş. Hurşit Güneş had inherited shares from Turan Güneş and Tasfire Güneş as the son of the former and husband of the latter. 11. On 3 January 1962 the Ministry of Forestry brought proceedings before the Kandıra Cadastral Court (“the court”) to have the cadastral commission’s assessment of the applicants’ title to the land declared void on the ground that the land was part of the public forest estate. 12. On 5 January 1962 the Treasury in turn brought proceedings of the same kind before the court and sought registration of the land as property belonging to the Treasury. 13. On 23 May 1965 the court declined jurisdiction under section 28 of the Land Registry Act (Law no. 509) and referred the matter to the Land Registry Directorate (“the Directorate”). On an unspecified date in 1966 the Directorate referred the matter back to the court. 14. In 1966, by judgment no. 1966/11-1967/66, the court allowed the Ministry of Forestry’s application. In the reasons for its judgment, it considered essentially that the disputed land was part of the public forest estate and that therefore, pursuant to the relevant provisions of the Turkish Constitution, it could not be privately owned. 15. By a judgment of 18 June 1968 the Court of Cassation partly upheld the first-instance court’s judgment in respect of Turan Güneş and Reşat Güneş and remitted the remainder of the case to the same court. 16. At a hearing before the court, Turan Güneş stated that he had, in the meantime, filed an application with the Administrative Court for the delimitation of the land at issue to be set aside and accordingly asked the court to stay proceedings in the pending case until the Administrative Court had delivered a decision on the matter. The Administrative Court subsequently dismissed the application to have the matter set aside. On 29 December 1969 the Supreme Administrative Court upheld the decision of the administrative court and on 12 January 1974 dismissed an application for rectification lodged by Turan Güneş. The judgment became final. 17. By a judgment of 29 June 1972, considering that the land at issue was part of the public forest estate, the court decided that it could not be privately owned and declared the title deed void. 18. On 4 July 1974 the Court of Cassation quashed the first-instance judgment, holding as follows: “Following the amendment of section 1 of Law no. 6831 [the Forestry Act] by Law no. 1744, jurisdiction for dealing with issues concerning the classification of land as forest was assigned to the ordinary courts and [such measures] ceased to be administrative in nature. Having regard to its procedural nature, this provision is applicable to earlier events. Consequently, although the decision of the Ministry of Forestry was upheld by the Supreme Administrative Court, since jurisdiction in this respect has been transferred from the administrative to the ordinary courts, the judgment of the Supreme Administrative Court can no longer be applied. Furthermore, [in the instant case], the applicants relied upon the land register. This must be consulted and applied to the land at issue. In addition, since the judgment of the Court of Cassation is to be regarded as favourable to the heirs of Hurşit because they were joint owners under the ordinary regime of ownership in common, the land must be registered in the name of the defendants if it is established that it is not forest land, within the meaning of section 1 of Law no. 6831, as amended by Law no. 1744. Otherwise, since cadastral registration of State forests can only be carried out by special commissions set up for that purpose, in accordance with section 7 of Law no. 6831, and seeing that it is only possible to mark out the boundaries between State forests and private forests, it must be established whether the land at issue was returned or if it falls within the scope of restitution pursuant to Law no. 5658, after having been nationalised pursuant to Law no. 4785; in the latter case, it must be listed as private forest; otherwise, it must be classified as State forest and be excluded from cadastral registration [in the name of a private individual].” 19. On 10 November 1977, relying on the expert reports that had been prepared at its request, the court ordered the land at issue to be entered in the land register in the names of Tasfire, Saffet, Turan and Reşat Güneş. 20. On 28 March 1978, on an appeal by the Ministry of Forestry, the Court of Cassation overturned the court’s judgment. It held that the expert reports were inadequate and that the court should first of all seek the detailed opinion of the Ministry as to whether or not the land at issue was part of the public forest estate and, if required, commission fresh expert reports on the matter. 21. Various surveys ordered by the court on 23 July 1997 and 20 April 2001, based notably on aerial photographs taken in 1959, concluded that the land in question was part of the public forest estate. These surveys were supported by further expert reports dated 21 August 1997 and 28 April 2001. 22. On 8 May 2001 the court ruled that the land at issue was part of the public forest estate; it declared void the cadastral commission’s assessment of the applicants’ title deeds to the land and ordered it to be entered in the land register as belonging to the Treasury. In doing so, it relied on the aforementioned expert reports, the settled case-law of the plenary Court of Cassation – to the effect that title deeds to property forming part of the public forest estate had no legal value – and on the provisions of Article 169 § 2 of the Constitution enshrining the principle of the inalienability of ownership of State forests. As regards the buildings on the land, the court declined jurisdiction ratione materiae in so far as they had been erected after the title to the land deeds had been issued. As regards the status of the applicants and/or their ascendants as parties to the proceedings, the court found, firstly, that the judgment had become final in respect of Turan and Hurşit Güneş since on 18 June 1968 the Court of Cassation had upheld the first-instance judgment concerning them and secondly, that the heirs of Turan and Hurşit Güneş had been allowed to join the proceedings following the death of their ascendants. 23. On 18 November 2001 the Court of Cassation upheld the judgment of the first-instance court. 24. By a judgment of 29 April 2002, served on the applicants on 11 June 2002, the Court of Cassation dismissed an application by them for rectification of the judgment. 25. Following the Court of Cassation’s judgment of 28 March 1978, the office of the chairman of the Forestry Cadastral Commission (Orman Kadastro Komisyon Başkanlığı) informed the Cadastral Court on 28 March 1978 that part of the disputed land had been delimited as part of the Gökdağ State forest and that the other part of the land was subject to the application of section 2(B) of the Forestry Act (Law no. 6831) and was consequently excluded from the public forest estate and transferred to the Treasury. 26. On an unspecified date Turan Güneş lodged an application for judicial review with the District Court, which registered the case as no. 1989/90. Turan Güneş challenged the application of the aforementioned section 2(B) to the land in question. 27. On 12 April 1988 the heirs of R. Gödek applied to the court to be allowed to join the proceedings as intervening parties on the ground that they held a document of title over part of the land at issue to which section 2(B) of Law no. 6831 had been applied. On 24 August 1988 the court allowed their application. 28. By a judgment of 11 July 1990 the aforementioned case no. 1989/90 was joined to the main proceedings pending before the court. 29. On 5 June 1991, claiming title to the land at issue, Z.A.K. also applied to the court for leave to join the proceedings as an intervening party; the court allowed the application on 2 December 1992. Following the death of Z.A.K. during the course of the proceedings, his successors pursued the case before the court. 30. In a judgment of 8 May 2001 the court dismissed the applicants’ application in the joined case no. 1989/90 and the applications by the other civil parties concerning delimitation, after having decided to declare the applicants’ document of title void on the ground that the land at issue was part of the public forest estate. 31. On 3 September 2003 the Ministry of the Environment and Forestry requested the İzmit Forestry Directorate to mark the disputed area of 102,500 sq. m as “forest” on the relevant maps pursuant to the judgment handed down in the matter, and to annul the decision of the cadastral commission, of which public notice had been given on 30 May 2003, excluding that land from the perimeter of the forest estate pursuant to section 2(B) of Law no. 6831. 32. On 27 October 1967, through a notary, Tasfire, Reşat, Saffet and Turan Güneş requested a private company to cease occupying and refrain from building on the land at issue. 33. On 17 May 1990 the office of the Chief of General Staff (Genelkurmay Baskanlığı) decided to transform the site of the Kefken military post into a military security zone. 34. On an unspecified date Hurşit Güneş lodged a complaint with the Kandıra public prosecutor against individuals who, he alleged, had sold various plots of the disputed land to third parties while the proceedings concerning the land were pending before the Cadastral Court. He also applied for the existing buildings on the land to be demolished. 35. On 15 February 1996 the public prosecutor decided to take no further action on the ground that the land was inside the area delimited as forest land and that the criminal court of first instance had delivered judgments concerning the occupants in 1994, further to complaints by the forestry authorities. On 18 April 1996 the Sakarya Assize Court dismissed an objection by Hurşit Güneş. 36. On 7 March 1996 an expert report was issued by two experts at the request of the Kandıra district governor’s office. The report noted the presence of approximately fifty private housing units and a military holiday camp belonging to the Ministry of Defence, comprising, inter alia, several houses, a tennis court, a picnic area, a kitchen and various storerooms, built between 1970 and 1995. The report was forwarded to Hurşit Güneş on 22 March 1996. 37. On 10 December 1997, in an additional report, the three experts noted that part of the disputed land, measuring 28,875 sq. m, had ceased to have certain characteristics of forest land prior to 31 December 1981, since it had first been used as agricultural land and had subsequently been used as residential land on which fifty-two reinforced concrete buildings of various kinds had been built. 38. On 18 May 1998 an agricultural engineer noted in a report submitted to the Cadastral Court that the land at issue could not be considered forest land and that it had features of third-class dry agricultural land but was used as building land (arsa). 39. On 9 June 1998 the technical expert added his report to the case file. A sketch of the relevant land showed the presence of the buildings and the military zone. 40. On 17 September 2002 approximately forty occupants/residents of the disputed land filed a petition with the Ministry of Forestry. They asked that the land at issue, on which there were, according to them, some one hundred and fifty individual dwellings, be excluded from the forest estate and registered as belonging to the Treasury. They expressed their desire to purchase the parts of the land corresponding to their housing plots. 41. Article 74 of the Turkish Constitution of 1924 reads as follows: “No one shall be deprived of his possessions save in the public interest as established by a procedure provided for by law and subject to prior compensation. The methods for the assessment and payment of compensation for the expropriation of land and forests, for the purposes of enabling farmers to own land and of nationalising forests, shall be determined by special statutes.” 42. The relevant provisions of the Turkish Constitution of 1982 read as follows: “Everyone has the right to own and inherit property. These rights may be limited by law only in the public interest. The exercise of the right to own property shall not be in contravention of the public interest. ...” “The State and public corporations shall be entitled, where the public interest so requires, to expropriate privately owned real estate wholly or in part or to impose public easements on it, in accordance with the rules and procedures prescribed by law, provided that the actual compensation is paid in advance. Compensation for expropriation and for increased value, determined by a final judgment, shall be paid in cash and in advance. However, the procedure to be applied for compensation for the expropriation of land in order to carry out land reform, major energy and irrigation projects, housing and resettlement schemes and afforestation, and to protect the coasts and to build tourist facilities, shall be regulated by law. In such cases, the law may allow payment in instalments, but the payment period shall not exceed five years; any such payments shall be made in equal instalments. Compensation for land expropriated from small farmers who cultivate their own land shall in all cases be paid in advance. Interest equivalent to the highest applicable rate of interest on public debts shall be payable on the instalments referred to in the second paragraph above.” “Private enterprises performing public services may be nationalised when this is required by the public interest. Nationalisation shall be carried out on the basis of actual value. The methods and procedures for calculating actual value shall be prescribed by law. The rules and procedures concerning the privatisation of enterprises and assets owned by the State, State economic enterprises and other public corporate bodies shall be prescribed by law. Those investments and services carried out by the State, State economic enterprises and other public corporate bodies which may be performed by or delegated to private individuals or corporate bodies through private-law contracts shall be determined by law. ...” “The State shall enact the necessary legislation and take the necessary measures for the protection and extension of forest areas. Forest areas destroyed by fire shall be reafforested; other agricultural and livestock-breeding activities shall not be allowed in such areas. All forests shall be under the care of the State. Ownership of State forests shall not be transferred to others. State forests shall be managed and exploited by the State in accordance with the law. Ownership of such forests cannot be acquired through adverse possession, nor may they be subject to any easements other than in the public interest. Acts and actions which might damage forests shall not be permitted. No political propaganda which might lead to the destruction of forests shall be carried out; nor shall any amnesties or pardons be specifically granted for offences against forests. Offences committed with the intention of burning or destroying forests or reducing forest areas shall not be included within the scope of any general or specific amnesty laws. The reduction of forest boundaries shall be prohibited, except in respect of areas whose preservation as forests is considered to have no theoretical or practical scientific purpose, but whose conversion into agricultural land has been found to be indisputably advantageous, and in respect of land which, from a theoretical and practical scientific perspective, ceased to have any characteristics of forest land prior to 31 December 1981 and whose use for various agricultural purposes, for example as fields, vineyards, orchards or olive groves or for livestock breeding, has been found to be advantageous, and in respect of built-up areas within cities, towns or villages.” 43. The relevant principles of the Turkish Civil Code read as follows: “Everyone has the right to own, use, manage and dispose of his property as he wishes, within the limits of the legal system.” “Real property is acquired through registration.” “The State is liable for any damage resulting from the keeping of land registry records.” 44. Until 1937, forests were not subject to any special regulations. Between 3 February 1937 and 31 August 1956, five main laws concerning forest property were enacted: Laws nos. 3116, (1937), 4785 (1945), 5653 (1950), 5658 (1950) and 6831 (1956). 45. Section 1 of this Law defines the concept of “forest”. Section 3 provides that there are four types of forest: State forests, forests belonging to local authorities, forests belonging to foundations and private forests. The latter belong to the State but are used by individuals who pay a tax on their use. 46. Section 1 of this Law reads as follows: “All forests which belong to natural or legal persons, individuals, foundations, villages, municipalities, administrative authorities or public corporate bodies on the date of entry into force of this Law shall be nationalised in accordance with this Law. These forests shall be transferred to the State without the need for any notification or procedure.” 47. Section 4 of this Law provides for exceptions to nationalisation, notably as regards forests containing certain types of tree planted by individuals. 48. Section 7 of this Law makes provision for compensation in the event of nationalisation. 49. Law no. 5653 redefines forest land. By section 1 (c), scrubland is no longer considered to be forest unless the land it covers is protected or produces a harvest, in accordance with the conditions defined by this Law. 50. Section 1 further provides that, as of 3 April 1950, areas that have ceased to have the characteristics of forests will no longer be treated as such. 51. This Law distinguishes between three kinds of forest land: State forests, forests belonging to legal entities (such as villages and municipalities) and private forests. 52. Section 1 of Law no. 5658 provides for nationalised land to be returned in certain conditions: “Of those forests nationalised by Law no. 4785 of 9 July 1945, forests which are not situated within State forests and which are surrounded by agricultural land such as fields, vineyards, gardens, places such as private forests, cities, towns or village grazing land, and forests belonging to villages, municipal authorities or individuals which are surrounded by land not classified as forest land under section 1 of the Forestry Act, provided they are entirely separate from State forests, shall be returned upon request to their owners or to the heirs thereof.” 53. Section 1 of this Law defines the concept of “forest” and the exceptions thereto. 54. Section 2(B) (as amended on 5 June 1986 by Law no. 3302) provides: “Places that scientifically and technically ceased to be forest land before 31 December 1981 shall be excluded from the boundaries of the forest, firstly if it has been determined that such places are suitable for various agricultural purposes as farmland, vineyards, gardens, olive groves, fruit, hazelnut or pistachio (or pine nut) orchards, or for livestock purposes, and secondly, in the case of built-up areas within cities, towns or villages. The places excluded from the forest boundaries shall be transferred to the Treasury if they already belonged to the State, or to public legal entities if they already belonged to them, or to their owners if the areas in question were private forests. The necessary rectifications and entries shall be made permanently in the land register when the procedure [for exclusion from forest boundaries] becomes final. No reduction to forest areas may be made other than in the specified places ...” 55. Section 4 states that, from the point of view of ownership and administration, there are three types of forest: State forests (sections 7 to 44), forests belonging to public legal entities (sections 45 to 49) and private forests (sections 50 to 55). 56. Section 7 of this Law provides that the nature of an area – State forest or private forest – is defined by the cadastral commissions. Furthermore, sections 7 to 12 of the Law govern the way in which the cadastral commissions operate. 57. State forests are under the protection of the State. Any act altering their forest character is prohibited (sections 14 to 19 in particular) and constitutes an offence. Sections 79 to 90 set out the procedures applicable to the prosecution of unlawful acts. The criminal penalties for unlawful acts are set out in sections 91 to 114. The penalties for certain offences may be reduced if the perpetrator of the act constituting the offence is the owner of the area in question (see, for example, section 91(6)). 58. Private forests are subject to inspection and supervision by the State. Their owners have a limited right to make use of them. Furthermore, they are entitled, inter alia, to build on an area not exceeding 6% of the total surface area of the land (section 52(2)) if the private forest concerned is located in a built-up area (village, town or city). 59. Law no. 6831 has been amended on various occasions, by Laws nos. 1744 (1973), 2896 (1983), 3302 (1986), 3373 (1987), 3493 (1988), 4079 (1995), 114 (1995), 4570 (2000), 4999 (2003), 5177 (2004), 5192 (2004) and 5728 (2008). 60. On 23 June 1964, the Constitutional Court abrogated sections 3 and 4 of the Forestry Act (Law no. 4785) since they were inconsistent with Article 38 of the Constitution as in force at the material time, which took the actual value of the property as the basis for any compensation payable in the event of expropriation. Section 3 indicated that the value of a nationalised forest was assessed on the basis of the tax return. Section 4 defined the criteria for the purchase of buildings located in a nationalised forest. On the issue of whether the abrogation of the provisions concerned would create a legal vacuum in this sphere, the Constitutional Court held as follows: “... when the provisions at issue are abrogated, the general provisions of the Expropriation Act will be applied to the expropriation of forests.” 61. On 28 March 1995 the Court of Cassation found that under Article 917 of the old Civil Code, the Treasury was responsible for the proper keeping of land registers. In its judgment it set forth the criteria under which the Treasury could be held liable: damage, an unlawful act by a civil servant and a causal link between the damage and the act. It also pointed out that the damage must have been permanent and the application must have been made within one year from the actual occurrence of the damage and, whatever the circumstances, within a general limitation period of ten years. 62. In a judgment of 26 April 1999 the Court of Cassation repeated that under Article 917 of the old Civil Code, the Treasury was responsible for the proper keeping of land registers. In that particular case, the party concerned was unable to have certain interim measures applied to the property of the person indebted to him because the land registers had not been kept in accordance with the regulations. 63. On 7 May 2002, the general assembly of the plenary Supreme Administrative Court (Danıştay Dava Daireleri Genel Kurulu) found that the ordinary courts had jurisdiction where a document of title had been declared void by the Cadastral Court on the ground that the land at issue had been part of the public forest estate (the area was subsequently excluded from the public forest estate as it had ceased to have the characteristics of forest land). In that case, the administrative courts had dismissed a claim for compensation, relying on the judgment of the Cadastral Court in which the interested party’s document of title had been declared void. They had considered that that judgment was in accordance with the law. 64. In its judgment of 7 May 2002 the First Division of the Court of Cassation quashed the judgment of the lower court that had dismissed the interested party’s application and held that the State should be found strictly liable for the acts of civil servants of the cadastral commission, who had concluded in error that the land at issue was not part of the public forest estate. Because of that act, no reference had been made in the land register as regards the forest status of the land, which had been sold to third parties who had relied upon the registers. In that particular case, the land at issue had been registered in the names of third parties following the conclusions of the cadastral commission in 1959 and a deed of title had initially been issued in their name. The plaintiff had acquired the land in 1994 on the basis of information appearing in the land register, which made no reference to its being forest land. Between 1977 and 1982 the cadastral commission carried out further surveys and concluded that the land at issue was no longer part of the forest estate as it had ceased to have the characteristics of a forest. It decided to exclude it from the forest estate. A note to this effect was added to the land register in 1995. 65. On 30 October 2006 the Third Division of the Court of Cassation upheld the District Court’s judgment of 12 June 2006, which had found that the administrative courts had jurisdiction to deal with disputes concerning claims for compensation in connection with land registration following surveys carried out by the cadastral commission. In that particular case, the land had been acquired by the interested party in 1953. It had then been registered in his name following a cadastral commission survey. Later, the document of title issued to the party concerned was declared void by the court on the ground that the land was part of the forest estate. The court dismissed the application, holding as follows: “The claimant is seeking compensation on the basis of two administrative measures: the issuing of the document of title and its invalidation as a result of the delimitation of the forest boundary. The claimant submits in addition that the administrative authority committed an error in so far as he, as the holder of the document of title, was not notified of the result of the delimitation following the survey. A claim for compensation for damage caused by an administrative measure may only be brought before the administrative court by way of an action for damages.” On 30 January 2008, in response to an application of 5 December 2007 by Mr M. Öztok, the claimant’s representative in the above-mentioned case (and also the representative of the applicant in the case of Köktepe v. Turkey, no. 35785/03), the Presidential Council of the Court of Cassation (Yargıtay Birinci Başkanlık Kurulu) stated that there was no contradiction between the two earlier judgments and that accordingly, it was not necessary to resort to the case-law harmonisation procedure. 66. By a judgment of 19 April 2006 the general assembly of the Court of Cassation upheld the judgment of the lower court, which had held the State strictly liable for the acts of civil servants of the Land Registry Directorate. In that particular case, a third party had sold land to the claimant in 1976 on the basis of a false court decision, despite the fact that in 1954, the land in question had been classified by the cadastral commission as grazing land (mera) and therefore State property. The lower court had partly allowed the claim and had awarded compensation for the house that the claimant had built and the trees he had planted on the land at issue. The Court of Cassation held that the fact that the claimant could take action against the third party did not exempt the administration from strict liability. Even in the absence of fault, the State was liable as long as three conditions were met: there had been a wrongful act, damage had been caused and there was a causal link between the wrongful act and the damage. Furthermore, the Court of Cassation made reference to the provisions of the Civil Code protecting the good faith of a person who had relied on the land register. 67. On 26 June 2006 the Bursa Administrative Court dismissed a claim for compensation for damage allegedly suffered by the claimant as a result of having his document of title declared void because his land was part of the forest estate. The claimant applied to the Administrative Court after having referred the matter to the ordinary courts, which had declined jurisdiction ratione materiae. According to the Administrative Court, the claim was out of time as the claimant should have brought it within sixty days from the date on which the judgment annulling his document of title became final. | 0 |
train | 001-110261 | ENG | LTU | CHAMBER | 2,012 | CASE OF SILICKIENE v. LITHUANIA | 3 | Preliminary objections dismissed;No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-2 - Charged with a criminal offence);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre | 6. The applicant was born in 1971 and lives in Vilnius. 7. On 16 August 2000 M.S., the applicant’s husband, a high ranking tax police officer, was arrested on suspicion of having committed various offences of fraud. He was remanded in custody. 8. Later that month he was charged with forgery, fraud and inappropriate commercial activities. 9. In May 2001 M.S. was charged with more serious offences, including that of smuggling large quantities of alcohol. 10. In February 2002 M.S. was accused of further serious crimes, including forming and leading a criminal association in order to smuggle alcohol and cigarettes in large quantities. 11. In 2000 a criminal investigator froze certain property belonging to M.S., his mother and the applicant. The mother appealed against that decision, pursuant to Article 2441 of the Code of Criminal Procedure (see the Relevant domestic law and practice part below). As a result, on 23 July 2002 the District Court of Kaunas City released some of her assets – an apartment, a garage and a plot of land – the seizure of which was deemed to have been unreasonable. The court noted, however, that the café and shares in a telecommunications company which had been in the possession of the mother of M.S. was property acquired as a result of his criminal activities. The seizure of those items was upheld. The applicant did not appeal against the seizure of her property. 12. In August 2002 a prosecutor approved a bill of indictment against M.S. and three of his accomplices, K.K., J.M. and V.V. The case was transmitted to the Kaunas Regional Court. 13. On 24 April 2003 M.S. committed suicide in the Lukiškės Remand Prison. 14. On 25 and 28 April 2003 the applicant and the mother of M.S. requested the court to continue the case to enable his rehabilitation. That same day the Kaunas Regional Court decided to continue the proceedings in so far as they concerned the activities of the criminal association organised by the applicant’s late husband. The court appointed a lawyer to defend the interests of the deceased. 15. On 28 May 2003 the Kaunas Regional Court received a request from the applicant and M.S.’s mother to discontinue the criminal proceedings. By a ruling of 2 June 2003 the court dismissed that request, noting that it had already started examining the evidence in the case. It observed that, without having examined the evidence, the court could not establish whether grounds existed to rehabilitate M.S. 16. On 22 January 2004 the Kaunas Regional Court adopted its judgment. It noted that there were no grounds on which M.S. could be exculpated. On the contrary, the court found sufficient evidence to prove that the applicant’s husband, being a State official, had indeed organised and led a criminal association for smuggling purposes between spring 1999 and March 2000. The offenders had succeeded in passing contraband on twenty-two occasions. However, in view of M.S.’s death, the court decided to discontinue the proceedings against him. Three of his co-accused, K.K., J.M. and V.V., were convicted and sentenced to prison sentences ranging from three years six months to six years. Two other co-accused were released from criminal liability because they had cooperated with the authorities and contributed to discovering the crimes. 17. The Kaunas Regional Court ordered the confiscation of certain items of property on the ground that they had been acquired as a result of M.S.’s criminal activities (Article 72 § 3 (2) of the Criminal Code). In particular, the court ordered confiscation of the applicant’s apartment in Vilnius. The court established that the applicant had bought the apartment in August 1999, having obtained a sham loan of 80,000 Lithuanian litai (LTL, approximately 23,000 euros (EUR)) from the mother of V.V. The applicant’s shares in a telecommunications company, to the value of LTL 29,997 (approximately EUR 8,700), were also to be confiscated on the ground that they had been obtained through an off-shore company which the criminal organisation used to hide the proceeds of its crimes. The trial court also ordered confiscation of a café belonging to M.S.’s mother as well as certain other items. Nonetheless, it lifted the seizure of a plot of land, a garden house, and some money and furniture that belonged to the applicant, given that there was no evidence of the illicit origin of that property. For the same reason, the seizure of flats and plots of land belonging to M.S.’s parents was also lifted. Lastly, the trial court ordered confiscation of V.V.’s car on the ground that it had been used as a means to smuggle goods (Article 72 § 2 (2) of the Criminal Code). The reasons why each item of seized property should or should not be confiscated were set out in eight pages of the judgment. 18. Considering that the trial court’s judgment was erroneous, M.S.’s family hired another lawyer, E.J., to prepare an appeal. As the applicant wrote in her application to the Court, from that moment the lawyer E.J. “de facto represented all persons [who were affected by the confiscation measure]”. Appeals were also lodged by the prosecutor and three convicted persons. 19. In the appeal the lawyer E.J. contended that the criminal proceedings should have been discontinued after M.S.’s death. He also argued, mentioning each item of confiscated property, that those assets had been obtained from legitimate sources and thus the confiscation was unlawful. As concerns the applicant, E.J. averred that there was no proof to find that the apartment and shares in the telecommunications company, both registered in her name, had been obtained from the proceeds of the crimes. For the lawyer, the trial court’s conclusions about the circumstances in which the applicant had acquired the apartment and the shares were factually and legally erroneous. 20. On 25 October 2004 the Court of Appeal upheld the trial court’s judgment. The appellate court emphasised that the persons convicted had acted as an organised group (nusikalstamas susivienijimas) which was the most dangerous form of conspiracy (bendrininkavimas). The group’s criminal activity had lasted many years, was conducted systematically and did great harm to the State. The value of smuggled goods was millions of Lithuanian litai. Taking into account the scale, its systematic nature and the organisational level of the criminal activity, the case could be viewed as exceptional. 21. On the issue of confiscated property the Court of Appeal noted that of all persons whose property had been confiscated, only M.S.’s parents-in-law had testified before the trial court. Even so, they could not explain how they had obtained that property. Furthermore, M.S.’s conspirator V.V. had confirmed that his parents’ financial situation was not good and he could not explain financial transactions by his mother. 22. As regards the applicant, the Court of Appeal also noted that she was well aware of the criminal activities of her husband’s criminal association: “Even though M.S.’s wife J. Silickienė herself has not been charged [in this case], the examined evidence leaves no doubt that she was well aware of her spouse’s and the other co-accuseds’ criminal activities. ... J. Silickienė was informed each time smuggled goods were loaded or unloaded as well as about the sale of those goods. ... There is evidence that J. Silickienė herself received money which had been paid for smuggled goods. ... Consequently, J. Silickienė without any doubt knew that property which the [trial] court confiscated and which had been registered in her name previously had been obtained as a result of criminal activities.” 23. The appellate court also dismissed the argument by the lawyer E.J. that confiscation was not possible because criminal proceedings against M.S. had been discontinued. Article 72 of the Criminal Code obliged the court to confiscate property which was the proceeds of crime, if third persons to whom the property had been transferred knew about the unlawful origin of that property. Confiscation was in no way linked to whether those third persons had been charged with a crime or convicted. On the contrary, pursuant to the aforementioned provision, confiscation of the proceeds of the crime had to be ordered both when imposing a punishment and when a person has been released from criminal liability and even in the event that he or she had not even been charged with a crime. 24. The Court of Appeal also held: “...M.S.’s lawyer has unreasonably linked the confiscation of all the property listed in the judgment with the fact that the proceedings had been discontinued against M.S. However, it has been forgotten that not only M.S. but also other persons had been charged in the criminal proceedings in question. Those other persons had smuggled goods together with M.S., and the illicit gains had been obtained together. Some of those co-accused had been released from criminal liability, but three of the co-accused, J.M., K.K. and V.V., were convicted. For Article 72 § 3 of the Criminal Code to be applied, it was not important that the third persons to whom the property had been transferred should be family members or relatives of the person who committed the crime. Moreover, even presuming that it was M.S. who had transferred the property to his wife, his parents and his parents-in-law, it did not mean that that property had been obtained from the criminal activity of him alone. In the present case that property had been obtained as a result of the criminal activities of all co-accused, including those who had been convicted. Furthermore, V.V., who was M.S.’s cousin, had played a very important role in the activities of the criminal organisation. Accordingly, the persons to whom the confiscated property had been transferred were connected by family links not only to M.S., who died, but also to V.V., who was convicted. These circumstances totally rebut the appellant’s contention that the property had been confiscated after the proceedings had been discontinued, because in reality confiscation had been ordered after [the trial court] adopted an accusatory judgment”. 25. Lastly, the appellate court pointed out that the trial court had exceptionally thoroughly set out the reasons why particular items had to be confiscated. In setting out its conclusions the trial court had relied on extensive analysis of the evidence examined in court, devoting a whole chapter of the judgment, eight pages in length, to that. In the appellate court’s view, the trial court’s findings had been reasonable. Even so, the appellate court again went through the evidence and upheld the trial court’s findings, dismissing E.J.’s arguments to the effect that the two confiscated items in the applicant’s ownership had a lawful provenance (see paragraph 19 above). 26. The lawyer E.J. submitted an appeal on points of law. He contended, first, that the criminal proceedings against M.S. should have been discontinued after his death and that confiscation of property was possible only if an accusatory judgment had been adopted. Secondly, he alleged that the property, the confiscation of which had been ordered by the trial court, including that of the applicant, did not meet the requirements of Article 72 § 3 of the Criminal Code. In his submission, no fault of third person whose property was confiscated had been established. 27. On 17 May 2005 the Supreme Court dismissed the appeal on points of law. As regards the confiscation of property, the Supreme Court ruled that confiscation as a penal measure (baudžiamojo poveikio priemonė) could be applied independently of whether the procedure had been concluded by acquittal or conviction, and even in cases where a person had not been charged with a crime (kai asmuo netraukiamas baudžiamojon atsakomybėn). The Supreme Court emphasised that it was a court’s duty to confiscate property which fell under Article 72 §§ 2 and 3 of the Criminal Code. It was noted that, in its judgment, the trial court had thoroughly reasoned its choice as to which items of property should be confiscated as being the proceeds of illegal activities. The Supreme Court acknowledged that most of that property had been found in the possession of third persons. However, given the trial court’s conclusion that those persons knew or should have known about the illicit funding of the items concerned, it was lawful to confiscate them even though those persons had not been charged in the criminal proceedings against M.S. and the criminal organisation. 28. By a judgment of 30 June 2005 of the Kaunas Regional Court the applicant was convicted of misappropriating property and falsifying documents. The court established that she was actively involved in organising unlawful money transfers to off-shore companies used by the criminal organisation led by her late husband, so that the money was hidden. She fully confessed that she had committed the crimes with the aim of helping her husband avoid criminal liability while he was in detention. The applicant was sentenced to four years’ imprisonment. 29. The mother of the applicant’s late husband was convicted of falsifying documents and sentenced to six month’s imprisonment. The court noted that she was merely executing the orders of the applicant, but that they had the common goal of helping M.S. 30. Both the applicant and her late husband’s mother were pardoned under an Amnesty Act. 31. The Code of Criminal Procedure at the relevant time provided that a pre-trial investigator could freeze the assets of an accused, or assets which were acquired in a criminal manner but later were in a third party’s possession, so as to protect a potential civil claim or confiscation order (Article 195 § 1). Appeals lay against such orders of investigators to two court instances (Article 2441). 32. As concerns confiscation of property, at the material time the Criminal Code provided: 1. Confiscation of property shall be the compulsory uncompensated taking into the ownership of a State of any form of property subject to confiscation and held by the offender, his accomplice or other persons. 2. Confiscation of property shall be applicable only in respect of the property used as an instrument or a means to commit a crime or as the result of a criminal act. A court must confiscate: 1) the money or other items of material value delivered to the offender or his accomplice for the purpose of commission of the criminal act; 2) the money and other items of material value used in the commission of the criminal act; 3) the money and other items of material value obtained as a result of the commission of the criminal act. 3. The property transferred to other natural or legal persons shall be confiscated regardless of whether or not those persons are subject to criminal liability, where: 1) the property has been transferred to them for the purpose of commission of a criminal act; 2) when acquiring the property, they were aware, or ought to have been aware and could have been aware that this property, money or the valuables newly acquired by means thereof have been gained from of a criminal act. 4. The property transferred to other natural or legal persons may be confiscated regardless of whether or not a person who has transferred the property is subject to criminal liability, where this person ought to and could have been aware that that property may be used for the commission of a serious or grave crime. <...> 7. When ordering confiscation of property, a court must specify the items subject to confiscation or the monetary value of the property subject to confiscation.” 33. In the legal systems of the Council of Europe Member States the concept of “confiscation” generally refers to a measure the effect of which is permanent deprivation of property by way of transfer of that property to the State. Seven countries (Albania, Germany, Georgia, Moldova, Romania, Sweden and Switzerland) provide for confiscation orders regardless of conviction. This type of confiscation order generally covers property that has been acquired though unlawful activities. As long as the origin cannot be justified, confiscation of such property may be imposed. Criminal liability of the offender is not relevant for the purposes of the confiscation order. For example, in Germany a court may order the confiscation of the proceeds of the crime despite the fact that the proceedings have been discontinued, as long as it can be established that a wrongful act has indeed been committed. 34. Five States (Bulgaria, Estonia, Luxembourg, the Netherlands and the Russian Federation) in principle require conviction as a prerequisite for confiscation whilst allowing for some exceptions to the general rule. In Bulgaria, if it is established or there are reasonable grounds to believe that the suspect committed the offence, confiscation of property acquired through that offence is permitted, even if the suspect is not ultimately convicted because of his or her death. Estonia and the Russian Federation allow confiscation of property which constitutes material evidence in limited circumstances. In the Netherlands, as a rule, a confiscation order will not be available upon the death of the accused. However, confiscation of the property that has already been seized can be imposed if it is plausible that the deceased had indeed committed an economic crime. Three States (Belgium, France and the United Kingdom) strictly rule out the possibility of confiscation without conviction. 35. Confiscation of property which is the proceeds of a crime may be imposed without conviction in certain circumstances either against third parties in general, or against family members in particular (Bulgaria, Estonia, Germany, Georgia, Moldova, the Netherlands, the Russian Federation, Switzerland and the United Kingdom). Knowledge of the illicit origin of the property, failure to justify its origin, the type of crime at issue and whether or not the third party is a fictitious owner are four most common circumstances in which a confiscation order may be made against property belonging to family members of an accused regardless of their conviction. 36. On 22 December 1994 the Republic of Lithuania ratified the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (1990). The Convention aimed to facilitate international co-operation and mutual assistance in investigating crime and tracking down, seizing and confiscating the proceeds thereof. Parties undertake in particular to criminalise the laundering of the proceeds of crime and to confiscate instrumentalities and proceeds (or property the value of which corresponds to such proceeds). | 0 |
train | 001-115305 | ENG | HRV | CHAMBER | 2,012 | CASE OF KUDRA v. CROATIA | 4 | Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Procedural aspect) | Anatoly Kovler;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska | 4. The applicants were born in 1956, 1965, 1986 and 1988 respectively and live in Nuštar. 5. On 17 October 1993, Ivan Kudra, the then eight-year old son of the first and second applicants and the brother of the third and fourth applicants, sustained a serious head injury while playing near a construction site in Vinkovci, Croatia. After the incident he was taken to the Vinkovci Medical Centre (Medicinski centar Vinkovci) where cranial surgery was performed without the consent of the parents. 6. On the same day a doctor on duty at the Vinkovci Medical Centre informed the Vukovarsko-Srijemska Police (Policijska uprava Vukovarsko-srijemska; hereinafter: the “police”) about the incident. The police interviewed the doctor and the second applicant concerning the circumstances of the incident and drafted an official note of their findings. 7. The police also interviewed P.M., a friend of Ivan Kudra, who was an eyewitness to the event. He described how they had been playing near a construction site in their neighbourhood when Ivan Kudra had fallen on some metal netting and a piece of metal had pierced his head. 8. Ivan Kudra’s health deteriorated on 18 October 1993 when he fell into a coma. He was then transferred to the Osijek Clinical Hospital Centre (Klinički bolnički centar Osijek) for further treatment. 9. On 19 October 1993 the police took photographs of the construction site and interviewed L.S., an employee of the construction company, Akord s.p.o. (“company A”), in charge of the construction site at issue. 10. Ivan Kudra died in the Osijek Clinical Hospital Centre on 21 October 1993. 11. On 24 May 1994 the applicants brought a civil action before the Vinkovci Municipal Court (Općinski sud u Vinkovcima) against company A., the Housing and Communal Activities Fund (Fond za financiranje stambeno-komunalnih djelatnosti) and the Vinkovci Medical Centre, claiming damages for the death of their relative. 12. They claimed that A., as the construction company, and the Housing and Communal Activities Fund, as the investor, were liable for not having secured the construction site despite being aware that people with children lived nearby. They also held the Vinkovci Medical Centre responsible for medical negligence in the treatment of Ivan’s injuries. 13. A hearing scheduled for 3 August 1994 was adjourned because the parties informed the trial court that they could not attend the hearing. 14. At the hearing held on 11 October 1994 the defendants denied any responsibility for the death of Ivan Kudra. At the same hearing the applicants asked the trial court to commission a medical report concerning the circumstances of Ivan’s treatment. On 9 January 1995 they further substantiated their request and asked that the medical report be commissioned from the Medical Faculty of the University of Zagreb (Medicinski fakultet Sveučilišta u Zagrebu). 15. On 11 January 1995 the Vinkovci Municipal Court ordered the hospital and the police to submit all the relevant documents and reports concerning the death of Ivan Kudra. Documents were submitted on 20 January 1995 and 7 February 1995 respectively. 16. On 20 February 1995 the Vinkovci Municipal Court found that the police had failed to submit all the relevant documents and requested them again to submit all their documents and reports. The police complied with the Vinkovci Municipal Court’s order on 6 March 1995 and submitted the requested documents. 17. On 10 January 1996 the Vinkovci Municipal Court asked the Osijek Clinical Hospital Centre to submit the documents concerning the medical treatment of Ivan Kudra. The Osijek Clinical Hospital Centre complied with the order and submitted the documents on 16 January 1996. 18. On 7 January 1997 the Vinkovci Municipal Court commissioned a medical report from the Medical Faculty of the University of Zagreb concerning the circumstances of the medical treatment of Ivan Kudra. 19. On 8 April 1998 the applicants urged the Vinkovci Municipal Court to continue with the proceedings, which had been pending for four years. They also pointed out that if the medical experts had been unable to submit their report within a reasonable time, the trial court should have commissioned a new report by other experts. 20. The Medical Faculty of the University of Zagreb informed the Vinkovci Municipal Court on 23 March 1999 that they had been unable to provide the medical report because they had not had all the relevant documents and reports concerning the medical treatment of Ivan Kudra. 21. At a hearing on 13 May 1999 a representative of the Housing and Communal Activities Fund informed the trial court that that Fund had ceased to exist and that its successor was the Vinkovci Municipality (Grad Vinkovci). A representative of the Vinkovci Medical Centre also informed the trial court that it had now become the Vinkovci Health Centre (Dom zdravlja Vinkovci) and the Vinkovci General Hospital (Opća bolnica Vinkovci). 22. On 3 July 1999 the applicants amended their civil action by naming the Vinkovci Municipality, the Vinkovci Health Centre and the Vinkovci General Hospital as the defendants. 23. Another hearing was held on 22 September 1999, at which the trial court ordered that a further medical documentation shall be requested from the Osijek Clinical Hospital Centre. On 7 October 1999 the Osijek Clinical Hospital Centre complied with that request. 24. At a hearing on 25 January 2001 the trial court asked the parties to submit the further documents to which they had referred in their submissions. 25. On 24 May 2001 the representative of company A. informed the Vinkovci Municipal Court that on 23 April 2001 insolvency proceedings had been opened in respect of that company in the Osijek Commercial Court (Trovački sud u Osijeku). 26. At a hearing on 7 June 2001 the trial court informed the parties about the change in the legal status of company A. 27. On 13 June 2001 the Vinkovci Municipal Court ordered that the proceedings be stayed until the insolvency administrator of company A. had decided whether to participate in the proceedings. The insolvency administrator informed the Vinkovci Municipal Court on 23 July 2001 that it would participate in the proceedings. 28. On 20 August 2001 the Vinkovci Municipal Court referred the case to the Osijek Commercial Court on the grounds that the insolvency proceedings had been opened in respect of company A. 29. On 10 September 2001 the applicants lodged an appeal with the Vukovar County Court (Županijski sud u Vukovaru) against the decision of the Vinkovci Municipal Court, arguing that the Vinkovci Municipal Court had been competent in the matter. 30. On 23 November 2001 the Vukovar County Court dismissed the applicants’ appeal as ill-founded. 31. On 14 February 2002 a hearing was held before the Osijek Commercial Court at which the parties made preliminary oral submissions. 32. On 29 April 2002 the Osijek Commercial Court commissioned a new medical report from the Croatian Medical Expert Reports Association of the Croatian Health Board (Hrvatsko društvo za medicinska vještačenja Hrvatskog liječničkog zbora) concerning the medical treatment of Ivan Kudra. 33. On 14 June 2002 a medical expert of the Croatian Association for Medical Expertise, Ž.G., submitted his report to the Osijek Commercial Court. He found that there had been flaws in the Vinkovci Medical Centre’s treatment of Ivan Kudra, which had eventually resulted in Ivan’s death. The relevant part of the report reads: “If treated properly, with the available medical equipment, the injury [sustained by Ivan Kudra] could have been treated with minimum, even barely noticeable, consequences. The decision to carry out an exploration of the skull under full endotracheal anaesthetic without a neurological preparation (CT), and without the appropriate instruments and a qualified brain surgeon, on a patient who was conscious, had no neurological deficit and whose life was not in imminent danger, was absolutely wrong, all the more so since it was done without the consent of his parents.” 34. On 12 July 2002 the Vinkovci General Hospital lodged an objection against the medical report, arguing that it was substantially flawed. The Vinkovci Municipal Court forwarded the objection to the Croatian Medical Expert Reports Association for reply. 35. On 15 November 2002 the expert witness, Ž.G., submitted an additional report to the Osijek Commercial Court, reiterating all his previous findings. 36. At a hearing on 5 December 2002 the trial court ordered the applicants to specify their civil action given the fact that insolvency proceedings had been opened in respect of company A. The applicants complied with this order and submitted their specified civil action on 10 December 2002. 37. A hearing scheduled for 9 January 2003 was adjourned because the defendants failed to appear. 38. On 22 January 2003 the Osijek Commercial Court, acting in the insolvency proceedings concerning company A., terminated the proceedings and ordered that company A. be deleted from the register of companies. 39. At a hearing on 4 February 2003 the applicants were again requested to specify their civil action and to provide evidence as to the legal connection between the defendants against which they had initially lodged their civil action and the defendants indicated in their specified civil action of 10 December 2002. 40. On 12 February 2003 the applicants submitted an amended civil action to the Osijek Commercial Court. 41. At a hearing on 27 February 2003 the parties made further oral submissions and the hearing was adjourned. 42. On 8 May 2003 the Osijek Commercial Court terminated the proceedings against company A. on the ground that it had ceased to exist. The court also found that it had no competence in the matter and ordered that the proceedings against the Vinkovci Municipality, Vinkovci Health Centre and Vinkovci General Hospital be referred to the Vinkovci Municipal Court. 43. On 17 June 2003 a hearing was held before the Vinkovci Municipal Court at which the parties made further oral submissions. 44. On 7 July 2003 the Vinkovci General Hospital asked the Vinkovci Municipal Court to commission a further medical report from another expert witness, arguing that the previous medical report had numerous flaws. 45. At a hearing on 4 September 2003 the applicants’ representative asked the trial court to allow her additional time to submit her reply to the objections raised by the defendants. Her request was granted and she submitted her observations on 15 September 2003. 46. On 2 October 2003 another hearing was held at which the trial court heard oral evidence from the first and second applicants. 47. On 27 October 2003 the judge conducting the proceedings inspected the scene of the accident. 48. On 31 October 2003 the applicants urged the Vinkovci Municipal Court to decide on their civil action, arguing that all the relevant facts had been sufficiently established. 49. At a hearing on 27 November 2003 the trial court commissioned another medical report from the Medical Faculty of the University of Zagreb on the grounds that the defendants had a number of objections concerning the report of the Croatian Medical Expert Reports Association. 50. On 30 September 2004 two medical experts of the Medical Faculty of the University of Zagreb, P.M. and D.S., submitted their medical report to the Vinkovci Municipal Court. They found that there had been no flaws in the medical treatment of Ivan Kudra in the Vinkovci Medical Centre and that the further health complications could not be attributed to the doctors. 51. The applicants lodged an objection to the findings of the medical experts on 6 December 2004. They argued that the two medical expert reports, the first drafted by Ž.G. and the second by P.M. and D.S., were contradictory and asked that the experts be confronted to clarify and adjust their findings. 52. At a hearing on 3 February 2005 the Vinkovci Municipal Court dismissed the applicants’ request and terminated the proceedings on the grounds that all the relevant facts had been sufficiently established. 53. On 16 February 2005 the Vinkovci Municipal Court adopted a judgment dismissing the applicants’ civil action. In respect of the applicants’ action against the Vinkovci Municipality, the court noted: “Under section 207 of the Civil Obligations Act the investor and the constructor have joint liability for all damages to a third party in connection with the construction. ... The person who is indicated as the investor in the construction contract has joint liability with the constructor for any damages in connection with the construction ([Supreme Court’s judgment] Vs Rev-86/91 of 16 May 1991, PSP-53/112). In the case at issue, regard being had to the contract of 28 September 1992, section 207 of the Civil Obligations Act is inapplicable in respect of the second defendant – the Fund, now the Vinkovci Municipality – since the second defendant was neither the investor nor the constructor on the construction site at issue. It is undisputed that the second defendant transferred, for a sum of money, the construction to the first-defendant A. and that therefore A. was the constructor and the investor. Moreover, the said contract obliged company A. to ensure that the construction was carried out according to the relevant technical requirements necessary for this type of work. If the construction site was not properly secured (and this court, based on the evidence from the case file, considers that it was not) and if there were flaws in the organisation of the work (security) which had caused the injury of Ivan Kudra, then the sole responsibility would be on A. as the investor and the constructor. However, during the course of these proceedings, insolvency proceedings were opened in respect of the first defendant, company A., and this court had no competence to rule on its liability...” 54. As to the applicants’ action against the Vinkovci Health Centre and the Vinkovci General Hospital, the Vinkovci Municipal Court held that the medical expert report drafted by P.M. and D.S. had revealed that all the measures taken by the doctors were appropriate and that they could not be held responsible for Ivan’s death, and therefore the hospital could not be held responsible either. As to the inconsistencies between this medical report and the one drafted by the expert Ž.G., the court noted: “Since the defendants submitted a number of objections to the report drafted by expert Ž.G. from Zagreb, and since that expert failed to provide a detailed reply to those objections during the proceedings before the Osijek Commercial Court, this court considered that another medical report should be commissioned from the Medical Faculty of the University of Zagreb. The medical experts from that institution, P.M., a specialist in brain-surgery and D.S., a specialist in forensic medicine, drafted an objective medical report, in which they sufficiently substantiated their findings concerning the medical treatment of Ivan Kudra. Therefore this court accepts their report.” 55. On 24 February 2005 the applicants lodged an appeal with the Vukovar County Court (Županijski sud u Vukovaru) against the firstinstance judgment of the Vinkovci Municipal Court, arguing that it had a number of substantive and procedural flaws. They pointed out in particular that the Vinkovci Municipal Court had failed to address all the obvious inconsistencies between the two medical reports and sought an explanation. 56. On 14 February 2006 the applicants lodged a complaint about the length of the proceedings before the Vukovar County Court, arguing that the proceedings had been excessively long. 57. On 23 February 2006 the Vukovar County Court dismissed the applicants’ appeal and upheld the first-instance judgment in respect of the Vinkovci Health Centre and the Vinkovci General Hospital. It quashed the first-instance judgment and ordered a retrial in respect of the Vinkovci Municipality. The County Court found that the first-instance court had to establish whether company A. or the Housing and Communal Activities Fund was the owner of the construction site at the time of the accident. The County Court considered that the first-instance court had sufficiently substantiated its decision in respect of the applicants’ complaint concerning the expert reports. 58. On 10 April 2006 the applicants lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske) against the part of the Vukovar County Court’s judgment concerning the Vinkovci Health Centre and the Vinkovci General Hospital. They argued that the lower courts’ judgments had been based on contradictory medical reports and that the lower courts had failed to address their complaints concerning those inconsistencies. 59. On 20 June 2006 the Supreme Court dismissed the first and second applicants’ appeal on points of law as ill-founded, endorsing the reasoning of the lower courts. It declared the third and fourth applicants’ appeal on points of law inadmissible ratione valoris. 60. On 11 January 2007 the applicants lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the judgment of the Supreme Court. The applicants contended that their individual rights and the rule of law had been violated by the lengthy and unfair proceedings before the lower courts in which two contradictory medical expert reports concerning the death of their child had not been confronted and clarified, and no explanation for that had been given by the lower courts. 61. On 18 January 2007 a hearing was held before the Vinkovci Municipal Court in the retrial concerning the applicants’ civil action against the Vinkovci Municipality. 62. Another hearing was held on 8 March 2007. The trial court heard evidence from the parties and their oral submissions, and concluded the hearing. 63. On the same day the Vinkovci Municipal Court dismissed the applicants’ civil action against the Vinkovci Municipality on the ground that, pursuant to a contract dated 28 September 1992 between company A. and the Housing and Communal Activities Fund, ownership of the construction site had been formally transferred to company A. on 19 January 1993, before the accident had occurred. The court therefore noted: “Since for the event at issue, in the view of this court, a third person was responsible, company A. Vinkovci, and not the defendant the Vinkovci Municipality, this court dismisses the civil action under section 177 of the Civil Obligations Act as ill-founded.” 64. On 29 March 2007 the applicants lodged an appeal with the Vukovar County Court, arguing that there had been a number of procedural and substantive flaws in the retrial before the Vinkovci Municipal Court. 65. On 23 July 2007 the Vukovar County Court dismissed the applicants’ appeal as ill-founded and upheld the judgment of the Vinkovci Municipal Court. 66. The applicants lodged an appeal on points of law with the Supreme Court against the judgment of the Vukovar County Court, requesting that the lower courts’ judgments be quashed. 67. On 2 April 2008 the Supreme Court dismissed the first and second applicants’ appeal on points of law as ill-founded and declared the third and fourth applicants’ appeal on points of law inadmissible ratione valoris. 68. On 13 May 2008 the Vukovar County Court upheld a lengthofproceedings complaint lodged by the applicants on 14 February 2006. It found the length of the civil proceedings excessive and awarded the first and second applicants jointly 12,600 Croatian kunas (HRK) in damages. 69. On 11 June 2008 the Vinkovci Municipal Court issued a separate decision in respect of the costs of the proceedings, ordering the applicants to pay HRK 14,134.96 to the Vinkovci Health Centre. 70. On 19 June 2008 the applicants lodged an appeal with the Vukovar County Court against the Vinkovci Municipal Court’s decision. 71. On 26 June 2008 the applicants lodged a constitutional complaint with the Constitutional Court against the Supreme Court’s judgment of 2 April 2008. The applicants argued, inter alia, that the lower courts had minimised any responsibility of those involved in the death of their child. In their view, that had violated their human rights and breached the relevant domestic law. 72. On 12 January 2010 the Constitutional Court dismissed the first and second applicants’ constitutional complaint of 26 June 2008 as ill-founded and declared the third and fourth applicants’ complaint inadmissible as it had been lodged out of time. They had had no right to lodge an appeal on points of law and thus the time for lodging a constitutional complaint had started to run from the date of the Vukovar County Court decision. 73. On 28 October 2010 the Vukovar County Court dismissed the applicants’ appeal against the decision of the Vinkovci Municipal Court concerning the costs of the proceedings, holding that all the relevant facts regarding the costs had been correctly established. 74. On 27 January 2010 the Constitutional Court dismissed the first and second applicants’ constitutional complaint of 11 January 2007 as illfounded and declared the third and fourth applicants’ complaint inadmissible as it had been lodged out of time. The court reiterated its previous arguments. 75. On 3 December 2010 the applicants lodged a constitutional complaint with the Constitutional Court against the Vukovar County Court’s decision of 28 October 2010 dismissing their appeal concerning the costs of the proceedings. 76. On 20 April 2011 the Constitutional Court declared the applicants’ constitutional complaint inadmissible ratione materiae, on the grounds that the decision on the costs of the proceedings had not represented an individual act against which a constitutional complaint could be lodged. 77. On 6 March 2012 the Vukovar County Court found that it had omitted to include the third and fourth applicants’ length-of-proceedings complaint in its decision of 13 May 2008. Therefore, finding the length of the civil proceedings excessive, it awarded the third and fourth applicants jointly HRK 12,600 in damages. 78. On an unspecified date in 2012 the applicants lodged an appeal with the Supreme Court against the above-mentioned decision, arguing that the amount awarded was insufficient, and on 4 June 2012 the Supreme Court dismissed their appeal as ill-founded. 79. The Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010) in Article 21, under Head III – Protection of Human Rights and Fundamental Freedoms, Part 2 – Personal and Political Rights and Freedoms, provides: “Every human being has the right to life. ...” 80. The relevant part of section 62 of the Constitutional Court Act (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette nos. 99/1999, 29/2002, 49/2002) reads: “1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a decision of a State body, a body of local and regional selfgovernment, or a legal person with public authority concerning his or her rights and obligations, or about a suspicion or an 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: a constitutional right)... 2. If another legal remedy exists against the violation of the constitutional right [complained of], the constitutional complaint may be lodged only after that remedy has been exhausted. 3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law is allowed, remedies shall be considered to have been exhausted only after a decision on these legal remedies has been given.” 81. The relevant parts of the Criminal Code of the Republic of Croatia (Krivični zakon Republike Hrvatske, Official Gazette nos. 32/1993, 38/1993) provide: “(1) Anyone who, in the design, supervision or construction of a building or in the execution of construction work, by acting contrary to regulations or generally recognised professional standards, endangers people’s lives or property of considerable value shall be punished by a fine or by imprisonment for a period of between three months and five years. (2) If the offence referred to in paragraphs 1 and 2 of this Article was one of negligence, the perteptrator shall be punished by imprisonment for a period of up to three years.” “ ... (2) A person responsible for a mine, factory, workshop, or another place where work is carried out who does not install safety equipment, or does not maintain it in working condition, or fails to make it available for use if needed, or fails to act in accordance with the regulations on safety measures at work, thereby endangering the life and limb of people or property of considerable value, shall be punished by imprisonment for a period of between three months and five years. (3) Anyone who commits the criminal offence referred to in paragraphs ... and 2 of this Article by negligence shall be punished by imprisonment for a period not exceeding three years. ... ” “ ... (2) If the death of one or more persons has been caused as a result of the criminal offence referred to in Article ... 148, paragraph 1, and Article 149, paragraphs 1 and 2, of this Code, the perpetrator shall be punished by imprisonment for a period of at least three years. ...” “(1) A doctor who, in rendering medical services, applies an obviously inadequate remedy or method of treatment, or fails to apply relevant hygienic measures, or in general acts carelessly, thus causing the deterioration of an illness or the impairment of a person’s health, shall be punished by imprisonment for a period of up to three years. ... (3) If the offence refered to in paragraphs 1 and 2 of this Article was one of negligence, the perpetrator shall be punished by a fine or by imprisonment for a period of up to one year.” “ ... (2) If the death of one or more persons has been caused as a result of the criminal offence referred to in ... Article 166, paragraphs 1 and 2 ... of this Code, , the perpetrator shall be punished by imprisonment for a period of at least three years ... ” 82. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003) provided: “(1) Criminal proceedings shall be instituted and conducted at the request of a qualified prosecutor only. ... (2) In respect of criminal offences subject to public prosecution, the qualified prosecutor shall be the State Attorney and in respect of criminal offences subject to private prosecution, the qualified prosecutor shall be a private prosecutor. (3) Unless otherwise provided by law, the State Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person. ... “ 83. The relevant provisions of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette, nos. 53/1991, 73/1991 and 3/1994) provided: “(1) For any physical pain or mental suffering concerning the ... death of a close person ... the court shall, if appropriate under the circumstances of a given case, and particular if the intensity of the pain or fear and their duration so require, award nonpecuniary damages ...” “(1) In the event of the death of a person entitled to damages, the court can award appropriate non-pecuniary damages to the members of his or her immediate family (spouse, child, or parent). (2) The same damages can also be awarded to the person’s brothers and sisters if sufficient family ties existed between them. ...” 84. The relevant provisions of the Courts Act (Zakon o sudovima, Official Gazette nos. 150/2005, 16/2007 and 113/2008) provided: “(1) A party to court proceedings who considers that the court has failed to decide within a reasonable time on his or her rights or obligations or a criminal charge against him or her, may lodge a request for the protection of the right to a hearing within a reasonable time with a court at the next level of jurisdiction. (2) If the request concerns proceedings pending before the High Commercial Court of the Republic of Croatia, the High Court for Administrative Offences of the Republic of Croatia or the Administrative Court of the Republic of Croatia, the request shall be decided by the Supreme Court of the Republic of Croatia. (3) The proceedings for deciding on a request under sub-section (1) of this section shall be urgent. The rules of non-contentious procedure shall apply mutatis mutandis in those proceedings and, in principle, no hearing shall be held. (1) If the court referred to in section 27 of this Act finds the request well founded, it shall set a time-limit within which the court before which the proceedings are pending shall decide on a right or obligation of, or a criminal charge against, the person who lodged the request, and may award him or her appropriate compensation for a violation of his or her right to a hearing within a reasonable time. (2) The compensation shall be paid out of the State budget within three months of the date on which the party’s request for payment is lodged. (3) An appeal, to be lodged with the Supreme Court within fifteen days, lies against a decision on the request for the protection of the right to a hearing within a reasonable time. No appeal lies against a Supreme Court decision, but a constitutional complaint may be lodged.” | 1 |
train | 001-106409 | ENG | UKR | ADMISSIBILITY | 2,011 | TARKHOVA v. UKRAINE | 4 | Inadmissible | Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre | The applicant, Mrs Tetyana Valentynivna Tarkhova, is a Ukrainian national who was born in 1962 and lives in Kyiv. The facts of the case, as submitted by the applicant, may be summarised as follows. On 15 April 1996 the applicant married Sh. (a Polish national). On 7 July 2000 their son T. was born. The family resided in Poland. According to the applicant, T. is a Ukrainian national. However, according to a letter dated 13 May 2011 from the Ministry of Justice of Ukraine, he is also a Polish national. In June 2008 the applicant and T. went on holiday to Ukraine with Sh.’s consent. They were supposed to return by the middle of August 2008. However, on 30 August 2008 the applicant informed Sh. that they were not returning. On 12 March 2009 the Ministry of Justice of Ukraine lodged an application on behalf of Sh. with the Solomyansky District Court in Kyiv, seeking the return of the child to Poland under the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“the Hague Convention”). On 9 July 2009 the court rejected the Ministry’s claim. On 19 November 2009 the Kyiv City Court of Appeal quashed this decision and remitted the case for fresh consideration. On 11 February 2010 the Solomyansky District Court refused to institute civil proceedings concerning a claim brought by the applicant for custody and maintenance of T., referring to Article 16 of the Hague Convention which precludes the relevant authorities from consideration of such claims before deciding on a child’s return. This decision was final and not subject to appeal. On 24 February 2010 the court ordered T.’s return to Poland. The applicant contested the order, alleging that Sh. had not provided financially for basic family needs, including food and medical treatment. She asserted that in Ukraine she had created a proper environment for herself and her son, who had become well integrated into the Ukrainian school system and who objected to his return to Poland. She referred to Article 13 of the Hague Convention. The representative of the Solomyansky District State Administration Childrens’ Services Department (Служба у справах дітей Солом’янської районної у м. Києві державної адміністрації) agreed that the child had been unlawfully held on the territory of Ukraine, but that his mother had provided him with all which was necessary for the child’s development. The child was very emotionally attached to his mother and did not want to change his place of residence. The court found that the applicant had not provided convincing evidence that Article 13 of the Hague Convention was applicable to her situation. On the contrary, there was sufficient documentary proof that Sh. had taken care of his child (including Sh.’s salary slips, a note from T.’s school in Poland that Sh. had taken an active part in his son’s school life, and so forth). The materials submitted by the applicant about the child’s living conditions in Ukraine had simply confirmed that the applicant had been properly performing her duties as a mother. T.’s preference to stay in Ukraine could not by itself constitute a basis for legalising his abduction, particular regard being had to his young age. The court also noted that Sh. had guaranteed financing the return of both T. and the applicant to Poland, where they had permanently resided before T.’s abduction. Moreover, the child’s return to Poland would be in his best interests, which included the need to ensure that he was developing in conditions allowing him free linguistic and ethnic self-identification in the future. The court finally noted that the applicant would be able to lodge a claim seeking to have the child’s residence changed via court proceedings in Poland. On 19 May 2010 the Kyiv Regional Court of Appeal upheld the District Court’s judgment. The court found that the first-instance court had adopted a lawful decision. In particular, the applicant’s statements that Sh. had insufficient income had not been confirmed by the case-file materials. On 26 July 2010 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal in cassation. The applicant’s further attempts to review the above decisions in the light of newly discovered circumstances were to no avail. The relevant provisions of the Hague Convention can be found in the decision in the case of Levadna v. Ukraine (dec.) (no. 7354/10, 27 April 2010). | 0 |
train | 001-97901 | ENG | RUS | ADMISSIBILITY | 2,010 | DANILINA v. RUSSIA | 4 | Inadmissible | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | The applicant, Ms Tamara Viktorovna Danilina, is a Russian national who was born in 1959 and lives in Samara. She was represented by Ms L. Churkina, a lawyer practising in Yekaterinburg. The Russian Government (“the Government”) were represented by Mrs V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. On 22 April 1999 the applicant lodged an action with the Krasnoglinskiy District Court of Samara against her former employer, a municipal company, seeking reinstatement, the annulment of certain orders, the payment of arrears of salary, and compensation for non-pecuniary damage. On 5 May 1999 the District Court accepted the case for an examination on the merits and stayed the proceedings pending the outcome of a criminal case against the company’s director. The proceedings were resumed on 21 July 1999 and a hearing was scheduled for 23 August 1999. The applicant did not attend the hearing on 23 August 1999 and the proceedings were then stayed until 12 November 1999 because the judge was on leave. The applicant submitted that she had not been notified of the hearing fixed for 23 August 1999. The hearing listed for 12 November 1999 was re-scheduled at the applicant’s request because she was ill. On 26 November 1999 the applicant asked the District Court to resume the proceedings. A hearing was scheduled for 8 December 1999. However, that hearing was adjourned because the applicant was ill. On 25 January 2000, following notification by the applicant that she was fit to participate, the District Court fixed a hearing for 4 February 2000. That hearing was not held as the applicant had requested an adjournment, claiming that she was ill. The next hearing was to take place on 24 February 2000. Of three hearings listed between 24 February and 20 April 2000, two were postponed because a prosecutor failed to attend, and one was adjourned to allow the defendant to submit additional evidence. On 20 April 2000 the applicant successfully requested the District Court to stay the proceedings as she was ill. The proceedings were resumed on 3 July 2000 following notification by the applicant that she was able to take part in them. A hearing was scheduled for 19 July 2000. The applicant failed to appear and another hearing was scheduled for 5 September 2000. According to the applicant, she had not been notified of the hearing fixed for 19 July 2000. Between 5 September 2000 and 14 June 2001 the District Court stayed the proceedings three times, at the applicant’s request. She claimed she was not able to participate because she or her child was ill. In addition, two hearings were postponed to provide the applicant with an opportunity to retain counsel and to enable the defendant to submit additional evidence. According to the Government, the hearing fixed for 14 June 2001, to which the applicant had been duly summoned, was re-scheduled for 13 July because she did not attend. The applicant submitted that she had not been summoned to the hearing. No hearings were held between 13 July and 20 August 2001 because the presiding judge was ill. On 6 September 2001 the District Court disallowed the applicant’s action because she had failed to attend the hearings on 20 August and 6 September 2001 and had not asked for the case to be examined in her absence. The applicant asked the District Court to quash the decision of 6 September 2001, arguing that owing to her illness she had not been able to attend the hearings on 20 August and 6 September 2001, to which she, in any case, had not been summoned, and that she had not been served with a copy of the decision of 6 September 2001 in due time. The proceedings were resumed on 4 March 2002 and the hearing was fixed for 21 March 2002. Between 21 March and 2 September 2002 the District Court twice stayed the proceedings, acting at the applicant’s request. The latter argued that her poor state of health prevented her from attending. In the meantime, the District Court had sent a letter to the hospital treating the applicant, asking it to provide information about her health. On 19 August 2002 the District Court received a reply stating that the applicant’s illness did not impair her ability to participate effectively in the proceedings. On 2 September 2002 the District Court held a hearing. The applicant attended, but once again asked for an adjournment, alleging that she was not fit enough to participate effectively. The District Court granted her request and stayed the proceedings. On 17 September 2002 the applicant asked the District Court to resume the proceedings. The next hearing could not be held until 16 December 2002 because the presiding judge was on leave. Of six hearings scheduled between 16 December 2002 and 17 April 2003, three were adjourned at the defendant’s request to allow for the provision of additional evidence and pending the outcome of related appeal proceedings before another court, and two were postponed because the applicant was unfit to participate. On 17 April 2003 the District Court dismissed the applicant’s action. The applicant appealed. According to the applicant, she had been in hospital and had telephoned the Registry of the Samara Regional Court to find out the date of the appeal hearing. She was informed that the appeal hearing had been scheduled for 23 June 2003. The applicant stated that she had sent a letter to the Regional Court asking for an adjournment of the proceedings because she had been ill. The letter reached the Regional Court on 24 June 2003. The Government, relying on copies of the Regional Court’s summonses and minutes, submitted that the applicant had been informed on 26 May 2003 that an appeal hearing had been scheduled for 2 June 2003. Following the applicant’s failure to attend that hearing, the Regional Court listed a hearing for 23 June 2003 and sent a letter to the applicant informing her of the date and time. On 23 June 2003 the Samara Regional Court, in the applicant’s absence, upheld the judgment of 17 April 2003. On the following day the Regional Court received a request by the applicant for an adjournment of the hearing because she had been admitted to hospital. The Government provided the Court with a copy of the applicant’s letter showing that it had reached the Regional Court on 24 June 2003. In 2006 the applicant instituted legal proceedings against the housing maintenance authorities and her neighbours, seeking the removal of a metal door installed in an apartment block in which she was renting a flat. On 26 June 2006 the Samara Regional Court, at last instance, dismissed her claim. | 0 |
train | 001-95947 | ENG | BGR | CHAMBER | 2,009 | CASE OF GOCHEV v. BULGARIA | 2 | Violation of P4-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 5. The applicant was born in 1958 and lives in Varna. He is a graduate in international economic relations. 6. On 3 April 2001 the Sofia District Court, acting on a claim by a company V., issued an enforcement order against the applicant on the basis of a promissory note. The debt amounted to 55,331.03 Bulgarian levs (BGN) (or about 28,230 euros (EUR)), plus statutory interest. The costs of the proceedings amounted to BGN 1,108 (about EUR 565). 7. On 2 October 2001 company V. contacted the bailiffs’ service, requesting that the applicant be subjected to an order prohibiting him from leaving the territory. 8. On 2 November 2001 the bailiffs’ service suggested to the director of the Department for Identity Documents (“the director”) that the applicant’s passport be withdrawn. That request was based on section 76 (3) of the Bulgarian Identity Documents Act 1998 (see paragraphs 34 to 37 below), which provided for the possibility of prohibiting natural persons who had debts towards other natural or legal persons amounting to more than BGN 5,000 (about EUR 2,550) from leaving the territory. 9. On 12 November 2001 the applicant was invited to submit evidence that he had provided security to his creditor. 10. By a decision of 21 December 2001, the director, referring to section 76 (3) of the Bulgarian Identity Documents Act 1998 and the request by the bailiffs’ service, imposed the proposed measure for an indefinite period. He ordered that the applicant’s passport be withdrawn and instructed the relevant authorities not to issue him with a new passport. 11. The applicant brought an application for judicial review, arguing that the domestic legislation allowed for the imposition of those measures only where the existence of the debt had previously been recognised by a judicial decision that had become final. He submitted that, since his debt arose from a promissory note, that condition had not been met in his case. 12. On 30 May 2002, following a request submitted by the applicant, the director contacted the bailiffs’ service, requesting its opinion on the appropriateness of lifting the prohibition on leaving the territory, and indicated that the applicant had submitted evidence that he had provided security to his creditor. By a letter of 11 July 2002, the bailiffs’ service replied that the applicant had not paid his debts, that he had not provided security and that it was therefore appropriate to continue to apply the measure in question. 13. By a judgment of 11 February 2003 the Supreme Administrative Court dismissed the applicant’s complaint. The court held that a enforcement order issued by a court represented sufficient judicial recognition of the debt in question. It further noted that the applicant had not provided a security to his creditor, that he did not possess assets of a value equivalent to the amount of his debt and that he had not submitted evidence concerning a possible termination of the enforcement proceedings. 14. The applicant appealed on points of law. 15. By a judgment of 21 July 2003, a five-judge bench of the Supreme Administrative Court dismissed the appeal and endorsed the reasoning given by the lower court. 16. On 7 May 2008 the bailiffs’ service suggested to the director that the decision of 21 December 2001 be revoked on the ground that the enforcement proceedings had been closed, given that the creditor had not requested new execution measures over a period of more than two years. 17. The decision in question was revoked on 17 May 2008. 18. On 25 October 1999 the Karlovo District Court, acting on a claim by a company B., issued an enforcement order against the applicant on the basis of another promissory note. This debt amounted to BGN 17,531 (about EUR 8,765). 19. By a request of 20 February 2002, company B. called for the imposition of a measure prohibiting the applicant from leaving the territory. Its representative argued that the applicant had disposed of some of his property that was under attachment, namely vehicles. He noted that company B. had succeeded in attaching real estate belonging to the applicant, but that its value was considerably lower than the sum owed. 20. On 5 March 2002 the bailiffs’ service, on instructions from company B., requested the imposition of an order prohibiting [the applicant] from leaving the territory under section 76 (3) of the Bulgarian Identity Documents Act 1998. On that date the amount of default interest due was BGN 7,421 (about EUR 3,786). 21. By a letter of 25 April 2002, the applicant was informed of the director’s intention to apply the requested measure. He was invited to submit evidence that he had provided security to his creditor. 22. By a decision of 27 May 2002, the director, again referring to section 76 (3) of the Bulgarian Identity Documents Act 1998 and to the proposal by the bailiffs’ service, ordered that the applicant’s passport be withdrawn and instructed the relevant bodies not to issue him with a new passport for an indefinite period. 23. The applicant brought an application for judicial review. He claimed that the order prohibiting him from leaving the territory had no legal basis, that he had intended to effect a set-off using a debt owed by company B., that he had provided security and that he had reimbursed part of his debt. 24. By a judgment of 29 December 2002, the Supreme Administrative Court dismissed the applicant’s application. The court held that the judicial recognition of a debt within the meaning of section 76 (3) of the Bulgarian Identity Documents Act 1998 could arise from a judicial decision that was not res judicata, such as the decision to issue an enforcement order. The other arguments raised by the applicant were dismissed as unsubstantiated or of minor relevance. 25. The applicant appealed on points of law. 26. On 23 April 2003 a five-judge bench of the Supreme Administrative Court upheld the contested decision. 27. It was common ground between the parties that the applicant had been free to leave the national territory since 17 May 2008. 28. The applicant’s daughters, T.G. and M.G., were born in 1986 and 1997 respectively. 29. On 19 December 2001 the Sofia District Court granted a divorce to the applicant and S.G., the mother of his children. A residence order in respect of the two girls was given in favour of S.G. The applicant was given contact rights, amounting to two weekends per month and two two-week periods during the winter and summer holidays. 30. S.G. subsequently settled in the United Kingdom with the two children. Since September 2003, T.G. and M.G. have lived permanently in the UK, where they are being educated. 31. On 5 March 1999 the applicant created, in St Petersburg, a branch of the limited liability company “Univeks” OOD, of which he was an associate. He indicated that in 2002 the Russian market had stabilised and had opened up to Bulgarian products. The prohibition on leaving Bulgarian territory had prevented him from developing his commercial activity in Russia, as it had obliged him to remain permanently in Bulgaria. 32. On 12 March 2002 the applicant, representative and only associate of the limited liability company “Geomark” EOOD, signed a contract for the sale of Bulgarian cosmetics and cleaning products with a Russian company. This contract was worth 500,000 American dollars (USD) and was valid until 31 December 2004. Among the terms and conditions, a clause specified that the applicant was to have the products approved by the Russian authorities. 33. On 29 July 2002 the purchaser and the applicant signed an amendment to the contract, concerning the shipment of products with a value of USD 10,114.28. As the applicant could not travel to Russia in order to obtain approval for the goods, he subsequently withdrew. The reasons for his withdrawal were considered as a case of force majeure by the other party to the contract, and the applicant was not required to pay penalties. As the prohibition on leaving the territory was maintained until the end of the period of validity of the contract, it was not performed. The applicant indicated that he had expected to earn twenty percent of the value of the orders placed. 34. The Bulgarian Identity Documents Act 1998 (Закон за българските документи за самоличност – “the 1998 Act”), which entered into force on 1 April 1999, provides that the relevant bodies of the Ministry of the Interior may impose a prohibition on leaving the territory on an individual who has debt “established by judicial means” amounting to more than BGN 5,000 (about EUR 2,550) towards other physical or legal persons (section 76 (3) taken together with paragraph 1 (5) of the supplementary provisions to the 1998 Act). In addition, at the material time, the Act provided for two other measures, namely the withdrawal of passports and the refusal to issue a passport to a debtor. 35. These preventive measures cannot be imposed if the debtor has provided security to his or her creditor or if he or she possesses assets of sufficient value to be used as reimbursement of the debts (section 76 (3)). 36. The Supreme Administrative Court considers that the instruction by which a court issues an enforcement order on the basis of a promissory note constitutes judicial recognition of the debt within the meaning of the 1998 Act (see, inter alia, Decision no. 8907 of 23 November 2001 in case no. 4766/2001, and Decision no. 6937 of 7 July 2003 in case no. 4150/2003, Решение № 8907 от 23.11.2001 г. по адм. д. № 4766/2001 г., Решение № 6937 от 07.07.2003 г. по адм. дело № 4150/2003 г.). 37. Furthermore, the Supreme Administrative Court considers that the administrative body which imposes a prohibition on leaving the territory has discretionary power with regard to the appropriateness of that measure (see Decision no. 10998 of 9 December 2005 in case no. 4980, and Decision no. 10908 of 8 November 2007 in case no. 7909/2007, Решение № 10998 от 09.12.2005 г. по адм .дело № 4980/2005 г., Решение № 10908 от 08.11.2007 г. по адм. д. № 7909/2007 г.). Thus, courts were required merely to verify that the legal conditions set out in the 1998 Act had been fulfilled. 38. The liability of the maker of a promissory note lapses by limitation three years from the date on which it is payable (section 531 of the Commerce Act). The limitation period is interrupted if enforcement proceedings are brought, and the interruption causes a new limitation period to begin to run (sections 116 and 117 of the Obligations and Contracts Act). 39. If in the course of two years the creditor does not request new execution measures, the enforcement proceedings must be closed (Article 330 of the 1952 Code of Civil Procedure). This provision was reproduced in similar terms in Article 433 of the new Code of Civil Procedure, in force since 1 March 2008. 40. The applicant alleged that there had been a violation of his right to leave the country, guaranteed by Article 2 of Protocol No. 4 to the Convention. This Article provides: “1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.” 41. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that no other ground for declaring it inadmissible has been established. It must therefore be declared admissible. 42. The applicant considered that the preventive measures envisaged in the 1998 Act were inapplicable in his case. He considered that the domestic courts had incorrectly applied the relevant legal provisions, given that the existence of his debts had not been recognised by decisions that were res judicata. In particular, he alleged that an enforcement order issued on the basis of a promissory note could not be equated with a document entailing judicial recognition of his debts. Accordingly, he considered that his debts had not been “established by judicial means”. The applicant concluded that the measure taken against him had not been “in accordance with law”. 43. The Government submitted that the prohibition on leaving the territory had been imposed in compliance with the legislation in force, that it pursued the protection of the rights of others and that it had been necessary in order to ensure that that objective was met. 44. The Court reiterates that Article 2 of Protocol No. 4 to the Convention guarantees to any person a right to liberty of movement, including the right to leave any country for such other country of the person’s choice to which he or she may be admitted. Any measure restricting that right must be lawful, pursue one of the legitimate aims referred to in the third paragraph of the above-mentioned Convention provision and strike a fair balance between the public interest and the individual’s rights (see Baumann v. France, no. 33592/96, § 61, ECHR 2001-V, and Riener v. Bulgaria, no. 46343/99, § 109, 23 May 2006). 45. The Court observes that in this case it was not disputed that there had been interference with the rights conferred on the applicant by Article 2 of Protocol No. 4. 46. With regard to the lawfulness of the measure, the Court reiterates its settled case-law according to which the expression “in accordance with law” not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects (see Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V). In order for the law to meet the criterion of foreseeability, it must set forth with sufficient precision the conditions in which a measure may be applied, to enable the persons concerned – if need be, with appropriate advice - to regulate their conduct. 47. The Court observes that the expression “established by judicial means” could have given rise to various interpretations at the time the 1998 Act was enacted. In so far as the applicant complains of the lack of precision and foreseeability of section 76 (3) of that Act, the Court reiterates that it is normally in the first place for the national authorities, notably the courts, to interpret and apply domestic law. It notes in the instant case that there exists a settled case-law of the Supreme Administrative Court on this provision. In those circumstances, the Court considers that, even if it could have resulted in a certain degree of uncertainty at the time, the ambiguity referred to by the applicant cannot in itself lead to the conclusion that the interference was unforeseeable to the extent that it was incompatible with the principle of lawfulness set out in Article 2 of Protocol No. 4 (see Riener, cited above, § 112, and, mutatis mutandis, Beyeler v. Italy [GC], no. 33202/96, § 109, ECHR 2000I). Moreover, the existence of the debt as established by a promissory note could be challenged before the courts. 48. The Court also considers that the imposition of a measure such as that in the instant case was intended to guarantee the interests of creditors and that in principle it pursued a legitimate aim, namely the protection of the rights of others. 49. With regard to the proportionality of a restriction imposed on account of unpaid debts, the Court reiterates that it is justified only so long as it furthered the pursued aim of guaranteeing recovery of the debts in question (see Napijalo v. Croatia, no. 66485/01, §§ 78 to 82, 13 November 2003). Furthermore, even were it justified at the outset, a measure restricting an individual’s freedom of movement may become disproportionate and breach that individual’s rights if it is automatically extended over a long period (see Luordo v. Italy, no. 32190/96, § 96, ECHR 2003-IX; Földes and Földesné Hajlik v. Hungary, no. 41463/02, § 35, ECHR 2006...; and Riener, cited above, § 121). 50. In any event, the domestic authorities are under an obligation to ensure that a breach of an individual’s right to leave his or her country is, from the outset and throughout its duration, justified and proportionate in view of the circumstances. They may not extend for long periods measures restricting an individual’s freedom of movement without regular reexamination of their justification (see Riener, cited above, § 124, and Földes and Földesné Hajlik, cited above, § 35). Such review should normally be carried out, at least in the final instance, by the courts, since they offer the best guarantees of the independence, impartiality and lawfulness of the procedures (see Sissanis v. Romania, no. 23468/02, § 70, 25 January 2007). The scope of the judicial review should enable the court to take account of all the factors involved, including those concerning the proportionality of the restrictive measure (see, mutatis mutandis, Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, § 60, Series A no. 43). 51. Turning to the circumstances of the present case, the Court notes that the applicant was prohibited from leaving the territory for the first time on 21 December 2001. That measure was lifted on 17 May 2008. It therefore remained in force for more than six years and four months. 52. The Court observes that the parties have not submitted detailed information on the conduct of the enforcement proceedings which were used to justify the restriction on the applicant’s freedom of movement. It is consequently impossible to assess whether or not the steps taken by the authorities and creditors to recover the debts were sufficient, or to evaluate the applicant’s capacity to pay the amounts due to his creditors. Nor were those circumstances discussed in the decisions and judgments of the domestic authorities. The director explained his decisions by the existence of a request from the bailiffs’ service, while the domestic courts merely noted in their judgments that the applicant did not possess assets of a value equal to the amount of his debt and that he had not provided security to his creditors. Accordingly, the Court is unable to rule on whether the imposition and maintenance of this restriction over a considerable period was objectively justified by the aim of guaranteeing recovery of the debts. 53. On the other hand, the Court considers that the facts of the case suggest that the applicant was subjected, from the outset, to a measure of an automatic nature. The measure in question was imposed by the director without a request for explanations by the applicant concerning his personal situation or even about the circumstances surrounding the non-payment of his debts, and without these issues being examined in his decision. While it is true that the effectiveness of a preventive measure frequently depends on the speed of its implementation, this does not dispense the relevant domestic body from an obligation to gather the relevant information once the measure has been imposed. In the instant case, the applicant was merely invited to indicate, before the director issued his decisions, whether he had provided security to his creditors. Thus, the Court is of the opinion that the administrative body did not take account of all the relevant information in order to ensure that the restriction on the applicant’ 54. The Court further notes that the director’s decisions to impose a prohibition on leaving the territory were examined by the Supreme Administrative Court. In so far as that court held that it did not have jurisdiction to rule on the appropriateness of imposing such measures (see paragraph 37 above), the Court considers that the scope of the judicial review also failed to satisfy the requirements of Article 2 of Protocol No. 4 (see paragraph 50 above). 55. As to whether the domestic authorities fulfilled their duty to re-examine regularly the measures restricting the applicant’s freedom of movement, the Court notes that no re-examination of the impugned measures was carried out following the Supreme Administrative Court’s confirmation of the decisions by the director of the Department for Identity Documents (see paragraphs 15 and 26 above). 56. Admittedly, the applicant has not specified whether he asked the director of the Department for Identity Documents to lift the impugned measures after the Supreme Administrative Court had given its judgments. However, given that in reality it appears that he could obtain a lifting of the prohibition on leaving the territory only in the event of payment of the debts, presentation of a sufficient guarantee or, as was the case here, in the event of termination of the enforcement proceedings, the Court considers that the applicant cannot be criticised for failing to avail himself of that possibility. 57. In view of the foregoing considerations, the Court considers that the applicant was subjected to measures of an automatic nature, with no limitation as to their scope or duration (see Riener, cited above, § 127). It concludes that the Bulgarian authorities have failed in their obligation under Article 2 of Protocol No. 4 to the Convention to ensure that any interference with an individual’s right to leave his or her country is, from the outset and throughout its duration, justified and proportionate in the light of the circumstances. In view of this conclusion, the Court does not consider it necessary to address the issues of whether the application of a measure restricting the freedom to leave the country on account of debts owed to private persons can be justified by the high amount of the debts in question or by their particular importance for the creditor, as, for example, in the case of a maintenance order. Accordingly, there has been a violation of the applicant’s right to freedom of movement, guaranteed by Article 2 § 2 of Protocol No. 4. 58. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 59. The applicant claimed EUR 150,000 in respect of pecuniary damage, which he linked to loss of earnings arising from the prohibition on leaving the territory of Bulgaria. He alleged that had the branch of his company “Univeks” OOD been able to develop its commercial activity in Russia, it would have made a profit of EUR 6,000 per year, or EUR 36,000 for the period covered by the prohibition. He also considered that the sales contract for cosmetics and cleaning products, signed in 2002, could have earned him EUR 114,000. Finally, he requested payment of interest on these amounts, at the statutory rate, to run from the date on which the application was lodged with the Court. 60. The applicant also claimed EUR 50,000 in respect of non-pecuniary damage. He argued that, on account of the prohibition on leaving the national territory, he had been unable to meet his daughters after their departure for the United Kingdom, in spite of the fact that he had extensive visitation rights. Finally, he alleged that he had been unable to exercise his profession and that his reputation had been tarnished among his trading partners abroad. 61. The Government considered that the applicant’s claims were illfounded. 62. The Court does not perceive a sufficient causal link between the violation found and the alleged pecuniary damage. In particular, it considers that the applicant has not submitted convincing evidence that his presence was essential for the performance of the contract signed in March 2002. Furthermore, it notes that the finding of a violation of a breach of the State’s duty to examine the proportionality of the measure restricting the applicant’s freedom of movement does not amount to a finding that the measure lacked any justification. Accordingly, the Court dismisses the claim concerning pecuniary damage. It considers, however, that it is appropriate to award the applicant EUR 5,000 in respect of non-pecuniary damage. 63. The applicant claimed EUR 1,934 for the costs and expenses incurred before the Court, of which EUR 1,534 were for lawyer’s fees and EUR 400 were for postage, translation and certification of a document. With regard to the remuneration of his lawyer, he also claimed the difference between the sum of EUR 1,534 and the equivalent of 25 percent of the amounts that would be awarded to him in respect of pecuniary and nonpecuniary damage. He submitted a fee agreement and invoices with regard to the other costs. 64. The Government considered these amounts excessive. 65. The Court reiterates that an applicant may recover his costs and expenses only in so far as they have been actually and necessarily incurred and are reasonable as to quantum. In the instant case, having regard to the documents in its possession and the above-mentioned criteria, the Court considers it reasonable to award the applicant the aggregate sum of EUR 1,500. 66. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | 0 |
train | 001-83150 | ENG | RUS | CHAMBER | 2,007 | CASE OF KNYAZEV v. RUSSIA | 3 | Preliminary objections dismissed (locus standi, strike-out request, abuse of the right of application, non-exhaustion of domestic remedies);Violation of Art. 34;Remainder inadmissible;Non-pecuniary damage - finding of a violation sufficient;Costs and expenses (Convention proceedings) - claim dismissed | Loukis Loucaides | 7. The applicant was born in 1977 and lives in Krymsk, Krasnodar Region. 8. According to the applicant, from 24 March 2005 he served a sentence in Lgov correctional colony OX-30/3, Kursk Region (учреждение ОХ-30/3). On his arrival at the colony, he was called to see the head of the colony, B., who invited him to become a member of a so-called “секция порядка” (literally, an “order section”, an informal category of prisoners who cooperated with the prison administration) and to conclude a written agreement on cooperation with the colony’s officials. The applicant refused. As a result of his refusal he was beaten by D., the deputy head of the correctional colony, K., a colony official, and R., head of the security unit. The beating was continued by other colony officials, who stripped him naked and beat him with rubber truncheons. The applicant was then placed for ten days in a disciplinary cell, where the beating continued. On a number of occasions he was beaten in the presence of an official from the Kursk Prosecutor’s Office. The applicant complained about the events to the Lgov Prosecutor’s Office. 9. On 10 July 2005 the institution of criminal proceedings was refused on the ground that “special equipment” had been used against the applicant in accordance with the law. 10. The applicant claimed to have been systematically beaten for writing complaints against the head of the correctional colony and the colony’s administration to various authorities, and that he had then been forced to eat the complaints he had written. In particular, on 23 May 2005 he was beaten with rubber truncheons and thrown to the ground, and an Alsatian dog was set on him. The dog mostly bit his hands, which he was using to cover his face. According to the applicant, the colony’s doctor noted the bite marks. He alleged that he still had scars on his hands. The head of the correctional colony then threatened the applicant that if he wrote more complaints he would have to spend the night in a cell with the dog. 11. During the night of 26-27 June 2005 the applicant, together with two other inmates, M. and G., was taken to the office of prison official K., who asked him to report on the situation in the correctional colony. The applicant responded that he was not in control of the situation. As a result of this reply he was beaten and escorted to a cell where, it appeared, other inmates had cut their veins and stomachs. As a protest against the actions of the colony’s administration, the applicant also cut the veins on his right arm and, having found an electrode in premises where repair work was being carried out, thrust it in his right side in an attempt to reach the lungs. According to the applicant, after he had inflicted these penetrating wounds on 27 June 2005, he was questioned for the entire day and it was not until the evening that a physician pulled the electrode from his side; however, the glass cap remained in his stomach. The surgeon examined the applicant later and noted that a foreign body was still in his stomach, but did not remove it. 12. On the following day the applicant and other inmates submitted to the Prosecutor of the Kursk Region applications for the institution of criminal proceedings against B., the head of the correctional colony, colony officials D. and R. and others, on account of numerous instances of ill-treatment of prisoners. Criminal proceedings in case file no. 1519 were instituted against two prison officials, D. and R., on account of the alleged beating of inmate Sh. However, no criminal proceedings were instituted into the applicant’s allegations as set out in his complaint to the Prosecutor of the Kursk Region, and he was not granted the status of a victim in the criminal proceedings. 13. According to the Government, the applicant was held in Lgov correctional colony OX-30/3 from 23 March to 29 June 2005. During this period the applicant repeatedly broke prison rules and on a number of occasions was seen by a psychologist, who diagnosed him as suffering from an emotionally unstable personality disorder. 14. On 23 March 2005, in the course of a routine search, the applicant was found to have forbidden items, namely three metal dowels and two razor blades. During the search and seizure of the items the applicant resisted the colony’s officials. In particular, he pushed them, grabbed their clothes and insulted some of them. One of the officials warned him that special equipment could be used against him if he continued behaving in such a way. Since the applicant refused to submit, two of the officials used a rubber truncheon against him. After the incident the applicant was examined by a doctor who found abrasions on his back and soft body tissues. 15. On the same day the deputy prosecutor of the Kursk Region was informed of the incident and a report on the use of the special equipment was drafted. The report stated that the rubber truncheon had been used for three seconds against soft body tissues. Later that day the deputy prosecutor of the Kursk Region personally met the applicant, who told him that he had no complaints against the administration of the correctional colony OX-30/3 and that the application of the special equipment had been justified. 16. On 1 April 2005 the deputy prosecutor of the Kursk Region again met the applicant, this time in relation to the injuries he had self-inflicted on 16 March 2005 while held in a remand prison (SIZO) in Kursk, prior to his transfer to correctional colony OX-30/3. In a written statement the applicant explained that he had thrust an electrode into his left side in order to attract attention, as he had wanted to be moved to a correctional facility closer to his home. He also stated that he had no complaints against the administration of the remand prison. 17. On 8 July 2005 the Lgov Interdistrict Prosecutor’s Office received the applicant’s complaint concerning the alleged beating following his arrival at correctional colony OX-30/3. 18. In explanations given on 9 July 2005, colony officials B., R., D. and Ryz. and the deputy prosecutor of the Kursk Region stated that physical force had never been used against the applicant and he had never been threatened with its application. 19. Following an inspection, on 10 July 2005 the prosecutor refused to institute criminal proceedings into the applicant’s allegations of ill-treatment. He also found that special measures were lawfully applied against the applicant on 23 March 2005. An appeal against that decision lay with a higher prosecutor or a court. 20. The Government submitted that the applicant had not applied for medical aid in connection with the alleged ill-treatment on 23 May 2005. The authorities became aware of these allegations only after the application had been communicated by the Court. 21. On an unspecified date the applicant sent a complaint to the Prosecutor’s Office of the Kursk Region. The complaint was received by the Prosecutor’s Office on 4 July 2005. The applicant alleged that since his arrival at correctional colony OX-30/3 he had been regularly beaten by colony officials. He sought to institute criminal proceedings against them. 22. On 14 July 2005, following an inspection into the applicant’s allegations, the Prosecutor’s Office of the Seymskiy District of Kursk refused to institute criminal proceedings. 23. On 20 August 2005 the Prosecutor of Kursk, who was responsible for supervising penitentiary facilities, quashed the decision and remitted the case for additional inspection. 24. In the course of the initial and additional inspections the officials who were alleged to have beaten the applicant were questioned by the Prosecutor’s Office. In particular, the head of the colony, B., in his statements on 13 July and 3 September 2005 submitted that the inmates, including the applicant, had not been beaten or subjected to degrading treatment and that he had never ordered the use of physical force against them. He regarded the inmates’ complaints as slanderous and aimed at destabilising the situation in the colony. Similar submissions were made by D. on 13 July and 5 September 2002, by R. on 13 July 2005 and by Z. on 2 September 2005. 25. On 5 September 2005 the Prosecutor’s Office of the Seymskiy District of Kursk again refused to institute criminal proceedings. According to the findings of the inspection, the officials of colony OX-30/3 had not abused their official authority and did not use physical force against the applicant. The use of a rubber truncheon against him on 23 March 2005 had been justified since he had resisted the officials who had conducted the routine search. An appeal against the decision lay with a higher prosecutor or a court. 26. During the night of 26-27 June 2005 the applicant self-inflicted a subcutaneous slash wound to his right forearm and subcutaneous slash wounds to the front abdominal wall and inserted a foreign body into the soft tissue of the front abdominal wall. He had no penetrating wounds. At 10.30 p.m. on 26 June 2005 the applicant was examined by a surgeon of the Lgov Central District Hospital, who removed the foreign body from the applicant’s abdominal wall and dressed the wounds. The applicant also underwent an X-ray. No foreign bodies, such as a glass cap, remained in the applicant’s body after he had been provided with medical aid. 27. On 27 June 2005 numerous complaints from inmates of correctional colony OX-30/3 were submitted to the Prosecutor’s Office of the Kursk Region. The inmates, including the applicant, alleged that they had been systematically beaten by the colony’s officials. On the same date criminal investigation no. 1519 was opened into the allegations of ill-treatment. The applicant was not granted the status of a victim in the criminal proceedings. 28. On 19 August 2005, following an inspection, criminal investigation no. 1519 was discontinued in the part related to the complaints lodged by the applicant and two other inmates, M. and G. In the course of the inspection the Prosecutor’s Office examined the relevant medical reports and questioned several officials of the colony, who submitted that no physical force had been applied to the applicant on 26-27 June 2005. The Prosecutor’s Office of the Kursk Region found that the applicant’s injuries had been self-inflicted and his allegations of ill-treatment were unsubstantiated. An appeal against the decision lay with a higher prosecutor or a court. 29. The applicant submitted that on either 29 or 30 June 2005 he had been escorted to Lgov remand prison IZ-46/2 (учреждение ИЗ-46/2 Льгова) under the guise of transportation to the medical unit. There he was questioned as a witness in relation to the allegedly unlawful actions of the administration of prison OX-30/3. 30. In remand prison IZ-46/2 officials from the Kursk Region Directorate of the Federal Service for the Execution of Sentences, including the head of the regional department, P., tried to force the applicant to repudiate his statements concerning the allegedly unlawful actions of the administration of correctional colony OX-30/3. They had threatened to institute criminal proceedings against him on charges of disorganising the work of prison institutions. The applicant lodged a complaint against P. Inmate Sh. was questioned as a witness. Although Sh. confirmed that P. had put pressure on him, trying to force him to repudiate his statements, the Lgov Interdistrict Prosecutor’s Office refused on 18 July 2005 to institute criminal proceedings against P. 31. According to the applicant, he was not provided with adequate medical assistance in remand prison IZ-46/2. Officials from the Prosecutor’s Office showed him entries in his medical file stating that he had been examined by a doctor; however, this was not true. Furthermore, a doctor from the regional hospital at the Federal Service for the Execution of Sentences forced him to refuse operative treatment in writing. The doctor explained that the Federal Service did not have sufficient funds for the operation and the applicant did not have enough money to pay for it either. 32. Between 23 and 24 July 2005 the applicant was allegedly taken out of his cell and placed in a car. He was not informed of either the destination or the purpose of the transportation. In the car he was threatened and insulted by the officials and, unable to bear it any longer, he cut the veins on his right arm. He was then returned to the remand prison. The applicant was not examined by a doctor until lunchtime of the following day, when his wounds were dressed and he was given an analgesic. On 25 July 2005 several prison officials tortured him, forcing him to refuse Ms Liptser’s assistance and to withdraw his complaint to the Court and the statements given in relation to criminal case no. 1519. In particular, they painfully twisted his arms and burnt him with an immersion heater. 33. According to the Government, the applicant’s transfer to remand prison IZ-46/2 was ordered on 28 June 2005 and on 29 June 2005 he was escorted there. He remained in the remand prison until 26 July 2005. 34. On 29 June 2005 the applicant was examined by a medical attendant who noted the subcutaneous wounds inflicted by the applicant himself in colony OX-30/3. The medical attendant prescribed a dressing with antiseptic ointment. The applicant also stated that he had a foreign body in his stomach. An X-ray conducted on 30 June 2005 showed no foreign objects in the applicant’s body. The applicant’s wounds were dressed daily between 30 June and 14 July 2005. 35. On 11 July 2005 the applicant committed another act of self-mutilation. At 8.55 p.m. he was examined by a medical attendant who found subcutaneous wounds to the left elbow and the navel area. The wounds were dressed with an antiseptic bandage. The next day the applicant was again seen by the medical assistant, who dressed the wounds with a bandage and antiseptic ointment. 36. On 16 July 2005 the applicant’s wounds were dressed again. Because of the intumescence on his right forearm the applicant was given antibiotics. On the same date the applicant was examined by the head of the neurosurgical department of the regional hospital at the Federal Service for the Execution of Sentences. He stated that the earlier self-inflicted slash wounds to the applicant’s forearms and the front abdominal wall were infected. The applicant was offered surgical treatment which he refused on the same day in two written statements. The refusal was also reflected in his medical file. The X-ray showed no foreign objects in the applicant’s body. 37. In the night of 23-24 July 2005, on the way to the railway station for transportation to another penitentiary facility, the applicant wounded himself in the area of the right elbow joint. Because of the wound the applicant was not allowed to board the train and was returned to remand prison IZ-46/2. There he stated that he had self-inflicted the injury. The applicant had damaged the epidermis but the veins in the area of the elbow joint were not affected. His wound was dressed. 38. On 25 July 2005 the applicant was examined by a surgeon from the Lgov Central District Hospital, who found a subcutaneous wound in the area of the right elbow joint that was not bleeding. The applicant refused to have the wound stitched. 39. After the applicant had been transferred to remand prison IZ-32/1, Bryansk Region, he complained to the Lgov Interdistrict Prosecutor’s Office that he had been tortured with an immersion heater while held in remand prison IZ-46/2. 40. On 1 September 2005 the Lgov Interdistrict Prosecutor’s Office refused to institute criminal proceedings. The decision was quashed by a higher prosecutor and the case remitted for additional inspection. 41. On 15 September 2005 the Lgov Interdistrict Prosecutor’s Office again refused to institute criminal proceedings. The Prosecutor’s Office questioned officers from remand prison IZ-46/2 and inmates who had been held there at the same time as the applicant. They submitted that they had not seen the applicant being tortured and had not heard of him being ill-treated. The decision noted that on 25 July 2005 the applicant had not applied for medical aid. However, on the next day he had been examined by a doctor in remand prison IZ-46/2, prior to his transportation to remand prison IZ-32/1. No traces of burns had been found in the course of the examination. The Prosecutor’s Office concluded that the applicant had self-inflicted the injuries. An appeal against the decision lay with a higher prosecutor or a court. 42. On 26 July 2005 the applicant was escorted to remand prison IZ-32/1, Bryansk Region (учреждение ИЗ-32/1 по Брянской области). 43. On arrival the applicant was examined by a medical attendant, who noted a slash wound in the area of the right elbow joint, scars in the abdominal area and traces of burns on his body. 44. On 11 August 2005 Ms Liptser visited the applicant in the remand prison. During her visit the applicant made the following statement: “In remand prison IZ-32/1 I am also subjected to pressure by officials of the Federal Service for the Execution of Sentences from the Kursk and Bryansk regions and their colleague from Moscow [...] They skilfully beat me without leaving any traces: they beat me on the head with books, on the face with their open palms... They are about to become residents here – they have been dealing with me for a week now from dusk till dawn. They say that I am the only one remaining. They let me make phone calls to remand prisons in Orel and Kursk, where other convicts tell me to withdraw [my complaints] and that they have already withdrawn theirs. [The officials] brought letters from others saying that I should withdraw [the complaints], refuse assistance from counsel, that “this must be done”. Then they began to beat me again and to burn me with a boiler forcing me to write [the withdrawal letters]... I read [Sh.’s] withdrawal of his application [before the Court] and his rejection of your services ... and a similar withdrawal written by M.” “I was forced [under torture] to write dictated statements addressed to Mr Laptev, representative of the Russian Government before the Court, Mr Lukin, Russian Ombudsman, the Prosecutor of the Kursk Region and the European Court saying that I withdrew everything. These statements are dated 8 August 2005 and one [was written] on the same day but is dated 5 August 2005.” “The statements dated 5 and 8 August 2005 should be considered invalid as they are nothing but a result of torture. Only statements written in the presence of my lawyers should be examined....” 45. The applicant also told his counsel that he had tried to send letters to his lawyers and to submit complaints against the officials who had ill-treated him. However, his complaints had either been returned to him or he had been forced to withdraw them. On 12 August 2005 the applicant’s counsel informed the Prosecutor’s Office of Bryansk Region and the General Prosecutor’s Office of the alleged ill-treatment, and on 15 August 2005 she submitted the same complaints to the Prosecutor’s Office of Kursk Region, asking that criminal proceedings be instituted on account of the use of torture against the applicant. On 12 August 2005 the applicant’s counsel also informed the Court that the applicant had been allegedly forced to write statements on withdrawal of his application to the Court. 46. On 15 August 2005 the applicant was examined by a doctor who noted brown streaks on his neck and back. The applicant refused to provide any explanation as to the origin of the injuries to the officials of remand prison IZ-32/1. The Government submitted that the applicant had committed another act of self-mutilation. 47. In a letter to his counsel dated 16 August 2005 the applicant reiterated his previous statements concerning the events in correctional colony OX-30/3 and the ill-treatment in remand prison IZ-32/1. He also indicated the names of other prisoners who could confirm his statements. 48. On 17 August 2005 the applicant complained about pain in the right side of his stomach. He was examined by a doctor from remand prison IZ-32/1 who suspected that there was a foreign body in the tissues of the front abdominal area. However, the applicant refused to permit palpation of his stomach. 49. In a letter of 18 August 2005 the applicant informed his counsel that the administration of remand prison IZ-32/1 was aware of the contents of the written statements he had addressed to the Deputy Prosecutor of the Bryansk Region. Furthermore, he alleged that he had been placed in a disciplinary cell for making statements to the Deputy Prosecutor. 50. On 22 August 2005 the applicant was seen by a surgeon. However, when asked to lie down for an examination, he refused. 51. On 24 August 2005 the applicant was examined by a doctor who noted a foreign body in the front abdominal wall. The applicant refused to permit palpation of his stomach. He reiterated the refusal at the examination on 26 August 2005. A fluorography conducted on the same date showed a nail measuring six centimetres in the soft tissues of the abdominal area. On 27 August 2005 the applicant agreed to have his stomach palpated. During the examination he stated that he could remove the nail himself; however, he thrust it into a different place. Later that day the applicant was transported to a hospital of the Federal Service for the Execution of Sentences. On arrival he refused any medical examination. On 29 August 2005 the applicant himself removed the nail from the abdominal wall. The doctors dressed his wound with an aseptic bandage. 52. On 31 August 2005 a doctor was called to the applicant’s cell because he had cut his right forearm in another act of self-mutilation. The wounds were dressed with an aseptic bandage. 53. Between 14 and 26 September 2005 the applicant was placed in a hospital at correctional facility OZh-118/5, Voronezh, for removal of another foreign body that he had thrust into the abdominal area and for subsequent treatment of the wound. 54. On 28 September 2005 the applicant arrived at remand prison IZ-46/1, Kursk Region. 55. On 21 October 2005 the Prosecutor’s Office of the Sovetskiy District of Bryansk refused to institute criminal proceedings into the applicant’s allegations of ill-treatment in remand prison IZ-32/1. The decision was based on the following findings. 56. The applicant, who was questioned in the course of the inspection conducted by the Prosecutor’s Office, submitted that during his placement in remand prison IZ-32/1 State agents tortured him with an immersion heater, beat him and forcibly injected drugs into his veins, seeking to force him to withdraw his complaints concerning Lgov correctional colony OX-30/3 and the application to the Court. When he could no longer bear the torture he submitted to the pressure and wrote statements to the Court, the ombudsman, the prosecutor of the Kursk Region and the representative of Russia at the Court, asking that the proceedings following his previous applications be discontinued. 57. The applicant’s cellmate, B., submitted that the applicant had often been taken out of the cell by remand prison officers. He had never complained about ill-treatment on returning to the cell. B. had never seen the applicant with any injuries. 58. Remand prison officers and officials of the Federal Service for the Execution of Sentences submitted that on a number of occasions they “had had conversations” with the applicant because he had been under preventive monitoring as a person inclined to absconding, attacking prison officers, taking hostages, self-mutilation and suicide. However, they had never applied either psychological or physical pressure to the applicant and he had never made any complaints in this regard during the conversations. 59. The inventory of personal items which the applicant had had with him in the remand prison included an immersion heater. 60. The medical attendant who examined the applicant on 26 July 2005 submitted that the applicant had explained that the injuries found had been caused by a dog and by officials from the Federal Service for the Execution of Sentences, who had burned him with an immersion heater. He also noted that the burn marks had been located in places where the applicant could have inflicted them himself. 61. The doctor who examined the applicant on 15 August 2005 submitted that he could not be sure that the injuries found had been burn marks. Furthermore, the applicant had refused to provide any explanation as to their origin. 62. The head of the Bryansk Forensic Bureau submitted that on the basis of the available medical documents and the applicant’s medical file it was not possible to come to any conclusions with regard to the nature of the applicant’s injuries, if any. 63. The Prosecutor’s Office concluded that the applicant’s allegations of ill-treatment were unsubstantiated and the injuries found had been caused by the applicant himself. An appeal against the decision lay with a higher prosecutor or a court. 64. On 11 November 2005 the Government sent the Court a copy of a statement dated 5 August 2005, addressed to the Representative of the Russian Federation at the Court, Mr Laptev, and written and signed by the applicant. The statement read as follows: “I ask you to examine and accept the statement written in my own hand that I, Knyazev Vitaliy Anatolyevich, ask you, Mr P.A. Laptev, to recall from the European Court of Human Rights the application that I lodged through my counsel E.L. Liptser. I do not want it [the application] to be examined in the present proceedings.” 65. On 11 February 2006 the applicant was transferred to correctional colony no. 11, Khabarovsk Region. 66. Article 125 of the Code of Criminal Procedure of 2001 provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court. 67. Article 91 § 2 of the Penal Code, as amended on 8 December 2003, provides that all incoming and outgoing correspondence of detainees is subject to censorship by the administration of the correctional facility. Correspondence with courts, prosecutors, penitentiary officials, the Ombudsman, the public monitoring board and the Court is not subject to censorship. Correspondence of convicted persons with their counsel is not subject to censorship unless the administration of the correctional facility has reliable information to the effect that it is aimed at initiating, planning or organising a crime or involving other people in the commission of a crime. In this case the correspondence is subject to control on the basis of a reasoned decision by the head of the correctional facility or his deputy. 68. Rule 12 of the Internal Regulations of Correctional Facilities adopted by Decree no. 224 of the Ministry of Justice of 30 July 2001 and amended on 8 July 2002, 23 March 2004 and 3 December 2004, provided that letters from detainees should be placed in mail boxes in the facilities or handed over to representatives of the administration in unsealed envelopes. The regulations were repealed by Decree no. 205 of the Ministry of Justice of 3 November 2005, which adopted new regulations. Rule 50 of the new regulations provides that letters from detainees should be placed in mail boxes in the facilities or handed over to representatives of the administration in unsealed envelopes, except for correspondence which is not subject to censorship (that is, with the organisations and persons listed in paragraph 67). | 1 |
train | 001-90788 | ENG | BGR | CHAMBER | 2,009 | CASE OF HOLY SYNOD OF THE BULGARIAN ORTHODOX CHURCH (METROPOLITAN INOKENTIY) AND OTHERS v. BULGARIA | 3 | Violation of Art. 9 read in the light of Art. 11;No violation of Art. 6;No violation of P1-1;No violation of Art. 13;Pecuniary and non-pecuniary damage - reserved | Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 9. In 1949 the authorities in Bulgaria enacted legislation regulating the organisational structure and functioning of religious denominations (the Religious Denominations Act 1949). 10. In accordance with the Act, each religious denomination had to apply for registration and approval of its statute by the Council of Ministers and to register its leadership with the Directorate of Religious Denominations (“the Directorate”) attached to the Council of Ministers. The local leaderships were registered by the municipal authorities. 11. In reality, the leadership of religious denominations was pre-approved or even directly nominated by the Bulgarian Communist Party. 12. The Bulgarian Orthodox Church was no exception. A document dating from 1949, submitted by the applicants, attests that in 1949 the Central Committee of the Bulgarian Communist Party discussed the need for “cleansing” in the leadership of the Church and took measures to promote persons loyal to the authorities to leading positions in the Church. In 1971, following the death of Patriarch Cyril, the Central Committee of the Bulgarian Communist Party, in a decision dated 8 March 1971, nominated Metropolitan Maxim for Patriarch and instructed a Mr K., a government employee, to “undertake the necessary preparation so as to secure the election of Metropolitan Maxim as Patriarch”. Contrary to the Statute of the Church, which provided that each eparchy had to hold elections for seven electors to a special Church Convention empowered to elect a new Patriarch, Maxim was elected by the electors nominated in 1957, when Cyril had become Patriarch. 13. It is unclear whether Patriarch Maxim’s leadership was validly registered by the Council of Ministers under the 1949 Act. At all events, in administrative practice and for all legal purposes, until 1990 his leadership was recognised as being lawfully registered. 14. Soon after the beginning of the democratisation process in Bulgaria in late 1989, a number of Christian Orthodox believers sought to replace the leadership of the Bulgarian Orthodox Church. They considered that Patriarch Maxim had been proclaimed Bulgarian Patriarch in violation of traditional canons and the statute of the Church and that he had been responsible for acts incompatible with the duties of the Patriarch.Patriarch Maxim also had supporters. This situation caused divisions and internal conflict within the Church. 15. Each of the conflicting groups in the Church naturally associated with one of the main political forces at the time – those who sought changes with the newly created Union of Democratic Forces (anti-communist) and those who represented the status quo with the Bulgarian Socialist Party (the reformed Communist Party). 16. At the end of 1991, following parliamentary elections, a new government was formed by the Union of Democratic Forces and the Movement for Rights and Freedoms. 17. On 25 May 1992 the Directorate of Religious Denominations attached to the Council of Ministers (“the Directorate”) issued a decision stating that the nomination of Maxim as Bulgarian Patriarch and head of the Church in 1971 had been in violation of its statute and ordered his replacement by an interim council pending the election of a new leadership by a Church Convention. Metropolitan Pimen was appointed chair of the interim council. 18. The leadership presided over by Patriarch Maxim appealed to the Supreme Court. In judgments of 2 July 1992 and 5 November 1992 the Supreme Court dismissed the appeal, holding that the Directorate had merely certified that another person represented the Church and that, for that reason, Patriarch Maxim’s rights had not been affected. Although it dismissed the appeal in its entirety, the Supreme Court stated that in so far as the Directorate had appointed an interim leadership, its decision was null and void as being ultra vires, since the Directorate lacked the power to make appointments in the Church. 19. In the following years, the leadership dispute within the Church continued, each of the two leaderships having its supporters among the clergy and the believers. A number of churches and monasteries became known as “belonging” to the applicant organisation, popularly referred to as “the alternative Synod”, since the religious ministers in those places recognised the leadership of the applicant organisation. 20. There were also a number of cases where the applicant organisation took possession of existing buildings by force and, in some instances, with the assistance of the prosecuting authorities and the police, on an unclear legal basis. 21. The relations between State and religious denominations continued to be regulated by the 1949 Act, which was interpreted in the administrative practice of the Directorate and the Council of Ministers as requiring each religious denomination to have a single leadership. Parallel organisations of the same religious denomination were not allowed. Thus, despite the divisions in the two main religious communities in the country, the Christian Orthodox and Muslim communities (within which separate leaderships exercised de facto control over local structures and places of worship), the law continued to treat each religious denomination as a unified legal person represented and governed by the leadership registered with the Council of Ministers under the 1949 Act. 22. At the end of 1994, parliamentary elections took place in Bulgaria. The Bulgarian Socialist Party obtained a majority in Parliament and formed a new government, which took office in January 1995. The position of the new government was that Patriarch Maxim was the sole legitimate leader of the Bulgarian Orthodox Church. On 9 November 1995 the Deputy Prime Minister issued a decision (no. R-63), noting that “the majority of the Bulgarian Christian Orthodox clergy” supported Maxim as Patriarch, “in full conformity with the canon ...”, and that it was essential to put an end to the acts of those who “had profited from the 1992 [State] intervention”. The order further stated that it was not necessary to proceed with a fresh registration of the leadership presided over by Patriarch Maxim since the courts had decided that the 1992 decision purporting to remove him had not been valid. 23. On 4 July 1996 a Church Convention, organised by several religious leaders of the “alternative Synod” (the applicant organisation) and attended by several hundred clergy members and believers, elected Metropolitan Pimen as Patriarch and head of the Church and Inokentiy as Metropolitan of Sofia. 24. In 1996 Patriarch Pimen applied to the Directorate, seeking registration as the official leadership of the Bulgarian Orthodox Church. The Directorate did not reply. Patriarch Pimen appealed to the Supreme Court against the tacit refusal. 25. In a judgment of 13 December 1996 the Supreme Court, noting that the Church was a registered religious denomination and that the Directorate was under a duty to examine requests for changes in the leadership of religious denominations, found that the Directorate’s tacit refusal to examine the applicant organisation’s request was unlawful. 26. On 13 December 1996, the day of the Supreme Court’s judgment, the Directorate examined and granted a request submitted by Patriarch Maxim for the registration of amendments in the structure of the Church. 27. That decision was appealed against by the applicant organisation to the Supreme Administrative Court. 28. In a judgment of 5 March 1997 the Supreme Administrative Court declared the Directorate’s decision of 13 December 1996 null and void. The court noted, inter alia, that it was unclear whether the Holy Synod presided over by Patriarch Maxim had been validly registered in accordance with the Religious Denominations Act of 1949. Furthermore, the Directorate’s decision of 13 December 1996 had been issued at a time when another request for registration of the Holy Synod’s leadership, the request by Patriarch Pimen, had been pending before the Directorate. In these circumstances, the Directorate was not entitled to proceed with the registration of the amendments requested by Patriarch Maxim without informing all interested parties, such as the applicant organisation, and without considering those parties’ arguments. 29. As a result of the judgment of 5 March 1997, the 1996 registration of the Church as presided over by Patriarch Maxim (see paragraph 26 above) was null and void. 30. In February 1997 the government of the Bulgarian Socialist Party stepped down and an interim cabinet was appointed. Following parliamentary elections, a new government of the Union of Democratic Forces was formed. A number of politicians from that political party, including the President of Bulgaria, elected at the end of 1996 by universal suffrage, supported the applicant organisation. 31. In January 1997 the newly elected President of Bulgaria took oath in the presence of Patriarch Pimen, thus recognising the applicant organisation as the legitimate leadership of the Bulgarian Orthodox Church. 32. In 1997 the mayor of Sofia granted the request for registration of the applicant organisation’s local leadership. In the ensuing judicial proceedings instituted by the other leadership, in a judgment of 18 October 2000 the Supreme Administrative Court noted the developments in the Church in the previous years and concluded that two religious organisations bearing the name Bulgarian Orthodox Church existed in Bulgaria. Therefore, the church presided over by Patriarch Maxim had no standing to appeal against decisions concerning the Church presided over by Patriarch Pimen. The Supreme Administrative Court thus dismissed the appeal as inadmissible. 33. In 1998 and 1999 the State authorities urged the two opposing leaderships to unite and adopted the view that pending such unification none of them could claim to unite all clergy and believers and represent the Church. On several official festive occasions, breaking with tradition, the President of Bulgaria refused to invite any representative of the Church, as that would have required choosing between the two opposing groups. 34. On 22 June 1998 the applicant organisation decided to convene in October or November 1998 a national congregation of clergy and believers with the ambition to unite the Church. 35. On 30 September and 1 October 1998 the Holy Synod presided over by Patriarch Maxim held a national convention with the same ambition. The convention, which was proclaimed as a Holy Expanded and Supra-jurisdictional Pan-Orthodox Council, was attended by patriarchs and other senior clergy from Orthodox Churches from Russia, Romania, Cyprus, Greece, Israel, Albania, Poland, the Czech Republic and Slovakia. According to the minutes, submitted by the third party, a number of adherents of the applicant organisation, including Patriarch Pimen and Metropolitan Inokentiy, made statements of repentance and were accepted under the leadership of Maxim but were demoted to lower ranks in the clergy. The minutes contained language strongly condemning the applicant organisation for having caused a schism. 36. The Church Convention of 30 September and 1 October 1998 did not bring about reconciliation. The applicant organisation continued its efforts to unite the believers under a new leadership and refused to accept the leadership of Patriarch Maxim. It appears that Patriarch Pimen and Metropolitan Inokentiy either did not make statements of repentance at the Church Convention or retracted them. 37. On 9 and 10 November 1998 the applicant organisation held a national congregation organised by it. It was attended by approximately 1,100 participants, including more than 350 members of the clergy. The participants voted for the removal of Patriarch Maxim and adopted a new statute of the Church. 38. Patriarch Pimen passed away in April 1999. The applicant organisation appointed Metropolitan Inokentiy to act as Chair of the Holy Council and its representative, pending the nomination of a new Patriarch. 39. On 28 June 2001 the applicant organisation asked the Directorate to register the new leadership. As no reply was received, the applicant organisation submitted an appeal to the Supreme Administrative Court. On 9 July 2002 the court dismissed the appeal, finding that the issue had already been decided by the judgment of 13 December 1996 (see paragraph 25 above). 40. The Directorate and the Council of Ministers never registered the applicant organisation. 41. At all relevant times, Patriarch Maxim’s leadership enjoyed international support from Orthodox Churches and other religious organisations worldwide. It appears that the applicant organisation has never had significant international support from Orthodox Churches outside Bulgaria. 42. In June 2001, following parliamentary elections, the government of the Union of Democratic Forces was replaced by a government formed by the National Movement Simeon II. 43. Representatives of the new ruling political party, including its leader, publicly expressed their opinion that Patriarch Maxim was the legitimate leader of the Church and stated their intention to introduce legislation with the aim of putting an end to the divisions in the Church. 44. That was done with effect from 1 January 2003, when the new Religious Denominations Act 2002 came into force. 45. The official record of the parliamentary debates during the passage of the Act reveal an almost unanimous opinion that the unity of the Bulgarian Orthodox Church was of crucial national importance because of its historical role in shaping and preserving the Bulgarian national identity over the centuries. 46. The records also reveal that a number of deputies from the political groups which introduced the bill and voted for it were of the view that the correct reading of the Church canons demonstrated that Patriarch Maxim was the canonical head of the Church and that for that reason it was justified to adopt provisions enshrining in law the legitimacy of the canonical leadership of the Church and excluding the other leadership. Some deputies emphasised, in addition, the need to remedy the 1992 unlawful State interference in the organisation of the Church. The opposition deputies considered that the bill was unconstitutional as it interfered in the internal affairs of the religious community. Some of them also relied on the fact that Patriarch Maxim had been nominated by the Communist Party and had ruled the Church according to its policy and contrary to canon. 47. The new Act provided, inter alia, for the ex lege recognition of the Bulgarian Orthodox Church. It also introduced a provision which stated that the Church “is headed by the Holy Synod and is represented by the Bulgarian Patriarch ...” The Act prohibited more than one denomination carrying the same name and stated, in its transitional provisions, that persons who had seceded from a registered religious institution were not entitled to use its name or assets (see for more details paragraphs 70-74 below). 48. It is unclear whether the representation of the Church has been recorded (вписанo) in the public register at the Sofia City Court. The Government’s position, supported by a statement issued by the Register Department of the Sofia City Court on 24 July 2007, appears to be that no such recording was necessary and that it has not been done. No reference was made in this statement to section 18 of the 2002 Act and the fact that the Supreme Court of Cassation had stated that the recording requirement contained in that provision applied to the Bulgarian Orthodox Church (see paragraph 74 below). Contradictory information as regards the recording of the Church is contained in a publication submitted by the applicants. According to one statement contained in that publication, such recording has been made, apparently indicating Patriarch Maxim as the Church’s representative, on the basis of an “expert opinion by the Directorate of Religious Denominations attached to the Council of Ministers”. According to a report by the President of the Register Department of the Sofia City Court contained in the same publication, the Bulgarian Orthodox Church has not been entered in the register. 49. On an unspecified date in 2003 the applicant organisation applied to the Sofia City Court for the registration of its local organisation in Sofia. The request was made by Metropolitan Inokentiy, who stated that he headed and represented the Holy Synod and the Bulgarian Orthodox Church. 50. On 23 September 2003 the Sofia City Court rejected the request. The court noted that registration could only be granted if requested by the person representing the Church. In accordance with section 10 of the 2002 Act, the Church was presided over by its Patriarch. The court further stated that the fact that the Bulgarian Patriarch was Maxim was “publicly known and internationally recognised”. The opinion of five judges of the Constitutional Court in a judgment of 15 July 2003 allegedly supported that view (see paragraphs 75-79 below). On that basis the court declared the request inadmissible as it had not been submitted by Patriarch Maxim. 51. On appeal, the Sofia City Court’s judgment was upheld by the Sofia Court of Appeal on 4 November 2003. In these proceedings, the Sofia City Court sought the opinion of the Directorate of Religious Denominations attached to the Council of Ministers on the situation in the Church but noted in its judgment that it was not bound to follow the opinion of the executive branch. In its judgment, the Court of Appeal noted that the applicant organisation had not submitted a copy of the statute of the Church and had not proved that Metropolitan Inokentiy represented it. In particular, the judgments of the Supreme Court of 1992 (see paragraph 18 above), relied upon by the applicant organisation, did not prove the relevant facts. 52. The final decision was that of the Supreme Court of Cassation of 8 January 2004. The Supreme Court of Cassation upheld the lower courts’ reasoning and stated that the request was inadmissible in the absence of proof about the leadership of the Church and its representatives. 53. The attempts of the applicant organisation to achieve recognition of its local church councils under the new Act were refused in most cases for the same reason. In its judgment of 20 October 2003 judgment (in case no. 258/2003) refusing such a request, the Veliko Tarnovo Court of Appeal stated that Metropolitan Inokentiy had not submitted proof about the identity of the head of the Church, as recorded at the Sofia City Court under section 18 of the Act, and could not, therefore, act on behalf of the Church. Also, “it was publicly known that the Bulgarian Orthodox Church had a Patriarch” and the court could not deal with the question whether the Patriarch’s nomination in 1971 had been lawful. 54. In at least two regional courts, however, the applicant organisation obtained decisions registering its local church councils – in the Dobrich Regional Court by two decisions of 22 May 2003 and in the Blagoevgrad Regional Court by several decisions of 30 September 2003. The courts apparently accepted that the applicant organisation represented the Church. 55. During the relevant period some religious ministers who associated with the applicant organisation decided to return under the leadership of Patriarch Maxim. In respect of those who did not do so, in 2003 and on subsequent occasions the leadership of the Bulgarian Orthodox Church presided over by Patriarch Maxim issued decisions terminating their functions as religious ministers. Some of the ousted ministers unsuccessfully challenged their dismissal before the civil courts. 56. On an unspecified date the Church, as represented by Patriarch Maxim, invited the applicant organisation to vacate all churches and religious buildings it controlled. On 2 July 2004 a complaint to the prosecution authorities was filed, in which Patriarch Maxim requested them to carry out an inquiry and, where appropriate, institute criminal proceedings against Metropolitan Inokentiy and his supporters. He also requested, accordingly, the search and seizure of seals and other belongings, as well as the institution of civil proceedings on behalf of the Church. 57. On an unspecified date in July 2004 the Chief Public Prosecutor’s Office instructed local prosecutors to assist the Church in recovering its property. On 19 and 20 July 2004 local prosecutors throughout the country issued orders for the eviction of persons “unlawfully occupying” churches and religious institutions. 58. The text of all those decisions was almost identical as, apparently, it had been copied from the instructions given by the Chief Public Prosecutor’s Office. The prosecutors noted that the Religious Denominations Act 2002 did not allow the existence of more than one religious denomination bearing the same name and prohibited the use of the name and property of a religious denomination by persons who had seceded from it. The prosecutors further observed that the courts had rejected the applicant organisation’s request for registration in Sofia and that its representatives in local parishes had been invited to leave voluntarily the premises they occupied. The prosecutors concluded that the persons associated with the applicant organisation unlawfully prevented the legitimate religious ministers appointed by the Church from performing their duties. For these reasons police evictions were ordered. 59. On 21 July 2004 early in the morning the police blocked more than fifty churches and monasteries in the country, evicted the religious ministers and staff who identified themselves with the applicant organisation and transferred the possession of the buildings to representatives of the other leadership. The applicant organisation submits that among those buildings there were several new churches, built entirely under its leadership. 60. Some of the ousted religious ministers sought the assistance of the prosecuting authorities against the forceful evictions. Their requests were refused in decisions stating that the persons who had entered into possession of the disputed buildings were legitimate representatives of the Bulgarian Orthodox Church, to which the buildings belonged. 61. The six individual applicants were evicted on 21 July 2004 from the church of St Paraskeva in Sofia. 62. In 2005 criminal proceedings were opened against Metropolitan Inokentiy and Metropolitan Gavrail, who belonged to the applicant organisation, for usurping the functions of religious ministers, contrary to Article 274 of the Criminal Code. 63. On 24 November 2006 the Sofia District Court acquitted Metropolitan Inokentiy. The prosecutor appealed. In a final judgment of 11 July 2007 the Sofia City Court upheld the acquittal. Metropolitan Gavrail was also acquitted, by a judgment of 20 February 2007 of the Blagoevgrad Regional Court. 64. The reasoning of the courts in the above two cases was essentially identical. They noted that since 1992 the Bulgarian Orthodox Church had been divided and that after 1996 neither Patriarch Maxim nor Patriarch Pimen or his successor had been lawfully registered as the head of the Church. Furthermore, Metropolitan Inokentiy and Metropolitan Gavrail had been registered, prior to the entry into force of the Religious Denominations Act 2002, as leaders of the respective local divisions of the Church, the Sofia Eparchy and the Nevrokop Eparchy. In these circumstances the accused persons had been entitled to act as religious ministers and had done so in the belief that they were lawfully exercising their function. It followed that they had not committed the offence under Article 274 of the Criminal Code. 65. The relevant constitutional provisions read as follows. “(1) Religions shall be free. (2) Religious institutions shall be separate from the State... (4) Religious institutions and communities and religious beliefs shall not be used for political ends.” “(1) The freedom of conscience, the freedom of thought and the choice of religion or of religious or atheistic views shall be inviolable. The State shall assist in the maintenance of tolerance and respect between the adherents of different denominations, and between believers and non-believers. (2) The freedom of conscience and religion shall not be exercised to the detriment of national security, public order, public health and morals, or of the rights and freedoms of others.” 66. In a judgment of 11 June 1992 the Constitutional Court, interpreting the 1991 Constitution, stated, inter alia, that the State should not interfere with the internal organisation of religious communities and institutions except in accordance with Article 13 § 4 and Article 37 § 2 of the Constitution. 67. The Act governed the organisational structure and functioning of religious denominations between 1949 and 1 January 2003. It provided that each religious denomination had to apply for registration and approval of its statute by the Council of Ministers and to register its leadership with the Directorate. The local leaderships were registered by the municipal authorities. 68. The 1949 Act was interpreted in administrative practice as prohibiting parallel organisations of the same religious denomination and requiring that each religious denomination must have a single leadership. 69. During the relevant period, the judicial practice in appeals against the Council of Ministers’ decisions on the registration of religious denominations and their leaderships was contradictory. In some cases the courts took the view that the Council of Ministers and the Directorate enjoyed unfettered discretion in such registrations. In other cases the courts reviewed the change-of-leadership decisions for compliance with the statute of the religious denomination, as registered by the Directorate. In one case the Supreme Court of Cassation recognised the existence of two parallel organisations of one and the same religious denomination (see the following judgments of the Supreme Administrative Court: judgment no. 4816 of 21 September 1999 in case no. 2697/99, judgment no. 2919 of 28 April 2001 in case no. 8194/99 and judgment no. 9184 of 16 October 2003 in case no. 6747/02). 70. The Act provides for judicial registration of all religious denominations except the Bulgarian Orthodox Church, which is recognised as a legal person ex lege. In accordance with paragraph 2 of the transitional provisions, the Bulgarian Orthodox Church need not be re-registered under the new Act, unlike all other religious denominations. 71. Section 10 of the new Act provides, inter alia, that the Bulgarian Orthodox Church is a legal person whose structure is determined by its internal statute. In accordance with the same provision, the Church “is headed by the Holy Synod and is represented by the Bulgarian Patriarch ...” 72. Section 15(2) provides that there can be no more than one religious denomination with the same name. Under section 36, persons acting on behalf of a religious denomination without authorisation are to be fined by the Directorate of Religious Denominations. 73. Paragraph 3 of the transitional provisions of the Act provides that persons who had seceded from a registered religious institution before the Act’s entry into force in breach of the institution’s internal rules are not entitled to use the name of the religious institution or its assets. 74. Section 18 provides that information about religious denominations, including the names of the persons representing them for all legal purposes, is recorded (вписване) in a public register at the Sofia City Court. The Supreme Court of Cassation has stated that this requirement applies to the Bulgarian Orthodox Church (judgment no. 120 of 11 March 2005 in case no. 496/2004; see also the same interpretation in other judgments: the Veliko Tarnovo Court of Appeal, judgment of 20 October 2003 in case no. 258/2003, and the Sliven Regional Court, judgment no. 245 of 30 June 2004 in case no. 94/2004) (see also paragraph 48 above). 75. In February 2003 fifty members of Parliament asked the Constitutional Court to repeal certain provisions of the new Religious Denominations Act 2002 as being unconstitutional and contrary to the Convention. 76. Paragraph 3 of the transitional provisions of the new Act was among the provisions challenged. Some of the other provisions that are relevant to the applicants’ complaints, such as sections 15(2) and 36 of the new Act, were not challenged. 77. The Constitutional Court gave judgment on 15 July 2003. It could not reach a majority verdict, an equal number of justices having voted in favour of and against the request to declare paragraph 3 of the transitional provisions unconstitutional. According to the Constitutional Court’s practice, in such circumstances the request for a legal provision to be struck down is considered to be dismissed by default. 78. The justices who voted against the request considered, inter alia, that the principle of legal certainty required that persons who had seceded from a religious denomination should not be allowed to use its name. Further, it was obvious that they could not claim part of its assets, as the assets belonged to the religious denomination as a legal person. 79. The justices who considered that the provision was unconstitutional stated that it purported to regulate issues that concerned the internal organisation of religious communities and thus violated their autonomy. Those justices further stated that the provision, applied in the context of existing disputes, favoured one of the groups in a divided religious community and therefore did not contribute to maintaining tolerance but rather frustrated that aim. It thus violated Article 9 of the Convention. 80. This provision makes it punishable to usurp the functions of a public figure or to wear attire or symbols to which one is not entitled. The punishment is imprisonment of up to one year or community labour (пробация). 81. In Resolution 1390 (2004), adopted on 7 September 2004, the Parliamentary Assembly of the Council of Europe criticised the new Religious Denominations Act 2002 and stated, among other things: “The strongest doubts concern the state interference allowed for, or even operated directly by the [Religious Denominations Act 2002], in the internal affairs of religious communities. This concerns in particular the leadership quarrel between the two Bulgarian Orthodox synods led, respectively, by Patriarch Maxim and by Metropolitan Inokentiy, who disputes the legitimacy of Maxim as Patriarch. The ex lege recognition of the Bulgarian Orthodox Church, as defined meticulously in [section 10(1)], exempting this institution from the usual registration procedure, which also includes a check on the legitimacy of the leadership, is generally seen as intended to settle the dispute between Maxim and Inokentiy in favour of the former. The alternative synod is effectively barred from registering as a new religious institution by the prohibition against the registration of another institution using the same name and headquarters and the punitive provisions empowering the Directorate of Religious Affairs to sanction ‘unauthorised representatives’... The Assembly therefore recommends to the Bulgarian authorities: ... as regards [section 10(2) of the Act] (ex lege recognition of the Bulgarian Orthodox Church): either to delete this provision outright, thereby subjecting the Bulgarian Orthodox Church to the same registration requirements as other religious communities; or to ensure in other ways without interference by the executive that the leadership of the Bulgarian Orthodox Church is legitimate according to Orthodox canonical law; ... as regards [section 15(2)] (no registration of an identical religious community): either to delete this provision, or to ensure its interpretation in such a way that only the strict and literal identity of names and headquarters precludes the registration of a breakaway group; ...” | 1 |
train | 001-96213 | ENG | AUT | CHAMBER | 2,009 | CASE OF KOOTTUMMEL v. AUSTRIA | 2 | Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed | Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 5. The applicant who was born in India lives in Lustenau. She runs an Indian restaurant with Ayurvedic cuisine in Lustenau. 6. On 1 October 2004 she lodged a request with the Dornbirn Labour Market Service (Arbeitsmarktservice – LMS) for the grant of an employment permit for an Ayurvedic chef from the South of India as a key worker (Schlüsselarbeitskraft). 7. On 2 November 2004 the Dornbirn LMS refused the request in accordance with section 2(5) of the Aliens' Employment Act (Ausländerbeschäftigungsgesetz). It found that the chef did not fulfil the conditions to be a key worker as defined in section 2(5). 8. The applicant appealed against the refusal to the Vorarlberg LMS on 17 November 2004. She maintained in substance that the authority had failed to assess properly the evidence. 9. On 15 February 2005 the Vorarlberg LMS dismissed the applicant's appeal. It held that the submitted documents did not sufficiently prove her contention that the proposed chef fulfilled the conditions required to be a key worker or that the requested employment would secure existing jobs or create new jobs, as required by section 2(5) of the Aliens' Employment Act. His professional skills could not be seen as specific and extraordinary since any chef could with further training obtain a certificate in Ayurvedic cuisine. 10. The applicant filed a complaint with the Administrative Court on 31 March 2005 and requested an oral hearing. In her appeal the applicant maintained that the authorities had failed to assess the evidence properly and give appropriate reasons. Had they done so they should have concluded that the person to be employed qualified as a key worker. On 7 June 2005 the Voralberg LMS submitted its comments. 11. On 24 April 2006 the Administrative Court dismissed the applicant's complaint. In accordance with section 39(2) of the Administrative Court Act (Verwaltungsgerichtshofgesetz) it also dismissed the applicant's request for an oral hearing as it found that it would not be likely to contribute to the clarification of the case. The decision was served on the applicant's counsel on 6 June 2006. 12. The Employment of Foreigners Act (Ausländerbeschäftigungs-gesetz) regulates a foreigner's access to the Austrian labour market. Section 2 (5) of this act, as in force at the relevant time, reads as follows: “(5) Key workers are foreigners who have particular training or specific know- how and professional experience which are requested on the domestic labour market and who would receive for their employment a monthly gross salary of at least 60% of the maximum contribution level under Section 108 para. 3 of the General Social Security Act. Moreover, at least one of the following conditions must be fulfilled: 1. the intended employment goes beyond the interest of the employing company and is of specific relevance for the region or the sector of the labour market concerned or 2. the intended employment fosters the creation of new employments and ensures the protection of existing employments or 3. the foreigner has a crucial influence on the management of the company (executive managerial post) or 4. the intended employment leads to a transfer of capital investment to Austria or 5. the foreigner is a university or polytechnics graduate or holds a certificate proving that he has accomplished a specially recognised training.” Further relevant provisions of that act can be found in the judgments in the cases of Jurisic and Collegium Mehrerau v. Austria (no. 62539/00, 27 July 2007) and Coorplan-Jenni GmbH and Hascic v. Austria (no. 10523/02, 27 July 2006). 13. Section 39(1) of the Administrative Court Act requires the Administrative Court to hold a hearing after its preliminary investigation of the case where the complainant has requested a hearing within the time-limit. Section 39(2) (6) provides, however, that, notwithstanding such a request, the Administrative Court may decide not to hold a hearing if it is apparent from the written pleadings of the parties and the files relating to the previous proceedings that an oral hearing would not be likely to contribute to the clarification of the case and that the lack of a hearing would not be in breach of Article 6 of the Convention. | 1 |
train | 001-88783 | ENG | RUS | CHAMBER | 2,008 | CASE OF YUSUPOVA AND ZAURBEKOV v. RUSSIA | 4 | Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);No violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life);No violation of Article 13+3 - Right to an effective remedy (Article 3 - Prohibition of torture) | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 7. The applicants were born in 1958 and 1983 respectively and live in Grozny, the Chechen Republic. 8. The first applicant was married to Abdulkasim Zaurbekov, born in 1951. They had four sons – Arbi, born in 1978, Alavdi, born in 1982, Ayndi, born in 1983 (the second applicant), and Magomed-Salakh, born in 1995, and lived in Grozny, Chechnya. 9. Between 15 August and 16 October 2000 Abdulkasim Zaurbekov worked as a crane operator at the Temporary Office of the Interior of the Oktyabrskiy District of Grozny (временный отдел внутренних дел Октябрьского района г. Грозного, “the Oktyabrskiy VOVD”) under a short term employment contract. 10. On 16 October 2000 the Oktyabrskiy VOVD informed Mr Zaurbekov that his contract could not be extended due to lack of funds and invited him to collect his salary the next day. 11. On 17 October 2000 around 11 a.m. Abdulkasim Zaurbekov and the second applicant arrived at the Oktyabrskiy VOVD. The former entered the premises of the VOVD to get his wages, while the latter waited in the car in front of a security barrier 200 – 300 metres from the main entrance. 12. After having waited for a while, the second applicant enquired twice about his father with the officers at the barrier, who told him to wait. Around 7 p.m., when it got dark, the second applicant again enquired about his father and the police officers responded that there were “no civilians left” on the premises of the VOVD. The second applicant then returned home. 13. The applicants have had no news of Abdulkasim Zaurbekov since. 14. Since 18 October 2000 the applicants have repeatedly applied in person and in writing to various public bodies, including the Oktyabrskiy VOVD, district and city military commander’s offices, prosecutors at various levels, special police units in Chechnya (отряды милиции особого назначения), the Chechen Department of the Federal Security Service (Управление по Чеченской Республики Федеральной службы безопасности, “the Chechen Department of the FSB”), local and regional administrative authorities and the Special Envoy of the Russian President for Rights and Freedoms in the Chechen Republic (Специальный представитель Президента РФ по обеспечению прав и свобод человека и гражданина в Чеченской Республике). In their letters to the authorities the applicants referred to the facts of their relative’s disappearance and asked for assistance and details of an investigation. Most of these enquiries remained unanswered, save for formal responses by which the applicants’ requests were forwarded to various prosecutor’s offices. 15. On 18 October 2000, in the morning, the applicants and other relatives visited the Oktyabrskiy VOVD and enquired about Abdulkasim Zaurbekov. The first applicant’s sister-in-law and another relative were admitted onto the premises of the VOVD and talked to Mr S., the Head of the Oktyabrskiy VOVD. The latter said that he was unaware of Abdulkasim Zaurbekov’s whereabouts, that there had been no grounds for his detention and that there was no such person among the detainees kept in the Oktyabrskiy VOVD. He added that Abdulkasim Zaurbekov had left the premises of the VOVD after he had received his salary. 16. The first applicant’s sister-in-law also managed to look through an attendance register (журнал регистрации посетителей) in which she found an entry to the effect that Abdulkasim Zaurbekov had entered the building at 11.20 a.m. on 17 October 2000. There was no entry confirming that Abdulkasim Zaurbekov had ever left the Oktyabrskiy VOVD. 17. During the first week after Abdulkasim Zaurbekov’s disappearance the first applicant talked to several people who had allegedly seen her husband on the premises of the Oktyabrskiy VOVD on 17 October 2000. In particular, the first applicant met a police officer Nikolay, who told her that Abdulkasim Zaurbekov had assisted him in repair work that day and had then gone to the accounting office to receive his salary, having promised to come back, but had never returned. The first applicant also talked to two workers who told her that they had been engaged in repair work on the VOVD premises on 17 October 2000 and had seen Abdulkasim Zaurbekov enter the VOVD between 12 noon and 1 p.m., but had not seen him leave. 18. The first applicant talked to a representative of the military prosecutor of the Chechen Republic who promised to find out whether her husband was being held at the military base of Khankala. A few days later the representative informed the first applicant that he had only been able to search for her spouse at the military units, and Abdulkasim Zaurbekov was not detained there. The official further stated that he had had no access to other branches of the armed forces and therefore had been unable to check at the Main Intelligence Department (Главное разведывательное управление), or the locations of a special fast deployment team (специальный отряд быстрого реагирования) and a special police unit. 19. According to the first applicant, while searching for her husband she had found out that a number of persons had been ill-treated by officers of the Oktyabrskiy VOVD or had disappeared after having been detained there. 20. On 20 October 2000 the Oktyabrskiy VOVD commenced an inquiry into Abdulkasim Zaurbekov’s disappearance. 21. On 28 October 2000 the Oktyabrskiy VOVD decided to dispense with criminal proceedings in the absence of evidence that any crime had been committed against Abdulkasim Zaurbekov. 22. On 8 November 2000 the Grozny prosecutor’s office (прокуратура г. Грозного) quashed the above decision and opened criminal case no. 12260. In January 2002 the first applicant found out that this criminal case had been instituted in connection with her husband’s murder. 23. According to the applicants, after the investigation had been opened the first applicant had regularly visited the Grozny prosecutor’s office to enquire about the measures taken. In the applicants’ submission, Mr B., the Prosecutor of Grozny, and Mr L., the investigator in charge, had told the first applicant to stay at home, as they themselves would visit her there. They had also promised to bring police dogs to search for her husband, but had never done so. In reply to the first applicant’s request to have certain VOVD officers questioned before they left for their permanent place of residence in another region of Russia, Mr L. had answered that it would be easier to interrogate the officers there. 24. On 12 November 2000, after their secondment had finished, Mr B. and Mr L. left Chechnya for their permanent place of residence. 25. By letters of 11 and 18 November 2000 the prosecutor’s office of the Chechen Republic (прокуратура Чеченской республики,) referred the first applicant’s applications to the Grozny prosecutor’s office. 26. On 5 December 2000 the Chechen Department of the FSB informed the first applicant that their officers had not detained her husband and had no information about his whereabouts. The first applicant’s application had been transmitted to the Grozny prosecutor’s office. 27. At some point in December 2000 the first applicant received information to the effect that her husband had been kept at the military base of Khankala. According to the first applicant, in response to her request to verify this information, Mr Sh., the then investigator in charge, stated that he was “afraid of going to Khankala”, as he himself “might disappear there”. 28. On an unspecified date in November – December 2000 another investigator of the Oktyabrskiy VOVD, Mr Lap., told the first applicant that according to the information he had, Abdulkasim Zaurbekov was dead. He refused to provide any further explanation however. 29. On 24 January 2001 the Administration of the Chechen Republic referred the first applicant’s application to the military prosecutor of military unit 20102 (военная прокуратура – войсковая часть 20102). 30. By a decision of 15 February 2001 the first applicant was declared a victim in criminal case no. 12260. The applicant submitted a copy of this decision. 31. On 15 July 2002 criminal case no. 12260 was joined with three other cases opened in connection with the disappearance of residents of Grozny at various times in 2000. 32. In a letter of 30 June 2003 the prosecutor’s office of the Chechen Republic informed the first applicant that the criminal investigation into the murder of their relative had been instituted under Article 105 § 1 of the Russian Criminal Code, as “there [was] no such criminal offence as ‘disappearance’ in the Russian Criminal Code” and therefore criminal cases in connection with disappearances were, as a general rule, opened under the said Article. 33. In the applicants’ submission, the investigation into their relative’s disappearance had been discontinued and resumed on several occasions. The respective decisions had never been served on any of them, and they had only been notified of them when the first applicant visited the Grozny prosecutor’s office. According to the first applicant, in breach of superior prosecutors’ orders the investigating body had never interrogated the officers in charge of the Oktyabrskiy VOVD. 34. Referring to the information provided by the Prosecutor General’s Office, the Government submitted that, on 8 November 2000, criminal proceedings under Article 105 § 1 of the Russian Criminal Code (murder) had been instituted in connection with Abdulkasim Zaurbekov’s disappearance. The preliminary investigation in this case had been suspended due to a failure to establish those responsible on 8 January, 29 February, 28 April, 9 November and 19 December 2001, 30 January and 11 October 2002, 15 April, 23 May, 4 August, 22 October and 25 December 2003, 27 November 2004 and 8 September 2005, and then resumed on 29 January, 28 March, 9 October, 19 November and 30 December 2001, 11 July and 15 November 2002, 28 April, 30 July, 22 September and 25 November 2003, 15 October 2004, 12 July and 20 September 2005 respectively. On the latest occasion the investigation had been stayed on 30 November 2005 and then resumed on 9 July 2007. According to the Government, the case was now being investigated by the Grozny prosecutor’s office under the supervision of the Prosecutor General’s Office. 35. The Government further submitted that the first applicant had been questioned on 20 November 2000, 15 February and 13 October 2001. According to them, there was no evidence in the transcripts of the first applicant’s interview that she had ever made statements to the effect that her husband had been kept at the military base in Khankala. They further submitted that the first applicant had been granted the status of victim on 15 February 2001. The authorities had also questioned the second applicant on 29 November 2000 and his sister on an unspecified date. 36. In the Government’s submission, in the period between 2002 and 2005 the authorities had questioned over 80 officers of the law-enforcement agencies of the Khanty-Mansiysk Region who at the relevant time had been serving at the Oktyabrskiy VOVD. The Government disclosed the names of some of the witnesses and indicated some of the dates on which witness statements had been obtained, but did not produce copies of transcripts of witness interviews. According to the Government, the officers had been shown Abdulkasim Zaurbekov’s photograph for identification. They had stated that the applicants’ relative had never been held in the temporary isolation unit of the Oktyabrskiy VOVD. Officer S., who at the material time had been the acting head of the Oktyabrskiy VOVD, had made positive reference to the applicants’ relative and stated that during the search the investigators had obtained information to the effect that Abdulkasim Zaurbekov could have been killed by members of illegal armed groups for refusing to collaborate with them. Officer B. had stated that on the day of Abdulkasim Zaurbekov’s disappearance he had seen the latter walking outside the territory of the Oktyabrskiy VOVD in the direction of a local market. The Government also submitted that the investigating authorities had twice questioned officer D., who had taken the decision of 28 October 2000 to dispense with criminal proceedings in connection with Abdulkasim Zaurbekov’s disappearance (see paragraph 21 above), but did not specify which statements officer D. had made. 37. According to the Government, the investigating authorities had also seized and examined documents from the Oktyabrskiy VOVD pertaining to the relevant period, in particular financial documents concerning payments by the Oktyabrskiy VOVD to Abdulkasim Zaurbekov, and registers of persons held in its temporary isolation unit in September – October 2000. The Government did not submit copies of these documents or apprise the Court of their contents. 38. In the Government’s submission, the investigating authorities had also sent a number of queries to the law-enforcement agencies of the various regions of Russia. They had obtained information to the effect that no criminal proceedings had ever been brought, nor had any special measures ever been taken, against Abdulkasim Zaurbekov and that he had never been arrested or detained by any of them. The authorities had also taken a number of steps aiming at establishing Abdulkasim Zaurbekov’s whereabouts. 39. In April 2005, when the application was communicated to them, the Government were invited to produce a copy of the investigation file in criminal case no. 12260 opened in connection with the disappearance of the applicants’ relative. Relying on information obtained from the Prosecutor General’s Office, the Government replied that the investigation was in progress and that the disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure since the file contained information of a military nature and personal data concerning the witnesses. At the same time, the Government suggested that a Court delegation could have access to the file at the place where the preliminary investigation was being conducted, with the exception of “the documents [disclosing military information and personal data concerning the witnesses], and without the right to make copies of the case file and to transmit it to others”. In August 2005 the Court reiterated its request and suggested that Rule 33 § 3 of the Rules of Court be applied. In reply, the Government again refused to produce the investigation file for the aforementioned reasons. 40. On 3 May 2007 the application was declared partly admissible. At that stage the Court once again invited the Government to submit the investigation file and to provide information concerning the progress of the investigation. In August 2007 the Government informed the Court of the latest dates on which the investigation had been suspended and reopened and produced a copy of the decision of 9 July 2007 by which the investigation had been resumed.Grozny of the Chechen Republic, which had been staffed with police personnel of the Khanty-Mansiysk Region. The decisions went on to say that on 17 October 2000 Abdulkasim Zaurbekov had arrived, along with the second applicant, at the Oktyabrskiy VOVD for his wages and “entered the territory of the Oktyabrskiy VOVD unimpeded, following which he did not return, that is to say, went missing”. 41. The Government did not furnish the Court with any other documents from the case file. 42. For a summary of the relevant domestic law see Kukayev v. Russia, no. 29361/02, §§ 67-69, 15 November 2007. | 1 |
train | 001-114640 | ENG | NLD | ADMISSIBILITY | 2,012 | SCHILDER v. THE NETHERLANDS | 3 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria | 1. The applicant, Mr H.C.W. Schilder, is a Dutch national, who was born in 1973 and lives in Tilburg. 3. The applicant is the parish priest and chairman of the board of the catholic Heilige Margarita Maria Alacoque parish (“the parish”) in Tilburg. The parish has one church, with one church bell. Since 1924 the church bell has been used in order to call parishioners to the services of worship. 4. In order to call the parishioners to attend the 7.30 a.m. service, the applicant used to ring the church bell at 7.15 a.m. for three minutes. On an unspecified date and following complaints of neighbouring residents that the ringing of the church bell disturbed their night’s rest, the applicant reduced the ringing of the church bell at 7.15 a.m. to one minute. 5. As neighbouring residents had also lodged repeated complaints with the Tilburg municipal authorities, requesting the latter to intervene in respect of the excessive ringing of the parish church bell at 7.15 a.m., the municipality carried out measurements of the sound levels involved. By letters of 16 February and 21 March 2007 the Tilburg Mayor and Aldermen (College van Burgemeester en Wethouders) issued warnings to the parish board, stating that the volume of the church bell ringing at 7.15 a.m. amounted to intolerable noise nuisance. The volume therefore had to be reduced and if the parish board failed to do so, an order for incremental penalty payments (last onder dwangsom) would be imposed, namely 5,000 euros (EUR) for each violation to a maximum amount of EUR 50,000. The matter had further been discussed in a meeting between the applicant and representatives of the municipality on 12 April 2007. 6. Since the parish board failed to reduce the volume of the ringing of the bell in the mornings – also after a further warning by the Mayor and Aldermen on 2 May 2007 – the Tilburg Mayor and Aldermen notified the parish board on 19 June 2007 of their intention to impose an order for incremental penalty payments if the volume of the ringing of the bell before 7.30 a.m. was not reduced. According to the Mayor and Aldermen, this order was based on section 110 § 1 of the 2005 general municipal bye-law (Algemene Plaatselijke Verordening; “APV”) in conjunction with section 10 of the Act on Public Manifestations (Wet Openbare Manifestaties; “WOM”). As set out in the letter accompanying the notice, the right to freedom of religion had been weighed against the interests of others in the community. It had been decided that the ringing of the church bell in the early morning at the volumes measured constituted intolerable noise nuisance. Failure by the parish board to reduce the sound level in the early morning would contravene section 110 § 1 of the APV. A formal decision to this effect, having noted and taken into account the applicant’s written comments on the notice of intention (zienswijze), was taken on 23 July 2007. 7. The objection (bezwaar) filed by the parish against this decision was rejected by the Mayor and Aldermen on 7 September 2007. The parish filed an appeal with the Breda Regional Court (rechtbank). 8. By judgment of 26 November 2007 the Breda Regional Court accepted this appeal. It stated at the outset that it assumed that the appeal had been filed solely by the parish and that all legal acts undertaken by the applicant in the proceedings on the objection and appeal were done in his capacity as representative of the parish board. It found that calls to worship by ringing church bells fell within the scope of the right to freedom of religion within the meaning of Article 6 § 1 of the Netherlands Constitution (Grondwet) and that restrictions imposed on the ringing of church bells constituted an interference with that right. The municipality was nevertheless – on the basis of section 10 WOM and for the purposes of avoiding noise nuisance – authorised to lay down rules and regulations as regards the duration and volume of the ringing of church bells provided that these did not render illusory the use of church bells or restricted it unnecessarily. The Regional Court nonetheless quashed the impugned decision to impose penalty payments on the parish board since the legal provision on which it was based (section 110 § 1 APV) could not be applied to the ringing of (a) church bell(s). The Regional Court’s judgment became final since no further appeal was lodged against it. 9. In 2008 the Tilburg municipality decided to amend the APV in order to fix rules for ringing (a) church bell(s) and other means of calls to worship. On 1 May 2009, section 109a of the APV entered into force. This provision reads as follows: “Between 11 p.m. and 7.30 a.m. it is prohibited to issue a call to worship within the meaning of section 10 of the Act on Public Manifestations by ringing (a) church bell(s) or by other means if the volume exceeds the standards laid down in the Environmental Management (General Rules for Establishments) Decree (Besluit algemene regels voor inrichtingen milieubeheer; “Environmental Management Decree”) by more than 10 dB(A) and exceeds the reference volume of the surroundings by more than 10 dB(A).” 10. After new volume measurements had been taken on four different days in May 2009, the Mayor and Aldermen again issued official warnings to the parish board as regards the sound level of the ringing of the church bell in the early morning. Since the parish board was found to have failed to comply with the standards set out in section 109a of the APV, the Tilburg Mayor and Aldermen notified the parish board on 16 June 2009 of their intention to impose an order for incremental penalty payments on the parish board if it did not respect section 109a of the APV. Although invited to do so, the parish board did not file any written comments on the intention. A formal decision by the Mayor and Aldermen followed on 7 July 2009 by which an incremental penalty payment of EUR 5,000 (not exceeding a total amount of EUR 50,000) would be imposed for each time the parish disrespected section 109a of the APV after 29 July 2009. 11. Since the parish board and the applicant failed to respect the applicable volume standards when ringing the church bell, the Mayor and Aldermen imposed an order for incremental penalty payments on 23 October 2009. An objection – with the parties’ consent converted into a direct appeal to the Breda Regional Court – against this decision was lodged by the applicant. 12. By judgment of 20 October 2010 the Breda Regional Court rejected this appeal. It again found that the municipal authorities were entitled – on the basis of section 10 of the WOM – to fix rules for the duration and volume of calls to worship. Noting, inter alia, that no restrictions applied for ringing the church bell at issue between 7.30 a.m. and 11 p.m. and finding that it had not been demonstrated that it would be impossible to moderate the volume by making adjustments to the clapper, the Regional Court rejected the argument that the rules at issue rendered illusory the use of church bells for calls to worship. 13. The applicant’s subsequent appeal to the Administrative Jurisdiction Division (Afdeling Bestuursrecht) of the Council of State (Raad van State), was rejected on 13 July 2011. In so far as relevant, this ruling reads: “2.1. In accordance with Article 6 § 1 of the Constitution, everyone has the right to manifest freely his religion or belief, either individually or in community with others, without prejudice to his responsibility under the law. Under the second paragraph of this provision, rules concerning the exercise of this right outside of buildings and enclosed places may be laid down by law for the protection of health, in the interest of traffic and to combat or prevent disorders. Under section 10 of the WOM, ringing church bells in the context of religious ... ceremonies ... as well as for calls to worship ... is permitted. In this matter, the municipal council is competent to determine rules as regards duration and volume. Pursuant to section 109a of the APV it is prohibited between 11 p.m. and 7.30 a.m. to issue calls to worship within the meaning of section 10 of the Act on Public Manifestations by means of ringing (a) church bell(s) or by other means if the volume exceeds the standards laid down in the Environmental Management Decree by more than 10 dB(A) and exceeds the reference volume of the surroundings by more than 10 dB(A). Pursuant to section 2.18 § 1 (c) of the Environmental Management Decree, the sound for the purposes of calls to worship ... is not taken into consideration in the determination of sound levels, referred to in sections 2.17, 2.19 and 2.20. ... 2.3 The parish priest argues that the Regional Court has wrongfully found that section 109a of the APV is binding. According to the priest, the court has failed to appreciate that the Tilburg municipal council, in violation of section 10 of the WOM, has not given reasons for the necessity of determining a volume restriction for the period lasting from 11 p.m. to 7.30 a.m. This is even more cogent since the duration of this period renders the call to worship illusory or at least restricts this unnecessarily as the morning service starts at 7.30 a.m. and only 25% of the parishioners can be reached if the ringing of the church bell is muffled. In this connection, the priest further submits that muffling – in so far as possible in practice – requires a disproportionate effort on his part. The parish priest further argues that the fixed period is contrary to section 2.17 of the Environmental Management Decree because it is stipulated therein that the period of night lasts from 11 p.m. to 7 a.m. In his opinion, the manner in which section 109a of the APV has been drafted furthermore results in legal uncertainty, because it cannot be deduced from this to what concrete sound volume standard of the Environmental Management Decree the ringing of (a) church bell(s) is bound. The parish priest claims that the only reason why the municipal council has chosen to have the period subjected to the restriction last until 7.30 a.m. is to oppose the church bell ringing in this concrete case. He therefore claims that section 109a of the APV does not serve the municipal interest but only the special interests of complaining neighbouring residents, thus rendering the provision also for this reason non-binding. 2.3.1. The second sentence of section 10 of the WOM confirms that ... the municipal council may determine rules for the duration and volume of ringing church bells for the purpose of issuing calls to worship. As appears from the drafting history of this provision, this form of church bell ringing forms part of the liturgy and can be regarded as a manifestation of religious beliefs which is protected by Article 6 of the Constitution. ... A reasonable interpretation of [this provision] entails that this right does not imply the freedom to ring church bells without any limits as regards duration and volume. The power described in the second sentence of section 10 of the WOM is aimed at the prevention of excesses where it concerns duration and volume. Legal rules determined for this purpose at a municipal level can, depending on local circumstances and needs, be adjusted to the occasions and times when the bells are to be rung. This kind of regulation of duration and volume within reasonable limits, without leading to a situation where a meaningful use of the ringing of the bell(s) no longer remains, must be considered as not restricting the freedom of religion. ...” 2.3.2. The Regional Court has ... rightly considered that the municipal council did not act contrary to section 10, second sentence of the WOM by limiting the volume of the church bell ringing for part of the daily twenty-four hour period. It appears from the explanatory notice on section 109a of the APV that the municipal council chose to apply the prohibition contained in that provision between 11 p.m. and 7.30 a.m., because this is the time when most people enjoy their night’s rest. This night’s rest can be disturbed when calls to worship are made in a loud manner. Because a call to worship is a manifestation of everyone’s right to practise freely his or her religion, some noise nuisance must, according to the municipal council, be tolerated and the prohibition only applies to excessive forms of noise nuisance with a sound level that exceeds by more than 10 dB(A) the standard laid down in the Environmental Management Decree and by more than 10 dB(A) the sound level of the surroundings. The Administrative Jurisdiction Division finds that the municipal council has thus sufficiently reasoned why the hours at issue have been chosen and, after having weighed the interests involved, can be considered to have reasonably decided upon that time frame. The fact that church bell ringing at a lesser volume may reach a smaller number of parishioners to call them to attend the 7.30 a.m. morning mass than without such a restriction and that muffling the church bells meets with practical objections cannot lead to a finding that no use of any significance could be made of the bells. In this connection, the Regional Court has rightly considered that section 109a of the APV does not render illusory the possibility to practice religion as this provision does not make it impossible to ring the bells before 7.30 a.m. and no restrictions apply for the sound level of church bell ringing between 7.30 a.m. and 11 p.m. 2.3.3. In view of the above, the Administrative Jurisdiction Division subscribes to the finding of the Regional Court that section 109a of the APV does not go beyond the competence set out in section 10 § 2 of the WOM. 2.3.4. There is also no ground for holding that the choice of the period at issue violates the Environmental Management Decree. The Regional Court has rightly considered that it is not necessary to examine the compatibility of section 109a of the APV with the Environmental Management Decree as this provision finds its basis in the WOM and section 2.18 § 1 (c) of the Environmental Management Decree stipulates that sound for the purpose of issuing calls to worship is not taken into consideration in the determination of sound levels within the meaning of that Decree. It appears from the explanatory memorandum to that provision that this choice has been made, because the system of the Constitution in conjunction with the WOM was considered to be the appropriate framework for regulating the ringing of church bells, rather than regulation in the Environmental Management Decree. 2.3.5. Although the Environmental Management Decree is not directly applicable in respect of the permissible noise levels, the Administrative Jurisdiction Division finds that the municipal council was entitled to link it to the noise standards laid down in the Environmental Management Decree, as this indicates in an objective sense when one can speak about noise nuisance. Contrary to what has been argued by the parish priest, it appears sufficiently clearly from the text of section 109a of the APV, in which explicit reference is made to the norms set out in the Environmental Management Decree, what volume of church bell ringing is allowed during what part of the day. ... 2.3.6. The Administrative Jurisdiction Division also does not share the parish priest’s opinion that section 109a of the APV does not serve the municipal interest. That the regulation of the duration and volume of church bell ringing can be regarded as [pursuing] a municipal interest already follows from the second sentence of Article 10 of the WOM in which the competence of the municipal council on this point is confirmed. In this case, the municipal interest lies concretely in the protection of the inhabitants of the municipality against disturbance of their nights’ rest. The APV provision at issue applies to all religious and other bodies who are issuing calls – by the ringing of bells – to manifest a religion or belief. Although, as correctly pointed out by him, it was the church bell ringing by the parish priest which has led to the insertion into the APV of the provision at issue, this does not entail that no municipal interest was at stake. 2.3.7. In view of the above considerations, the Regional Court has correctly found that section 109a of the APV is not non-binding. The Regional Court has also rightly held that the municipal council – in view the noise measurements made – was correct in its finding that the parish priest had breached that provision, so that the municipal council was competent to act in a manner aimed at securing compliance with the rules.” No further appeal lay against this ruling. | 0 |
train | 001-59682 | ENG | FIN | CHAMBER | 2,001 | CASE OF HIRVISAARI v. FINLAND | 3 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award | Georg Ress | 8. On 14 February 1992 the pension fund of the applicant’s employer granted the applicant a full temporary disability pension as from 1 March 1992 until 30 June 1992. Thereafter the period of full pension was prolonged several times. 9. On 13 June 1997 the pension fund reviewed its previous decision and changed the applicant’s pension into a partial one for an indefinite period beginning on 1 June 1997. The pension fund reasoned its decision by observing that, according to the documents submitted to the pension fund, the applicant’s capability to work could no longer be considered reduced to such an extent as entitling him to a full disability pension. It was also noted that the applicant could be expected to work at least part-time. 10. The applicant appealed to the Pension Board, which on 4 March 1998 rejected the appeal. The decision was reasoned as follows: “An employee is entitled to a full disability pension provided that his or her ability to work has continuously been reduced by at least three fifths for a minimum of one year and that this reduction has been caused by an illness, a defect or an injury. The employee’s remaining ability to earn income by carrying out work that would be available to him or her and that he or she could reasonably be expected to perform must be taken into account when assessing the reduction in the employee’s ability to work. Furthermore, the employee’s education, previous activities, age, living conditions and other comparable factors must be taken into consideration. According to the statements on [the applicant’s] state of health, [the applicant] suffers from depression that has become more difficult during the autumn of 1997. However, [the applicant’s] symptoms must be considered as mild. Therefore, the Pension Board finds [the applicant] still partly capable of working as from 1 June 1997.” 11. The applicant appealed to the Insurance Court. He referred, inter alia, to several medical statements according to which he was for the time being incapable of working because of his mental illness. On 27 October 1998, the Insurance Court rejected the appeal reasoning the decision as follows: “[The Insurance Court refers to] the reasons given in the Pension Board’s decision. The new material filed while the case was pending [before the Insurance Court] does not change the evaluation of [the applicant’s] disability.” 12. The pension fund decided later, on 27 January 1999, to reject the applicant’s renewed application for a full disability pension instead of partial one. The Pension Board rejected the applicant’s appeal on 25 May 1999. The applicant further appealed to the Insurance Court which, on 22 June 2000, found that the applicant’s capability of working had been reduced at least by 60 percent on account of his illness as from the beginning of December 1999, and ordered the pension fund to grant the applicant a full disability pension as from 1 January 1999. 13. According to the Employee’s Pensions Act (työntekijäin eläkelaki, lag om pension för arbetstagare; 395/1961) and the Employment Pensions Decree (työntekijäin eläkelaki, förordning om pension för arbetstagare) a party who is not satisfied with a decision of a pension fund concerning private sector employment pensions may appeal against such a decision to the Pension Board. 14. The Pension Board applies written procedure. A case file concerning disability pension contains a written doctor’s opinion prepared in accordance with Section 11 of the Employment Pensions Decree. Such a medical opinion shall provide information on symptoms, medical examination results and any other factors affecting the health of the patient. The doctor will also give his or her own opinion on the patient’s capability to work and on his or her possibilities to rehabilitate. The Pension Board’s decision may be appealed against to the Insurance Court. 15. According to Section 9 of the Insurance Court Act (laki vakuutusoikeudesta, lag om försäkringsdomstolen), as in force at the relevant time, the provisions concerning proceedings in ordinary courts were, mutatis mutandis, applied to those in the Insurance Court. The said provisions can be found in the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken). The relevant provisions concerning the statement of reasons for a decision were included in Chapter 24, Section 3 (573/1984), according to which a judgment shall clearly indicate those main reasons and legal provisions on which the decision is based. 16. The provisions in Chapter 24 of the Code of Judicial Procedure were amended in 1998 (Act 165/1998). The new provisions were not applicable to the applicant’s case. 17. Section 9 of the Insurance Court Act has later been amended so as to make the provisions of the Act on Judicial Procedure in Administrative Matters (hallintolainkäyttölaki, förvaltningsprocesslag) applicable in cases which have become pending before the Insurance Court on 1 April 1999 or later. 18. A decision of the Insurance Court may not be appealed against. According to Section 21-d of the Employment Pensions Act, the Insurance Court may annul a final decision, if it is based on incorrect or deficient evidence or is manifestly against the law. 19. In accordance with Section 5 of the Insurance Court Act, the members of the Insurance Court include a doctor in cases where medical assessment is necessary. | 1 |
train | 001-71482 | ENG | RUS | ADMISSIBILITY | 2,005 | ANTONOV v. RUSSIA | 3 | Inadmissible | null | The applicant, Mr Konstantin Olegovich Antonov, is a Russian national, who was born in 1963 and lives in the town of Gatchina in the Leningrad Region. The respondent Government are represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. On 2 September 1996 the applicant sued his former employer for reinstatement, wage arrears and compensation for non-pecuniary damage. Between 12 September and 20 December 1996 the Gatchina Town Court fixed six hearings of which four were adjourned at the applicant’s request. On 20 December 1996 the Gatchina Town Court dismissed the action. On 6 March 1997 the Leningrad Regional Court partly upheld the judgment of 20 December 1996, quashed the remainder of the judgment and remitted the matter for a fresh examination. On 15 May 1997 the Gatchina Town Court dismissed the claim. On 26 June 1997 the Leningrad Regional Court quashed the judgment of 15 May 1997 and remitted the case for a new examination. Of five hearings scheduled between 11 August 1997 and 17 June 1998, four were adjourned because the composition of the court was changed at the applicant’s request or because his representative did not attend. One hearing was adjourned because the presiding judge was ill. On 26 August 1998 the applicant successfully challenged the presiding judge. Of nine hearings fixed between 2 December 1998 and 9 December 1999, four were adjourned because the applicant did not attend and five were adjourned because he challenged the court members or asked to stay the proceedings on various grounds. On 17 December 1999 the applicant asked the town court to change the composition of the bench. The Gatchina Town Court granted his request and transferred the case to another court. On 28 February 2000 the Presidium of the Leningrad Regional Court, by way of supervisory-review proceedings, quashed the decision of 17 December 1999 and transferred the case back to the Gatchina Town Court for examination. On 28 March 2000 the hearing was adjourned because the defendant did not attend. At the hearing of 28 April 2000 the applicant asked to change the composition of the bench. The request was granted. On 15 June 2000 the Leningrad Region Court quashed the decision of 28 April 2000 and returned the case back to the Gatchina Town Court for examination by the same bench. Of seven hearings between 6 July 2000 and 26 April 2001, one was adjourned due to the parties’ absence, three were adjourned because the applicant did not attend, two were adjourned because the applicant successfully challenged the bench, and one hearing was postponed because the applicant intended to retain a new representative. On 26 April 2001 the Gatchina Town Court disallowed the action because the applicant had repeatedly defaulted and had not informed the court about the reasons for his absence. On 5 June 2001 the Leningrad Regional Court, on an appeal by the applicant, quashed the decision of 26 April 2001 and ordered that the case should be examined by the Gatchina Town Court. On 1 August 2001 the applicant unsuccessfully challenged the bench and the registrar. On the same day the town court ordered the applicant’s medical examination. On 10 August 2001 the applicant appealed against the decision of 1 August 2001. His appeal was dismissed on 9 October 2001 by the Leningrad Regional Court. On 22 October 2001 the case-file was sent to medical experts. On 28 February 2002 the experts returned the case-file to the court because medical documents had not been enclosed. The court fixed a hearing for 19 April 2002. This hearing was adjourned because the applicant wished to retain a lawyer. The hearing of 20 June 2002 was postponed at the applicant’s request based on unclear reasons. On 26 August 2002 the Gatchina Town Court dismissed the claim. On 5 November 2002 the Leningrad Regional Court quashed the judgment of 26 August 2002 in the part concerning the applicant’s reinstatement, payment of outstanding salary and compensation for non-pecuniary damage, and remitted these claims for a new examination by a different bench. Of ten hearings between 15 December 2002 and 3 December 2003, two were postponed because the applicant did not attend, three were adjourned at the defendant’s request and five at the applicant’s request. On 3 December 2003 the Gatchina Town Court disallowed the applicant’s action because he had persistently defaulted and appeared to have lost interest in the proceedings. On 18 February 2004 the Leningrad Regional Court quashed the decision of 3 December 2003 because the applicant had informed the court about the reasons for his absence and remitted the case for a fresh examination. On 17 May 2004 the Gatchina Town Court dismissed the applicant’s action. On 7 July 2004 the Leningrad Regional Court upheld the judgment on appeal. | 0 |
train | 001-88322 | ENG | GBR | ADMISSIBILITY | 2,008 | TOLUI v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | The applicant, Mr Hadi Tolui, is a British national who was born in 1946 and lives in London. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 9 July 1991. His claim for widows’ benefits was made in February 2001 and was rejected on 19 February 2001 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law. 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 | 001-107145 | ENG | MKD | ADMISSIBILITY | 2,011 | JANCEV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 3 | Inadmissible | Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska | The applicant, Mr Dafče Jančev, is a Macedonian national who was born in 1951 and lives in the village Dolni Disan, Negotino. He was represented before the Court by Mr M. Mančev, a lawyer practising in Kavadarci, the former Yugoslav Republic of Macedonia. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant and Mr Dz.I. (“the plaintiff”) are neighbours whose plots of land are adjacent. On 16 February 2008 the applicant constructed a wall, a meter long and 90 cm high, and put three concrete bricks on a passage that the plaintiff used to access his property. The plaintiff brought a civil action requesting the Negotino Court of First Instance (“the first-instance court”) to establish that the applicant disturbed his possession (смеќавање на владение) and to order reinstatement in previous state. On 10 November 2008 the first-instance court allowed the plaintiff’s claim and ordered the applicant to demolish the wall and remove the bricks. The transcript of a hearing held on that date did not contain any indication that the decision or its operative provisions were delivered. The applicant appealed arguing inter alia that the first-instance court had not pronounced the decision publicly, as required under section 324 of the Civil Proceedings Act (see “Relevant domestic law” below). He further complained that that failure was incompatible with Article 6 of the Convention. On 5 February 2009 the Skopje Court of Appeal dismissed the applicant’s appeal and confirmed the lower court’s decision. As regards the applicant’s arguments that the first-instance court’s decision had not been pronounced publicly, the court stated that it was a procedural flaw that did not affect the validity of the decision. This decision was served on the applicant on 9 March 2009. Section 324 § 3 of the Civil Proceedings Act of 2005 provides that a decision is delivered immediately after the public hearing and is pronounced publicly by a single judge or presiding judge of the adjudicating panel. | 0 |
train | 001-58095 | ENG | GBR | CHAMBER | 1,997 | CASE OF ROBINS v. THE UNITED KINGDOM | 3 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Civil rights and obligations;Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage) | John Freeland | 7. The applicants, Mr and Mrs Robins, born respectively in 1942 and 1943, are resident in Crediton, Devon and in London. 8. The background to the case is a dispute between neighbours over sewerage. Initially the applicants’ neighbours, Mr and Mrs T., instituted proceedings seeking damages for problems experienced with their sewerage, allegedly caused by work carried out by the applicants. Mr and Mrs T. won their case. On 26 February 1988 the applicants then instituted proceedings against Mr and Mrs T. in the Exeter County Court in Devon, alleging that the latter’s sewage was seeping onto their land. On 1 May 1991, Judge Clarke gave judgment against the applicants. Their appeal was subsequently dismissed by the Court of Appeal. 9. In England and Wales it is usual that the unsuccessful party to litigation pays the costs of the successful party (see paragraph 19 below). On 31 May 1991, Mr and Mrs T., who were not in receipt of legal aid, requested a hearing to determine costs issues. The applicants had been and were legally aided throughout the litigation to appeal stage. Although this did not affect the amount of costs Mr and Mrs T. would be entitled to receive, after having made an order for costs it would be necessary for the judge to assess the applicants’ means for the purposes of section 17 of the Legal Aid Act 1988 (“the 1988 Act” – see paragraph 20 below). 10. After hearings on 5 and 6 August 1991, the matter was adjourned until 19 September 1991, to be heard at Torquay County Court, also in Devon. As the question of costs could not be resolved because of factual disputes and conflict between the parties, on 24 September 1991 Judge Clarke made a direction that the inquiry should be adjourned and not restored until a number of points concerning the applicants’ entitlement to legal aid had been clarified. In particular, information was sought as to whether the applicants had advised the Legal Aid Board (“LAB”) of any change in their circumstances and whether revocation of their legal-aid certificate, if necessary, would have any retrospective effect. 11. On 25 November 1991, the court received a report from the LAB outlining events from the time the applicants first applied for legal aid. This report was sent to the parties on 14 January 1992, when they were informed that the matter could be re-listed for hearing. However, on 4 February 1992, the LAB informed the court that a fresh Department of Social Security (“DSS”) assessment of the applicants’ means was required in view of the fact that they had separated. The DSS later explained, in a letter filed with the court on 10 November 1992, that a delay of nine months had been caused because of a misapprehension in this respect; in fact, the applicants had not separated. 12. The restored hearing was held on 12–13 November 1992 before Judge Darwall-Smith, as Judge Clarke had fallen ill. Examining the criteria set out in section 17 (1) of the 1988 Act (see paragraph 20 below), the judge ordered that 4,599 pounds sterling (GBP), which had previously been retained by the LAB following an award of damages to the applicants resulting from a successful negligence action against a firm of solicitors, should be paid to Mr and Mrs T. forthwith and that the applicants should in addition pay them GBP 6,000 in instalments of GBP 100 per month. 13. The applicants sought legal aid to appeal against this decision. On 11 January 1993 they applied for an extension of time, since the time-limit for appealing the costs order had expired on 11 December 1992. Subsequently queries were raised by a lawyer in the Civil Appeals Office as to whether leave to appeal was required, and the matter was referred to the registrar. 14. In March 1993, September 1993 and March 1994 the applicants contacted the Court of Appeal asking why there was a delay in dealing with their application. 15. On 10 April 1994, the registrar directed that leave was not required to appeal against the costs order. With a view to avoiding the time and expense of holding two hearings, one before him for the extension of time and another before the full Court of Appeal, he referred the application to the full court to determine the question of the time extension and, if granted, immediately to hear the appeal. 16. The applicants were requested to lodge the relevant documents by 2 May 1994. Extensions of this time-limit were granted on 25 April, 24 May, 16 June, 6 July and again on 27 July 1994 at the request of the applicants, because they were experiencing difficulty in obtaining transcripts and judge’s notes of hearings from the first-instance courts. It later transpired that Judge Clarke’s notes had been either lost or did not exist. On 6 October 1994, the registrar granted the applicants’ request that transcripts of the judgment of Judge Darwall-Smith be produced at public expense. 17. Another extension of the time-limit for the submission of documents was granted, upon the applicants’ request, on 16 February 1995. On 6 March 1995 the documents were finally lodged with the Court of Appeal’s Office and on 29 March 1995 the application was listed for hearing. After the hearing on 19 June 1995, the Court of Appeal confirmed Judge Darwall-Smith’s judgment of 13 November 1992 and dismissed the appeal. 18. Legal aid is available to litigants in the English courts subject to various requirements as to means and the merits of the case in question. Financial assessments of a litigant’s disposable income and capital are carried out by specialist staff of the Benefits Agency’s Legal Aid Assessment Office. The resources of the litigant’s spouse are treated as belonging to the litigant unless they are living “separate and apart” (see the Civil Legal Aid (Assessment of Resources) Regulations 1989 (Statutory Instrument 1989 no. 338), Regulations 4 and 7). 19. In the English courts, the award of costs generally (in all cases, including those where one or more parties are legally aided) is a matter for the discretion of the court (see the Supreme Court Act 1981, section 51). However, rules of court lay down certain principles which are normally applied in the exercise of this discretion, including the principle that the unsuccessful party to litigation pays the costs of the successful party (see the Rules of the Supreme Court, Order 62, Rule 3, and the County Court Rules, Order 38, Rule 1 (3)). 20. This principle is not affected by the fact that an unsuccessful litigant is legally aided. However, after an order for costs has been made against such a person, the court which tried or heard the proceedings must determine how much of these costs it would be reasonable for the legally aided litigant to pay, in accordance with section 17 (1) of the Legal Aid Act 1988, which provides: “The liability of a legally assisted party under an order for costs made against him with respect to any proceedings shall not exceed the amount (if any) which is a reasonable one for him to pay having regard to all the circumstances, including the financial resources of all the parties and their conduct in connection with the dispute.” | 1 |
train | 001-85411 | ENG | SWE | ADMISSIBILITY | 2,008 | FÄGERSKIÖLD v. SWEDEN | 3 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall | The applicants, Mr Lars Fägerskiöld and Mrs Astrid Fägerskjöld, are Swedish nationals who were born in 1942 and live in Jönköping. They were represented before the Court by Mr H. Sundström, a lawyer practising in Ljungskile. The Swedish Government (“the Government”) were represented by their Agent, Ms I. Kalmerborn of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. In the mid-1980s the applicants bought a property, Hästholmen 1:17, in the municipality of Ödeshög, in the County of Östergötland, for recreational purposes. They have their permanent residence, where they are formally registered, in Jönköping. In 1991 and 1992 the municipality of Ödeshög granted building permits to erect two wind turbines on a property, Hästholmen 10:1, neighbouring the applicants’ property. These wind turbines measured 31.5 metres to the hub of the rotor blades, which had a diameter of 27 metres. The first wind turbine had a delivery of 225 kW (kilowatts) and was built approximately 430 metres from the applicants’ property while the second wind turbine had a delivery of 150 kW and was situated at a distance of roughly 620 metres from the applicants’ property. Apparently, these two wind turbines did not cause any nuisance to the applicants. In April 1998 a third wind turbine was erected on Hästholmen 10:1, at a distance of 371 metres from the applicants’ property. This wind turbine measured 45 metres to the hub of the rotor blades, which had a diameter of 44 metres. Moreover, it had a delivery of 600 kW and was capable of producing approximately 1,100,000 kWh per year (which roughly corresponds to the energy needed to heat between 40 and 50 private households over a one-year period). The wind turbine was owned by the “Hästholmen Joint Wind Association” (Hästholmens Vindsamfällighets-föreningen), which consisted of 1,261 shares, of which the municipality owned 100 shares and several property owners in the area also owned some of the shares. According to the applicants, the wind turbine emitted a constant, pulsating noise and, sometimes, light effects which they found very disturbing and intrusive. For these reasons and because they considered that the new wind turbine had been erected much too close to their property, and without them having been consulted in advance, they complained about it in a letter to the municipality. It turned out that the municipality’s Environment Committee (miljötekniska nämnd) had already granted a building permit for the wind turbine, in November 1997. Before that decision, a geotechnical evaluation of the ground had been carried out and the Swedish Civil Aviation Administration (Luftfartsverket), the Swedish Armed Forces (Försvarsmakten) and the County Administrative Board (länsstyrelsen; hereinafter referred to as “the Board”) of Östergötland had been heard, as well as the owners of the two closest neighbouring properties (situated within 250 metres of the planned location of the wind turbine). None of those consulted had had any objections to a wind turbine being constructed on the property of Hästholmen 10:1. However, in its decision, the Environment Committee had stipulated that the exact location of the wind turbine should be agreed upon in consultation with the municipality’s building unit and the Board before construction began. On 4 May 1998 the Environment Committee received a leasehold contract between the property owners of Hästholmen 10:1 and the Joint Wind Association from which it appeared that the wind turbine had been constructed about 65 metres north-west of the location which had been agreed upon and thus also closer to the inhabited area. On 20 May 1998 the Environment Committee held a meeting, attended by the chairman of the Joint Wind Association, to discuss the situation relating to the wind turbine. It was agreed that the Joint Wind Association should submit a request to the Environment Committee for a change to the building permit so that it was valid for the wind turbine in its present location. The Committee would have to make a completely new assessment, where all property owners within a radius of 500 metres of the wind turbine should be heard, as should, again, the Swedish Civil Aviation Administration, the Swedish Armed Forces and the Board. Consequently, the applicants and all other property owners, tenants and residents within a 500 metres radius of the wind turbine were invited to submit their comments on it. Moreover, on 20 May 1998, the Vestasvind Svenska AB company (the builder of the wind turbine) carried out noise tests of the three wind turbines, together and separately, which were submitted to the Environment Committee but also presented to those, including the applicants, who attended a general meeting on 4 June 1998. According to the results of these tests, the noise levels in respect of the applicants’ property were calculated at 37.7 dB (decibels) from the new wind turbine alone and at 39.4 dB from all three wind turbines together. The tests were carried out in the evening when the wind speed was measured at eight metres per second. On 23 June 1998 the Environment Committee granted a change to the building permit for the wind turbine so that it applied to the present location of the wind turbine. The Committee had observed that several of those heard on the matter had complained about the noise made by the wind turbine. However, it had also noted that, according to the noise tests carried out by the builder of the wind turbine, the noise levels did not exceed 40 dB, which was the recommended maximum level, at any house, except the two closest, where the owners had stated that they were not disturbed by the noise. Still, in order to try to minimise the nuisance perceived by a number of neighbours of the wind turbine, the Committee ordered that certain temporary measures be taken. Hence, the wind turbine should automatically stop if the wind did not exceed a speed of four metres per second and, during the summer months (June, July and August), the wind turbine’s rotor blades should be adjusted to a “less aggressive” angle to reduce the sound level. Moreover, all mechanical sound created by the wind turbine should be eliminated completely and an evaluation of these measures should be carried out no later than 31 October 1998 by the Environment Committee together with the neighbours concerned. Following this evaluation, which might include an impartial noise investigation of, inter alia, the applicants’ property, final advice and measures to be taken would be decided. In its protocol from the deliberation, the Environment Committee noted that the final assessment of protective and precautionary measures and advice, according to environmental protection legislation, in relation to the wind turbine would be decided upon when the matter had been sufficiently examined. This decision could then be appealed against by any of the persons concerned. On 28 October 1998 the evaluation meeting took place. The applicants were present as were several other neighbours and representatives for the Joint Wind Association and the Environment Committee. It turned out that the “mechanical noise” that some had complained of came from one of the smaller wind turbines, which had since been repaired so that such noise was no longer emitted. Moreover, the other measures had been implemented during the summer months but the neighbours, including the applicants, claimed that this had had no effect on the noise level. The applicants appealed against the decision of 23 June 1998 to the Board and demanded that “all the building permits” be revoked and that the wind turbine be dismantled. They claimed that the wind turbine caused serious nuisance to them and that no real noise investigation had been carried out to establish the true level of the noise. They further submitted that they had not been given the opportunity to voice their opinion about the wind turbine before it had been constructed and that the municipality had not dealt with the case impartially since it owned a part of the wind turbine. The Environment Committee submitted in reply that the Municipal Executive Board had some shares in the wind turbine but that those who were members of both the Executive Board and the Environment Committee had not participated in the Committee’s decision of 23 June 1998. It further stated that the decision had been taken in accordance with relevant legislation. The Joint Wind Association, for its part, stated that it had kept the general public in the municipality informed about the planned construction of the wind turbine through brochures and advertisements in the local press. It further claimed that it was prepared to continue with the measures imposed the following summer too. On 14 April 1999, after having visited the applicants’ property, the County Administrative Board rejected their appeal. It first noted that the Environment Committee’s decision of 23 June 1998 had replaced that of 4 November 1997. Thus, in so far as the applicants’ appeal could be interpreted as being directed also against the decision of 4 November 1997, it had ceased to exist and therefore did not require further measures from the Board. Turning to the substance of the applicants’ appeal, it found from its visit to the applicants’ property that the wind turbine created certain sound effects which could be considered disturbing but which were not serious enough to justify dismantling the turbine. In this respect, it noted that the measured noise levels did not reach the maximum recommended level of 40 dB. Moreover, the Board observed that the running of the wind turbine was subject to the regulations in the Environmental Code (Miljöbalken; 1998:808). Thus, if the applicants, or others, considered that the measures in force to minimise the noise from the wind turbine were insufficient, they could request that the Environment Committee impose further measures. Were the Committee to reject such a request, those who had made the demand could appeal against it to the environmental courts. In these circumstances, the Board found that there were no legal impediments to the wind turbine. The applicants appealed to the County Administrative Court (länsrätten) of the County of Östergötland, maintaining their claims. In particular, they emphasised that the wind turbine was a serious nuisance and that the Environmental Committee had made an incorrect evaluation of the matter and several formal errors in its handling of the case. Moreover, they stated that the municipality had refused to carry out an impartial noise investigation despite requests from several of the concerned parties. The Environment Committee disputed the applicants’ claims and insisted that its decision had been made in due order and was correct. It further observed that it still kept the question regarding a noise investigation open but that the concerned parties so far had agreed on certain specific measures to reduce the noise (such as stopping the wind turbine at low wind speed), which were re-evaluated regularly. Thus, at the moment it considered that a noise investigation was not necessary. On 14 July 2000, after having visited the applicants’ property and held an oral hearing, the County Administrative Court rejected the appeal. It found that the Environment Committee’s decision had been lawful and that, although some sound effects from the wind turbine could be observed on the applicants’ property, the disturbance had to be considered tolerable. Upon further appeal by the applicants both the Administrative Court of Appeal (kammarrätten) in Jönköping and the Supreme Administrative Court (Regeringsrätten) refused leave to appeal on 15 March 2002 and 7 June 2004 respectively. Domestic provisions of relevance to the present case are to be found, primarily, in the Planning and Building Act (Plan- och bygglagen, 1987:10 - hereafter “the Act”) and in the Environmental Code (Miljöbalken, 1998:808 - hereafter “the Code”). Thus, according to Chapter 1, section 5 of the Act consideration shall be given to both public and private interests when questions under the Act are examined, unless otherwise prescribed. It is the responsibility of each municipality to plan the use of land and water areas within their territory (Chapter 1, section 2). The County Administrative Board is the supervisory body of planning and building activities within its county and cooperates with the municipalities in their planning. Moreover, the National Board of Housing, Building and Planning (Boverket, hereafter referred to as “the NBHBP”) has general responsibility for the supervision of planning and building activities throughout Sweden (Chapter 1, section 8). Furthermore, buildings shall be located and designed in a suitable manner with regard to the townscape or the landscape and the natural and cultural values at the site (Chapter 3, section 1 of the Act) and so that neither the buildings themselves nor their intended use will cause any danger or significant impact (betydande olägenhet) to the surroundings (Chapter 3, section 2). According to Chapter 3, section 14, these requirements also apply to constructions other than buildings, such as wind power stations. It follows from Chapter 1, section 4 and Chapter 8, section 2 of the Act that building permits are required for the construction of new buildings, including wind power stations, inter alia, if the wind turbine is more than two metres in diameter. Moreover, Chapter 10, section 1, paragraph 2, states that when a measure which requires a building permit has been taken without permission, the municipal committee responsible for deciding on building permits shall ensure that such a construction is removed or otherwise rectified, unless a building permit is granted retrospectively. Before an application for a building permit is decided upon, all known parties as well as known affected cooperative owners, tenants and residents, shall be informed and given the opportunity to state their opinions on the application (Chapter 8, section 22 of the Act). Also, decisions concerning building permits may be appealed against to the competent county administrative board (Chapter 13, section 2) and subsequently to the administrative courts (Chapter 13, section 4). As concerns the Code, Chapter 1, Article 1 states, inter alia, that its purpose is to promote sustainable development which will ensure a healthy and sound environment for present and future generations. It shall ensure that human health and the environment are protected against damage and inconvenience, whether caused by pollutants or other sources, and that the use of land, water and the physical environment in general is such as to secure long-term good management in ecological, social, cultural and economic terms. It shall also encourage reuse and recycling as well as other management of materials, raw materials and energy with a view to establishing and maintaining natural cycles. According to Chapter 2, Article 3 of the Code, those who pursue an activity or take a measure shall implement protective measures, comply with restrictions and take other precautions that are necessary in order to prevent, hinder or combat damage or detriment to human health or the environment as a result of the activity or measure. They are also obliged to plan and monitor the activity continuously in order to combat or prevent such effects (Chapter 26, Article 19). To ensure that these regulations are adhered to, the Environmental Protection Agency (Naturvårdsverket) and the county administrative boards exercise general supervision and a committee appointed by the municipal council is responsible for local supervision (Chapter 26, Article 3). Appeals against decisions by municipal committees concerning the Code, including decisions to refuse a request for noise abatement measures or a noise investigation, may be lodged with the competent county administrative board unless otherwise provided (Chapter 19, Article 1), and further appeal lies to the Environmental Court and the Environmental Court of Appeal (Chapter 20, Article 2, and Chapter 23, Article 1). Anyone who is adversely affected by a judgment or decision may appeal against it, provided that it is appealable (Chapter 16, Article12). Thus, in a case from the Environmental Court of Appeal (MÖD 2004:31, judgment of 15 June 2004), the court set aside a judgment of the lower court and the County Administrative Board’s decision and referred the case back to the Board for a new examination because the municipal committee had turned down a request, put forward by some people living close to a wind power station, that the committee should, inter alia, make arrangements for a noise investigation of the wind power station, whereupon the Board had dismissed their appeal. Chapter 32 of the Code contains provisions concerning compensation for certain kinds of environmental damage, inter alia, from noise. Hence, in accordance with Article 1, it is possible to get compensation for pecuniary loss that is not caused by a criminal offence, where the loss is of some importance and even if it is not caused deliberately or through negligence. However, the disturbance that causes the damage must not be tolerable in view of local conditions or with regard to the extent to which such disturbance normally occurs in similar conditions. Among those liable to pay compensation are, inter alia, those who pursue a harmful activity or who cause it to be pursued in their capacity as property owners or land leaseholders, including those who use the property for business or public activities (Article 6). Anyone who wishes to claim compensation in accordance with Chapter 32 of the Code shall institute proceedings before an environmental court (Chapter 20, Article 2, paragraph 6 and Chapter 21, Article 2). Judgments and decisions by the Environmental Court may be appealed against to the Environmental Court of Appeal and further to the Supreme Court (Chapter 23, Articles 1 and 9). In one case, the Supreme Court granted some property owners compensation from the municipality for a decrease in the value of their properties caused by environmental disturbance from traffic noise and “aesthetic nuisance” from a newly built road (NJA 1999 p. 385, judgment of 14 June 1999). In Sweden there are no binding rules regarding maximum noise levels in respect of wind turbines. However, according to the NBHBP’s general recommendations 1995:1 (“The Establishment of Wind Power Stations on Land” (Boverkets allmänna råd 1995:1, Etablering av vindkraft på land, 1995), the recommended levels set by the Environmental Protection Agency are applicable to wind turbines on land. Thus, the recommended levels that should normally not be exceeded when the turbine is in operation are, at night, 40 dB for housing areas and 35 dB for areas planned for recreational houses and active outdoor life. In one case concerning the establishment of a wind power plant (MÖD 2003:106, judgment of 7 November 2003), the Environmental Court of Appeal found in its judgment that the recommended maximum level of 40 dB for housing areas should apply both during the daytime and at night. In another case (MÖD 2006:8, judgment of 3 February 2006), the Environmental Court of Appeal held that the fact that an area was used for recreational houses did not suffice to characterise it as an area with “special qualities” and that, therefore, a maximum noise level of 40 dB was sufficiently far-reaching and there was no need to lower it to 35 dB as the complainants had requested. The general recommendations of the NBHBP further state that noise calculations should be performed in connection with an examination under the Act. Such a noise test should be carried out according to a set method where the calculations should relate to a wind speed of eight metres per second, with a following wind, and at a height of ten metres from the ground. The levels of noise calculated should be drawn on a map of the area and marking the distances where the noise level is at 35, 40, 45 and 50 dB. A new handbook “Planning and Processing of Permits for Wind Power Stations” (Planering och prövning av vindkraftsanläggningar) was published in 2003 by the NBHBP and replaced the recommendations from 1995. However, the recommendations concerning noise from wind turbines have not been altered. In June 2006 the Swedish Parliament adopted the first Government Bill relating to wind power (Government Bill 2005/06:143, Miljövänlig el med vindkraft – åtgärder för ett livskraftigt vindbruk (“Environmentally friendly electricity using wind power – measures for a viable use of wind”)) in which it was stated that wind power should be given greater priority and various specific measures should be taken to promote and increase the use of wind power. It was further stressed that energy production in a sustainable society should have the smallest possible impact on the environment and the climate. Most environmental noises can be approximately described by one of several simple measures. The sound pressure level is a measure of the air vibrations that make up sound and it indicates how much greater the measured sound is than the threshold of hearing. Because the human ear can detect a wide range of sound pressure levels, they are measured on a logarithmic scale with units of decibels (dB). If the instantaneous noise pressure level is measured this is called “A-weighting” (abbreviated dBA) whereas, if the noise pressure level is measured over a certain time span, this is called the “equivalent continuous sound pressure level” (abbreviated LAeq). Such average levels are usually based on integration of A-weighted levels. A simple LAeq type measure will indicate reasonably well the expected effects of specific noise. The World Health Organization (WHO) has published “Guidelines for Community Noise” (1999) and “Fact Sheet No. 258, on Occupational and Community Noise” (revised February 2001) which give guideline values for various environments and situations. These guideline values are set at the level of the lowest adverse health effect, meaning any temporary or long-term deterioration in physical, psychological or social functioning that is associated with noise exposure, and represent the sound pressure level which affects the most exposed receiver in a given environment. The guideline levels for annoyance have been set at 50 or 55 dB LAeq (measured for a period of sixteen hours in the daytime and eight hours at night), representing daytime levels below which a majority of the adult population will be protected from becoming moderately or seriously annoyed. It can be noted here that, according to the guidelines, a casual voice level in both men and women at a distance of one metre corresponds on average to 50 dB. Moreover, for most people, a lifetime’s continuous exposure to an average environmental noise of 70 dB will not cause hearing impairment, whereas exposure for more than eight hours a day to sound in excess of 85 dB is potentially hazardous. Thus, in relation to noise levels in homes, the guidelines state that to protect the majority of people from being seriously annoyed during the daytime, the sound pressure level on balconies, terraces and in outdoor living areas should not exceed 55 dB LAeq for steady continuous noise and should not exceed 50 dB LAeq to protect people from being moderately annoyed. These values are based on annoyance studies but most European countries have adopted a 40 dB LAeq as the maximum allowable for new developments. At night, sound pressure levels at the outside façades of living spaces should not exceed 45 dB LAeq, so that people may sleep with bedroom windows open. This value has been obtained by assuming that the noise reduction from outside to inside with the window partly open is 15 dB and, where noise is continuous, the equivalent sound pressure level should not exceed 30 dB indoors, if negative effects on sleep, such as a reduction in the proportion of REM sleep, are to be avoided. According to the American Speech-Language-Hearing Association, noise levels above 80 dB are potentially hazardous. To illustrate various noise levels, it gives the following examples: 80 dB = alarm clock, busy street, 70 dB = busy traffic, vacuum cleaner, 60 dB = conversation, dishwasher, 50 dB = moderate rainfall, 40 dB = quiet room, 30 dB = whisper, quiet library. | 0 |
train | 001-98200 | ENG | HRV | ADMISSIBILITY | 2,010 | SUBASIC v. CROATIA | 4 | Inadmissible | Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | The applicant, Mrs Maja Šubašić, is a Croatian national who was born in 1977 and lives in Split. She was represented before the Court by Mr T. Vukičević, an advocate practising in Split. 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 28 August 1998, while visiting Athens, the applicant gave birth prematurely to her twin daughters, S.A. and K.A. Because she had given birth when she was only six months pregnant, her daughters barely survived. They were kept in a hospital in Athens for three months, two and a half months of which was spent in intensive care. They were discharged on 28 November 1998. On 25 September 1998 the applicant made a request to the Split Regional Office of the Croatian Heath Insurance Fund (Hrvatski zavod za zdravstveno osiguranje – Područni ured Split) seeking reimbursement in respect of the costs of her medical treatment. On 22 October 1998 the Split Regional Office granted the request and awarded her the equivalent in Croatian kunas (HRK) of 1,455,177 Greek drachmas (GRD) for urgent medical services rendered abroad. On 20 October 1998 in Athens the applicant married I.B.A., an Italian national and the father of her daughters. On 12 November 1998 the applicant made another request to the Split Regional Office of the Croatian Heath Insurance Fund, this time seeking reimbursement in respect of the costs of the medical treatment of her daughters. On 20 April 1999 the Regional Office dismissed her request, finding that her daughters were not registered as insured persons with the Croatian Health Insurance Fund. The applicant appealed, arguing, inter alia, that her daughters had acquired the status of insured persons at the moment of their birth and that they had been formally registered as such after all official documents had been obtained, having regard to the fact that they had been born abroad. On 17 April 2000 the Directorate of the Croatian Health Insurance Fund (Hrvatski zavod za zdravstveno osiguranje – Direkcija), acting as the second-instance authority, dismissed the applicant’s appeal and upheld the first-instance decision. After it had collected certain information from various administrative authorities, the Directorate established that the daughters had been recorded in the register of births (matica rođenih) on 15 April 1999 and in the register of citizens and the domicile register on 22 April 1999, and that their health insurance cards were valid from 26 April 1999. Against that background the Directorate reasoned as follows: “From the printout of the database [of insured persons] the second-instance authority has established that [the appellant’s claim that her daughters] K.A. and S.A. were insured ‘through the mother’ is not correct because their status as persons insured with the Croatian Health Insurance Fund was recognised on 23 April 1999 with the registration date of 26 April 1999 as family members of the insurance holder: [their grandmother] S.Š. The case file shows that the twins S.A. and K.A. at the time of their medical treatment in Athens did not have the status of insured persons with the Croatian Health Insurance Fund, owing to the appellant’s failure to notify the Consulate of the Republic of Croatia in Athens of the birth of the children; whereas all the necessary notifications were made only after the first-instance decision had been adopted. Pursuant to section 55 paragraph 1 of the Ordinance on Rights Related to Compulsory Health Insurance and the Criteria for their Enjoyment ... the status of an insured person is established by the Croatian Health Insurance Fund on the basis of the prescribed application [for registration]... The insured person acquires the rights related to compulsory health insurance on the day their status as an insured person is established. Section 3 of the Ordinance on the Criteria for Registration and Deregistration of an Insured Person requires legal and natural persons to apply for [registration with] the compulsory health insurance with the Fund’s competent regional office within eight days after the conditions for recognition as an insured person have been met. Section 7 of the same Ordinance allows for the status of family member [as the ground for insurance] to be established only in respect of persons having their domicile or habitual residence in the Republic of Croatia. The enclosed domicile certificates show ... that K. and S.A. have their domicile in Split, ... – from 22 April 1999, that is, after the adoption of the [impugned first-instance] decision, after which they were also registered with compulsory health insurance ... [In the light of the] foregoing the ... arguments adduced by the appellant are unfounded ...” The applicant then brought an action in the Administrative Court (Upravni sud Republike Hrvatske) challenging the second-instance decision. On 11 November 2004 the Administrative Court dismissed her action. It held as follows: “Section 3 of the Ordinance on the Criteria for Registration and Deregistration of an Insured Person and the Establishment of Status of the Person Insured under Compulsory Health Insurance requires natural persons to apply for compulsory health insurance with the Fund’s competent regional office within eight days of the conditions for recognition as an insured person having been met. Under section 56 paragraph 2 point 7 of the Ordinance on Rights Related to Compulsory Health Insurance and the Criteria for their Enjoyment ... the status of an insured person is established from the date of birth, on the basis of the application [for registration]. However, section 7 of the Ordinance on the Criteria for Registration and Deregistration of an Insured Person and the Establishment of Status of the Person Insured under Compulsory Health Insurance ... allows the status of a family member [as the ground for insurance] to be established only in respect of persons having their domicile or habitual residence in the Republic of Croatia, unless an international agreement provides otherwise. Since it was established during the proceedings ... that at the time of their medical treatment abroad the ... twins did not have the status of insured persons with the Fund in accordance with section 2 of the Ordinance on the Rights Related to Compulsory Health Insurance and the Criteria for their Enjoyment, it follows that, according to section 3 of that Ordinance, they did not have the right to healthcare nor the right to reimbursement [of costs of medical services rendered abroad.] In the light of the foregoing, this court has no legal possibility to find the impugned decision unlawful.” The applicant then lodged a constitutional complaint alleging violations of her constitutional rights to equality, judicial review of administrative decisions, a fair hearing and healthcare. On 25 May 2006 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s complaint. In finding so it held that: “The administrative authority conducting proceedings following a request for reimbursement of costs of medical treatment abroad is bound by the ... existence (or non-existence) of the status of the insured person ... This status of the complainant’s children was decided in other proceedings, different from those from which the impugned decisions originate. In proceedings following a request for reimbursement of costs of medical treatment abroad (or in subsequent proceedings following an administrative action) the administrative authority or the Administrative Court are neither authorised under the relevant legislation to question the lawfulness and the correctness of the proceedings for acquisition of the status of an insured person ... nor to alter the decisions delivered in those proceedings (namely, the documents which were, as a result of those proceedings, issued to the complainant for her children), even in cases when those proceedings have not been conducted properly and in accordance with the law. Therefore, when reaching the impugned decisions, neither the competent administrative authority nor the Administrative Court could have examined questions such as the lawfulness and the correctness of the registration of domicile of the new-born children with the date when the request for registration was made (and not with the date of birth) or the lawfulness and the correctness of the issuance of the health insurance cards with a date different from the date of birth. It follows that the possible violations of the constitutional rights which occurred in the proceedings for acquisition of the status of an insured person ... cannot be examined in the instant constitutional court proceedings. Examining the [impugned] decisions by which the complainant was denied reimbursement of the costs of her children’s medical treatment abroad, because when these costs were incurred the children had not been recognised as having the status of insured persons ..., the Constitutional Court has established that these decisions are based on the relevant provision of section 2 of the Ordinance on the Rights and Criteria for the Use of Healthcare Abroad. In finding so, it has to be noted that the decision of the second-instance administrative authority and the judgment of the Administrative Court are partly based on legislation that is not relevant in the present case ... in particular ... section 3 of the Ordinance on the Criteria for Registration and Deregistration of an Insured Person and the Establishment of Status of the Person Insured under Compulsory Health Insurance. That provision provides for a time-limit of eight days to apply for [registration with] compulsory health insurance. The above-mentioned provision relates, however, only to legal and natural persons obliged to pay health insurance contributions, which [is not the case with] the complainant or her mother, who is the person from whose health insurance the insurance of the complainant’s children is derived. This finding, however, has no bearing on the possibility of a different resolution of the case or [this] court’s view that the impugned decisions are lawful and did not violate the constitutional rights of the complainant or her children.” The relevant part of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum)) provides as follows: “Everyone shall be guaranteed the right to health care, in accordance with the law.” “The State shall protect maternity, children and youths, and shall create social, cultural, educational, material and other conditions promoting the right to a decent life.” Article 64(1) “Everyone shall have a duty to protect children and the infirm.” The relevant provisions of the Health Insurance Act (Zakon o zdravstvenom osiguranju, Official Gazette of the Republic of Croatia, nos. 75/1993, 55/1996, 1/1997. (consolidated text), 109/1997, 13/1998, 88/1998, 10/1999, 34/1999, 69/2000, 59/2001 and 82/2001), in force at the material time, read as follows: II. COMPULSORY HEALTH INSURANCE Section 3 Section 6 (1) ... Section 79 The relevant provisions of the Ordinance on the Rights Related to Compulsory Health Insurance and the Criteria for their Enjoyment (Pravilnik o pravima, uvjetima, i načinu ostvarivanja prava iz obveznog zdravstvenog osiguranja, Official Gazette of the Republic of Croatia, nos. 4/1994, 81/1994, 31/1995, 57/1996, 71/1996, 108/1996 and 79/1997), in force at the material time, read as follows: 1. Establishment of the status of an insured person Section 54 Section 55 The relevant provisions of the Ordinance on the Criteria for Registration and Deregistration of an Insured Person and the Establishment of Status of the Person Insured under Compulsory Health Insurance (Pravilnik o načinu prijavljivanja i odjavljivanja, te utvrđivanju statusa osigurane osobe iz obveznog zdravstvenog osiguranja, Official Gazette of the Republic of Croatia, nos. 57/1994, 89/1994 and 65/2001), in force at the material time, read as follows: II. ESTABLISHMENT OF THE STATUS OF AN INSURED PERSON Section 2 Section 3 (1) Legal or natural persons who are obliged to pay [health insurance] contributions are obliged to apply for [registration with] compulsory health insurance (application for registration, application for registration of changes in the insurance and for deregistration) with the competent regional office of the Fund within eight days of the conditions for recognition of the status of an insured person having been met ... Section 7 The relevant provisions of the Decision on the Form and Content of the Document Proving the Status of Persons Insured with the Croatian Health Insurance Fund (Odluka o sadržaju i obliku isprave kojom se dokazuje status osigurane osobe Hrvatskog zavoda za zdravstveno osiguranje, Official Gazette of the Republic of Croatia nos. 57/1994, 140/1997, 31/1999 and 77/2000), in force at the material time, read as follows: Section 6 (2) Section 8 (1) The relevant provisions of the Ordinance on the Rights and Modalities of, and the Conditions for, the Use of Healthcare Abroad (Pravilnik o pravima, uvjetima i načinu korištenja zdravstvene zaštite u inozemstvu, Official Gazette of the Republic of Croatia, nos. 6/1994 and 87/1996), in force at the material time, read as follows: Section 2 Section 17 The relevant provisions of the Domicile and Residence of Citizens Act (Zakon o prebivalištu i boravištu građana, Official Gazette of the Republic of Croatia, no. 53/1991, read as follows: Section 2 A domicile is a place where a citizen has settled with the intention of permanently living there. Section 4(1) and (2) Domicile of minors ... shall be established according to the last common domicile of their parents. When the parents of such persons do not have common domicile or are not married, their domicile shall be established according to the domicile of the parent exercising parental authority [that is, having custody]. Section 6(1) and (2) Citizens have a duty to register and deregister domicile, register habitual residence and register a change of address. Applications [for registration or deregistration] referred to in paragraph 1 of this section for the persons without capacity to act shall be lodged by their parents or legal guardians. Section 8 Application for registration of domicile or change of address shall be lodged within eight days of deregistration of the previous domicile or address. The [competent] official shall issue a certificate of domicile or of change of address. In its decision, no. Gr 650/01-2 of 10 October 2001 the Supreme Court (Vrhovni sud Republike Hrvatske) interpreted the Domicile and Residence of Citizens Act in the following way: “... [It] follows that a citizen establishes domicile in a certain place on the day he or she settles in that place with the intention of permanently living there ... and not from the moment he or she applied to register [his or her] domicile.” The relevant provisions of the Administrative Procedure Act (Zakon o općem upravnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia 47/1986 (consolidated text), and Official Gazette of the Republic of Croatia no. 53/1991), which was in force at the material time, provided as follows: Section 144(1) provided that, if the authority before which the administrative proceedings were pending found that the case could not be decided without deciding an issue the resolution of which was within the competence of a court or other authority (preliminary issue), it could decide on that issue itself or stay the administrative proceedings until the competent authority had resolved it. Section 249 provided that administrative proceedings that had ended in a definitive decision could be reopened if, inter alia, the contested decision had been based on a preliminary issue, a substantial part of which the competent authority had later resolved differently. | 0 |
train | 001-58810 | ENG | FRA | CHAMBER | 2,000 | CASE OF GUISSET v. FRANCE | 1 | Violation of Art. 6-1 on account of the lack of a hearing in public;Violation of Art. 6-1 on account of the length of the proceedings;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | B. Pacteau;Wilhelmina Thomassen | 11. The applicant was the French ambassador to the United Arab Emirates from December 1977 to March 1982. 12. On an audit of the accounts and the administration of the French Secular Mission and the International Academic and Cultural Foundation for the years 1976 to 1983, the Audit Court discovered various irregularities relating to the building of a school in Abu Dhabi. 13. The French school in Abu Dhabi, which was run by a school parents' association that owned the buildings, was opened in 1974 and occupied land belonging to the French State. 14. In March 1981 the local authorities requested that the land be returned to the municipality of Abu Dhabi on 30 June 1981 in exchange for another plot of land situated in the embassies' district in the outskirts. The exchange was approved by the relevant interministerial commission. 15. New buildings were built on the land in time for the start of the 1981/82 school year. The school, now the Louis-Massignon Upper Secondary School, was the first phase of a larger development known as the “Franco-Arabic Sheikh Khalifa Cultural Centre”, which also includes arts and leisure centres. 16. The development was financed by two loans of fifteen million dirhams (approximately seventeen million French francs (FRF)) each, taken out in June 1980 and May 1981 for terms of ten and twenty years respectively at an interest rate of 4% (subsequently reduced to 2%) from the government of the Emirate of Abu Dhabi. 17. The loans, which were binding on the State, were signed by the applicant in his capacity as ambassador and in the name of the French embassy. However, in contravention of the Rules governing State Income and Expenditure, the applicant failed to request authority to sign the agreements, thereby committing an offence under Article L. 313-1 of the Financial Judicature Code, which makes misconduct of the financial affairs of the State or of certain authorities a criminal offence and establishes the Disciplinary Offences (Budget and Finance) Court. 18. By a decision of 15 February 1984, the Audit Court, following an “audit of the accounts and the administration of the French Secular Mission and the International Academic and Cultural Foundation for the 1976 to 1983 financial years”, committed the applicant to stand trial before the Disciplinary Offences (Budget and Finance) Court. That decision, which the applicant was not informed of, was lodged with the registry of the Disciplinary Offences (Budget and Finance) Court on 9 August 1984. 19. After 3 July 1986, when the decree terminating his term as ambassador to Bolivia (the post to which he had been assigned after the United Arab Emirates) was issued, the applicant was given no further posting or promotion but continued to receive his basic salary without compensation. 20. On 11 February 1987 Principal State Counsel at the Audit Court, in his capacity as public prosecutor at the Disciplinary Offences (Budget and Finance) Court, applied for an investigation to be started and for the appointment of a judge rapporteur, who was designated by the President on 9 March 1987. The applicant, who had been informed on 10 June 1987 that an investigation was under way and of his right to instruct counsel, was heard by the judge rapporteur on 25 June and 3 July 1987. On 13 April and 4 November 1988 respectively, the opinions of the Minister for Foreign Affairs and the Minister for the Budget were received. 21. By a decision of 15 November 1988, Principal State Counsel made an order committing the applicant for trial before the Disciplinary Offences (Budget and Finance) Court. 22. On 7 February 1989 the applicant was informed by the President of the Disciplinary Offences (Budget and Finance) Court that he could inspect the case file at the secretariat of that court. 23. On 24 March 1989 the applicant lodged a memorial in defence with the registry of the Disciplinary Offences (Budget and Finance) Court. 24. On 11 April 1989 the applicant lodged a complaint against a person or persons unknown with the public prosecutor's office at the Paris tribunal de grande instance concerning withdrawals of funds from the Franco-United Arab Emirates Cultural Association after his departure from Abu Dhabi. 25. On 13 April 1989 he made an application to the Disciplinary Offences (Budget and Finance) Court for the proceedings against him to be stayed until the final determination of the aforementioned complaint and sought additional information in order to obtain communication from the Ministry of Foreign Affairs of information and supplemental documentation, and from the Audit Court of the reports lodged when his committal for trial was ordered. 26. In a judgment of 17 April 1989, which was served on the applicant on 3 October 1989, the Disciplinary Offences (Budget and Finance) Court dismissed his application on the ground that “... the documents in the investigation file [were] sufficient to enable the Court to reach its decision without there being any need for other evidence or to await the outcome of the aforementioned complaint”. It imposed a fine of FRF 2,000 on the applicant for contravening the Rules governing State Income and Expenditure. 27. On 4 December 1989 the applicant appealed on points of law to the Conseil d'Etat and on 4 April 1990 he lodged written submissions. 28. The appeal on points of law was declared admissible by the Conseil d'Etat on 25 January 1991 and communicated on 14 February 1991 to the Minister for the Budget and on 18 April to the Minister for Foreign Affairs. The former lodged submissions in defence on 11 April 1991 and the latter on 3 September 1991. 29. On 22 July 1991 the case file was communicated to the applicant's lawyer to enable him to lodge submissions in reply. 30. By a judgment of 29 December 1993, the Conseil d'Etat reversed the judgment of 17 April 1989 of the Disciplinary Offences (Budget and Finance) Court, holding: “[The applicant] had maintained before the Disciplinary Offences (Budget and Finance) Court that the committal order of 15 February 1984 by which the Second Regional Audit Board decided to refer the case to the Disciplinary Offences (Budget and Finance) Court pursuant to section 16 of the Law of 25 September 1948, as amended, was defective. The objection raised by [the applicant] before the Disciplinary Offences (Budget and Finance) Court must be regarded as a submission that the proceedings brought against [him] were inadmissible ... Since it failed to rule on that preliminary objection, the decision of the Disciplinary Offences (Budget and Finance) Court was invalid for want of sufficient reasoning. [The applicant's] request to have that decision set aside is accordingly founded...” 31. The case was remitted to the Disciplinary Offences (Budget and Finance) Court and registered with that court on 24 January 1994. 32. In a letter dated 4 January 1995, the President of the Disciplinary Offences (Budget and Finance) Court informed the applicant that he could inspect the case file at the secretariat of the court. However, that letter was returned marked “does not live at the stated address”. A further letter was sent to the applicant on 23 January 1995. 33. On 20 March 1995 the applicant lodged his submissions with the Disciplinary Offences (Budget and Finance) Court. He appeared before that court on 12 April 1995. 34. After the hearing, which began with representations from the judge rapporteur, followed by legal submissions by Principal State Counsel, explanations from the applicant assisted by his lawyer, applications from Principal State Counsel and lastly oral submissions by counsel for the applicant, the final speech being by the applicant and his counsel, the Disciplinary Offences (Budget and Finance) Court delivered judgment on 12 April 1995. The judgment was served on 28 December 1995. With regard to the defence based on an alleged violation of Article 6 § 1 of the European Convention on Human Rights, it concluded: “The defence refers to the aforementioned Convention, and in particular to Article 6 § 1 of that Convention, inasmuch as the court is allegedly called upon to determine civil rights and obligations or a criminal charge. Under that provision, it is said that [the applicant] is entitled to a public hearing within a reasonable time. He claims that the proceedings in the present case have exceeded a reasonable time, since more than ten years elapsed between the registration of the committal order by the public prosecutor's office at the court on 9 August 1985 and the letter of 21 March 1995 from Principal State Counsel summoning [the applicant] to appear on 12 April 1995. Accordingly, it is claimed that by reason of the unreasonable length of the proceedings, the offence is time-barred and the proceedings null and void, both under the ... Convention referred to above and section 30 of the Law of 25 September 1948, as amended. The fines imposed pursuant to the Law of 25 September 1948 by the Disciplinary Offences (Budget and Finance) Court did not relate to the determination of civil rights and obligations or of a criminal charge. They are thus outside the scope of the provisions of paragraph 1 of Article 6 of the Convention ... The applicant is therefore unable to rely on those provisions of the Convention in support of the contention that the proceedings were defective because the impugned decision was not taken after a public hearing. Consequently, the Court must apply the final paragraph of section 23 of the Law of 25 September 1948, as amended, [L. 314-15], which provides that hearings before the court are not held in public. For the purposes of the five-year limitation period instituted by section 30 of the Law of 25 September 1948, as amended, time ran from the date of the act rendering the perpetrator liable to the application of the penalties laid down by the Law – that is to say, 21 June 1980 – until the case was brought before the Court, in the instant case by committal from the Audit Court on 9 August 1984. Thus, the prosecution of the offence ... is not time-barred ...” 35. Then, after going through the evidence against the applicant, the Disciplinary Offences (Budget and Finance) Court found that he had infringed the Rules governing State Income and Expenditure and was liable to the penalties laid down by the statute. In that connection, it found that: “[The applicant] executed two loan agreements in turn in his capacity as French ambassador without receiving prior instructions to do so from the Ministry of Foreign Affairs. Indeed, that ministry was not competent to give such instructions, as, under the terms of the Ordinance of 2 January 1959 governing the Finance Acts, only the Minister of Finance was empowered to enter into borrowing agreements under the general authorities given each year by the Finance Acts. However, by acting within his apparent authority and by contracting an obligation, the ambassador exposed the French State to the risk that it would have to bear any harmful consequences. ... However, the Court finds that [the applicant] was confronted as a matter of urgency with a situation brought about by the wishes of the municipality and the Emirate of Abu Dhabi to recover possession of the land occupied by the French school. Moreover, it was recognised that the school did not have sufficient teaching capacity. The initiative taken by the [applicant] meant that the school was able to reopen in satisfactory conditions at the start of the school year in September 1981, as was deemed imperative. The central administrative department of the Ministry of Foreign Affairs was slow to react to correspondence and the various departments failed to act in a coordinated manner. Throughout the period in which the financial arrangements were being put into place [the applicant] received encouragement from the minister and from the minister's private office.” 36. The Disciplinary Offences (Budget and Finance) Court found that those circumstances, taken as a whole, entitled the applicant to be exonerated from the imposition of a fine and he was acquitted of the charge. 37. As a result of the acquittal, no appeal lay against that decision of the Disciplinary Offences (Budget and Finance) Court to the Conseil d'Etat. 38. However, the applicant received no offers of postings. In February 1997 he went into compulsory retirement with the same grade and step as he had achieved in 1978. 39. The principle of the separation of the powers of authorising officers and accountants is one of the fundamental and characteristic tenets of the French law of public accounting. 40. Any budgetary operation by a public body requires action by two agents acting in turn: the authorising officer, who has authority to deal with income and expenditure, and the accountant, who is responsible for debt recovery and payments. 41. Law no. 48-1484 of 25 September 1948 established a specialised court, the Disciplinary Offences (Budget and Finance) Court, which, though independent of the Audit Court, is closely affiliated to it. The court was established to hear cases against public authorising officers, who had previously been liable only to disciplinary penalties in their capacity as civil servants, or to criminal penalties. 42. The provisions of that statute, which has undergone a number of amendments, were consolidated by Law no. 95-851 of 24 July 1995, which now constitutes the legislative section of Book III of the Financial Judicature Code concerning institutions associated with the Audit Court. Part I of Book III concerns the Disciplinary Offences (Budget and Finance) Court. 43. The relevant provisions read as follows: “The court shall be composed of the following: The President of the Audit Court, as president. The President of the Finance Division of the Conseil d'Etat, as vice-president. Two members of the Conseil d'Etat. Two senior members of the Audit Court. ...” “The members of the Conseil d'Etat and the senior members of the Audit Court are appointed to the court by decree issued by the Cabinet for a term of five years. ...” “The functions of public prosecutor at the court shall be performed by Principal State Counsel at the Audit Court, assisted by an advocate-general and, if necessary, one or two law officers chosen from among the judges sitting in the Audit Court.” “Cases shall be investigated by judge rapporteurs chosen from among the members of the Conseil d'Etat and the Audit Court.” 44. The relevant provisions are as follows: “The [Disciplinary Offences (Budget and Finance)] Court shall have jurisdiction to try: ... (b) any public servant or civil or military agent of the State, any agent of any territorial authority or their public institutions and of the associations of territorial authorities; (c) any representative, administrator or agents of other bodies which are subject to scrutiny by the Audit Court or a regional audit board. ...” 45. The offences and corresponding penalties are set out in Articles L. 313-1 to L. 313-14 (sections 2 to 9 of the 1948 Act). The relevant provisions in the instant case are Articles L. 313-1, L. 313-4 and L. 313-6, which provide: “Any person referred to in Article L. 312-1 who shall have incurred expenditure without complying with the financial audit rules applicable governing expenditure shall be liable to a fine of not less than FRF 1,000 and not more than the amount of the gross annual emoluments or salary which they were receiving when the offence was committed.” “Any person referred to in Article L. 312-1 who, other than in the circumstances referred to in the preceding Articles, shall have infringed the rules governing the income and expenditure of the State or of the authorities, institutions and bodies mentioned in that Article or the administration of assets belonging to the State, those authorities, institutions or bodies or who, being a person responsible for the administration of any such authority, institution or body, shall have given approval for the impugned decisions, shall be liable to a fine of the amount set out in Article L. 313-1. ...” “Any person referred to in Article L. 312-1 who in the course of their duties or in the exercise of their powers shall, in breach of their obligations, have procured for another an unjustified pecuniary advantage or an advantage in kind entailing a loss for the Treasury, or the authority or body concerned, or who shall have attempted to procure such an advantage, shall be liable to a fine of not less than FRF 2,000 and not more than twice the amount of the gross annual emoluments or salary which they were receiving at the date of the offence.” 46. Standing to commence proceedings: Article L. 314-1 (section 16 of the 1948 Act) designates the people with standing to institute proceedings before the court. These are, firstly, the speakers of the two legislative assemblies and the ministers; secondly, and inter alia, the Audit Court and Principal State Counsel at the Audit Court, in his capacity as public prosecutor at the Disciplinary Offences (Budget and Finance) Court. In practice, most proceedings are brought by the Audit Court. By virtue of Article L. 314-2, proceedings may not be brought more than five years from the day the act punishable under this part of the Code was committed. 47. Formal request: Proceedings before the court are instituted through the intermediary of Principal State Counsel. Pursuant to Article L. 314-3 (section 17 of the 1948 Act) Principal State Counsel may decide to take no further action. If the case is to proceed, Principal State Counsel forwards the case file to the President of the court under cover of an “official” request. 48. Investigation: On receipt of the official request the president appoints one of the court's judge rapporteurs to investigate the case. The persons concerned are informed that the investigation is under way “by the public prosecutor's office”. Article L. 314-4 (section 18 of the 1948 Act) vests full powers in the judge rapporteurs to make inquiries of the bodies concerned. They are entitled to use public servants to carry out the inquiries. They may hear witnesses in the presence of a registrar and a record of the evidence is kept. Suspects are entitled to the assistance of a lawyer. The judge rapporteurs have a full discretion on how to conduct the investigation, their only obligation being to keep Principal State Counsel informed. 49. Opinion of the ministers: When the investigation has been completed, the “case file is forwarded to Principal State Counsel” who may, pursuant to Article L. 314-4 (section 18 of the 1948 Act) decide to take no further action. Should Principal State Counsel decide to proceed, the case file is referred to the Finance Minister and to the minister from the ministry whose finances are concerned. They have a period fixed by the President, but of not less than one month, in which to lodge their opinions. Once that period has expired, the proceedings may continue. 50. Committal order: On receipt of the ministerial replies or on the expiry of the time allowed, the case file is forwarded to Principal State Counsel who has fifteen days in which to decide to take no further action or to order the defendant's committal for trial by the Disciplinary Offences (Budget and Finance) Court. 51. Opinion of the joint committees: Article L. 314-8 (section 22 of the 1948 Act) provides that, if the defendant is committed for trial by the Disciplinary Offences (Budget and Finance) Court, “the case file shall be communicated to the relevant administrative joint committee sitting in its disciplinary formation or the substitute formation if one exists”. The joint committee has one month in which to deliver its opinion. If no opinion is received, “the court may decide the case”. 52. The hearing: Article L. 314-8 (section 22 of the 1948 Act) provides that, once the joint committee has been consulted, the defendant is informed that he or she may inspect the case file within fifteen days. He or she may lodge submissions within one month after the communication of the case file. 53. The trial takes place at the end of that procedure. The list of cases for hearing is “prepared by the public prosecutor and decided by the President”. Article L. 314-13 (section 23 of the 1948 Act) lays down that “the court cannot validly deliberate unless at least four of its members are present”. Article L. 314-12 provides that “the judge rapporteur has a consultative vote in the cases in which he or she reports”. The judge rapporteur is therefore present at the trial and “presents a summary of his or her written report”. He or she also takes part in the deliberations. 54. Rights of the defence: The defendant takes no part in the proceedings until they have been transferred to the Disciplinary Offences (Budget and Finance) Court. During the investigation, the Act provides that the defendant shall be informed of the charges and of his or her right to a lawyer and, lastly, shall be given an opportunity, once the case file has been communicated, to lodge defence submissions. At the hearing, the defendant is entitled to call witnesses and to be represented by a lawyer. The defendant or his or her representative have the final speech, in accordance with the law. 55. Article L. 314-15 (section 23 of the 1948 Act) provides that hearings shall not be public. 56. Article L. 314-20 provides: “Once final, judgments in which the court delivers a guilty verdict may, if the court so decides, be published in whole or in part in the Official Gazette of the French Republic.” 57. In a judgment delivered on 30 October 1998 (in the case of Lorenzi) the Conseil d'Etat held: “... When trying a case concerning acts for which the fines laid down by the aforementioned Law of 25 September 1948 may be imposed, the Disciplinary Offences (Budget and Finance) Court must be considered as determining 'criminal charges' within the meaning of the aforementioned provisions of the ... Convention for the Protection of Human Rights and Fundamental Freedoms and must accordingly hold a public hearing, the aforementioned provisions of the Financial Judicature Code or of section 23 of the Law of 25 September 1948 being no obstacle thereto.” | 1 |
train | 001-114116 | ENG | ROU | ADMISSIBILITY | 2,012 | ROZSA v. ROMANIA | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria | 1. The applicant, Mr Viktor Rozsa, is a Romanian national who was born in 1963 and lives in Târgu-Mureş. 2. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu, from the Ministry of Foreign Affairs. 3. On 11 May 2004 the applicant was arrested on suspicion of theft. He was later sentenced to three years’ imprisonment for the said offence. 4. On the same day the applicant was taken to a cell at Târgu-Mureş police station, where he was detained for twenty-nine days. He alleged that, before, while and after being taken to the police station that day, he was repeatedly hit by the police officers accompanying him because he was drunk and refused to answer their questions until a lawyer and a prosecutor were present. Consequently, he asked to be taken to the local Institute of Forensic Medicine to be examined by a forensic doctor. 5. On 11 May 2004 the applicant was examined by the Târgu-Mureş police detention centre’s doctor. A medical report produced the same day stated that the applicant had bruises and contusions on his face, a deformed nasal pyramid and had suffered thoracic trauma as a result of aggression. On the same date he was also examined at the Târgu-Mureş County Hospital by a cardiologist, who recorded inter alia in a further medical report of that date that the applicant had suffered cranio-facial injuries. 6. On 14 May 2004 the applicant was taken to the Târgu-Mureş Institute of Forensic Medicine and was examined by a forensic specialist. A report produced on the same date stated that the applicant’s face and body bore several bruises and abrasions and that the injuries could have been caused on 11 May 2004 as a result of direct hitting with or against hard objects. The report also stated that the injuries would require seven to eight days of medical care in order to heal. 7. On 14 May 2004 the applicant brought criminal proceedings with civil claims for abusive conduct and unlawful arrest against the two police officers who had detained him on 11 May 2004, namely S.R. and C.I.P. He was assisted by a lawyer during the entire course of the proceedings and argued that the two police officers had insulted, threatened and hit him for two hours on 11 May 2004 and had forced him to provide them with statements. 8. By an order of 20 September 2004 the Târgu-Mureş Prosecutor’s Office discontinued the criminal investigation opened against the two police officers on the grounds that no unlawful act had been committed. It found that at 4 a.m. on 11 May 2004, P.H. had witnessed from the window of his home two individuals who were taking things out of the boot of a car. Suspecting that the two individuals were thieves, he decided to go out of his house and stop them. He asked L.S. to call the police and proceeded towards the two individuals, who started to run away. P.H. pursued them and managed to catch the applicant, who was drunk and kept falling over. Although P.H. tried to hold him up until the police arrived, the applicant kept pushing him away in repeated attempts to escape. The applicant was taken to the police station by officers S.R. and C.I.P. and was left in the company of S.R., who attempted to question him. C.I.P. returned to the scene of the crime to take statements from the witnesses, L.S. and P.H. According to the police officers’ statements, the applicant had refused to answer any questions and denied that he had committed any crime. They also stated that he had threatened the officers, which was confirmed by the witness, P.H. The officers alleged that the applicant had become angry because he had not been allowed to leave and had vigorously smashed his head into the window of the room in which he was detained, but had not managed to break it because it was fitted with metal rods. Consequently, the Târgu-Mureş Prosecutor’s Office held that the two police officers had acted within the scope of their duties prescribed by law and that the applicant’s injuries, confirmed by the medical forensic report, had been caused by the fight the applicant had had with a third party, namely P.H., and by his own deliberate actions. The applicant appealed against the decision before the hierarchical prosecutor. 9. By a final order of 27 October 2004, the chief prosecutor of the Târgu-Mureş Prosecutor’s Office dismissed the applicant’s appeal on the grounds that there was no evidence in the file that the applicant had been hit or insulted by the police officers and that his injuries could have been caused by the third party who had immobilised him. The chief prosecutor held that according to the witness, P.H., the applicant was drunk and when the witness caught him, he attempted to start a fight, but fell and hit the curb, which made his clothes dirty with dust and mud and his face bleed. The same witness stated that although the police officers forced the applicant to get into the police car, they were not violent. The second witness, L.S., confirmed that the applicant attempted to escape from P.H.’s hold several times and that P.H. pinned him to the ground each time. L.S. also confirmed that the applicant’s face was already bleeding and his clothes were covered in dust and mud prior to the police officers’ arrival. Furthermore, the police officers denied having committed an offence and declared that by the time they arrived at the scene, the applicant had been pinned to the ground by P.H., who informed them that there had been a struggle between him and the applicant. The officers further stated that they had taken the applicant to the police car and asked him to lie down because he was bleeding. They also contended that at the police station the applicant had become angry and smashed his head against a glass window. The applicant appealed against the decision before the Mureş County Court, arguing that the forensic investigation, which had taken place several days after the incident, had been superficial because the forensic specialist had not x-rayed his ribs, which had been broken as a result of police aggression. 10. By a judgment of 28 January 2005, the Mureş County Court dismissed the applicant’s appeal and upheld the order of the Prosecutor’s Office. It held that the injuries suffered by the applicant on 11 May 2004 were undeniable, but that they had been caused as a result of the physical interaction between the applicant and P.H., and the applicant’s own deliberate actions. The applicant appealed against the judgment. 11. In his written submission before the Târgu-Mureş Court of Appeal lodged on 4 April 2005, the applicant stated that he had been beaten by the two police officers. He argued that he had only been taken to a forensic doctor eight or nine days after the incident and that the forensic investigation had been superficial as the doctor had not x-rayed his ribs. Moreover, he had been ill-treated by the police officers before and after being taken to the police station and his requests for a lawyer and a prosecutor to investigate his case had been ignored. Consequently, in an attempt to stop the ill-treatment to which they were subjecting him, he had jumped and smashed into a window fitted with metal rods. 12. By a final judgment of 4 April 2005 the Târgu-Mureş Court of Appeal dismissed the applicant’s appeal as ill-founded on the grounds that there was no evidence in the file to support the applicant’s claims that his injuries had been caused by the two police officers. 13. The applicant was transferred to Târgu-Mureş Prison from 9 June 2004 to 25 August 2006. 14. On 14 July 2004 the applicant was examined and treated inter alia for obliterative arteriopathy in his legs (arteriopatie obliterată a membrelor inferioare). 15. Between 19 October and 8 November 2004, the applicant was detained in Dej Prison Hospital. A medical report dated 19 October 2004 showed that he was suffering from pain in his legs, paraesthesia and bad circulation. He also had a weak bilateral arterial pulse. He was treated with anti-inflammatory and anti-platelet drugs, multivitamins, muscle relaxants and beta blockers. By the time he was discharged from the hospital, his condition had improved and it was recommended that he stop smoking and start a special diet. He was also prescribed anti-platelet and antihypertension medicines and treatment with a vasodilator, and advised to consult a cardiovascular specialist. 16. On 23 November 2004 the applicant wrote to the Târgu-Mureş Prison authorities requesting examination by a cardiovascular surgeon as recommended by his discharge papers from Dej Prison Hospital. He claimed that he was suffering from pain in his legs as a result of his condition, which prevented him from sleeping at night. Moreover, he stated that he had asked the prison medical office to assist him with his request, and although the prison doctor had attempted to contact the Rahova Prison Hospital, he had never been taken for the examination. Lastly, he informed the prison authorities that he had decided to go on hunger strike until a specialist doctor had examined him. On the same date the prison doctor recommended that the applicant be taken for an additional medical examination. 17. On 14 December 2004 the applicant was examined by a specialist doctor in the Târgu-Mureş No. 4 Clinic. A medical report produced on the same date recommended that the applicant be subjected to a peripheral vascular Doppler test or to an aortography. 18. On 14 December 2004 the applicant wrote to the Târgu-Mureş Prison authorities and asked to be hospitalised in a civilian hospital for an aortography, which he claimed could not be carried out in a prison hospital. He argued that his condition was deteriorating and that he needed surgery in order to treat his condition and avoid losing his left leg. 19. On an unspecified date the Târgu-Mureş Prison doctor recommended that the applicant undergo a neurological examination by January 2005 and that he be hospitalised in a civilian hospital for a maximum of two days for an aortography. 20. On 22 December 2004 the applicant underwent a neurological examination. 21. On 5 January 2005 the Târgu-Mureş Prison authorities requested that the applicant be hospitalised in the cardiovascular surgery unit of the Rahova Prison Hospital for an aortography. In addition, on 13 January 2005 they recommended once more that the applicant be transferred to Rahova Prison Hospital for examination by a specialist. 22. Between 18 January 2005 and 7 February 2005 the applicant was hospitalised in Rahova Prison Hospital with a diagnosis of chronic arteriopathy (arteriopatie cronică oscilantă a membrelor inferioare) and pain in the left leg. 23. On 26 January 2005 the applicant was taken to the Central Military Hospital for a cardiovascular examination. He was diagnosed with stagetwo thrombangeitis obliterans in the left leg and recommended surgery, in particular a sympathectomy, and vasodilator treatment. 24. On 1 February 2005 the applicant consented to an operation in the Rahova Prison Hospital. The surgery was performed the same day and was successful. 25. He spent the first twenty four hours after the surgery in the intensive care unit of the prison hospital. Afterwards he was transferred to room no. 5 of the surgical ward, which had the necessary medical equipment as well as beds, windows and heating. He received treatment with anticoagulants, antialgic and anti-hypertension medication until 7 February 2005. The medical records show that his post-surgery recovery was normal. 26. On 7 February 2005 the applicant was transferred to Târgu-Mureş Prison with the doctor’s approval. He was prescribed a special diet, rest, monitoring by the prison infirmary for ten days, and the removal of postsurgery stitches. 27. The applicant claimed that, prior to his transfer from Rahova Prison Hospital he had spent the night in a cold room. Moreover, the transfer to Târgu-Mureş Prison had taken thirteen hours and his wound had started to bleed. 28. Upon his arrival at Târgu-Mureş Prison, the applicant was examined by the prison doctor and given a bed in room no. 1 of the prison infirmary, which had windows and heating. The doctor prescribed medical treatment for him, checked his post-surgery stitches, and recommended that the stitches be removed. 29. On 8 February 2005 the applicant’s post-surgical wound started to fester and he was prescribed antibiotic treatment. 30. On 9 February 2005 the applicant refused to take the antibiotic and anti-hypertension medication provided to him by the prison authorities. 31. On 11 February 2005 the applicant’s dressing was changed. According to his medical chart, he had not ensured the correct hygiene for his post-surgical wound. He refused to allow the stitches to be removed for a further three days. 32. On 14 February 2005 the applicant’s stitches were removed. The dressing of the wound was changed and the doctor identified a slight festering of the wound and again prescribed treatment with antibiotics. 33. On 17 February 2005 the applicant’s wound had healed and he was discharged from the Târgu-Mureş Prison infirmary. Later on the same date the dressing of his wound was changed. According to the medical records, the applicant had failed to use clean underwear, the wound was producing light serous secretions, but pus was absent. 34. On 18 and 24 February and 1 March 2005 the applicant was examined by the Târgu-Mureş Prison doctor and the medical records state that his wound had continued to fester. On 1 March 2005, as a result of the pain the wound was causing the applicant, the prison doctor recommended that he be transferred to Dej Prison Hospital. 35. On 8 March 2005 the applicant was hospitalised in Dej Prison Hospital and diagnosed with an abscessed granuloma on the surgical scar. He was treated for his condition and discharged from the prison hospital on 22 March 2005 after his condition had improved. 36. Between 26 April and 3 May 2005 the applicant was hospitalised again in Dej Prison Hospital because of pain in his legs, in particular cold sensations and paraesthesia. The medical records show that he was treated for his condition and that upon discharge, his surgical wound had healed and his condition had improved. Moreover, he was recommended vasodilator treatment and an examination by a cardiovascular specialist. 37. On 15 June 2005 following a complaint made by the applicant to the National Administration of Prisons (“the NAP”) that the prison doctor had failed to undertake all the necessary steps for him to be hospitalised in a cardiovascular unit, the NAP informed the applicant that his medical records showed that he had been monitored and examined for his condition several times by the prison hospitals. The specialist doctors had recommended that he stop smoking and take his prescribed medication. The Târgu-Mureş Prison medical office had examined the applicant forty one times and provided him with the medication prescribed by the specialist doctors. Moreover, the NAP argued that the applicant had failed to observe the doctors’ recommendations to stop smoking and follow the prescribed treatment. Consequently, the NAP concluded that the prison doctor was free to decide the appropriate treatment for the applicant’s condition and whether further medical examinations were required. 38. Between June and 2 August 2005 the applicant was hospitalised several times in civilian hospitals for medical examinations. He was provided treatment for his condition and underwent both a Doppler test and an aortography. The discharge papers dated 2 August 2005 recorded that the applicant was scheduled for surgery on 12 September 2005 for an iliofemoral bypass. 39. On 18 July 2005 the Târgu-Mureş Prison doctor informed the prison authorities that the applicant’s medical condition was not connected to the conditions of his detention but rather to his unwillingness to give up smoking. Moreover, he had been provided with medical treatment for his condition and additional medical examinations were scheduled. 40. On an unspecified date the applicant brought proceedings before the domestic courts seeking his temporary release for three months on medical grounds. 41. By a final judgment of 7 September 2005 the Târgu-Mureş District Court allowed the applicant’s action seeking his temporary release from prison. It held that the forensic medical report produced on 28 July 2005 by the Târgu-Mureş Institute of Forensic Medicine had shown that the applicant’s condition did not prevent him from serving his prison sentence. However, he needed reconstructive vascular surgery for his legs that could not be performed in a prison hospital. 42. Between 12 and 21 September 2005 the applicant was hospitalised in the general surgery unit of the Târgu-Mureş County Hospital and underwent ilio-femoral bypass surgery. His discharge papers stated that he was healed at the time of discharge and it was recommended that he take various medicines, rest, avoid the cold and stop smoking and drinking. 43. The applicant was temporarily released from prison between 21 September and 14 December 2005. 44. On 15 December 2005 the applicant returned to prison after his temporary release on medical grounds, following his ilio-femoral bypass surgery. According to a medical examination carried out on the same date, the applicant had not followed the recommended post-surgery treatment during his temporary release from prison. 45. Between January and June 2006 the applicant was examined nine times by the prison doctor and was provided treatment for his medical conditions. 46. On 22 June 2006 the applicant was hospitalised in Dej Prison Hospital complaining of pain in his legs, in particular cold extremities and paraesthesia. He was provided treatment and discharged after his condition had improved. He was prescribed analgesic and vasodilator treatment, and a surgical examination after two months. 47. On 25 August 2006 the applicant was conditionally released from prison. 48. The relevant provisions of the Code of Criminal Procedure regarding the remedies available in order to contest prosecutors’ decisions are described in Dumitru Popescu v. Romania (no. 1) (no. 49234/99, §§ 43-45, 26 April 2007). 49. Excerpts from the relevant provisions concerning the rights of detainees and the stay of execution of a sentence of imprisonment, namely Government Ordinance 56/2003 and the Code of Criminal Procedure, are set out in Petrea v. Romania (no. 4792/03, §§ 22 and 23, 29 April 2008). | 0 |
train | 001-78851 | ENG | UKR | CHAMBER | 2,006 | CASE OF SHCHERBININ AND ZHARIKOV v. UKRAINE | 4 | Violation of Art 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and Expenses - claim dismissed | Peer Lorenzen | 4. The applicants were born in 1938 and 1933 respectively and live in Krasnyy Luch, the Lugansk region. They are former employees of the State Mining Company Novopavlivska (“the Mine,” ДП шахта „Новопавлівська”). 5. On 6 October 1999, 16 and 28 February 2001 the Krasnyy Luch Court (Краснолуцький міський суд Луганської області) ordered the Mine to pay UAH 3,626.42, UAH 1,000.96 and UAH 1,868.12 respectively in salary arrears and various payments to the first applicant. 6. On 1 and 23 February 2001 the Krasnyy Luch Court ordered the Mine to pay UAH 3,776.36 and UAH 1,491.80, respectively, in salary arrears and various payments to the second applicant. 7. All of the above judgments became final and the enforcement writs were transferred to the Krasnyy Luch Bailiffs' Service (“the Bailiffs,” Відділ Державної виконавчої служби Краснолуцького міського управління юстиції) for enforcement. 8. On 29 May 2002 the Lugansk Regional Commercial Court (“the Commercial Court,” Господарський суд Луганської області) initiated bankruptcy proceedings against the Mine and introduced a moratorium on payment of its debts. 9. On 14 November 2002 the Commercial Court declared the Mine bankrupt and ordered its rehabilitation, which was to be completed by 31 December 2007. 10. In July 2004 the first applicant received the debts due to him by the judgments of 6 October 1999 and 16 February 2001. As regards the debt due to him by the judgment of 28 February 2001 – the first applicant received it in several instalments, the last payment being made on 27 July 2006. 11. On 27 November 2004 the second applicant received the debt due to him by the judgment of 23 February 2001. The debt due to him by the judgment of 1 February 2001 was paid to him in several instalments, the final one being made on 26 July 2006. 12. The relevant domestic law is summarised in the judgment of Sokur v. Ukraine (no. 29439/02, § 17-22, 26 April 2005). | 0 |
train | 001-5295 | ENG | DEU | ADMISSIBILITY | 2,000 | M.C. v. GERMANY | 4 | Inadmissible | Antonio Pastor Ridruejo | The applicant is a Turkish citizen of Kurdish origin, born in 1961 and living in Aachen. He is represented by Mr Hofmann, a lawyer practising in Aachen. On 6 June 1985 the applicant was issued with a penal order (Strafbefehl) by the Aachen District Court (Amtsgericht) for having entered the territory of Germany illegally, i.e. without a visa. The applicant was fined 20 day rates in the amount of 5 DM each. Upon the applicant’s objection (Einspruch), trial proceedings were instituted before the District Court. In these and the following proceedings, the applicant was represented by his defence counsel, Mr Hofmann. At a hearing before the District Court on 17 January 1986, the applicant's counsel declared that asylum proceedings were pending. The court decided to adjourn the case sine die. On 13 February 1987, in the resumed proceedings, the District Court convicted the applicant of having illegally entered the Federal Republic of Germany. The applicant was sentenced to a fine of 20-day rates in the amount of 5 DM each. On 13 November 1987 the Cologne Court of Appeal (Oberlandesgericht), upon the applicant’s appeal on points of law (Revision), quashed the judgment of 13 February 1987 and sent the case back for a new trial. On 16 November 1992 the District Court acquitted the applicant, who had in the meantime been recognised as a refugee, and imposed the costs of the proceedings on the Treasury. The District Court decided furthermore that it would deal with the applicant’s claim for compensation under the Act on Compensation for Criminal Prosecution Matters (Gesetz über die Entschädigung für Strafverfolgungsmassnahmen) in separate proceedings. The judgment was served on the applicant on 11 December 1992. On 3 March 1993 the District Court dismissed the applicant’s compensation claim. On 15 July 1993 the Aachen Regional Court rejected the applicant’s appeal. It found that the Act on Compensation for Criminal Prosecution Matters provided compensation only and exclusively for damages resulting from conviction or other criminal prosecution measures enumerated in Section 2 of the Compensation Act. Compensation in respect of an excessive length of criminal proceedings was not comprised. Neither did the Convention provide for such a right. Moreover, the conditions for claiming compensation of the applicant’s provisional arrest were not met. The applicant then lodged a constitutional complaint (Verfassungsbeschwerde), which was rejected by a group of three judges of the Federal Constitutional Court on 28 February 1994. | 0 |
train | 001-5362 | ENG | AUT | ADMISSIBILITY | 2,000 | CERNECKI v. AUSTRIA | 4 | Inadmissible | Nicolas Bratza | The applicant is an Austrian national, born in 1951 and living in Linz (Austria). He is represented before the Court by Mr Günter Tews, a lawyer practising in Linz. A. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is the father of two daughters born in wedlock in 1984 and 1985, respectively. On 4 October 1995 the Linz District Court (Bezirksgericht) granted the petition of the applicant and his wife for divorce by consent. In the settlement regulating the legal consequences of the divorce, the applicant and his wife agreed, outside the framework of section 177 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) which was at that time under review by the Constitutional Court, to exercise joint custody over their daughters. The settlement provided that the applicant and his wife would share responsibility for their children. Further, it stated that the children would mainly live with their mother, the applicant being granted extensive access rights. It also contained provisions for the children’s maintenance. The settlement was subject to approval in separate custody proceedings. On 6 February 1996 the Linz District Court refused to approve the settlement. Referring to section 177 § 2 of the Civil Code, the court found that joint custody could not be granted. The Court granted sole custody to the applicant’s divorced wife, noting that according to both parents’ submissions she was better suited to exercise custody. Thus, the transfer of custody was also in the interests of the children. Further, the court endorsed the settlement insofar as it concerned the applicant’s rights of access and his maintenance obligations. The applicant did not appeal against this decision. B. Relevant domestic law and practice Award of custody over children upon divorce or separation Section 177 of the Civil Code provides as follows: “(1) In case the marriage of the parents of a minor born in wedlock ends in divorce, or is dissolved or declared null and void, or in case the parents live separately for more than a limited period, they may submit an agreement to the court stating which one of them will exercise sole custody over the child in the future. The court will approve the agreement if it corresponds to the interests of the child’s well-being. (2) If no agreement is reached within a reasonable time or if the agreement does not correspond to the interests of the child’s well-being, the court has to decide which parent should have the right to sole custody in the future. In case the parents live separately for more than a limited period, the court only decides upon the request of one of them. (3) Section 167 applies accordingly.” Section 167 of the Civil Code provides, for children born out of wedlock, that the court may award joint custody to the parents upon their common request if they permanently live in a common household with the child and if such a ruling is not disadvantageous to the child’s well-being. In a judgment of 10 October 1995, the Constitutional Court ruled on the constitutionality of section 177 of the Civil Code. It noted the Supreme Court’s constant case-law according to which section 177 excluded an award of joint custody to both parents in case of divorce, except in the rare case when they continued to live together with the child in a common household. As to Article 8 of the Convention, it found that the award of sole custody after divorce to one parent was an interference with the other parent’s right to respect for his or her family life, which was justified under the second paragraph of this Article. Given the legislator’s margin of appreciation, it was to be considered necessary for the protection of the rights of others. In particular, it was proportionate, as the parent not having custody retained a number of rights, such as the right of access and the right to be informed and heard on certain important matters. Moreover, the law did not prevent parents who wished to share their parental rights after divorce from doing so in practice by mutual agreement, but provided a clear solution in case such agreement ceased to exist. As to Article 5 of Protocol No. 7, the Constitutional Court found that this provision did not prevent the legislator from creating different legal positions for spouses after divorce as long as such differences were not based on gender alone. It did not generally demand that joint custody be awarded to parents after divorce. Rights of the parent not having custody According to section 148 of the Civil Code, the parent not having custody has a right of access. Moreover, according to section 178 of the Civil Code, the parent not having custody has the right to be informed by the other parent about certain measures listed in section 154 §§ 2 and 3 (which in cases of joint custody require the agreement of both parents), and has the right to be heard within a reasonable time. The submissions of the non-custodial parent are to be taken into account if the wishes expressed therein better serve the interests of the child’s well-being. The measures at issue include the change of the child’s first or family name, the entry into or secession from a church or other religious group, the child’s placement in care, the acquisition or renunciation of a particular nationality, the early termination of an apprenticeship or employment contract, the recognition of paternity of a child born out of wedlock, as well as certain important provisions concerning the child’s property. | 0 |
train | 001-57652 | ENG | BEL | CHAMBER | 1,991 | CASE OF MOUSTAQUIM v. BELGIUM | 2 | Violation of Art. 8;No violation of Art. 14+8;Not necessary to examine Art. 3 and 7;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | N. Valticos;R. Pekkanen | 9. Mr Abderrahman Moustaquim, who is a Moroccan national, was born in Casablanca on 28 September 1963. He is currently living in Liège. He arrived in Belgium with his mother in July 1965 at the latest, in order to join his father, who had emigrated some time before and ran a butcher's shop. Until he was deported in June 1984, he lived in Belgium and had a residence permit. Three of his seven brothers and sisters were born there. One of his elder brothers already had Belgian nationality at the material time. 10. While the applicant was still a minor in criminal law, that is to say in the period up to 28 September 1981, the Liège Juvenile Court dealt with 147 charges against him, including 82 of aggravated theft, 39 of attempted aggravated theft and 5 of robbery. It made various custodial, protective and educative orders. On ten occasions between January 1980 and May 1981, for instance, it ordered Mr Moustaquim to be detained in Lantin Prison for periods not exceeding fifteen days (under section 53 of the Children's and Young Persons' Welfare Act of 8 April 1965 - see paragraph 27 below). 11. On 15 May 1981 the Liège investigating judge issued a warrant for the applicant's arrest. 12. The 147 charges mentioned above subsequently came before the Juvenile Division of the Liège Court of Appeal, which in a judgment of 30 June 1981 relinquished jurisdiction. It noted in particular: "The juvenile was already committing offences before he was 14; in this regard he already came under the jurisdiction of the Criminal Court, and during the present proceedings he has not ceased to commit offences." It accordingly remitted the case to Crown Counsel's Office for prosecution in the appropriate court (section 38 of the Act of 8 April 1965 previously cited - see paragraph 27 below). 13. On 2 December 1981 Mr Moustaquim appeared before the Liège Criminal Court charged with 26 offences that had taken place between 10 February 1980 and January 1981. The evidence against the defendant and his six accomplices included a summary report drawn up on 14 July 1980 by the Liège gendarmerie. In this it was noted that the persons concerned "live[d] like drop-outs, only rarely returning to their own homes or to the home in which they ha[d] been placed"; of the applicant the report said: "Moroccan subject, elder brother of the above. Regarded as one of the leaders of the gang. Currently involved in major crime. He will stop at nothing and his 'training placements' in Lantin Prison have no beneficial effect. As soon as he comes out, he starts stealing again. He leads an idle life, sleeping by day and going out at night to commit his offences; and he associates with 'reliable types'. Some of the thefts he commits are planned and consequently on a large scale. On other occasions they are despicable and even sordid. He will stop at nothing and is becoming more and more steeped in crime. He is a real danger to society." 14. On the same day (2 December 1981) the Criminal Court found Mr Moustaquim guilty on 20 of the 26 charges and sentenced him to twenty months' imprisonment, half of which sentence was suspended for five years subject to a supervision order. He was acquitted on the other charges. 15. The prosecution appealed and the Liège Court of Appeal gave judgment on 9 November 1982. It set aside the judgment of the court below and found the applicant guilty on 22 of the 26 charges. It passed prison sentences of two years (for 4 offences of aggravated theft, 12 offences of attempted aggravated theft, 1 offence of theft and 1 of handling stolen goods), one month (destroying a vehicle), two periods of eight days (on two counts of assault) and fifteen days (on a count of threatening behaviour). It acquitted him on 4 charges (indecent assault with violence on a minor girl aged over 16; criminal conspiracy; attempted theft; and criminal damage to fencing). As none of these sentences was suspended, his immediate arrest was ordered. 16. Earlier, Mr Moustaquim had been imprisoned on ten occasions between January 1980 and May 1981 for periods not exceeding fifteen days (see paragraph 10 above). On 15 May 1981 the Liège investigating judge had him placed under arrest until, it would seem, his appearance before the Juvenile Division of the Liège Court of Appeal on 30 June 1981 (see paragraphs 11-12 above). Mr Moustaquim was also briefly detained on remand before his trial on 2 December 1981 at the Liège Criminal Court (see paragraphs 13-14 above). He served part - eighteen months out of twenty-six - of the prison sentences imposed on him by the Liège Court of Appeal on 9 November 1982 (see paragraph 15 above); he was released in April 1984. Between January and August 1983 he was given three days' prison leave on three occasions. 17. On 9 September 1983 the Ministry of Justice referred the case to the Advisory Board on Aliens, which gave its opinion on 24 November 1983. It concluded that deportation would be justified in law but regarded it as "inappropriate" and gave the following reasons: "The very large number of offences committed by Mr Moustaquim and for which he was sentenced by the Liège Court of Appeal on 9/11/1982 amounted, for the most part, to serious prejudice to public order (ordre public) justifying the proposed measure. They included 26 aggravated thefts in addition to ordinary thefts, handling stolen goods, destruction, assault and threatening behaviour. The sentences passed were: 2 years' imprisonment + 1 month + 8 days + 8 days + 15 days. The Board excludes from the offences amounting to prejudice to public order the indecent assault with violence and threatening behaviour referred to in the account of the facts drawn up by Crown Counsel's Office (Note P. 2 - File - Document 27). Counsel for Mr Moustaquim told the Board that his client had been acquitted on this charge. The Board finds that in the same Document 27 forwarded by Crown Counsel's Office to the Aliens Office the section headed 'Nature of the charge' does not include the offence of indecent assault, whereas all the other offences referred to in the account of the facts are listed there. It is not possible to tell from the file whether it is the account of the facts or the section headed 'Nature of the charge' which is wrong. While he was a minor in criminal law, he was placed several times in homes. The Juvenile Court relinquished jurisdiction in respect of the offences of which he was convicted in the Court of Appeal's judgment. The Board considers, however, that the proposed measure would be inappropriate for the following reasons: 1. Mr Moustaquim's youth (he was born on 28.9.1963), both at the time of the offences and now. 2. He arrived in Belgium at the age of one, in July 1965. 3. His whole family lives in Belgium (father, mother and seven other children, four of whom were born here). 4. Mr Moustaquim is learning a trade - (as a butcher's apprentice) - and could be helped by his father, who is a butcher. The father apparently owns the butcher's shop that he runs. 5. Mr Moustaquim has already had prison leave on at least two occasions without any untoward incident occurring, and the granting of this shows some confidence in his behaviour." 18. A royal order of 28 February 1984, which was served on Mr Moustaquim on 14 March and was to take effect from the moment of his release, required him to "leave the Kingdom and not return for ten years, ... except by special leave of the Minister of Justice". It was based on the following reasons: "... Having regard to the fact that [Mr Moustaquim] has committed a series of 26 offences of aggravated theft, attempted aggravated theft, theft, handling stolen goods, destroying a vehicle, assault and threatening behaviour, offences which were made out and for which on 9 November 1982, in a judgment that has now become final, he was sentenced by the Liège Court of Appeal to two years' imprisonment, one month's imprisonment, 8 days' imprisonment and 100 francs, 8 days' imprisonment and 100 francs, and 15 days' imprisonment and 100 francs; Having regard to the fact that these were only some of the 147 offences committed by Mr Moustaquim while he was still a minor in criminal law and for which he was brought before the Juvenile Court (including 5 robberies, 82 offences of aggravated theft and 39 offences of attempted aggravated theft), not counting the 15 offences of theft of jewellery, weapons and cash committed after the offences which led to the aforementioned conviction; Having regard to the opinion of the Advisory Board on Aliens, which considers that deportation is justified in law but nonetheless inappropriate; Having regard to the fact that despite this opinion, the Board acknowledges that the very large number of offences committed by Mr Moustaquim amount, for the most part, to serious prejudice to public order justifying deportation; Having regard to the fact that Mr Moustaquim has committed a substantial series of offences and that he is regarded by the local gendarmerie as one of the leaders of a dangerous gang of juvenile delinquents and as being a real danger to society; Having regard to the fact that by his personal behaviour Mr Moustaquim has, consequently, seriously prejudiced public order; Having regard to the fact that the maintenance of public order must prevail over the social and family considerations set out by the Board; ..." The applicant had to comply with the order within thirty days of leaving prison. 19. On 17 February 1984 Mr Moustaquim's father had written to the Queen asking her to intervene on his son's behalf. On 22 March 1984 the Aliens Office informed him that his application had been rejected and the deportation order signed. 20. Acting as the applicant's representative, Mr Moustaquim's father made two applications to the Conseil d'État on 29 April 1984 seeking, firstly, to have execution of the deportation order stayed and, secondly, to have the order itself quashed. The Conseil d'État rejected the first application on 22 June 1984. Mr Moustaquim left Belgium some days later. On 16 October 1985 the Conseil d'État rejected the application for judicial review of the order on the following grounds: "... The impugned order is founded mainly on 147 offences admitted by Moustaquim. Twenty-six of those led to convictions and heavy sentences and were regarded by the Advisory Board on Aliens as amounting, for the most part, to serious prejudice to public order justifying deportation in law. The 15 disputed offences appear, by the very terms of the impugned decision ('not counting the 15 offences'), as a superfluous ground in relation to the undisputed offences which were put forward as justifying the deportation. It does not follow from Moustaquim's acquittal on the conspiracy charge that the information provided by the local gendarmerie that is mentioned in the impugned decision was inaccurate to the point that it was unusable as part of the basis of the assessment that Moustaquim was a real danger to society. The ground of appeal is unfounded. In final pleadings - which were, moreover, out of time - Moustaquim put forward five further grounds. ... The third new ground, based on 'the violation of Articles 3 and 8 (art. 3, art. 8) of the European Convention for the Protection of Human Rights, in that the disputed act was both inhuman or degrading treatment and an intolerable infringement of private and family life', is unfounded. Firstly, deportation ordered in accordance with the law cannot be equated either with a punishment or with inhuman or degrading treatment within the meaning of Article 3 (art. 3) of the Convention; and secondly, respect for private and family life as guaranteed in Article 8 (art. 8) of the Convention is not an obstacle to the taking of a measure which, in a democratic society, is necessary for public safety. The fourth new ground, based on the violation of Article 14 (art. 14) of the said Convention, is similarly unfounded, as there is no evidence to suggest that the applicant was a victim, by reason of his nationality, of discrimination prohibited by that Article (art. 14). ..." 21. After his departure from Belgium at the end of June 1984, Mr Moustaquim went not to Morocco but to Spain, where he was accommodated by friends of his parents. On being asked to leave Spain, he settled in Stockholm, where he remained virtually without a break until 20 January 1990. He lived there - at times legally and at other times illegally - by his wits and by taking the odd undeclared job in Greek and Italian restaurants; he was put up by his employers and chance acquaintances. When he managed to save up enough money, he went to a non-Scandinavian country in order to obtain a three-month Swedish tourist visa. He also applied for a long-term residence permit, and on 10 March 1989 the Swedish embassy in Athens issued him a permit authorising him to live in Sweden until 27 August of the same year; this permit was subsequently renewed for six months. 22. In a notarially certified document of 24 April 1985 Mr Moustaquim instructed his lawyer to make a "declaration of election of nationality" under, in particular, Article 13 § 4 of the new Belgian Nationality Code (see paragraph 29 below). The Liège Registrar of Births, Deaths and Marriages considered the declaration to be inadmissible in Liège as the applicant had not been resident there since his deportation. In response to a similar application, the Belgian embassy in Sweden said that it could not take account of unlawful residence. 23. The applicant's lawyers made an urgent application to have execution of the deportation order stayed on the ground that Mr Moustaquim's position had worsened - on 24 September 1987 a Stockholm psychiatrist had diagnosed the applicant as suffering from a depression brought about by the disruption of his family ties. In an order dated 21 March 1988 the Liège judge responsible for hearing urgent applications refused to order the interim measure sought. 24. On 1 April 1988 one of the applicant's lawyers requested the Minister of Justice to "revoke or suspend the deportation order", but he received no reply to his letter. 25. On 14 December 1989 a royal order was issued, temporarily suspending the deportation order: "... Having regard to the fact that Mr Moustaquim came to Belgium at the age of two; Having regard to the fact that all his family are lawfully resident in Belgium; Having regard to the fact that Mr Moustaquim should be given an opportunity for rehabilitation; On a proposal by Our Minister of Justice, We hereby order as follows: 1. The royal deportation order made on 28 February 1984 pursuant to the Act of 15 December 1980 on the entry, residence, settlement and expulsion of aliens against Abderrahman Moustaquim, born in Casablanca on 28 September 1963, shall be suspended for a trial period of two years during which the applicant shall be authorised to reside within the Kingdom. 2. Continuation of the suspension and of the residence authorisation provided for in Article 1 shall be subject to compliance by Mr Moustaquim with the following two conditions: (a) he must personally have sufficient means of subsistence; and (b) he must not prejudice public order or national security. 3. Unless a decision is taken to the contrary, the royal deportation order of 28 February 1984 shall automatically be rescinded at the end of the two-year trial period provided for in Article 1. ..." The Aliens Office informed the applicant's lawyer on 29 December, stating that the necessary steps had been taken to ensure that his client had no difficulty when he arrived at Brussels Airport pending completion of the administrative formalities. On 29 January 1990 the Aliens Office sent him a safe-conduct authorising Mr Moustaquim to enter Belgian territory and remain there for thirty days. 26. The applicant had already returned on 20 January, and on 6 February he reported to the municipal authorities in Liège and was registered as living there with his parents. On 13 April he received a residence permit - a certificate of entry in the Aliens Register - which was valid for one year and was renewable. He is working in his father's butcher's shop and has enrolled at the local school for continuing education for small firms and traders. 27. The Children's and Young Persons' Welfare Act of 8 April 1965 replaced an Act of 15 May 1912; its purpose is to protect the health, morals and education of young people under the age of eighteen ("juveniles"). Under it, "offending acts" committed by juveniles can normally be dealt with only by means of custodial, protective or educative measures and not by means of criminal sanctions. The 1965 Act contains provisions relating to "social welfare" and others relating to "protection by the courts". Judicial protection of juveniles is provided by specialised courts: the Juvenile Court, which is a section of the tribunal de première instance (regional court of first instance) and sits as one or more single-judge courts, and the juvenile divisions of the Court of Appeal, which likewise have a single member. Section 36 of the 1965 Act lays down the cases in which the juvenile courts may take the various measures set out in the Act in respect of juveniles. They may make an order on an application by Crown Counsel in several instances, including the case of "juveniles ... proceeded against for an act classified as an offence". The same courts can also intervene up on a complaint by "persons having paternal authority or having custody ... of a juvenile ... who on account of his misconduct or indiscipline gives serious cause for concern". The measures they may order are, for the most part, set out in section 37: (a) a warning (section 37(1)); (b) placing the juvenile under the supervision of the Youth Welfare Board or of a Youth Welfare Officer (section 37(2)); (c) keeping the juvenile in his own surroundings, subject to certain conditions, such as having to attend an educational establishment, to perform educative or socially useful tasks or to comply with instructions from an educational-counselling centre or mental-health centre (section 37(2)); (d) placing the juvenile in the home of any trustworthy person or in any appropriate institution, under the supervision of the Youth Welfare Board or of a Youth Welfare Officer (section 37(3)); (e) placing the juvenile in a State reformatory (section 37(4)). Where a juvenile over sixteen has been brought before the juvenile courts for an "act classified as an offence", they may, if they consider the measures referred to in section 37 to be "inadequate", relinquish jurisdiction and remit the case to Crown Counsel so that proceedings may be taken in the appropriate court (section 38 of the 1965 Act). Relinquishment of jurisdiction is regarded as an exceptional measure, to be applied only as a last resort. The legislature made provision for it in order to cope with precocious or depraved juvenile delinquents. In 1987 the Belgian juvenile courts gave 13,904 decisions; they relinquished jurisdiction in favour of the Criminal Court in 87 cases. By section 53 of the 1965 Act, a juvenile may, "if it is materially impossible to find an individual or an institution able to accept the juvenile immediately, ... be provisionally detained in a remand prison for a period not exceeding fifteen days". 28. The Act of 15 December 1980 on the entry, residence, settlement and expulsion of aliens governs aliens' administrative status. Even foreigners with residence permits may be deported under the Act where they have "seriously prejudiced public order or national security" (section 20, second paragraph). Before making such a deportation order, the Minister of Justice must seek the opinion of the Advisory Board on Aliens, which consists of a judge, a barrister and a member of an aliens' welfare association. Deportation orders are signed by the King. They are subject to judicial review by the Conseil d'État (section 69), which on an application by the person concerned may grant a stay of execution until the application for review has been heard (section 70, first paragraph). The Conseil d'État satisfies itself that the deportation appealed against is based wholly on the alien's personal behaviour; the mere fact that he has a criminal conviction does not automatically entail deportation. 29. The new Belgian Nationality Code is contained in an Act of 12 July 1984 and came into force on 1 January 1985 - that is to say after the material events. Article 13 § 4 of the Code confers the right to acquire Belgian nationality on "a child who, for at least one year before the age of six, has had his principal residence in Belgium with a person to whose authority he was legally subject". The Code replaces, in particular, the Act of 25 March 1984, which required a private naturalisation Act, even for foreigners born in Belgium. | 1 |
train | 001-119263 | ENG | UKR | ADMISSIBILITY | 2,013 | KUTOVA v. UKRAINE | 4 | Inadmissible | Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens | The applicant, Ms Olga Pavlivna Kutova, was born in 1949 and lives in Berezneguvate in the Mykolayiv Region. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Nazar Kulchytskyy, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. In October 2002 the applicant, a businesswoman, sold 60 tonnes of sunflower seeds to a certain K., who introduced himself as the representative of a private company. Shortly afterwards, K., using forged documents, sold the seeds on to other people, who in turn sold the seeds to A., a private company. The latter then consigned the seeds to N., a private company owning a silo. On 11 October 2002 the applicant complained to the Berezneguvate police that K. had failed to pay her for the seeds. On an unspecified date the police opened a criminal case against him for defrauding the applicant. On 21 October 2002 the police declared the seeds to be physical evidence and ordered them to be seized and left for storage at the premises of company N. On 9 January 2003 the applicant lodged a civil claim with the police in the context of the criminal proceedings against K. seeking 66,660 hryvnias (UAH) in compensation for pecuniary damage and UAH 50,000 for non-pecuniary damage. On 17 July 2003 the police lifted the order for the seizure of the seeds and ordered them to be transferred to the applicant, but on 23 July 2003 the director of N. refused to return them, asserting that they belonged to company A. On 10 September 2003 the police rejected the applicant’s request to institute criminal proceedings against the director of N. for his failure to transfer the seeds as they believed that the determination of the ownership dispute over the seeds was within the competence of the courts. The applicant challenged that decision before the courts; however, on 21 October and 11 December 2003 respectively the Nova Odessa Court and the Mykolayiv Regional Court of Appeal ruled against her. On 23 September 2003 the applicant was given permission to participate in the criminal proceedings against K. as a civil claimant. On 24 December 2003 the Berezneguvate prosecutor’s office quashed the police’s order of 17 July 2003 in its entirety. The seeds remained stored at the premises of company N. Shortly afterwards, the criminal case was sent to the Berezneguvate Court for trial. On 17 May 2004 the applicant amended her claim, seeking the return of the seeds instead of compensation for pecuniary damage. On the same date a representative of company A. requested the court to admit as evidence documents proving that the company owned the seeds. The representative also asked the court to hear a witness. It is unknown whether those requests were ever granted. By a judgment of 8 June 2004, the first-instance court convicted K. of aggravated fraud, sentencing him to a five-year suspended term of imprisonment with a probationary period of three years. The court ordered K. to pay the applicant UAH 7,000 in compensation for non-pecuniary damage, lifted the order for the seizure of the seeds and ordered that they be returned to the applicant. On 18 June 2004 company A. appealed against that judgment, whereas the other parties to the proceedings, including the applicant, did not choose to appeal. On the same date the trial court, relying in particular on Article 348 of the Code of Criminal Procedure of 1960 (“Code of Criminal Procedure”, as in force at the material time), declared the appeal inadmissible, on the grounds that company A. had not been a party to the proceedings before the first-instance court and thus had no right to lodge an appeal. On 21 September 2004 the Mykolayiv Regional Court of Appeal quashed the decision of 18 June 2004 and ruled that the appeal was to be examined on its merits. It held that the judgment of 8 June 2004 was in the interests of company A. and concerned the protection of property for the purposes of Article 1 of Protocol No. 1 to the Convention. The inadmissibility decision had deprived the company of access to a court, which was contrary to Article 6 of the Convention. The appellate court did not specify the procedural status of company A. The applicant lodged an appeal in cassation. On 14 October 2004 the Supreme Court left the applicant’s appeal unexamined, noting that only decisions on the merits were subject to its review. On 16 November 2004 the appellate court quashed the part of the judgment of 8 June 2004 concerning the return of the seeds, which it found to be “insufficiently reasoned, contradictory, ambiguous and unlawful”. As regards the procedural status of company A., the court noted, without giving any further details, that the appeal had been lodged by “the representative of a civil claimant”. Relying in particular on Articles 80 and 81 of the Code of Criminal Procedure, the court remitted that part of the case to the trial court for fresh consideration. By a decision of 25 February 2005, the trial court ordered the return of the seeds to the applicant, deeming her their rightful owner and noting that company A. had not been a party to the criminal proceedings. The court also noted that company A. could claim ownership of the seeds by means of civil proceedings. On 12 April 2005 the appellate court quashed that decision, finding that the trial court had acknowledged that ownership of the seeds was in dispute and had actually determined who owned them. However, the decision in question was contrary to the second paragraph of Article 81 of the Code of Criminal Procedure, which provided that any disputes over the ownership of physical evidence should be resolved in civil proceedings. The appellate court subsequently discontinued its consideration of the matter, explaining that it should be dealt with by means of civil proceedings. The applicant lodged an appeal on points of law, arguing in particular that company A. had not been a party to the proceedings. On 13 June 2006 the Supreme Court upheld the ruling of the appellate court although it did not specify the procedural status of company A. The applicant did not institute civil proceedings for the return of the seeds, which remained in the possession of company A. On 23 June 2004 bailiffs instituted enforcement proceedings in respect of the part of the judgment of 8 June 2004 concerning the return of the seeds to the applicant. On 27 July 2004 the Nova Odessa Court suspended the enforcement proceedings following a request submitted by company A. On 23 September 2004 the same court rejected the bailiffs’ request of 23 June 2004, stating that the judgment of 8 June 2004 was not final and that ownership of the seeds was to be determined in civil proceedings. No appeal was lodged against the decision of 23 September 2004. Article 79, the third paragraph of Article 80 and the second paragraph of Article 81 of the Code of Criminal Procedure provided at the material time that any disputes over the ownership of physical evidence should be resolved in civil proceedings and that the evidence in question should be kept with the case file or (in the case of perishable or bulky goods) left for storage with a legal entity until judgment had been given. Subparagraph 5 of the first paragraph of Article 81 provided that any objects which had been the target of criminal activity should be returned to their rightful owner. Article 348 of the Code of Criminal Procedure, as worded at the material time, stipulated that in criminal proceedings an appeal can be lodged by an accused, a victim, a convict, an acquitted person, a civil claimant or a civil respondent, a prosecutor who supported the charges or signed the indictment, a minor subjected to coercive educative measure by a court, the representative of a person subjected to coercive medical measures, and other persons in the cases envisaged by the Code. | 0 |
train | 001-59102 | ENG | CHE | CHAMBER | 2,000 | CASE OF WETTSTEIN v. SWITZERLAND | 1 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic and Convention proceedings | Christos Rozakis | 8. The applicant, born in 1930, is a businessman living in Pfäffikon (Switzerland). 9. The applicant is the owner of two properties, of 115 sq. m. and 51 sq. m. respectively,in the municipality of Kloten. Half of the second property is tied up with a joint ownership of part of a path. In the 1950s an area zoning plan was prepared, although no general settlement regarding the applicant's properties was achieved. The applicant also unsuccessfully requested the Kloten municipality on a number of occasions to take over the two properties and to compensate him accordingly. 10. The applicant was also involved in other building proceedings in the Kloten municipality in which the opposing party, a cantonal insurance pension office, was represented by a lawyer, Mr W. 11. The applicant was furthermore involved in building proceedings against the Küsnacht municipality in which that municipality was represented by a lawyer, Mrs R. These proceedings were conducted before the Administrative Court of the Canton of Zürich and in last resort before the Federal Court, its decision having been given on 24 October 1995. 12. Mrs R. and Mr W. are practising lawyers (Rechtsanwälte) who at that time shared office premises in Zürich together with Mr L. Lawyers R. and L. also acted as part-time administrative court judges at the Administrative Court of the Canton of Zürich. 13. In the proceedings concerning the applicant's properties in Kloten (see paragraph 9 above), the applicant filed on 15 February 1995 an action with the Administrative Court of the Canton of Zürich, requesting an order that the Kloten municipality take over the two properties, including the joint ownership, for the sum of 368,200 Swiss francs. 14. In the applicant's case, the bench of the Administrative Court was then composed of five judges, namely the Vice-President, three administrative court judges and one substitute judge. Among the administrative court judges were R. and L., who were part-time judges. 15. On 15 December 1995 the court rejected the applicant's action. The Court found that it was not competent to deal with the matter which appertained to the jurisdiction of the Assessment Commission (Schätzungskommission). However, the court declined to transmit the case to the Assessment Commission as the applicant had forfeited his right to claim compensation. Thus, if he had disagreed with the area zoning plan, in particular with the settlement of accounts of 1957, he should have requested the institution of assessment proceedings at the relevant time. The Court found that the claim for compensation would in any event be unfounded as it had to be directed against other proprietors in the area covered by the zoning plan, rather than the municipality. 16. The applicant filed a public-law appeal with the Federal Court in which he complained, on the one hand, about the outcome of the proceedings, on the other, that judge R. had shortly before acted in separate appeal proceedings, instituted by the applicant, as the legal representative of the opposing party, namely the Küsnacht municipality. Moreover, judge R. shared office premises with judge L., and also with W. who, in separate proceedings instituted by the applicant, had represented the opposing party. 17. The public-law appeal was dismissed by the Federal Court on 29 April 1996, the decision being served on 9 May 1996. In its decision, the court dealt with the applicant's complaint that certain judges of the Administrative Court had not been impartial as follows: “The interrelations mentioned may raise certain doubts in view of Article 58 § 1 of the Federal Constitution which requires the impartiality of judges. However, the applicant does not claim that R. or another member of the Administrative Court was in fact biased when giving the contested decision. The Federal Court has already previously held that the fact that legal representatives in the Canton of Zürich also acted as part-time administrative court judges could under certain circumstances result in an interrelation of interests. The Court found, however, that it could be expected from a part-time judge that he could distinguish between his official function and his private professional activities. A part-time judge was not, therefore, obliged to stand down merely because he had represented legal interests in other proceedings which were opposed to those of the applicant ... In view of these principles it can equally not be assumed in the present case that the Administrative Court was composed of judges who could be regarded as biased when giving the contested decision.” 18. The Federal Court furthermore did not consider it arbitrary that the Administrative Court had found that the applicant's claims were forfeited as he had failed duly to raise them. 19. On 20 August 1996 the Federal Court dismissed the applicant's request to reopen the proceedings. 20. The Administrative Court of the Canton of Zürich consists of both full-time and part-time judges, the latter also acting as practising lawyers on a part-time basis. 21. Section 34 of the Administrative Judiciary Procedure Act (Verwaltungsrechtspflegegesetz) of the Canton of Zürich of 1959 concerns “incompatibility” (Unvereinbarkeit) and stated in the version in force at the relevant time: “1. The office of a full-time judge of the Administrative Court is incompatible with any other full-time professional activity [hauptberufliche Tätigkeit]. Full-time judges may not be members of the Federal Assembly nor members or registrars of a municipal or district council. They are not allowed legally to represent third persons before courts and administrative bodies. An authorisation of the cantonal parliament is required if they wish to belong to the administration or management of a commercial company or cooperative acting for commercial purposes. 2. Part-time judges may not be employed full-time by an administrative authority or a court, and may not be members or registrars of a municipal or district council.” 22. The Administrative Judiciary Procedure Act was revised in 1997 and section 34 now states: “1. The office of a full-time member of the Administrative Court is incompatible both with any other full-time professional activity and with the professional representation of third persons before courts or administrative authorities. 2. The office of a part-time member of the Administrative Court is incompatible with the professional representation of third persons before the Administrative Court ...” 23. In Switzerland no particular magistrate's training is required to enter the judicial profession. This explains, inter alia, the comparatively high number of practising lawyers (legal representatives) acting as part-time or substitute judges. 24. The Federal Court consists of thirty full-time and fifteen part-time judges, and the Federal Insurance Court consists of nine full-time and nine part-time judges. Part-time judges may exercise the profession of practising lawyer. According to section 22 of the Federal Judiciary Act (Organisationsgesetz), judges shall stand down if, in a particular case, they have participated in another capacity, inter alia as legal adviser or as practising lawyer. The First Public Law Division of the Federal Court furthermore avoids appointing as part-time judges persons resident in the canton in which the case originates. 25. In various federal appeals commissions (Rekurskommissionen) provision is made for full-time and part-time judges. Whatever other functions the latter exercise, these functions may not compromise the accomplishment of their tasks or the independence and reputation of the appeals commission. 26. In various cantons, no particular regulations exist as to part-time judges acting as practising lawyers, for example for certain judges of the Cantons of Appenzell Inner Rhodes, Graubünden and Valais. Other cantons have specific legislation on the matter. 27. For instance, certain cantonal courts are composed exclusively of full-time judges who exercise no other legal profession, for instance the Cantonal and Administrative Courts of the Cantons of Berne and of Lucerne; the Administrative Court of the Cantons of Fribourg and Ticino; the Cantonal Court of the Canton of Thurgau; and the Cantonal Court and the Court of Appeal of the Canton of Schaffhausen. In the Canton of Graubünden, as from 2001, eight of the eleven presidents of the first-instance courts will act as full-time judges. 28. In some cantons, certain part-time judges are prohibited from acting as practising lawyers, for instance in the Canton of Basle Rural (part-time judges of the Court of Appeal in criminal cases) and in the Canton of Aargau (part-time judges of the Cantonal Court and the specialised administrative courts and the presidents of the district courts). In the Canton of Berne a new law has been proposed which, as from 2001, intends to prohibit part-time judges from acting as practising lawyers, although this function will continue to be possible for substitute judges. In the Canton of St Gall, part-time district court judges may not act as practising lawyers in the district in question. 29. In various cantons part-time judges of a court may not appear before that court as practising lawyers, for instance in the Cantons of Schwyz, Obwalden, Zug, Aargau (in respect of the Administrative Tribunal), Basle Urban (in respect of the regular judge at the Court of Appeal in administrative matters), St Gall (in respect of part-time judges who are otherwise employed for more than 40% of their time), Graubünden (in respect of judges of the administrative courts and their respective divisions and, as from 2001, in respect of district and regional court presidents and their deputies). The Canton of Basle Rural is currently revising its relevant legal norms along these lines. 30. Certain cantonal courts envisage the possibility for substitute judges to act as practising lawyers, for instance in the Cantons of Aargau (labour courts), Berne (Cantonal and Administrative Court), Basle Urban, Geneva, Fribourg (Administrative Court), Ticino, Solothurn and Schaffhausen (Court of Appeal and Cantonal Court). 31. The Federal Court has pronounced on various occasions on the question of the impartiality of lawyers acting as judges, in particular the danger of a link of dependency between the judge and one of the parties. For instance, a lawyer may not act as judge in a case where he or she is representing one of the parties to the case, or where in separate pending proceedings he or she is representing the opposing party. On the other hand, as a rule no issue will arise where the lawyer once represented a party and the mandate has been completed. The mere fact that the lawyer generally advises in building matters does not imply that as a judge he will necessarily favour a plaintiff who is involved in the construction of a house (see judgment of 15 May 1992, Schweizerisches Zentralblatt für Staats- und Verwaltungsrecht 94, 1993, 87; and the judgment of 20 December 1990, Arrêts du Tribunal fédéral suisse (ATF), vol. 116 Ia, p. 485). | 1 |
train | 001-127612 | ENG | TUR | CHAMBER | 2,013 | CASE OF TÜZÜN v. TURKEY | 4 | No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect) | Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen | 4. The applicant was born in 1984 and lives in İzmir. 5. On an unspecified date the İzmir police received an anonymous telephone message which concerned the applicant. 6. On 30 May 2006 the İzmir police received another phone call from the same person stating that the applicant was in the house of a certain S.T., brother of the applicant’s fiancée. 7. According to the house search and seizure report drafted on the same day at 1.30 p.m., the İzmir police conducted a drug-related operation targeting S.T.’s house, under the supervision of the İzmir public prosecutor. The report stated that the applicant had given a false name and resisted the police when the officers showed him their search warrant. According to the report, the applicant physically attacked and injured two officers. He then fell and hit his head on the door. Four officers handcuffed him by pinning him to the floor by the arms and shoulders. During the search, the officers found ecstasy pills in the house. They also found a weapon hidden under a sofa. The report was signed by nine police officers, the applicant and the applicant’s fiancée, Ş.T. The applicant was subsequently arrested and placed in police custody. 8. At 1 p.m. on the same day the applicant was examined by a doctor at the Alsancak State Hospital, who observed a two-centimetre-long laceration on the scalp with an oedema around it on the left parietal region, a bruise on the front of his neck (under the chin), a minor erythema on his right cheek, and pain and another slight erythema in the right lumbar region. 9. On the same day A.T.E. and M.A., two police officers from the team that had effected the applicant’s arrest, were also examined by the same doctor. The doctor observed an erythema in the abdominal region, three bruises and erythemas on the right of the back, and erythemas on both arms of A.T.E.’s body. As regards M.A., the doctor noted an erythema of 20 cm on the left arm and a bruise of 5 cm x 5 cm on the left side of the abdominal region. 10. At 8.40 p.m. on the same day A.T.E. and M.A gave statements to police officers in their capacity as complainants and victims. They submitted that the applicant had resisted arrest and had insulted and physically attacked them. According to the officers, the applicant had fallen and hit his head on the door and had then been arrested. At 10 p.m. the applicant gave statements to the police and alleged that he had been beaten by police officers and injured during his arrest. 11. On 31 May 2006 the applicant was once again examined by a doctor, who noted a red lesion measuring 2 cm x 2 cm on his right upper arm and a complaint of intense pain in the right part of his back. 12. On the same day the applicant was brought before the İzmir Magistrates’ Court. The judge informed him that he was charged with insulting and resisting the police officers as well as causing them injuries. The applicant denied the allegation that he had insulted and resisted the police officers. He maintained that he had been hit on the head by police officers with a weapon and beaten with truncheons and guns during the house search. The judge subsequently ordered the applicant’s pre-trial detention. 13. On 20 June 2006 the İzmir public prosecutor filed a bill of indictment with the İzmir Criminal Court against the applicant charging him with resisting the police, insulting public officials and possession of firearms without a licence. 14. During the trial, the İzmir Criminal Court took statements from the two police officers who had affected the applicant’s arrest, the applicant and other police officers who had arrested him. The police officers maintained before the court that they had been kicked and punched by the applicant, who had resisted arrest, and that they had obtained medical reports in support of their allegations. They further maintained that the applicant had insulted them in Kurdish and in Turkish. The applicant claimed that he had not resisted arrest or insulted the officers and that in any case he had been unable to resist arrest on account of the number of arresting officers. 15. On 25 January 2007 the İzmir Criminal Court convicted the applicant of the aforementioned offences and sentenced him to a total of two years and nine months’ imprisonment. The court found it established – on the basis of the arrest and search report, medical reports, the expert assessments of the firearm, and the statements of the complainants, the applicant and witnesses – that the applicant had insulted and resisted the police officers and had been in possession of an unlicensed firearm. 16. On 5 November 2009 the Court of Cassation quashed the judgment of 25 January 2007, holding that the first-instance court should have examined whether it was appropriate to suspend the delivery of the judgment (hükmün açıklanmasının geri bırakılması). 17. On 10 March 2010 the first-instance court once again convicted the applicant of the same offences and sentenced him to a total of two years and nine months’ imprisonment and a fine of 450 Turkish liras. 18. According to the information obtained by the Registry from the website of the Court of Cassation, on 22 May 2012 the Court of Cassation upheld the judgment of 10 March 2010. 19. In the meantime, on 25 July 2006 the applicant applied to the İzmir public prosecutor’s office requesting that the police officers who had arrested him be punished for injuring him by using excessive force during his arrest. 20. On 29 August 2006 the İzmir public prosecutor issued a decision not to bring criminal proceedings against the arresting police officers as he found it established that the applicant had insulted and physically attacked the officers and resisted arrest. The public prosecutor noted that the applicant, A.T.E. and M.A. had fallen during the struggle and sustained injuries. According to the public prosecutor, the police officers had handcuffed the applicant by using force when he was on the floor. He found that there was no concrete evidence other than the complainant’s allegations that the members of the security forces had illtreated him. The public prosecutor considered that the force employed by the police had not been excessive and that the officers had acted within the scope of their duties. The public prosecutor did not question the applicant, the accused police officers or any other witnesses before giving his decision. 21. On 10 October 2006 the applicant objected to the decision of 29 August 2006. 22. On 8 January 2007 the Karşıyaka Assize Court dismissed the objection. 23. On an unspecified date, an investigator initiated a disciplinary investigation in respect of A.T.E. and M.A. Within the context of this investigation, between 4 September and 27 October 2006 the investigator took statements from the applicant, his fiancée, Ş.T., A.T.E. and M.A. and two other police officers who had effected the applicant’s arrest. The applicant and his fiancée stated that the applicant had been beaten by the police officers. The applicant stated that he had not insulted or attacked the arresting officers and that he had been hit with sticks and firearms. The police officers, on the other hand, maintained that the applicant had insulted them, had chanted slogans, had kicked and punched A.T.E. and M.A. and had fallen and hit his head on the door during the struggle. 24. On 18 January 2007 the Provincial Police Disciplinary Board attached to the İzmir governor’s office held that there was no reason to subject A.T.E. and M.A. to disciplinary sanctions and considered that they had acted within the scope of their duties during the arrest. | 1 |
train | 001-77932 | ENG | RUS | CHAMBER | 2,006 | CASE OF IMAKAYEVA v. RUSSIA | 1 | Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Liberty of person;Security of person;Article 5-1-c - Reasonable suspicion);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);Violation of Article 13+5-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 5-1 - Deprivation of liberty;Liberty of person;Article 5-1-c - Reasonable suspicion;Article 5 - Right to liberty and security);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | Christos Rozakis | 8. The applicant was born in 1951 and lived in the village of Novye Atagi, Shali district, Chechnya. In early 2004 she left for the United States of America, where she sought asylum. 9. The facts surrounding the disappearance of the applicant's son and husband were partially disputed. In view of this the Court requested the Government to produce copies of the entire investigation files opened in relation to the abduction of Said-Khuseyn and Said-Magomed Imakayev. The submissions of the parties on the facts concerning the circumstances of the apprehension and disappearance of the applicant's son and husband and the ensuing investigations are set out in Sections 1-5 below. A description of the materials submitted to the Court is contained in Part B. 10. The applicant lived in the village of Novye Atagi in the Shali district, Chechnya. Her husband, Said-Magomed Imakayev, was born in 1955, and they had three children: Said-Khuseyn, born in 1977, Magomed-Emir and Sedo. The applicant is a school teacher by profession. The applicant's son Said-Khuseyn graduated from medical school in 1999 as a dentist and continued his studies in the Grozny Oil Institute. 11. In the morning of 17 December 2000 Said-Khuseyn Imakayev drove to the market in the village of Starye Atagi in a white VAZ-2106 (“Zhiguli”) car, which he used with the written permission of the owner. 12. About 6 p.m. on the same day neighbours informed the applicant that they had seen her son being detained by Russian servicemen at a roadblock between the villages of Starye Atagi and Novye Atagi. The applicant and her relatives immediately started looking for him and collected several statements from the witnesses who had seen her son's detention. They initially agreed to testify on condition that their names were not disclosed, but later agreed to submit their names. 13. Witness Umayat D. is a resident of Novye Atagi and knew Said-Khuseyn Imakayev from school. On 17 December 2000 he was at the market in Starye Atagi. At about 2 p.m. he met Said-Khuseyn Imakayev, who said he had wanted to buy a jacket but had not found anything. He offered D. a lift back to their village, but D. was driving himself and declined. He later learnt that Imakayev had been detained by Russian soldiers on the road near the bridge over the Argun river. 14. Witnesses Zulay T. and Kolita D. are residents of Novye Atagi who were returning home in a bus from the market in Starye Atagi. At about 3 p.m. on 17 December 2000 the two women saw from the bus window a group of military personnel wearing masks and standing around a white Zhiguli car. A young man got out of the Zhiguli. The women alighted from the bus and wanted to help him, but the military started shooting in the air and at the ground, and shouted at them not to approach. They saw the young man being thrown into the military UAZ car (“tabletka”), and one of the servicemen drove the white Zhiguli. They left very quickly, and the witnesses did not note the UAZ number plates. The cars went towards Novye Atagi. Later that day they learnt that the man detained was Said-Khuseyn Imakayev. 15. Adam Ts. testified that in the afternoon of 17 December 2000 in Lenin Street, Novye Atagi, he saw a military UAZ and Said-Khuseyn Imakayev's Zhiguli, driven by an unknown man aged 30-35. The car was driving at very high speed. He thought that Imakayev had lent the car to someone, as he sometimes did. Later that day he learnt that Said-Khuseyn Imakayev had been detained by the military and that his car had been taken as well. A witness identified as E. orally stated to the applicant's representatives that at about 3 p.m. on 17 December 2000 he saw Imakayev's car in Nagornaya Street, Novye Atagi, followed by a UAZ and an armoured personnel carrier (APC). 16. The applicant has had no news of her son since. 17. Starting on 18 December 2000, the applicant and her husband applied on numerous occasions to prosecutors of different levels, to the Ministry of the Interior, to the administrative authorities in Chechnya and to the Russian President's Special Envoy to the Chechen Republic for Rights and Freedoms. The applicant submitted several copies of standard letters stating that her son had been detained by unknown military servicemen and had then disappeared, and asking for assistance and details of the investigation, submitted by her to various authorities. On her request similar letters were signed by the village council of elders and the head of administration. On 5 January 2001, at her request, a letter was sent from the office of the Head of Administration of Chechnya to the prosecutor of the Shali district, the Prosecutor of Chechnya and the President's representative in the Southern Federal circuit. She and her husband also personally visited detention centres and prisons in Chechnya and further afield in the Northern Caucasus. 18. The applicant received very little substantive information from the official bodies about the investigation into her son's disappearance. On several occasions she received copies of letters by various authorities directing her complaints to the prosecutor of the Shali district and the prosecutor of the Chechen Republic. 19. On 5 January 2001 the applicant was informed by the Shali District Prosecutor's Office that on 4 January 2001 they had initiated criminal proceedings in respect of kidnapping, under Article 126 § 2 (a) of the Criminal Code. The file was assigned number 23001. 20. On 21 January 2001 the traffic police division of the Ministry of the Interior department for the Chechen Republic notified the applicant that the details of her son's car had been entered in the search database and that servicemen had been instructed to look for it. 21. On 21 April 2001 the Shali district department of the interior (ROVD) informed the applicant that criminal investigation no. 23001 had been opened at her request. She would be informed of further developments. 22. According to the information submitted by the Government in July 2002, in March-May 2001 the Shali District Prosecutor's Office forwarded requests about Said-Khuseyn Imakayev to the Shali ROVD and the Federal Security Service (FSB) Department for Chechnya. Both agencies denied that they had ever detained Imakayev or that they had any information about his whereabouts. On 15 May 2001 [sic] the investigation was adjourned and the Shali ROVD was instructed to continue search for the missing man. 23. On 16 June 2001 the Shali District Prosecutor informed the applicant that the investigation had been adjourned. 24. On 26 February 2002 an investigator of the Shali District Prosecutor's office issued a “progress note” (справка). It stated that on 17 December 2000, on the road towards Novye Atagi, Said-Khuseyn Said-Magomedovich Imakayev, born in 1977, a resident of Novye Atagi, travelling in his own car, had been detained and taken away by unknown persons wearing camouflage outfits and masks. His location remained unknown. On 4 January 2001 the Shali District Prosecutor opened criminal investigation no. 23001 under Article 126 § 2 (a) of the Penal Code (kidnapping). The investigation had been adjourned under Article 195 § 3 of the Code of Criminal Procedure because of the failure to identify the culprits. Investigative measures to locate Imakayev were continuing. 25. According to the Government, on 22 June 2002 the investigator of the Shali District Prosecutor's Office forwarded requests for information about Imakayev to the Chechnya Department of the FSB, to the military prosecutor of military unit no. 20116 (based in Shali), to the Shali military commander's office and to the information centres of the Ministry of the Interior and of the Chechnya Department of the Interior. It appears that none of these requests produced any result. On 5 July 2002 the investigation was resumed by an order of the deputy Chechnya Prosecutor. 26. On 16 July 2002, in connection with the disappearance of the applicant's husband (see below), the Chechnya Prosecutor's Office informed the applicant that criminal investigation no. 23001 had failed to establish her son's whereabouts. The letter stated that following a review of the case-file, the district prosecutor's order of 11 March 2001 [sic] to adjourn the investigation had been quashed. The investigator had been instructed to conduct certain actions, including a thorough check of the possibility of his abduction by “servicemen from the power structures” («сотрудниками силовых структур»). 27. On 24 July 2002 the applicant was granted victim status in criminal case no. 23001 into her son's abduction. 28. On 20 December 2002 the respondent Government submitted further information to the Court about the investigation. They stated that two witnesses, S. and T., had testified that Said-Khuseyn Imakayev had been kidnapped by a group of persons armed with automatic fire-arms, dressed in camouflage uniforms and using a UAZ-452 vehicle. Neither the applicant's son nor the vehicle he had been driving had been found. Criminal investigation no. 23001 had been suspended on 4 March 2001 [sic] due to a failure to identify the culprits, but on 5 July 2002 the investigation had been resumed by an order of the first deputy prosecutor of the Chechen Republic. The new investigation was to pursue “a complete and thorough examination of all the circumstances of the committed crime, including checking the version that Imakayev S.-Kh. had been kidnapped by persons who were members of illegal armed units for the purpose of discrediting the federal forces”. On 5 August 2002 the investigation was again adjourned. 29. On 19 March 2003 the applicant was informed by a letter from the Chechnya Prosecutor's Office that the investigation had been reopened on 26 February 2003. On 15 April 2003 the Shali District Prosecutor informed the applicant that the case had been adjourned. 30. On 17 April 2003 the SRJI, on the applicant's behalf, wrote to the Shali District Prosecutor and asked him to inform them about the progress in the investigation and to grant the applicant victim status in the proceedings. 31. On 12 May 2003 the Shali District Prosecutor's Office informed the SRJI that the investigation had been adjourned. A copy of the decision to grant the applicant victim status had been forwarded directly to her. 32. On 19 May 2003 the Chechnya Prosecutor's Office informed the SRJI that the investigation had taken a number of steps to establish the whereabouts of Said-Khuseyn Imakayev, including questioning of witnesses and of eye-witnesses to the crime. However, the culprits were not established, and on 23 March 2003 the investigation was again suspended. The applicant was informed accordingly. 33. On 4 August and 26 October 2003 the Shali District Prosecutor's Office informed the applicant that, although the investigation into her son's abduction had been suspended, the measures to establish his whereabouts continued. The applicant was also informed of the possibility to appeal. 34. On 26 September 2003 the respondent Government informed the Court that the acting Chechnya Prosecutor had reversed the decision to suspend the investigation, and had ordered a number of steps to be taken. 35. The applicant submits that certain investigative actions were taken in October – December 2003 in the course of investigating her husband's disappearance (see §§ 74 and 76 below). 36. On 9 January 2004 the head of the criminal investigation department of the Shali district informed the applicant that he had ordered a search for the car driven by Said-Khuseyn Imakayev on the day of his disappearance. 37. On 20 January 2005 the SRJI asked the Shali District Prosecutor's Office whether criminal investigation no. 23001 was still pending with their office and if so, to provide an update on progress. The applicant submits that no reply was received to this letter, and she was thus unable to familiarise herself with the file and has had no information about the progress, if any, of the investigation. 38. The applicant refers to the Human Rights Watch report of March 2001 “The 'Dirty War' in Chechnya: Forced Disappearances, Torture and Summary Executions” which lists Said-Khuseyn Imakayev as one of the victims of “forced disappearances” after detention by Russian servicemen. 39. In October 2005 the Government presented additional submissions about the progress of the investigation. According to them, the investigation into the kidnapping of the applicant's son established that, at about 3 p.m. on 17 December 2000, the VAZ-2106 driven by Said-Khuseyn Imakayev had been stopped by a group of armed persons near the village of Novye Atagi. His subsequent whereabouts could not be established. 40. The Government further submitted that the applicant had been questioned on several occasions, and that on 24 July 2002 she had been granted victim status. She was not an eye-witness to the events and learnt of them from the statements of others. Two female witnesses, S. and T., stated to the investigation that on 17 December 2000 they had seen from a bus that a group of men armed with automatic rifles had detained the above-mentioned car and its driver, Said-Khuseyn Imakayev. The bodies of the interior ministry and the security service stated that S.-Kh. Imakayev had never been charged with a criminal offence. The investigation into criminal case no. 23001 continued and its progress was being monitored by the General Prosecutor's Office. 41. At the same time the Government submitted copies of several documents from criminal investigation file no. 23001 (see § 93 below). These documents are summarised in Part B below. 42. On 12 February 2002 the applicant and her husband, Said-Magomed Imakayev, lodged a complaint with the European Court of Human Rights concerning the disappearance of their son, Said-Khuseyn Imakayev. It was given the above application number on 21 February 2002. Both Mr and Mrs Imakayev issued forms of authority for the SRJI and were listed as applicants. 43. According to the applicant, on 2 June 2002 she and her husband were in their house in Novye Atagi. At 6.20 a.m. they were awakened by loud noise in their courtyard. They saw several APCs and a UAZ car. The Imakayevs' neighbours later noted down the numbers of three out of the six APCs involved in the operation and the number plates of the UAZ. 44. About 20 servicemen in military camouflage uniforms came into the house, some of them wearing masks. The servicemen spoke Russian between themselves and to the applicant, with no trace of an accent. They searched the house without showing any warrants or providing explanations. During the search the applicant managed to talk to the senior officer in the group. He was wearing camouflage uniform and had no mask, and the applicant described him as being about 40 years old, about 180 cm tall and bearded. The officer told her that his name was “Boomerang Alexander Grigoryevich”. The applicant understood that “Boomerang” was his nickname. She also managed to talk to another officer who refused to introduce himself, but whose appearance the applicant describes as about 40 years old, with fair hair and slightly shorter than “Boomerang”. 45. The military seized some papers and floppy disks. The applicant asked for some sort of receipt for these items, for which they left her the following hand-written note: “Receipt. I, Boomerang A.G. seized in the Imakayevs' house a bag of documents of the Republic of Ichkeria and a box of floppy disks. 2.06.02”. 46. In return, “Boomerang” asked the applicant to sign a receipt that she had no claims to the servicemen in connection to the search. The applicant agreed to sign the slip acknowledging that no force was used, but added that she objected to her husband being detained without any grounds. She also added that the floppy disks and papers did not belong to her husband, since they were taken from a place where they stored items belonging to their relatives who had fled from Grozny in 1999. She gave this signed receipt to “Boomerang”. 47. The applicant's husband, Said-Magomed Imakayev, was held against the wall during the search, and after it was over he was forced into the UAZ vehicle. He was allowed to dress appropriately, since it was raining heavily, and to take 50 roubles “for the road back”. When the applicant asked where he was taken, “Boomerang” told her they would take him to Shali, the district centre. 48. After the visit to the Imakayevs' house, the APCs went to other places in the village and detained four other men. They then departed. 49. The applicant submitted 30 witnesses' statements collected by her and relating to the events of 2 June 2002, including those produced by the relatives of the four other men detained on that night. They noted the hull numbers of the three APCs involved in the operation: no. 1252, which went to the applicant's house, and nos. 889 and 569. One of the neighbours also noted the registration number of the UAZ vehicle in which Said-Magomed Imakayev was placed, namely 344. 50. Since 2 June 2002 the applicant has continued to search for her husband. She has had no news of him. There has been no news of the other four men detained on the same night in the village. 51. On 2 June 2002 the applicant travelled to the Shali military commander's office and talked to the military commander, who told her not to worry and reassured her that all would be fine with her husband. On the same day she also travelled to Grozny, where she complained in person and in writing to the Chechnya administration and the military commander's office. On 4 June 2002 an unnamed officer of the local FSB department in Shali told her that her husband had probably been taken to Mesker-Yurt. 52. The applicant attempted to ascertain whether an officer by the name of “Boomerang” served in the military units in the vicinity, and she was led to understand by some unnamed military personnel in the military commander's office in Starye Atagi that they knew him. The applicant has on many occasions attempted to meet him, but has always been told that he was absent on “mopping up” operations. 53. On 4 June 2002 the applicant informed the SRJI, her representative in the case concerning her son, about her husband's apprehension. On 4 June 2002 the Moscow offices of the SRJI and of Human Rights Watch intervened on the applicant's behalf by writing letters to the Envoy of the Russian President on Human Rights in the Chechnya and to the Chechnya Prosecutor. They informed them about the known circumstances of the detention of Said-Magomed Imakayev and four other men in Novye Atagi and asked for urgent measures to be taken to find the detainees. On 6 June 2002 they sent additional information to those offices submitting the numbers of the APCs noted by the neighbours, details of the officer in charge of the arrest, who had introduced himself as “Alexander Grigoryevich Boomerang”, and the applicant's description of the second officer. 54. On 11 June 2002 the European Court of Human Rights, acting under Rule 49 § 1 of the Rules of Court, requested the Government to submit information concerning the applicant's husband's apprehension and whereabouts. 55. On 2 July 2002 the applicant was visited at her home by a senior investigator from the Ministry of the Interior, Department for the Southern Federal Circuit. He questioned her about the circumstances of her husband's detention and confirmed that the investigation was linked to her application to the European Court of Human Rights. 56. On 16 July 2002 the Chechnya Prosecutor's Office informed the applicant that pursuant to her applications, on 28 June 2002 the Shali District Prosecutor had opened criminal proceedings no. 59140 under Article 126 § 2 (a) of the Penal Code. The investigation established that the applicant's husband had not been detained by the law-enforcement agencies, and that there were no grounds for such detention. 57. On 24 July 2002 the Russian Government submitted to the Court a response to the request for information. They cited a report by the Directorate of the General Prosecutor Office for the Southern Federal Circuit, according to which on 17 June 2002 the applicant had filed a report with the Shali District Prosecutor's Office stating that “a group of unidentified armed men” had forcibly removed her husband on 2 June 2002. On 28 June 2002 criminal proceedings were initiated by the district prosecutor under Article 126 § 2 (a) of the Penal Code. At the same time, the Government denied that the applicant's husband had been detained by the authorities. The Government submitted: “Before the initiation of this criminal case, in the course of examination and initial investigative actions no facts that Mr Said-Magomed Imakayev was detained by servicemen of Federal Forces were obtained. Mr Said-Magomed Imakayev was not conveyed to law machinery bodies or institutions of Penalty Execution System and he is not being kept there now. Moreover, law machinery bodies do not have grounds for his detention. ... Shalinskiy district of Chechen Republic (and the village of Novye Atagi in particular) is an area of active criminal activities of terrorist and extremist organisations that commit crimes with a view to discredit Federal Forces in Chechen Republic using camouflage uniforms and motor vehicles that are similar to uniforms and vehicles used by servicemen and employees of law machinery bodies in Chechen Republic. Along with other crimes, illegal armed formations perpetrate abduction and kidnapping of persons who live or stay in Chechen Republic. In this connection the main version as regards this criminal case is kidnapping of Mr Said-Magomed Imakayev by members of one of the terrorist organisations acting in Chechen Republic and using an outfit of servicemen of Federal Forces with a view to disguise”. 58. The Government further submitted that the services whose forces are present in Chechnya - the FSB and the Ministry of the Interior - had not conducted any special operations in the village of Novye Atagi on 2 June 2002, and that the applicant's husband was not listed among the detainees held by those agencies. 59. It appears that on 25 July 2002 the applicant was granted victim status in the proceedings concerning the kidnapping of her husband. 60. On 31 July 2002 the Government made further submissions in relation to the application. They described certain procedural steps related to the opening, adjournment and re-opening of the criminal proceedings in relation to the disappearances of the applicant's son and husband. They also referred to requests sent by the investigators to the law-enforcement authorities for information related to their whereabouts. Despite the measures taken, their whereabouts were not established and the investigations in both cases were pending. 61. The applicant submits that in early August 2002 she, together with relatives of the other four men who had been apprehended on 2 June 2002, visited the Shali military commander, General Nakhayev. In the courtyard of the commander's office they spotted APC no. 569, which had been used in the detention of their relatives. At their request, a crewmember of the APC was brought to the General's office, where he was asked if he had been in Novye Atagi on 2 June. The serviceman accepted that he had been there, but could not recall the exact date. The General then asked him if he “had driven people away”, and he said that two persons had been taken away in his APC, but that they had been removed at the first military roadblock and that he did not know what had happened to them. The applicant submits that during the same conversation, in the presence of other relatives of the “disappeared” men, General Nakhayev informed them that 27 people had been detained in June and 15 of them had been “eliminated” (see also § 90 below). 62. In late August 2002 the applicant visited the Chechnya Prosecutor's Office, where she was told that the criminal proceedings in relation to her husband's disappearance had been transferred to the military prosecutor's office, which, under national law, is responsible for investigation of crimes committed by military servicemen. 63. In their letters and observations the Government submitted several different dates of procedural steps and case-file numbers assigned to the criminal case. It appears from these documents that in early September 2002 the investigation was transferred to the military prosecutor of military unit no. 20116, where it was assigned number 34/35/0172-02. It also appears that on 26 September 2002 the investigation was adjourned on account of failure to identify the culprits (as follows from the Government's observations of 26 September 2003, 27 October 2005 and the decision of 9 July 2004 by the Main Military Prosecutor to withdraw the applicant's victim status). 64. On 5 September 2002 the applicant submitted an unofficial composite sketch of “Boomerang”, along with other additional information collected by her, to the Shali District Prosecutor. No receipt of that letter has been acknowledged and the applicant believes that the actions requested by her were not carried out at that time, such as establishing the location of the APCs whose numbers were noted or questioning her neighbours. 65. On 20 December 2002 the Government submitted that the criminal proceedings were pending with an investigator of the military prosecutor of military unit no. 20116 in Shali. No further information was available about the “disappearance without trace” of the applicant's husband. 66. On 17 April 2003 the SRJI, acting on the applicant's behalf, requested the military prosecutor of military unit no. 20116 to grant the applicant victim status in the proceedings or, if that had already been done, to forward her a copy of such a decision. 67. On 25 and 30 April 2003 the military prosecutor of the United Group Alliance in the Northern Caucasus (UGA) informed the applicant that on 9 September 2002 the criminal investigation into her husband's abduction had been transferred to the military prosecutor of military unit no. 20116 in Shali, where it had been assigned file number 14/35/0172-02 (see also § 63 above). 68. On 16 June 2003 the military prosecutor of military unit no. 20116 responded to the SRJI that they would be informed of the results of the preliminary investigation. 69. On 23 September 2003 an investigator of the Main Military Prosecutor's Office in Moscow informed the applicant that on 18 August 2003 the military prosecutor of the UGA had resumed the investigation into her husband's abduction. On 23 September 2003 the case was assigned to the Main Military Prosecutor's Office, and the term of investigation was extended until 25 March 2004. The investigator further informed the applicant that he was on mission in Shali, in military unit no. 20116, and invited the applicant to contact him with any further questions. 70. On 7 October 2003 the SRJI wrote to the investigator and asked him to appoint a date for a meeting with the applicant. They also noted that the investigators from the military prosecutor's office had not questioned her, despite the applicant's visits to that office. 71. On 10 October 2003 the applicant was summoned as a witness to the Shali ROVD. 72. On 20 October 2003 the applicant met with the investigator at the military prosecutor's office in Shali and was questioned about her husband's apprehension. On the same day the investigator collected from her the “receipt” issued to her by “Boomerang” on 2 June 2002. 73. Also on 20 October 2003 the applicant applied to the investigator with a request to forward the photographs of her son and husband, supplied by her, to all regions of the Russian Federation, in order to check whether they had been detained under false identities. On 21 October 2003 the investigator granted the applicant's request and assured her that once she submitted the photographs, they would be forwarded to all the regional departments of the Ministry of the Interior and of the Ministry of Justice. 74. The applicant submits that on several occasions in October – November 2003 she met with the investigator at the premises of military unit no. 20116, in connection with the abduction of her son and husband. Her neighbours were also questioned there. In late October 2003 a group of investigators arrived in Novye Atagi and questioned the neighbours about the applicant's son and husband. In November 2003 two investigators inspected the applicant's house and collected pictures made after the search of 2 June 2002 from her. 75. The applicant submits that during one of the meetings the investigator told her that he had questioned serviceman Alexander Grigoryevich “Boomerang”, who had admitted his participation in the search and the apprehension of the applicant's husband, but had insisted that he had released him. 76. At the end of November 2003 the applicant was summoned to the Oktyabrskiy ROVD in Grozny to participate in a photo-identification in conjunction with the disappearance of her son. She was shown a total of 58 photographs of unidentified corpses, but did not identify her relatives among them. 77. The applicant further submits that in early December 2003 she was summoned to the Shali District Court and asked to put in writing the information about the apprehension of her son and husband, and the State bodies to which she had applied in this connection. The applicant did as requested, indicating also that she had applied to the European Court of Human Rights. She submits that she was asked to specify if she had ever filed an application to a domestic court in connection with these events. 78. On 9 July 2004 the criminal investigation into the applicant's husband's abduction was closed under Article 24 part 1.1 of the Criminal Procedure Code because no criminal offence had been committed. On 10 July 2004 the Main Military Prosecutor's office communicated this to the applicant and stated that her husband had been detained by military servicemen in accordance with the Federal Laws on the Suppression of Terrorism and on the Federal Security Service. After a check he was handed over by the head of the Shali district bureau of the FSB to the head of the Shali administration, Mr Dakayev. Since Said-Magomed Imakayev did not subsequently return home, the relevant documents were forwarded to the Chechnya Prosecutor's Office for purpose of organising a search for him as a missing person. The applicant was informed of the possibility of appealing against that decision. 79. Also on 9 July 2004 the investigator of the Main Military Prosecutor's Office withdrew the applicant's victim status in case no. 29/00/0015-03. The order stated that the investigation had established that on 2 June 2002 military servicemen, acting in accordance with section 13 of the Suppression of Terrorism Act, had carried out an operative-combat action (оперативно-боевое мероприятие) and detained Said-Magomed Imakayev on suspicion of involvement in one of the bandit groups active in the district. Following an inquiry, his involvement with illegal armed groups was not established and he was simultaneously transferred to the head of the Shali administration for return to his home. The order continued that it had thus been established that no abduction had been committed and that the actions of the servicemen who had detained Imakayev did not constitute an offence. Imakayev's further absence from his place of residence was not connected to his detention by military servicemen on 2 June 2002. No pecuniary or non-pecuniary damage had thus been caused to the applicant, and the decision to grant her victim status was quashed. She was informed of the possibility to appeal. 80. On 21 July 2004 the SRJI asked the Main Military Prosecutor's Office to inform them what investigative measures had been taken prior to closure of the investigation and to send them a copy of the decision. 81. On 12 August 2004 the Main Military Prosecutor's Office refused to provide copies of documents to the SRJI on the ground that they were not the applicant's lawyers. 82. On 22 September 2004 the SRJI forwarded to the Chechnya Prosecutor a copy of the applicant's power of attorney and asked him to inform them where the case file was located and to allow them access to it. 83. On 13 October 2004 the Chechnya Prosecutor informed the SRJI that the criminal case remained in the Main Military Prosecutor's Office, to which all further questions should be addressed. 84. On 1 March 2005 a lawyer of the Moscow Regional Bar, representing the applicant, requested the Main Military Prosecutor's Office to grant him access to the documents of the criminal case opened in relation to her husband's abduction. In a telephone conversation on 21 March 2005 an officer of the Main Military Prosecutor's Office informed the lawyer that the applicant's status as a victim in the criminal proceedings had been withdrawn, and therefore she no longer had the right to familiarise herself with the case file, either in person or through a representative. 85. In May and October 2005 the Government submitted additional information about the investigation. They claimed that the investigation into Said-Magomed Imakayev's abduction had established that he had been detained on 2 June 2002 but had subsequently been released and transferred to the head of Shali administration, Mr Dakayev. Mr Dakayev could not be questioned because he had died. The investigation also established that “ideological literature of propaganda nature and of extremist orientation” had been found at the Imakayevs' house. No further details about the literature could be provided, because it had been destroyed. 86. All this was established on the basis of statements from the special forces servicemen who had participated in the counter-terrorist operation in Chechnya in 2002. Among them was the military serviceman who had signed the receipt issued to the applicant on 2 June 2002. The Government explained that, in accordance with section 15 of the Suppression of Terrorism Act, no information about the special forces servicemen who had taken part in the counter-terrorist operations could be divulged. 87. The Government further stated that after the criminal investigation by the military prosecutor's office had been closed, a new criminal case file, no. 36125, had been opened by the Shali District Prosecutor's Office under Article 105 (murder) on 16 November 2004. An investigative group had been put together because the case was a complex one. Within these proceedings about 70 persons had been questioned, including the head of administration of Novye Atagi, a representative of the Shali district administration and the applicant's neighbours. However, the witnesses had no information about the abduction or the subsequent whereabouts of the missing man. The whereabouts of Mr Imakayev or of his corpse, or the fact that he had died, could not be established. In view of this, on 16 February 2005 the investigation was adjourned due to failure to identify the culprits. Despite that, actions aimed at solving the crime continued. 88. The applicant was granted victim status in the new proceedings, but the order was not communicated to her because she had left Russia. She also could not be questioned about the case. The investigation forwarded relevant requests to the law-enforcement bodies of the USA, but these were not carried out. 89. The applicant submits that she was twice questioned by the authorities in connection with her application to the Court. On 24 July 2002 the applicant was questioned by an investigator of the Shali District Prosecutor's Office. The investigator asked the applicant how much money she had paid to get her case to the Court. The applicant stated that she had not paid any legal fees, but the investigator expressed his disbelief. 90. In early August 2002 the applicant visited the Shali military commander General Nakhayev, seeking information about her husband (see also § 61 above). He questioned her about her application to the European Court and suggested that “a Russian citizen needs 15,000 dollars or more to get to the European Court.” He went on to ask her how much she had paid. When the applicant denied paying any fees, the commander apparently stated that her husband had been detained because of his involvement with financing the rebel activities. The applicant concluded from the conversation that the question of her husband's detention was in some way linked with her application to the Court, because both had financial implications. 91. In July 2003 the complaint was communicated to the Russian Government, who were requested to submit copies of the investigation files opened in relation to the abduction of the applicant's son and then husband. In September 2003 the Government responded that the provision of copies of the files was impossible because both cases were still under investigation. The Court reiterated the requests in October and November 2003, but the Government insisted that a copy of the investigation file could be provided only when the proceedings had been completed. In their letter of 15 December 2003 the Government argued that submission of the documents prior to the end of the domestic investigation could interfere with the rights of the parties to the proceedings and of third persons, for instance, to familiarise themselves with the case file. They agreed that copies of certain documents from the file could eventually be submitted. 92. In February 2004 the Court reiterated its request for copies of the documents. It also invited the Government to submit a detailed outline of the proceedings. In March 2004 the Government rejected this request. They informed the Court that certain documents had been classified as “secret” in accordance with section 5 § 4 of the Federal State Secrets Act, because they contained data received as a result of undercover operative measures (оперативно-розыскная деятельность). With regard to the requested outline of the investigations, the Government submitted the following in respect of the investigation into the applicant's husband's abduction: “A wide range of investigative actions have been carried out in the mentioned criminal case, many possible eye-witnesses of the crime scene were identified. The major part of them are military servicemen and at present have moved out from the territory of Chechen Republic to other regions of the Russian Federation. The relevant investigative commissions were forwarded to places of their whereabouts. A part of the commissions have been executed and an additional [time] is required to complete the others”. 93. On 20 January 2005 the application was declared admissible, following which both parties submitted observations on the merits. At the same time the Court asked the parties to submit their position as regards a possible violation of Article 2 of the Convention in respect of the applicant's husband. In September 2005 the Court sought additional observations from the parties concerning the Government's compliance with Article 38 of the Convention in view of their refusal to submit the requested documents. At the same time it again reiterated the request. In October 2005 the Government submitted 32 pages from case-file no. 23001, opened in relation to the abduction of the applicant's son. It appears from the page numbers that the case-file consisted of at least 240 pages. They also submitted seven pages of documents from criminal investigation file no. 36125, opened in November 2004 by the Shali District Prosecutor's Office under Article 105 part 1 (murder). These documents are summarised below in Part B. 94. The Government did not submit any documents from the initial criminal investigation file opened in relation to Said-Magomed Imakayev's abduction, which had been closed in July 2004. They stated that the submission of other documents was impossible because they contained state secrets. They also stated that their disclosure would be in violation of Article 161 of the Code of Criminal Procedure and would compromise the investigation and prejudice the rights and interests of the participants of the proceedings. 95. The Government submitted 32 pages of documents from the criminal case into the abduction of Said-Khuseyn Imakayev. These documents contain only formal decisions to open, adjourn and resume the investigation and the notifications to the applicant about these steps. No other documents have been submitted, such as witness statements (including those collected from the applicant), requests for information forwarded to various bodies and their replies etc. 96. According to the submitted documents, the investigation was opened on 4 January 2001 by an investigator of the Shali District Prosecutor's Office under Article 126 part 2 (kidnapping). The decision referred to the information that Said-Khuseyn Imakayev had been detained by unknown persons wearing camouflage uniforms and masks at the entry to the village of Novye Atagi and then taken to an unknown destination. The investigation was opened following the applicant's application to the prosecutor's office on 29 December 2000. 97. The investigation further established that these “unknown persons” had been armed with automatic weapons and had used a grey-white UAZ-452 vehicle, in which they had placed Imakayev and driven him in the direction of the town of Shali. The whereabouts of Imakayev, the identity of the abductors and the location of his VAZ-2106 had not been established. 98. On 24 July 2002 the applicant was granted victim status in the proceedings. 99. Between January 2001 and October 2005 the investigation was adjourned and reopened on at least five occasions. The order of 5 July 2002 by which the investigation was reopened stated that the decision to adjourn the investigation had been unfounded because the investigation had failed to identify and question eye-witnesses or to establish whether the crime had been committed by members of illegal armed groups for the purpose of discrediting the federal forces. On 17 October 2005 the Shali District Prosecutor again issued an order to resume the investigation, to question the applicant in the USA and to take other steps to identify the perpetrators of the crime. 100. In October 2005 the Government submitted copies of several documents from criminal case file no. 36125, opened in November 2004 by the Shali District Prosecutor's Office. The file was opened on the basis of unspecified documents from the Main Military Prosecutor's Office concerning the disappearance of Said-Magomed Imakayev. The prosecutor's order stated that on 2 June 2002 Said-Magomed Imakayev had been detained at his house by servicemen from the federal forces on suspicion of participation in illegal armed groups. Imakayev had been delivered to the district premises of the FSB in Shali, where he had been transferred to the head of Shali administration, Mr Dakayev. His further whereabouts were unknown. The order stated that there were grounds to believe that Mr Imakayev had become a victim of a criminal assault and referred to Article 105 part 1 of the Criminal Code (murder). 101. On 5 May 2005 the investigation was adjourned on account of failure to identify the culprits. On 17 October 2005 the investigation was reopened. On the same day the applicant was granted victim status; this decision could not be served on her because of her absence. 102. As stated above, in the night of 2 June 2002 four other men were detained in Novye Atagi beside Said-Magomed Imakayev. They were Islam Utsayev, Movsar Taysumov, Idris Abdulazimov and Masud Tovmerzayev, all of whom also disappeared subsequent to their arrest (see § 48 above). Their relatives applied to the European Court with a complaint about enforced disappearance, which was registered under no. 29133/03, Utsayeva and Others v. Russia. They are also represented before the Court by the SRJI. 103. The relatives of the four men submitted in their application that they had conducted the search for their missing relatives together with the applicant in the present case, and with support from the head of the Novye Atagi administration, Mr Datsayev. At their request, the Shali District Prosecutor's Office opened criminal investigations in respect of the kidnappings of their relatives: no. 59176 in respect of Islam Utsayev, no. 59155 in respect of Movsar Taysumov, no. 59159 in respect of Idris Abdulazimov and no. 59154 in respect of Masud Tovmerzayev. From the letters received from different authorities the relatives of the four detained men also understood that at some point the investigation was joined with the file initially opened in relation to the kidnapping of Said-Magomed Imakayev. The applicants also understood that in October 2002 the investigation was transferred from the Shali District Prosecutor's Office to the military prosecutors. At some point the case file was then returned to the Shali office. The proceedings were adjourned and reopened on several occasions, but did not establish the perpetrators of the abductions. 104. When communicating the complaint to the Russian Government in September 2004 the European Court of Human Rights requested them to submit copies of the criminal investigation files opened in relation to the kidnappings of the four men on 2 June 2002. In response, the Government refused to do so, referring to Article 161 of the Code of Criminal Procedure. They denied that the four men had ever been detained by the federal authorities. They conceded that Said-Magomed Imakayev had been detained on that night by state bodies, but insisted that his detention had been lawful and that he had later been released. 105. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic. From 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (CCP). 106. Article 161 of the new CCP establishes the rule of impermissibility of disclosure of data from the preliminary investigation. Under part 3 of the said Article, information from the investigation file may be divulged with the permission of a prosecutor or investigator and only so far as it does not infringe the rights and lawful interests of the participants of the criminal proceedings and does not prejudice the investigation. Divulging information about the private life of the participants in criminal proceedings without their permission is prohibited. 107. The Suppression of Terrorism Act (Федеральный закон от 25 июля 1998 г. № 130-ФЗ «О борьбе с терроризмом») provides as follows: “For purposes of the present Federal Law the following basic concepts shall be applied: ... 'suppression of terrorism' shall refer to activities aimed at the prevention, detection, suppression and minimisation of the consequences of terrorist activities; 'counter-terrorist operation' shall refer to special activities aimed at the prevention of terrorist acts, ensuring the security of individuals, neutralising terrorists and minimising the consequences of terrorist acts; 'zone of a counter-terrorist operation' shall refer to an individual terrain or water surface, means of transport, building, structure or premises with adjacent territory where a counter-terrorist operation is conducted; ...” “1. In the zone of an anti-terrorist operation, the persons conducting the operation shall be entitled: ... (2) to check the identity documents of private persons and officials and, where they have no identity documents, to detain them for identification; (3) to detain persons who have committed or are committing offences or other acts in defiance of the lawful demands of persons engaged in an anti-terrorist operation, including acts of unauthorised entry or attempted entry to the zone of the anti-terrorist operation, and to convey such persons to the local bodies of the Ministry of the Interior of the Russian Federation; (4) to enter private residential or other premises ... and means of transport while suppressing a terrorist act or pursuing persons suspected of committing such an act, when a delay may jeopardise human life or health; (5) to search persons, their belongings and vehicles entering or exiting the zone of an anti-terrorist operation, including with the use of technical means; ...” “...2. Information that cannot be released to the public includes: (1) information disclosing the special methods, techniques and tactics of an antiterrorist operation; ... (4) information on members of special units, officers of the operational centre managing an antiterrorist operation and persons assisting in carrying out such operation. In accordance with the legislation and within the limits established by it, damage may be caused to the life, health and property of terrorists, as well as to other legally-protected interests, in the course of conducting an anti-terrorist operation. However, servicemen, experts and other persons engaged in the suppression of terrorism shall be exempted from liability for such damage, in accordance with the legislation of the Russian Federation.” 108. The State Secrets Act of 1993, with subsequent amendments, lists in Section 5 part 4 the types of information which constitute state secrets in the area of intelligence, counter-intelligence and undercover operative activities. They include, inter alia, data on the measures, sources, methods, plans and results of such activities; data on persons who corroborate on a confidential basis with the agencies carrying out such activities; data about the organisation and methods of maintaining security at state security premises and of the systems of secured communications. | 1 |
train | 001-4728 | ENG | AUT | ADMISSIBILITY | 1,999 | KARAKURT v. AUSTRIA | 3 | Inadmissible | Nicolas Bratza | The applicant is a Turkish national, born in 1962 and living in Linz. He is represented before the Court by Mr E. Eypeltauer, a lawyer practising in Linz. A. On 24 May 1994 the applicant and the nine other employees of a Linz association promoting the interests of foreigners elected their works council (Betriebsrat), which, having regard to the number of employees, comprised two persons. The employees elected Mr P. and the applicant. On 21 June 1994 Mr P. instituted proceedings with the Linz Regional Court (Landesgericht) challenging the applicant's election as member of the works council on account of his Turkish nationality. On 15 September 1994 the Regional Court, sitting as the labour and social court (Arbeits- und Sozialgericht), deprived the applicant of his membership of the works council. It found that, as a Turkish national, the applicant was not eligible to stand for election to this council, pursuant to section 53(1)(1) of the Industrial Relations Act (Arbeits-verfassungsgesetz). On 15 March 1995 the Linz Court of Appeal (Oberlandesgericht) dismissed the applicant's appeal. As regards the applicant's argument that section 53(1)(1) of the Industrial Relations Act amounted to a breach of Article 11 of the Convention, the Court of Appeal considered that the restriction of the right to stand for election to a works council of an enterprise did not interfere with the right to form or to join trade unions. On 21 December 1995 the Austrian Supreme Court (Oberster Gerichtshof) dismissed the applicant's appeal on points of law. It also rejected two procedural requests concerning a procedure before the Constitutional Court (Verfassungsgerichtshof), for the purpose of challenging part of section 53(1) of the Industrial Relations Act, and a case before the Court of Justice of the European Communities. As regards Article 11 of the Convention, the Supreme Court observed that freedom of association included the right to form and join associations of workers which, as compared to associations in general, pursued special aims and purposes, namely the promotion of working conditions. Trade unions are representative examples of such associations which are formed for a trade or profession (“überbetrieblich”). The works council, set up as a statutory organ of staff, could not be regarded as an association within the meaning of Article 11 of the Convention. In particular, the works council was not an association formed on a voluntary and private basis, but its organisation and functions were determined by law. In that respect, the Supreme Court, referring to a decision of the European Commission of Human Rights of 10 July 1991, found that it was comparable to chambers of trade. Moreover, the staff as such did not constitute an independent association within the meaning of Article 11 of the Convention, as they were not a group of persons associated on a voluntary basis. As regards the question of discrimination between foreigners, the Supreme Court considered that the accession to the European Communities had required the extension of eligibility to citizens of member States of the European Communities; and the difference in treatment between Austrian nationals and foreigners was generally justified on account of the particular relationship between nationals and their home State. Furthermore, as the stay of foreigners other than nationals of Member States of the European Communities, could be limited in time, the statutory period of their membership in a works council were subject to an administrative decision. The decision was served on 5 February 1996. B. Relevant domestic law The Industrial Relations Act (Arbeitsverfassungsgesetz) concerns collective agreements (Part I) and the works constitution (Betriebsverfassung), i.e. the statutory framework for the rights of employees at work (Part II). Part III relates to the Federal Arbitration Board (Bundeseinigungamt) and arbitration committees (Schlichtungsstellen). The representative bodies of staff (Organe der Arbeitnehmerschaft) have to promote the economic, social, health and cultural interests of the staff in a work place (section 38). The legal provisions on the works constitution and their application aim at balancing competing interests to the benefit of the staff and the work place, and these bodies are called upon to cooperate, inter alia, with the competent collective public-law bodies of staff or voluntary staff associations. Section 40 provides that, in any work place with five or more permanent members of staff eligible to vote, representative bodies should be set up: as a rule, a general works meeting (Betriebshauptversammlung), group meetings of the workers and of the employees (Gruppenversammlungen der Arbeiter und der Angestellten), the works council electoral committee (Wahlvorstände für die Betriebsratswahl), the respective works councils of the workers and the employees, the works committee (Betriebsausschuss) and the auditor (Rechnungsprüfer). Section 50 fixes the number of members of a works council in relation to the number of staff at the date of election: in a work place with five to nine employees, the works council consists of one person, in a work place with ten to nineteen employees, it consists of two persons, in a work place with twenty to fifty employees, it consists of three persons, and in a work place with fifty-one to one hundred employees, it consists of four persons. The number of members then increases by one per further hundred employees, and in work places with more than thousand employees by one per further four hundred employees. Men and women shall be represented in proportion to their numbers amongst the employees. Section 51 lays down the principles of equal, direct and secret elections. All members of staff, irrespective of their nationality, are eligible to vote (section 52). As regards the eligibility to stand for election, section 53(1) requires that the member of staff is - an Austrian national or national of a member State of the European Communities, - 19 years old at the time of the declaration of the election, - employed for at least six months at the work place concerned, and - apart from the requirement of nationality, not ineligible for the national assembly. Sections 89 to 93 concern the rights of the works council, in particular its supervisory powers regarding compliance with work conditions, the right to intervene on behalf of staff members, the right to be generally informed about matters affecting the interests of staff and the right to regular meetings with the owner of the business. | 0 |
train | 001-4886 | ENG | NLD | ADMISSIBILITY | 1,998 | PEREE v. THE NETHERLANDS | 3 | Inadmissible | Elisabeth Palm | The applicant is a Dutch national, born in 1924, and resides in Maastricht. summarised as follows. On 6 October 1992, an article appeared in the Dutch regional newspaper "De Dordtenaar" concerning a protest action against the planned housing of asylum seekers from Yugoslavia in an empty school building in Zwijndrecht. In response to this article the local Dordrecht Anti-Discrimination Council (Anti Discriminatie Raad) sent a letter to this newspaper in which it criticised the apparently underlying motives for the protest action, i.e. intolerance and discrimination. In reaction to this letter, the applicant addressed a letter to the Anti-Discrimination Council which read, inter alia: <Translation> "A privileged top with slaves at the bottom. And, which includes your group, with an absolute control apparatus to take judicial proceedings against anyone who does not remain in line. The name SA is not unfitting for you ..." On 17 December 1992, the Anti-Discrimination Council filed a criminal complaint against the applicant for insult and criminal proceedings were subsequently instituted against the applicant. By judgment of 8 November 1993, the Magistrate (politierechter) of the Regional Court (Arrondissementsrechtbank) of Dordrecht convicted the applicant of having insulted the Anti-Discrimination Council and imposed a fine of NLG. 500. The applicant filed an appeal with the Court of Appeal (Gerechtshof) of The Hague. On 21 November 1993, the applicant noticed his conviction being discussed in a local television programme. He contacted the television station, went there and gave an interview, which was broadcast on the same day. In this interview, the applicant in fact repeated the statements, which had formed the basis of his conviction of 8 November 1993. He stated, inter alia: <Translation> "The Anti-Discrimination Council Dordrecht, for instance, makes door-to-door visits and makes people afraid, at registering for elections threats follow, I have experienced myself in my house that the SA troops, I say it again on purpose, were standing in front of my house, masked, armed, carrying weapons, I was arrested, the police did nothing about these persons and it is a system which belongs to it, not all members of the NSB (former Dutch National Socialist Party), not a single one I think, have killed Jews in the last World War, but they belonged to a system which enabled it and this is how I see the Anti-Discrimination Council Dordrecht, very clearly ... if one wishes to fight Nazis with Nazi-symptoms uh, methods, that has been often enough in the newspaper, they act in the same manner and also use that name..." On 1 December 1993 the Anti-Discrimination Council filed a criminal complaint with the police in relation to this interview and the applicant was subsequently charged with slander. On 24 October 1994, the Magistrate of the Regional Court of Dordrecht convicted the applicant of slander and sentenced him to three weeks' imprisonment, suspended pending a probation period of two years, and payment of a fine of NLG. 1,500, to be replaced by thirty days' imprisonment in case of non-payment. The applicant filed an appeal with the Court of Appeal of The Hague. In its judgment of 29 March 1995, the Court of Appeal noted that the Dordrecht Anti-Discrimination Council’s aim was to fight racism and fascism. After having examined the case, it quashed the judgment of 8 November 1993, convicted the applicant of insult and imposed a fine of NLG. 500, to be replaced by ten days' imprisonment in case of non-payment. This sentence was suspended pending a probation period of two years. In a separate judgment of 29 March 1995, the Court of Appeal quashed the judgment of 24 October 1994, convicted the applicant of slander and imposed a fine of NLG. 1,000, to be replaced by twenty days' imprisonment in case of non-payment. The applicant's subsequent appeals in cassation were both rejected by the Supreme Court (Hoge Raad) on 20 February 1996. As regards the applicant's complaint in both appeals that the Court of Appeal had violated his rights under Article 10 of the Convention, the Supreme Court held that the Court of Appeal, by finding the applicant guilty of, respectively, insult within the meaning of Article 266 of the Criminal Code (Wetboek van Strafrecht) and slander within the meaning of Article 261 of the Criminal Code, had not acted contrary to Article 10 of the Convention as paragraph 2 of this provision allows sanctions foreseen by law and insofar as this is necessary in a democratic society for the protection of the reputation or rights of others. The Supreme Court further held that, as no explicit complaint relating to the right to freedom of expression had been raised before the trial courts in the respective proceedings, the Court of Appeal was not obliged to give any explicit reasons in this respect. | 0 |
train | 001-58102 | ENG | CYP | CHAMBER | 1,997 | CASE OF ANDRONICOU AND CONSTANTINOU v. CYPRUS | 3 | Preliminary objection rejected (abuse of process);Preliminary objection rejected (non-exhaustion of domestic remedies);No violation of Art. 2;No violation of Art. 6-1 | G. Pikis;N. Valticos;R. Pekkanen | 6. The facts of the case as established by the Commission in its report of 23 May 1996 are not disputed. The events giving rise to the application were fully examined at the national level by a commission of inquiry which held hearings over a 46-day period during which it took evidence from 72 witnesses and examined 113 exhibits (see paragraph 96 below). The Commission was able to examine a full transcript of the proceedings before the commission of inquiry and to study various pieces of evidentiary material submitted to it, including a video recording of the incident. 7. The conclusions to be drawn from the facts as established by the Commission are, on the other hand, disputed by the Government since its conclusions differ from those reached by the domestic commission of inquiry. 8. The facts set out below are based mainly on those contained in the report of the Commission. The conclusions of the commission of inquiry are set out at paragraphs 123–39 below. 9. Lefteris Andronicou and Elsie Constantinou were at the time of the events 33 and 22 years old respectively. Lefteris Andronicou had two children from a previous marriage which was dissolved in 1988. He first met Elsie Constantinou in August 1993. At the time she was working for a fashion shop. He was employed by a cement company. On 26 November 1993 Elsie Constantinou moved into Lefteris Andronicou’s ground-floor flat in the Chloraka district of Paphos. It would appear that her parents, the third and fourth applicants, did not approve of the relationship and attempted to persuade her to return home. On one occasion her father enlisted the help of the police. Elsie Constantinou’s mother did in fact succeed in persuading her to move out of the flat and return home. She subsequently spent two weeks in England. She returned from England on 19 December and moved back into Lefteris Andronicou’s flat. The couple announced their engagement in the local press on 22 December 1993. 10. On 24 December 1993 at around 8.30 a.m., three of Lefteris Andronicou’s neighbours, D. Papapetru, G. Georgiu and H. Hrisanthu, heard a woman calling for help from inside Lefteris Andronicou’s flat. Initially, they decided not to interfere and D. Papapetru and G. Georgiu left. However, as the woman continued to shout: “Stop beating me,” H. Hrisanthu, who owned the shop next door, decided to call A. Trifonos, the owner of the block of flats, and the third applicant, Elsie Constantinou’s father. At one stage H. Hrisanthu saw a woman trying to jump from the window and someone pulling her inside. At around 10.30 he called Paphos police station and two police officers were sent to investigate. 11. The police officers rang the door bell, but did not get an answer. One of the officers, who happened to know Lefteris Andronicou, pleaded with him to open the door. He heard a woman calling from behind the closed door: “Lefteris, leave the gun aside; what are you going to do?” 12. The officers withdrew and radioed Paphos police station. At that stage D. Papapetru and G. Georgiu returned to the scene and saw a girl getting out of Lefteris Andronicou’s flat and signalling to them. Then she went back into the flat again. They were not in a position to say whether she returned of her own accord or whether someone pulled her back inside. 13. At around 11.30 I. Hatzipashalis, the deputy head of the Paphos Criminal Investigations Department (hereinafter “CID”) arrived on the scene together with other police officers. He knocked on the door and spoke with Lefteris Andronicou, who told him that he had quarrelled with Elsie Constantinou and that they had hit each other. He then heard Elsie Constantinou shouting to him that Lefteris Andronicou had beaten her and asking to be let out. He also heard Elsie Constantinou asking Lefteris Andronicou why he was loading the gun and pointing it at her. I. Hatzipashalis tried to calm Lefteris Andronicou by telling him that many couples quarrel and then make up without the need for the police to intervene. However, when he approached the window, Lefteris Andronicou threatened to shoot him if he did not move away. I. Hatzipashalis asked him to let him see Elsie Constantinou, specifying that, if the latter told him that she had no complaint, he would leave. There was no reply. 14. D. Papapetru, with the authorisation of I. Hatzipashalis, succeeded in engaging Lefteris Andronicou in a conversation. The latter asked him for cigarettes, telling him that: “Afterwards he would think what he should do and would open the door.” D. Papapetru pushed some cigarettes under the door. At one stage Elsie Constantinou cried to D. Papapetru that Lefteris Andronicou was pointing the gun at her and that he was going to shoot her. At one point Lefteris Andronicou drew the curtain and D. Papapetru saw him holding a shotgun. 15. Efforts to persuade Lefteris Andronicou to release Elsie Constantinou continued but to no avail and at 12.50 p.m. I. Hatzipashalis decided to notify A. Nikolaidis, the deputy director of Paphos police, and G. Georgiagis, the head of Paphos CID. 16. The deputy director of Paphos police, A. Nikolaidis, arrived on the scene at around 1 p.m. He talked to Lefteris Andronicou, who asked in an angry manner for the police to withdraw. A. Nikolaidis promised him help and protection and invited him to state his claims. Lefteris Andronicou repeated that he just wanted the police to go. Elsie Constantinou started shouting for help, claiming that Lefteris Andronicou had hit her the previous evening and that her eye was now swollen and sore. Sobbing, she stated that she feared he would kill her and claimed that he was pointing his gun at her. A. Nikolaidis called D. Konstantinidis, the director of Paphos police. 17. In the meantime the third applicant, Elsie Constantinou’s father, arrived together with her cousin, Andreas Onufriu. They found there Antonis Onufriu, another cousin who had also made an attempt to persuade Lefteris Andronicou to release the young woman. A. Nikolaidis started gathering information concerning the couple’s relationship. It was established that they were living together. As it emerged however in the course of the proceedings before the commission of inquiry, the police were not aware during the operation that they had just announced their engagement. 18. D. Konstantinidis, the director of Paphos police, arrived on the scene at around 2.15 p.m. He told Lefteris Andronicou that he had nothing to fear, as there would be no consequences. Lefteris Andronicou demanded once more the complete withdrawal of the police. 19. At around 3 p.m. I. Hatzipashalis, the deputy head of Paphos CID, ordered another policeman to obtain an arrest and search warrant on the ground that Lefteris Andronicou was holding Elsie Constantinou against her will and threatening her with a shotgun. The warrants were issued by a Paphos district judge. 20. D. Konstantinidis, the director of Paphos police, discussed the situation with Elsie Constantinou’s father in H. Hrisanthu’s shop, which was now being used as an operations room. As A. Nikolaidis, the deputy director of Paphos police, confirmed before the commission of inquiry, Elsie Constantinou’s father suggested that the police should withdraw and leave the family to deal with the problem on their own. 21. D. Konstantinidis also asked for the assistance of G. Poliviu, Lefteris Andronicou’s previous employer, who was present at the scene. G. Poliviu talked to Lefteris Andronicou and found out that his telephone was not functioning. G. Poliviu, having obtained D. Konstantinidis’s approval, left outside the window of the flat a telephone which belonged to H. Hrisanthu. It was later established that the telephone had a loudspeaker facility. 22. D. Konstantinidis called the fourth applicant, Elsie Constantinou’s mother, and persuaded her to come. He also asked Elsie Constantinou’s father to talk to her, but the applicant refused. At a certain stage, Lefteris Andronicou asked G. Poliviu for cigarettes and food, specifying that Elsie Constantinou was hungry and must have something to eat. D. Konstantinidis decided that no food should be given to him. G. Poliviu left some cigarettes outside the window of the flat. 23. D. Konstantinidis had several telephone conversations with Lefteris Andronicou promising him help. He also talked to Elsie Constantinou on the telephone who said that she was being held against her will since 11 p.m. the previous night. D. Konstantinidis concluded that Lefteris Andronicou did not want to negotiate. At around 4.50 p.m. he called A. Potamaris, the chief of police, and explained the situation. He volunteered to conduct a rescue operation should the need arise. A. Potamaris, however, decided to dispatch to Chloraka the platoon of the Police Special Forces (Mihanokiniti Monada Amesis Drasis – hereinafter “MMAD”) which, in his opinion, was specially trained for this type of action. 24. At some stage Elsie Constantinou’s mother arrived, but Lefteris Andronicou refused to talk to her on the telephone. The young woman’s mother suggested that the police should leave and let the family handle the situation. 25. Shortly before 5 p.m. G. Georgiadis, the head of Paphos CID, arrived. A great number of persons had already gathered at the scene and the area around the flat had been cordoned off. At around 5 p.m., the director of Paphos police, D. Konstantinidis, departed leaving his deputy, A. Nikolaidis, in charge. A. Nikolaidis testified before the commission of inquiry that it was the first time in his career that he had been involved in such an operation or such negotiations. 26. At around 5.10 p.m. A. Potamaris, the chief of police, ordered H. Mavros to lead to Chloraka the specially trained platoon of MMAD of which he was in charge. 27. A. Nikolaidis, the deputy director of Paphos police, repeatedly tried to communicate with Lefteris Andronicou, but the telephone was engaged. At a certain point the latter’s sister and niece arrived and talked to him through the door. He told them that he was afraid of the police. Elsie Constantinou confirmed that this was so. He told his sister to take her children home and when she returned he would open the door. 28. At around 6 p.m. Lefteris Andronicou called Dr A. Hatzimitsi, a general practitioner whom he had consulted on occasion during the past three months. He told her that he had beaten up Elsie Constantinou and that the police were outside his flat. He said that he was going to lose Elsie Constantinou. He asked the doctor to call his sister and tell her that he had left money on the fridge. He indicated that, after he had done what he intended to do, his sister might have health problems and need the money. When Dr A. Hatzimitsi tried to reason with him, he said that he did not want to talk and warned her that he would hang up on her if she tried to call him back. Dr A. Hatzimitsi called G. Poliviu, who had introduced Lefteris Andronicou to her, and asked him to inform the police about her conversation with him. 29. At 6.10 p.m. A. Potamaris, the chief of police, called his deputy, K. Papakostas, and put him in charge of the operation. He also ordered N. Konstantinu, the deputy director of MMAD, to go to Paphos. 30. At 6.15 p.m. A. Potamaris, in the course of his daily telephone conversation with the Minister of Justice and Public Order, informed the Minister of the incident. 31. At around 6.30 p.m. Lefteris Andronicou agreed to talk with the deputy director of Paphos police, A. Nikolaidis, on the phone. He told A. Nikolaidis that his relationship with Elsie Constantinou was over, that he had behaved very badly towards her and had lost her forever. He appeared to be concerned about the damage to her eye and A. Nikolaidis offered to take her to the doctor. However, he refused, telling A. Nikolaidis that he should wait until midnight. He specified that, after celebrating Christmas with Elsie Constantinou, A. Nikolaidis could come and get her at five minutes past midnight. When A. Nikolaidis asked him whether he meant that he would release Elsie Constantinou, he did not reply. He claimed that he was tired and hung up. 32. At around 7.30 p.m. H. Mavros, the head of the MMAD platoon, arrived on the scene together with three other officers of the MMAD. He was briefed by A. Nikolaidis, the deputy director of Paphos police, who told him that Lefteris Andronicou was carrying a double-barrelled shotgun. It was later established that the gun could only contain two shots at a time. H. Mavros asked him whether there was any indication that Lefteris Andronicou might be in possession of other weapons and A. Nikolaidis replied that this possibility could not be excluded. H. Mavros also talked with N. Konstantinu, the deputy director of MMAD, who was already there. H. Mavros noticed the presence of a great number of bystanders, which he considered “unacceptable”. A. Nikolaidis ordered a number of persons to be moved along. 33. H. Mavros asked A. Trifonos, the owner of the block of flats, who had also previously tried to persuade Lefteris Andronicou to release Elsie Constantinou, to show him the layout of the flats. H. Mavros visited the flat above Lefteris Andronicou’s as well as the identical flat next door. A. Trifonos made a sketch of the flat for him. 34. The flat consisted of two rooms and a bathroom. The living-room was in the front. It measured 5 by 3.6 metres and had a door and a window. There was a skylight above the door. The bedroom and bathroom were at the back. They had one window each. 35. At some point after 7.30 p.m. G. Poliviu told A. Nikolaidis, the deputy director of Paphos police, that Lefteris Andronicou had told Dr A. Hatzimitsi on the phone that around midnight he would set Elsie Constantinou free and commit suicide. A. Nikolaidis conveyed this information to his director, D. Konstantinidis, and to the deputy chief of police, K. Papakostas. The latter ordered A. Nikolaidis to act as the principal negotiator, since he had gained Lefteris Andronicou’s confidence. He also told him to engage Dr A. Hatzimitsi in the negotiations, as well as a psychologist or a psychiatrist and other persons who could influence him. Finally, A. Nikolaidis and K. Papakostas discussed the possibility of administering soporifics to Lefteris Andronicou’s food. 36. A. Nikolaidis called Lefteris Andronicou and told him that Elsie Constantinou’s mother and grandmother wished to talk to him, but he refused. He then called the district doctor in order to find out the whereabouts of the psychiatrists of Paphos Hospital. He was informed that both psychiatrists lived in Limassol. A. Nikolaidis also called the pharmacist of Paphos Hospital and ordered drugs. P. Hatzimitsis, the pharmacist, testified that he had provided one packet of 1mg and one packet of 2mg Lorezabam pills. The hospital did not store 3mg pills. 37. Two police officers were dispatched to Dr A. Hatzimitsi’s surgery. Dr A. Hatzimitsi discussed Lefteris Andronicou’s telephone call with them. In reply to their questions, she expressed the view that Lefteris Andronicou did not have any psychological problems. She also expressed doubts as to whether she could help since Lefteris Andronicou had already told her not to call him again. 38. At around 8 p.m. H. Mavros went to Paphos police station where the rest of the MMAD platoon had arrived. According to the testimony of the police witnesses before the commission of inquiry the platoon included two officers whom the police witnesses described as “trained negotiators”. H. Mavros explained the plan to the officers of the platoon, the aim of which was to rescue Elsie Constantinou and capture Lefteris Andronicou. The key elements of the plan were surprise, speed and accurate execution. As soon as the platoon were in position outside the flat, H. Mavros would inform the commanding officer via a link person. The commanding officer would in turn ask the negotiator to call Lefteris Andronicou. While he was busy talking on the phone, which was in the front room to the left of the door, tear gas would be thrown into the flat through the three glass windows by four officers. Two other officers would force the door with a battering ram. Four men would enter the front room. The first two would seize Lefteris Andronicou who would be expected to be less than two metres away from the door. A third officer would seize the young woman. A fourth officer would enter the flat to provide any form of assistance which might prove necessary. All communications would be made by walkie-talkie on a secure frequency. The members of the platoon would carry their pistols and machine guns. They were informed by their head, H. Mavros, that Lefteris Andronicou had a double-barrelled shotgun. They were also told that the possibility could not be excluded that he could be in possession of other arms. They were instructed to use proportionate force and fire only if Elsie Constantinou’s life or their own lives were in danger. If the room was dark, they were to use the lights fitted to their machine guns. 39. At 8.40 p.m. the chief of police, A. Potamaris, had a meeting with his deputy, K. Papakostas. It was decided that the deputy director of Paphos police, A. Nikolaidis, should continue to conduct the negotiations, that two additional negotiators should be sent and that the police, after obtaining appropriate medical advice, should administer soporifics to Lefteris Andronicou’s food, if he asked for any. 40. While the meeting between A. Potamaris and K. Papakostas was still in progress and at around 8.50 p.m., the deputy director of Paphos police, A. Nikolaidis, talked with Lefteris Andronicou on the phone again. Lefteris Andronicou was very negative because of the media coverage that the incident had received. He did not allow A. Nikolaidis to talk to Elsie Constantinou. She shouted that Lefteris Andronicou would kill her. N. Hatziharalambus, a police officer who knew Lefteris Andronicou, also tried to persuade him to release Elsie Constantinou. 41. The meeting between A. Potamaris and K. Papakostas ended at 9 p.m. K. Papakostas ordered two additional negotiators from the police force to be dispatched to Chloraka. He also called the deputy director of Paphos police, A. Nikolaidis, who informed him that he had not been able to contact the psychiatrists of Paphos Hospital and that Lefteris Andronicou would not talk to Elsie Constantinou’s parents. K. Papakostas ordered A. Nikolaidis to look for psychologists in the private sector. 42. At around 9.30 p.m. D. Konstantinidis, the director of Paphos police, returned to the scene together with H. Mavros, the head of the MMAD platoon. He was briefed by the deputy director of Paphos police, A. Nikolaidis. He called the deputy chief of police K. Papakostas. He also called Dr A. Hatzimitsi who agreed to go to the scene. 43. D. Konstantinidis then saw H. Athinodoru, Lefteris Andronicou’s last employer, talking with Lefteris Andronicou on his mobile phone. H. Athinodoru had already made various unsuccessful efforts to persuade him to release Elsie Constantinou. Lefteris Andronicou had threatened that he would shoot Elsie Constantinou if H. Athinodoru tried to enter the flat. 44. The director of Paphos police, D. Konstantinidis, interrupted the conversation between H. Athinodoru and Lefteris Andronicou and instructed H. Athinodoru to tell him that they wanted to help him. He specified that he had been authorised by his superiors to promise Lefteris Andronicou that there would be no consequences if he let Elsie Constantinou go. He could leave by car, together with the young woman if he wished. H. Athinodoru conveyed the message to Lefteris Andronicou. 45. In the course of the second part of his conversation with Lefteris Andronicou, H. Athinodoru threatened him with the possibility of being left to starve and being beaten up. This is heard in the video recording. Moreover, D. Konstantinidis accepted before the commission of inquiry that he heard such a statement being made by H. Athinodoru. He also testified that H. Athinodoru talked to Elsie Constantinou on the phone who said that Lefteris Andronicou had been pointing his gun at her. 46. D. Konstantinidis subsequently called the chief of police, A. Potamaris, and told him about the telephone conversation between Lefteris Andronicou and Dr A. Hatzimitsi. In the meantime, H. Mavros returned to Paphos police station and led the MMAD platoon to a warehouse situated 200 to 300 metres away from the flat where they could not be seen by the bystanders. 47. Dr A. Hatzimitsi arrived at the scene escorted by G. Georgiadis, the head of Paphos CID. She talked with Lefteris Andronicou from the operations room. She offered to help him end the incident without any consequences. He refused to let her enter the flat, saying that he was afraid of the police. Having obtained the authorisation of the director of Paphos police, D. Konstantinidis, Dr A. Hatzimitsi made the following proposal to Lefteris Andronicou. A car would be brought to his door, the police would withdraw, he would leave his gun and get in the car alone or with Elsie Constantinou. The doctor, or any other person whom he wished to accompany him, could get in the car as well. They could all leave together and go to another location to discuss the matter. Lefteris Andronicou refused. Elsie Constantinou intervened and asked the doctor whether Lefteris Andronicou had psychological problems. The doctor replied that she was not aware of any such problems. Lefteris Andronicou repeated that he was afraid of the police and of the consequences. He insisted that he would let Elsie Constantinou out of the flat at midnight or five past and then he would commit suicide. In the course of the telephone conversation, the couple quarrelled and Lefteris Andronicou threatened her: “Sit down and do not move.” He also told the doctor not to call again because it made Elsie Constantinou nervous. At one stage Dr A. Hatzimitsi passed Lefteris Andronicou to D. Konstantinidis who promised once again that there would be no consequences. 48. At 9.50 p.m. D. Konstantinidis, the director of Paphos police, called the deputy chief of police, K. Papakostas, and told him that Dr A. Hatzimitsi was of the view that Lefteris Andronicou had decided to kill Elsie Constantinou and commit suicide. In the first statement she gave to the police, Dr A. Hatzimitsi confirmed that this was the view which she had formed and conveyed to D. Konstantinidis. In a letter she addressed to applicants’ counsel on 28 December 1995, Dr A. Hatzimitsi claimed that, in the course of her telephone conversation with Lefteris Andronicou she had formed the view that he was intransigent and “capable of doing harm to himself and Elsie”. She further specified that this was the personal opinion of somebody who was not a psychiatrist. She also protested that the police had tried to attribute to her more responsibility for the operation than she could have had. In her testimony before the commission of inquiry, when under examination by counsel for the police, Dr A. Hatzimitsi repeated her initial statement, specifying that that was her personal opinion. 49. H. Athinodoru then told D. Konstantinidis that Lefteris Andronicou had asked on the phone for food. D. Konstantinidis told his deputy, A. Nikolaidis, to call Lefteris Andronicou. A. Nikolaidis called him and two kebab pies were ordered. 50. A person whom A. Nikolaidis could not identify had told A. Nikolaidis that he had received a telephone call from Lefteris Andronicou asking for a written assurance that he would not go to jail. A. Nikolaidis called Lefteris Andronicou again, who told him that he was afraid that he would go to jail. A. Nikolaidis told him that the situation was not so serious and offered to enter the flat and hand him a written assurance that he would not go to jail. However, Lefteris Andronicou told A. Nikolaidis not to be in a hurry; he could enter the flat at five minutes past midnight. A. Nikolaidis told Lefteris Andronicou that he would break the door down and enter the flat unarmed. Lefteris Andronicou warned him that, if he tried, he would kill Elsie Constantinou and commit suicide. At a certain point, the latter shouted that Lefteris Andronicou was not serious about letting her go. 51. Lefteris Andronicou’s threats, combined with some information that he had wanted in the past to shoot a person who had insulted Elsie Constantinou with his shotgun, led A. Nikolaidis to the conclusion that he was planning to kill her and commit suicide at around midnight. 52. At 10.15 p.m. the director of Paphos police, D. Konstantinidis, called the deputy chief of police, K. Papakostas, and requested his authorisation to administer soporifics. K. Papakostas called a doctor at Nicosia Hospital and the chief of police, A. Potamaris, who approved the plan. D. Konstantinidis was duly informed. 53. S. Zinonos, a police officer, testified before the commission of inquiry that he had been ordered to bring some food for Lefteris Andronicou at 10.20 p.m. Three to five minutes after he had left he was called on the radio and the order was changed. I. Pavlu, another officer, claimed in his original statement to the police that S. Zinonos had been ordered to bring food at around 10.40 p.m. and that the order had been changed fifteen minutes later. Before the commission of inquiry he specified that the times he had given were very approximate since he had not looked at his watch when S. Zinonos left. He had merely estimated that this must have been the time. He also specified that it was possible that the order had been changed eight to eleven minutes after S. Zinonos’s departure. S. Zinonos testified that it took ten to fifteen minutes for the kebabs to be prepared. 54. At 10.30 p.m. the head of the MMAD platoon, H. Mavros, called the deputy chief of police, K. Papakostas, and explained the rescue plan to him. K. Papakostas asked whether it had been envisaged to use explosives to open the door, and stun grenades. These options were, however, discarded for fear that the couple might be hurt. It was also noted that it normally took four seconds for the stun grenades to explode and that that might give Lefteris Andronicou time to react. 55. At 10.40 p.m. there was another meeting between the chief of police and his deputy in the chief’s house. The deputy chief, K. Papakostas, told the chief, A. Potamaris, that Lefteris Andronicou was planning to kill the young woman and commit suicide. At 10.45 p.m. A. Potamaris called the Minister who was of the view that “the police should decide whether MMAD should conduct a rescue operation on the basis of their appreciation of the situation at the time after having reviewed all relevant information and eliminated all other possibilities”. K. Papakostas explained the rescue plan to A. Potamaris who instructed the former to delay the involvement of the MMAD platoon as much as possible to enable the efforts to persuade Lefteris Andronicou to release Elsie Constantinou to continue. The meeting ended at 11 p.m. 56. When the food which Lefteris Andronicou had ordered arrived, Dr A. Hatzimitsi put in the pies the Lorezabam pills that P. Hatzimitsis, the hospital pharmacist, had provided. Before the commission of inquiry she testified that she had placed six 3mg Lorezabam pills in each pie. She also testified that earlier on it had been suggested that another drug called Dormicum could be used but that the police did not have sufficient time to find such pills. 57. The food was then delivered to Lefteris Andronicou by the deputy director of Paphos police, A. Nikolaidis, who left it by the window. All the police officers who testified on this issue agreed that the food had been delivered around 11 p.m. Dr A. Hatzimitsi’s testimony supported their version of events. Antonis Onufriu, Elsie Constantinou’s cousin, testified that the food had arrived at around 11.30 p.m. G. Poliviu, an ex-employer and friend of Lefteris Andronicou, claimed in his original statement to the police that the food had arrived at 11.15 p.m. Before the commission of inquiry he testified that the food had arrived between 11.30 and 11.40 p.m. H. Athinodoru, Lefteris Andronicou’s last employer, testified that the drugs had been put in the food at around 11.10 p.m., immediately before he left the scene. 58. The head of the MMAD platoon, H. Mavros, admitted before the commission of inquiry that he had not been aware that soporifics had been administered to the food. 59. At around 11 p.m. two additional negotiators arrived. Elsie Constantinou was repeatedly heard screaming that Lefteris Andronicou was going to kill her. 60. After 11 p.m., the director of Paphos police, D. Konstantinidis, held a meeting with his deputy, A. Nikolaidis, the head of Paphos CID, G. Georgiadis, the deputy director of MMAD, N. Konstantinu, and the head of the MMAD platoon, H. Mavros. They came to the conclusion that Lefteris Andronicou was planning to kill Elsie Constantinou and commit suicide at midnight or five minutes past. As a result, there could be no further negotiations and the MMAD platoon should move into action. H. Mavros affirmed that he was prepared to lead the operation. 61. D. Konstantinidis, the director of Paphos police, accepted before the commission of inquiry that, although some notes were taken during the incident, he had not been involved in this process. Neither did he consult these notes either before or during the final meeting. A. Nikolaidis, the deputy director of Paphos police, made a similar statement. 62. Immediately after the meeting, the director of Paphos police, D. Konstantinidis, called the deputy chief of police, K. Papakostas, and told him that they were awaiting instructions from the headquarters as to whether they should continue the negotiations or break into the flat. If the instructions were to continue the negotiations and Elsie Constantinou was nevertheless killed, responsibility would lie with the headquarters. K. Papakostas testified that he received D. Konstantinidis’s telephone call at 11.10 p.m. 63. H. Mavros left to inform his platoon about the new development, namely the information that Lefteris Andronicou was planning to kill Elsie Constantinou. The platoon was then moved closer to the flat, behind the block of flats. 64. The deputy chief of police, K. Papakostas, met with his chief, A. Potamaris, in the latter’s house. A. Potamaris agreed that the MMAD should be used. K. Papakostas called the director of Paphos police, D. Konstantinidis, and informed him that the rescue plan had been approved. K. Papakostas talked to the head of the MMAD platoon, H. Mavros, who had in the meantime returned and the two men agreed that the plan remained unchanged. Then K. Papakostas talked again to D. Konstantinidis who had in the meantime given instructions that an ambulance be dispatched to the scene. D. Konstantinidis had specified that the lights of the ambulance and its siren should be switched off so as not to alert Lefteris Andronicou. According to the evidence presented to the commission of inquiry, the order for the ambulance reached Paphos Hospital at 11.45 p.m. 65. H. Mavros asked for all bystanders to be pushed back and D. Konstantinidis gave orders to that effect. 66. After the final meeting of the police officers, E. Parmatzia, Lefteris Andronicou’s cousin, arrived with her husband and her sister. E. Parmatzia claimed before the commission of inquiry that she had received two telephone calls from Lefteris Andronicou in the course of the day and that he had told her that he would open his door only if the police left. The police director of Paphos, D. Konstantinidis, called Lefteris Andronicou on the phone. Lefteris Andronicou talked to E. Parmatzia but declined her offer to meet her. He also questioned her identity and then, according to E. Parmatzia, D. Konstantinidis interrupted the conversation. 67. E. Parmatzia further testified that, when she talked to Lefteris Andronicou on G. Poliviu’s mobile phone five to six minutes later, he asked for the withdrawal of the police. E. Parmatzia’s husband testified that he had also talked to him on that occasion. 68. According to a detailed telephone bill produced by G. Poliviu before the commission of inquiry, three telephone calls were made from his mobile phone to Lefteris Andronicou’s phone that night, one at 11.18 p.m., one at 11.39 and one at 11.49. According to G. Poliviu, when he last talked with Lefteris Andronicou, the latter indicated that he wanted to be left alone to prepare some coffee. 69. Shortly before midnight the members of the MMAD platoon silently took up their positions around the flat. They were filmed by the journalist who made the video recording. 70. H. Mavros testified before the commission of inquiry that he stood 60 metres away from the flat. Six officers were placed in front of the flat (in the proceedings before the commission of inquiry these were referred to as Officers nos. 1, 2, 3, 4, 5 and 6) and two at the back (for the purposes of the inquiry, Officers nos. 7 and 8). Officers nos. 5 and 6, who would fire tear gas into the living-room, were by the front window. Officers nos. 1 and 3 were placed on the right of the door and Officers nos. 2 and 4 on the left. The two men with the battering ram were placed opposite the door. Five other MMAD officers took up positions around the flat for security purposes. 71. The director of Paphos police, D. Konstantinidis, testified that, once the officers had taken up their positions, he called the deputy chief of police, K. Papakostas, on the phone once more at 11.55 p.m. 72. H. Mavros testified that he called the link person on his radio. According to H. Mavros, the link person called the commanding officer, D. Konstantinidis, who ordered the deputy director of Paphos police, A. Nikolaidis, to call Lefteris Andronicou. When H. Mavros was told by the link person that A. Nikolaidis was talking with Lefteris Andronicou, he gave the signal for the armed intervention. 73. A. Nikolaidis testified that he called Lefteris Andronicou when he was told to do so by D. Konstantinidis at 11.59 p.m. or midnight. Lefteris Andronicou said: “Hello.” Then A. Nikolaidis tried to say something but he heard shots being fired. He shouted Lefteris Andronicou’s name two or three times but received no answer. 74. Officers nos. 1, 3 and 5 testified that they heard the telephone ring three times. They considered that it was the telephone call intended to distract him. They did not hear him reply. Then they heard the telephone ring again followed by the signal: “Inside, inside, inside.” According to Officer no. 1, there was a one-minute interval between the two telephone calls. 75. When the signal was given, Officer no. 5 fired two tear gas bullets through the front window and then Officer no. 6 sprayed the living-room with tear gas. Officer no. 8 fired two tear gas bullets into the bathroom. Officer no. 7 inadvertently, as he subsequently testified, fired two real, instead of tear gas, bullets into the bedroom. 76. The door was broken down and Officer no. 1 entered the flat. In his testimony, he claimed that he saw Lefteris Andronicou standing in front of him, three to four metres away, with his gun pointed at him. Elsie Constantinou was in front of Lefteris Andronicou and both appeared to make a slight movement. Lefteris Andronicou’s gun was over Elsie Constantinou. Officer no. 1 moved and Lefteris Andronicou shot him in the right shoulder. He fell back, pushing Officer no. 3 as he went. Officer no. 3 fell down as well. 77. It was subsequently established that immediately after the first shot Lefteris Andronicou fired a second one which hit Elsie Constantinou. In their testimony, Officers nos. 1, 2, 3 and 5 claimed that they only heard one shot. 78. Officer no. 2 testified that he saw Officers nos. 1 and 3 falling backwards. He also heard Officer no. 1 crying out: “He shot me.” He believed that Officer no. 1 had been seriously injured and that Officer no. 3 had been killed. He entered the flat three seconds later, having decided to use his machine gun and not his pistol because he needed light. He switched on his gun-light and saw Lefteris Andronicou and Elsie Constantinou in the diagonally opposite corner. Lefteris Andronicou’s knees were bent as if he were preparing to sit down. Elsie Constantinou was in front of Lefteris Andronicou, facing him. Officer no. 2 could only see the left side of Lefteris Andronicou’s body. He did not notice whether Lefteris Andronicou had a gun but believed that he did. He considered that he did not have time to ascertain whether his belief corresponded to reality. He distinguished Lefteris Andronicou and fired two to three times. The couple moved and Officer no. 2 could no longer see Lefteris Andronicou. He moved to the right and could then see Lefteris Andronicou’s left side. Lefteris Andronicou was sitting on the floor and Elsie Constantinou was covering the right side of his body. Officer no. 2 fired again at Lefteris Andronicou several times. He stopped shooting when Lefteris Andronicou was lying on the floor. He wanted to make sure that Lefteris Andronicou was no danger to him or to the young woman. Lefteris Andronicou’s moves appeared to him to be menacing. Officer no. 2 further testified that all his shots were aimed at the left side of Lefteris Andronicou’s body, because this was the only side he could see. He affirmed that he had been trained to shoot to kill when shot at. He did not exclude that he might have fired one or two bullets when Lefteris Andronicou was already lying on the floor. It was later ascertained that Officer no. 2 had fired thirteen bullets. 79. Officer no. 4 testified that he entered the flat after Officer no. 2 had fired the first bullets and had moved on. He saw Lefteris Andronicou in the diagonally opposite corner sitting on the floor, his legs stretched out in front of him. Elsie Constantinou was lying on Lefteris Andronicou’s right shoulder. He did not notice whether he was holding a gun. When the firing was over, he saw Lefteris Andronicou lying on the floor and Elsie Constantinou covering his right side. He refused to answer any other questions at the inquiry invoking his right not to incriminate himself. It was later ascertained that he had fired sixteen bullets. 80. In the video recording, once the officers enter the flat, a small number of distinct shots – approximately six – are heard. A burst of fire follows. It was accepted by all parties that these were all single shots as opposed to automatic fire. 81. Officer no. 1 testified that he re-entered the flat after Officers nos. 2 and 4. He pointed his light at Lefteris Andronicou, who was lit up by the gun-lights of Officers nos. 2 and 4 who were still shooting at him. As Officer no. 1 entered the room, Officer no. 2 was on his right and Officer no. 4 on his left. He saw Lefteris Andronicou sitting on the ground with his back against the wall. Elsie Constantinou was covering part of Lefteris Andronicou’s right side, her face down. He did not count how many shots he heard. Neither did he notice where Lefteris Andronicou’s gun was. He testified that he had been trained to shoot to kill when shot at. He also testified that he would not have stopped firing, even if it had been clear to him that Lefteris Andronicou, when he was sitting with his back against the wall, had no gun. He had been told that it could not be excluded that Lefteris Andronicou might have had another weapon, for example a knife, which he could have used to kill the young woman. 82. Officer no. 3 testified that he entered the flat after Officer no. 1, having heard two or three shots when moving towards the door. As he entered he saw the couple in the diagonally opposite corner. Lefteris Andronicou was sitting on the floor, his legs stretched out in front of him. Elsie Constantinou was covering his right side. He saw Officers nos. 2 and 4 shooting. He did not count the shots. He wanted to seize Elsie Constantinou without getting in the line of fire. He looked at Officer no. 4 and before looking at the bodies again the firing stopped. Then he saw Lefteris Andronicou lying down, his knees bent against the wall, his head on the stereo. Elsie Constantinou was lying on him, the right part of her body on Lefteris Andronicou’s right side, covering half his chest. Their bodies were not touching from the waist down. He did not see a gun. He seized Elsie Constantinou and headed for the door shouting: “An ambulance, an ambulance.” At the doorstep, he stumbled and let Elsie Constantinou sit on the floor. He then gave her to two other MMAD officers. He testified that, according to his training, when it was necessary to shoot, the practice was always to shoot to kill. 83. In the video recording, as Elsie Constantinou is being taken out of the flat, several persons are heard shouting for an ambulance. According to all the witnesses, however, no ambulance was present and she had to be transported to Paphos Hospital in a police car. Dr A. Hatzimitsi escorted her. The ambulance arrived at the scene shortly afterwards. 84. While Elsie Constantinou is being taken to the police car two more shots are heard in the video recording. Officer no. 1 testified that he and Officer no. 2 realised that the bedroom door of the flat was locked. He called Officer no. 5 on the radio who carried a gun which could be used for breaking doors open. Officer no. 5 testified that he entered the flat when Elsie Constantinou was being carried out. He shot once, kicked the door and shot again. The door did not open. When they realised that nobody was inside, they left. Officer no. 1 saw the head of the MMAD platoon, H. Mavros, and told him that Lefteris Andronicou was dead. 85. G. Georgiadis, the head of Paphos CID, testified that he was informed by a person whom he could not identify that Lefteris Andronicou was dead. He went to the door of the flat and shone his torch in. He saw Lefteris Andronicou lying in a pool of blood but did not move in because of the tear gas. He was satisfied that Lefteris Andronicou was dead and informed his superiors. In the course of the proceedings before the commission of inquiry, it emerged that the next person to approach Lefteris Andronicou’s body was the State pathologist, Dr M. Matsakis, who visited the scene at 5 o’clock on the morning of 25 December 1993 and confirmed his death. Dr M. Matsakis considered that Lefteris Andronicou’s death had occurred five hours earlier. 86. When Elsie Constantinou was admitted to Paphos Hospital, she was in deep shock. She was operated on for four and a half hours and then taken to the intensive care unit, where she died of her wounds at around ten past five on the morning of 25 December 1993. 87. Officer no. 1 was also taken to Paphos Hospital. First aid was administered to him and X-rays were taken. Although advised to stay in hospital, he left of his own will shortly afterwards. 88. At around 8.30 on the morning of 25 December 1993, the police started photographing the scene of the incident and a video recording was made. Lefteris Andronicou’s body was half naked. He was only wearing a pair of trousers at the time of his death. A shotgun cartridge was found in one of his pockets. The telephone was on a table to the left of the door. The receiver was not off the hook. On the same table there was a half-full cup of coffee, one kebab pie which was intact and the remains of a second kebab pie. The bedroom door was still locked, with two bullet holes near the lock. Lefteris Andronicou’s gun was lying across the arms of an armchair near his body. The gun was not breached for reloading and there was no blood on the armchair. None of the police officers involved suggested that the gun had been moved after the incident. 89. A senior police officer, Mr Onisiforu, started an inquiry and written statements were taken from a number of witnesses. Later on in the day the police issued a first press release entitled: “Operation for the rescue of an abducted young woman”. 90. At around 11 a.m. on 26 December 1993 the Minister of Justice and Public Order participated in a meeting at the police headquarters. After the meeting he told the journalists that Elsie Constantinou had been abducted. 91. On the same day the families of Lefteris Andronicou and Elsie Constantinou requested that a criminal investigation be opened in accordance with Article 4 of the Criminal Procedure Law. Moreover, an application for an inquest into the couple’s deaths was filed with the coroner of the Paphos District Court. 92. On 27 December 1993 the Council of Ministers mandated the President of the Supreme Court, Mr A.N. Loizou, judge of the European Court of Human Rights, to carry out an inquiry in accordance with the Commissions of Inquiry Act. The terms of the mandate were “to investigate in full the circumstances under which the deaths of Lefteris Andronicou and Elsie Constantinou occurred in Chloraka, Paphos, on the night of 24 to 25 December 1993, to determine who, if any, was responsible and to make any recommendations or observations which (the President of the Supreme Court) would deem necessary”. 93. The Attorney-General ordered Mr Onisiforu to continue his inquiry, but not to interfere with any of the real evidence, on the ground that the inquiry was not a criminal one within the meaning of Article 4 of the Criminal Procedure Law but was of an internal, purely administrative, character. Moreover, the coroner decided to refrain from fixing a hearing date. 94. On 29 December 1993 the Council of Ministers decided to grant the applicants ex gratia legal aid for the purposes of the inquiry which would cover their legal representation and enable them to obtain expert evidence. 95. The hearings before the one-member commission of inquiry opened on 3 January 1994. The applicants promptly objected to the appointment of the commission of inquiry, considering that the matter should have been dealt with by way of a criminal investigation. The commission considered, however, that it was not competent to examine the legality of the decision of the Council of Ministers setting it up. 96. The commission of inquiry held forty-six hearings, which were attended by the Attorney-General on behalf of the Republic and counsel on behalf of the families of the deceased, the police and the MMAD. Directions were given concerning the collection and preservation of all real evidence and the carrying out of all appropriate forensic tests. One hundred and thirteen exhibits were examined and seventy-two witnesses were heard. The witnesses testified under oath and were examined and cross-examined by all interested parties. Although the proceedings were public, the officers of the MMAD who took part in the armed intervention testified in camera. Their identities were disclosed only to the President of the Supreme Court who conducted the inquiry. The minutes of the inquiry, totalling 2,389 pages, were made public in their entirety. 97. The following expert evidence was tendered to the commission of inquiry. 98. R. Bagg, an ex-colonel of the Israeli army and a professional anti-terrorist and negotiations trainer, criticised the following aspects of the rescue operation. The witness considered that in most cases which did not involve terrorists or hardened criminals, negotiations could secure the release of the persons held and render the use of force unnecessary. In the case under examination, however, some of the main rules concerning negotiations had not been followed. The witness considered that the result of the negotiations could have been much more satisfactory if they had been based on a “give and take” approach. In general it was better for the negotiations to be conducted by persons who were not or did not appear to be police officers. The police could have ensured that no unauthorised calls reached Lefteris Andronicou by disconnecting his telephone and providing him with another line. Lefteris Andronicou should not have been able to see the crowd outside. 99. The MMAD platoon should have used multiple entries for their armed intervention. An observer should have been placed by the skylight who could have informed the police of Lefteris Andronicou’s movements. Special care should have been taken, however, because the head of the person at the skylight could have been seen by Lefteris Andronicou. The armed intervention should have taken place earlier on and stun grenades should have been used instead of tear gas. A fire engine could have poured water into the flat in order to neutralise Lefteris Andronicou. However, it would have been necessary to ascertain Lefteris Andronicou’s exact position. The witness did not exclude the possibility that the officers might have mistaken Lefteris Andronicou’s two shots for one. In this case, however, they should have lured Lefteris Andronicou into using his second shot. Well-trained officers like those of the MMAD should have realised that Lefteris Andronicou was not holding a gun and, in any event, should have fired the least possible number of bullets. No bullets should have been fired after Lefteris Andronicou had fallen to the ground. 100. W. Spalding, an ex-police officer from the United States and a professional crisis management and hostage negotiations trainer who had trained some of the officers of the MMAD, was not critical of the rescue operation. Although persons holding hostages often extended their deadlines, symbolic deadlines were to be taken more seriously. The failure to use the skylight was not “a big issue”. It was not a mistake to use tear gas instead of stun grenades. In W. Spalding’s view, it could not have been the intention of H. Mavros to wait for the tear gas to produce its effects since that usually took some time. The tear gas was thrown to divert Lefteris Andronicou’s attention. In the United States there were two schools of thought regarding multiple entry. Although he tended to favour it, others avoided it for fear that the hostage might be caught in the crossfire. In any event, there was nothing to reproach in the plan of the head of the MMAD platoon, H. Mavros, who had considered and excluded all other possible options. 101. W. Spalding also testified that he had trained the MMAD officers to such a level that they had to fire real bullets at balloons attached to his body. He had trained the officers to use lethal force as the last option. When it was necessary, however, they had been trained to shoot at the thorax. They had been trained to shoot until the target ceased to be a threat. In the case under examination, the use of lethal force became justified when Lefteris Andronicou opened fire. The officers should not have been concerned about the number of bullets fired. When cross-examined by applicants’ counsel, the witness accepted that he had taken part in a number of operations involving ordinary civilians who held others under the threat of a gun where a negotiated solution had been found. 102. K. Konari, a State chemist who examined the kebab pie which had not been consumed, testified that the quantity of Lorezabam that she had found in the pie indicated that five 2mg pills had been used. Elsie Constantinou had consumed a very large portion of her pie. Lorezabam was a tranquilliser and anti-anxiety drug which also had soporific effects. It started producing its effects within approximately thirty-five minutes of absorption. Its maximum effects occurred after two hours. 103. P. Hatzimitsis, the pharmacist who provided the soporifics, testified that Lorezabam started producing its effects within half an hour. Its maximum effects occurred between one and six hours after absorption. 104. Dr A. Hatzimitsi, the general practitioner who placed the soporifics in the food, testified that, if Lefteris Andronicou and Elsie Constantinou had eaten the pies, the drug would have produced its effects in half an hour and they would have fallen asleep. If Dormicum had been administered, they would have fallen asleep in ten minutes. 105. N. Adan, a forensic expert from Israel, who had prepared a noise time chart on the basis of the video recording, testified that the second shot from Lefteris Andronicou’s gun was fired 0.8 seconds after the first. In the witness’s view, Lefteris Andronicou’s second shot, like the first, was directed towards the door. The witness had reached this conclusion on the basis of the small number of pellets found in the flat. The noise time chart indicated that a number of distinct shots were fired after the MMAD officers entered the flat in the following sequence: one single shot, one triple shot and one double shot. These shots started 5.8 seconds and ended 8.5 seconds after the first tear gas shot. N. Adan considered that Elsie Constantinou must have been wounded at that stage because her screams, which could be heard on the video recording, were significantly reduced after the six shots. However, the witness was not sure whether the screaming had stopped entirely. The noise time chart further indicated that a burst of firing followed the single shots. It began 11 seconds and ended 13 seconds after the first tear gas shot. 106. Dr A.C. Hunt, a university Reader in forensic pathology in the United Kingdom, an ex-Home Office pathologist and an examiner in forensic pathology for the Royal College of Pathologists, testified that Elsie Constantinou must have received her wounds at the early stage of the operation because she was not heard shouting after the first shots heard in the video recording. However, he did not exclude that she might have stopped shouting for another reason or that the noise of the shooting might have covered her screams. 107. Dr M. Matsakis, the State pathologist, conducted a post-mortem examination on Lefteris Andronicou’s body on 27 December 1993. He found seven wounds to Lefteris Andronicou’s head and neck, twenty-eight wounds to the thorax, abdomen and pelvis, nine wounds to the right arm, sixteen wounds to the left arm and four other wounds, all caused by bullets fired by the machine guns of the officers of the MMAD. At least twenty-five bullets had hit Lefteris Andronicou. The position of the wounds was such that, in Dr M. Matsakis’s opinion, for at least part of the firing, the arms of Lefteris Andronicou had been interposed between the guns and his thorax. Before the commission of inquiry Dr M. Matsakis testified that these could have been among the first wounds inflicted. 108. In his report Dr M. Matsakis also specified that it was possible that the wounds inflicted to the left and right side of Lefteris Andronicou’s body had been caused by bullets fired from different directions. Many of the bullets had been fired when Lefteris Andronicou was not in an upright position. At least some of the bullets which had entered the right front side of the body (mainly the abdomen) and had exited from the right lumbar region, had been fired while Lefteris Andronicou’s body had been lying on the floor. Before the commission of inquiry, Dr M. Matsakis specified that the last bullets had hit Lefteris Andronicou’s body while the right side of his back was in contact with the floor. 109. Dr A.C. Hunt testified that, if Elsie Constantinou had been covering the right side of Lefteris Andronicou during the shooting, as Officer no. 2 had testified, Lefteris Andronicou would not have received the wounds to the right side of his thorax, his right shoulder and his abdomen. He further testified that the position of Lefteris Andronicou’s wounds was such that Elsie Constantinou could not have been covering his right side, as Officer no. 4 had testified. Moreover, the position of the wounds inflicted when Lefteris Andronicou was already lying on the floor could not be reconciled with the testimony of the officers of the MMAD that Elsie Constantinou had been found covering his abdomen. 110. In the course of the examination of Dr A.C. Hunt it was accepted by both sides that Lefteris Andronicou was already dead when the last shots were fired. 111. Dr M. Matsakis, the State pathologist, also performed a post-mortem examination on Elsie Constantinou’s body on 26 December 1993. Two bullets fired from the machine guns of the MMAD officers had penetrated her body. The first bullet had entered the left lower postero-lateral region of the thorax and had exited from the right side of the mid-thorax. The second bullet had entered the lower right back and exited from the right side of the abdomen. The distance between Elsie Constantinou’s body and the machine guns must have been greater than one metre. 112. Dr M. Matsakis also found four areas of wounding caused by the shot fired from Lefteris Andronicou’s shotgun. A wound to the right hand was caused by contact or near-contact firing. Dr M. Matsakis considered it very likely that it had been caused by the same shot which had injured Officer no. 1. There was a second wound to the left hand also caused by contact or near-contact firing. A third wound to the upper left thoracic region and the front region of the left upper shoulder had been caused by the same shot which had injured Elsie Constantinou’s left hand. The same shot had also caused slight wounding to Elsie Constantinou’s left ear. 113. There were also signs that Elsie Constantinou had been beaten in the face before her death. 114. Dr M. Matsakis concluded in his report that Elsie Constantinou’s death had been caused by the wound inflicted by the machine-gun bullet which had penetrated her right lung, liver, stomach and spleen. A second machine-gun wound to the abdominal area and the shotgun wounds to the anterior left upper thorax and hands had contributed to her death. 115. Before the commission of inquiry, Dr M. Matsakis specified that the first wound was capable of causing Elsie Constantinou’s death on its own. The chances that Elsie Constantinou might have died, if she had only received the wounds to the anterior left upper thorax and hands, were very slim. However, this could not be excluded, in the sense that even the most insignificant wound could cause death if it became seriously infected. The State pathologist was invited to explain what he meant when he stated in his report that the wounds in the anterior left upper thorax and hands contributed to Elsie Constantinou’s death. He replied that Elsie Constantinou had died because her brain was not receiving oxygen due to the bleeding. Although the principal wound had caused intense bleeding, the wounds to the left upper thorax and arms had also caused bleeding. 116. Dr F. Konstantinidis, the doctor who had operated on Elsie Constantinou, testified that the presence of an ambulance at the scene would not have prevented Elsie Constantinou’s death. 117. Dr H. Fotiu, a surgeon called on behalf of the families of the deceased who was present during the post-mortem examination, accepted before the commission of inquiry that the wounds inflicted by Lefteris Andronicou’s gun had contributed to Elsie Constantinou’s death. However, he specified that Elsie Constantinou would have died in any event. In his view, there could be no doubt that Elsie Constantinou would have survived if she had only received the wounds caused by Lefteris Andronicou’s gun. He specified that she would have had to spend only three days in hospital. 118. Dr A.C. Hunt testified that the wounds to the anterior left upper thorax and the hands “should [not] have been put as a contributory cause. It is like saying ... that somebody who has had their head cut off, death was influenced by a broken leg. The wounds described in the first paragraph are so catastrophic that there would be no need for any contributory cause. And I have never seen a death from a discharge of a shotgun which has not penetrated a body cavity or the head or neck. Finally, it would be also more a matter for the surgeon who saw the wound in life”. 119. Ar. Haralambus, the police officer who had collected the fingerprints, testified that he was sure that all the fingerprints on Lefteris Andronicou’s gun, with the exception of two, belonged to Lefteris Andronicou. One fingerprint could have belonged to Lefteris Andronicou and one did not. H. Diogenus, a bio-chemist at Nicosia Hospital, was not in a position to testify that Lefteris Andronicou’s blood was found on his gun. 120. A. Nikolaidis, a police officer and an expert in ballistics, testified that Lefteris Andronicou’s gun had not been hit by any bullets and that it could not be excluded that the gun might have fallen accidentally, instead of having been placed, on the armchair. The State pathologist, Dr M. Matsakis, expressed the view that Lefteris Andronicou’s gun could have fallen on the armchair while Lefteris Andronicou was collapsing. 121. Dr A.C. Hunt also testified that, if Lefteris Andronicou had been holding a gun when being shot at, the gun would have fallen on the floor. It could not have fallen on the armchair in the position in which it had been found. It might have fallen on the armchair only if the armchair had been in front of Lefteris Andronicou when he dropped the gun. 122. N. Adan testified that the position in which Lefteris Andronicou’s gun had been found, its muzzle pointing towards the door, and the absence of blood suggested that it had been placed there by Lefteris Andronicou. He considered that Lefteris Andronicou had sufficient time to place the gun there between the time of firing the shots and the entry of the first MMAD officer. 123. The investigation was concluded on 27 April 1994 and the report of the commission of inquiry, totalling 258 pages, was published on 15 June 1994. The main findings of the commission of inquiry were the following. 124. The negotiations between the police and Lefteris Andronicou were conducted in the best possible manner under the circumstances, given in particular the stance he had adopted. He had been granted everything he had requested, namely a telephone, cigarettes and food. Although the food arrived after some delay, this had been done on purpose to exhaust him and make him surrender. He had also been given assurances that no consequences would follow if he agreed to release Elsie Constantinou. However, he would not accept anything less than the departure of the police. There were no indications that Lefteris Andronicou had any particular enmity vis-à-vis the police. In any event, it would have been extremely improvident for the police to withdraw and leave Elsie Constantinou in his hands. 125. The non-involvement of psychologists, who had been sought but not found, did not affect the validity of the commission’s conclusion concerning the manner in which the negotiations had been conducted. The police used the deputy director of Paphos police as principal negotiator, an officer with great experience in dealing with people, who immediately won Lefteris Andronicou’s confidence and who communicated with him until the end. Trained negotiators, members of the police force, were also present. Their knowledge was used and they could have intervened if mistakes had been made. Moreover, the police used all available persons who could have influenced Lefteris Andronicou in the direction of abandoning his plan. 126. No attempt to prolong further the negotiations could be made, as there were grounds for believing that Lefteris Andronicou was determined to abide by his deadline. Lefteris Andronicou made repeated and consistent references to something which would happen at midnight on 24 December. The symbolic importance of the time chosen could not be easily ignored. 127. There was nothing reproachable in the Paphos police director acting as commanding officer. An attempt was made to disperse the crowd. The suggestion of counsel for the families of the deceased that the police missed several opportunities to neutralise Lefteris Andronicou, when he opened the window to take the telephone, the cigarettes and the food, was entirely unrealistic. 128. When deciding to dispatch the MMAD the chief of police acted responsibly, correctly and within his competence. All necessary information had been made available to him. There was no indication that the involvement and deployment of the MMAD had been decided and planned in a sloppy manner. The MMAD was a body specially trained to deal with such situations, which could not be handled by ordinary police officers. It was wrong to assume that the MMAD could only be used against terrorists or in wartime operations. 129. Despite some testimony to the contrary, the commission was satisfied that the food which Lefteris Andronicou had ordered arrived at approximately 11 p.m. The pharmacist who provided the drugs and Dr A. Hatzimitsi agreed that the soporifics which were administered to the food would have started producing their effects within half an hour. The other expert, K. Konari, made a distinction between the time which the particular soporific took to produce its effects, which she put at approximately thirty- five minutes and the time the drug took to produce its maximum effects, which she put at two hours. These estimates, however, applied to situations where a normal dose had been administered. In any event, even if the wrong dose or the wrong drug had been administered as suggested by the applicants, Lefteris Andronicou did not eat the food and the operation could not have been planned exclusively around that factor. 130. The police formed the view that Lefteris Andronicou was planning to kill Elsie Constantinou and commit suicide at midnight on the basis of all necessary and available information. This was the opinion of Lefteris Andronicou’s doctor, who had had extensive discussions with him. Lefteris Andronicou had told the director of Paphos police verbatim: “There is no Christmas for us, I will celebrate Christmas with Elsie and at five minutes past midnight you will come inside and take her.” Elsie Constantinou herself claimed that Lefteris Andronicou intended to kill her. Lefteris Andronicou had not accepted any of the assurances offered to him and had threatened to shoot whenever it had been suggested to him that somebody might try to enter the flat. 131. There was no indication that the police were in a hurry to close the matter before midnight because it was Christmas Eve, as suggested by the applicants. The fact that the police had not been fully informed about the particulars of Lefteris Andronicou’s relationship with Elsie Constantinou could not have affected the validity of their assessment of the situation. Although reference had been made to Elsie Constantinou having been abducted, the police knew that Elsie Constantinou had not initially been taken to Lefteris Andronicou’s flat against her will. 132. The head of the MMAD platoon carefully inspected the scene, gathered information about the layout of Lefteris Andronicou’s flat and was fully briefed about the events preceding his arrival. He was also in possession of all the information which had been made available to him subsequently or which he had himself acquired. That the sole aim of the operation was to save Elsie Constantinou’s life was proved by the fact that no explosives were used to break down the door and no stun grenades were thrown. The use of a water hose, multiple entries or an observer by the skylight would not have been advisable in the circumstances. 133. The armed intervention was planned for around midnight in the hope that Lefteris Andronicou could be persuaded to release Elsie Constantinou. The head of the MMAD platoon had relied on surprise, quickness and accuracy to ensure the success of the armed intervention. No disproportionate importance should be attached to the fact that some of the expert witnesses would have planned the armed intervention in another manner. The test to be applied was whether the head of the MMAD platoon had planned the armed intervention in a “reasonable” manner, which he had done. 134. Lefteris Andronicou was not taken by surprise because of an unauthorised telephone call which he received just before the armed intervention. Lefteris Andronicou could have answered the phone without lifting the receiver by activating the loudspeaker facility. When the first officer of the MMAD entered the flat he found Lefteris Andronicou hiding behind Elsie Constantinou and pointing a gun at him. Lefteris Andronicou fired two shots, one at the MMAD officer and one at Elsie Constantinou. The commission of inquiry did not accept expert testimony to the effect that the second shot was not aimed at Elsie Constantinou. 135. The commission of inquiry rejected the suggestion that the officers entered the flat with the intention of killing Lefteris Andronicou out of vengeance. It also considered that the officers of the MMAD could not exclude the possibility that the second cartridge in Lefteris Andronicou’s gun had not been used because the two shots had been fired immediately one after the other. When the officers entered the flat, they did not see whether Lefteris Andronicou was still holding his gun. Moreover, the possibility could not be excluded that Lefteris Andronicou could be in possession of other weapons. As a result, the commission of inquiry did not consider it necessary to determine whether Lefteris Andronicou’s gun could have accidentally fallen on the armchair where it was eventually found. The officers saw Elsie Constantinou in front of Lefteris Andronicou, her back to the door. She moved together with Lefteris Andronicou and, as a result, they considered that he was using her as a shield. 136. The officers were justified in their decision to start shooting as soon as they entered the flat because they were under the impression that their lives and that of Elsie Constantinou were in danger. As long as Lefteris Andronicou moved, they considered that the threat persisted. They shot repeatedly at Lefteris Andronicou’s torso and head, as they had been trained to do, in order to neutralise him as quickly as possible. Twenty-nine bullets were used. When Elsie Constantinou fell on Lefteris Andronicou’s right shoulder, her body left part of his torso and his pelvis uncovered. All the shots were fired in a very short period of time and that explained why the last two bullets penetrated Lefteris Andronicou’s body when his back or part of it was very close to or already touching the ground. The situation was comparable with that in the McCann, Farrell and Savage case in which the European Commission of Human Rights considered that firing nine shots at a person lying on the ground engaged no responsibility when the aim of the person firing was to neutralise a perceived risk. No inferences could be drawn from the exercise by one MMAD officer of his right not to incriminate himself. 137. The commission of inquiry considered that, taking into consideration the explanations provided by the State pathologist, the latter was right in considering that the wounds inflicted on Elsie Constantinou by shot fired from Lefteris Andronicou’s gun contributed to her death. Although Dr A.C. Hunt had a different view, he specified that “it would be also a matter for the surgeon who saw the wound in life”. Dr H. Fotiu also accepted that the wounds inflicted by Lefteris Andronicou contributed to Elsie Constantinou’s death. However, he specified that Elsie Constantinou would have died even if these wounds had not been inflicted. 138. The commission considered that Elsie Constantinou was injured by the officers of the MMAD because “she had moved when they were shooting to save her”. In accordance with expert testimony, the presence of an ambulance at the scene would not have made any difference to Elsie Constantinou’s fate. 139. In the light of all the above and relying, among other things, on the findings of the European Commission of Human Rights on the merits of application no. 18984/91 (McCann, Farrell and Savage v. the United Kingdom), the commission of inquiry concluded that the use of force by the officers of the MMAD, as a result of which Lefteris Andronicou and Elsie Constantinou died, was no more than absolutely necessary for the rescue of Elsie Constantinou and the self-defence of those who carried out the rescue operation and fell within the exceptions in Article 7 § 3 (a) of the Constitution of the Republic of Cyprus and Article 2 § 2 (a) of the Convention. Neither was there any lack of due care in the planning of the operation. Although no criminal acts had been committed and the police could not be criticised in any way for their handling of the case, the commission of inquiry recommended that the Government should examine the possibility of making an ex gratia payment to the families of the deceased on the basis of the judgment of 26 April 1994 of the European Court of Human Rights in the case of Diáz Ruano v. Spain (Series A no. 285-B). 140. By letter of 28 September 1994 the Attorney-General informed the applicants’ lawyer that, in the light of the findings of the commission of inquiry, no criminal proceedings would be instituted in connection with the deaths of Lefteris Andronicou and Elsie Constantinou. He indicated, however, that he would propose to the Government that they make an ex gratia payment of “full and substantial compensation” to the heirs of the two deceased. 141. On 26 October 1994 Lefteris Andronicou’s former wife asked the Paphos District Court to appoint her, jointly with her lawyer, administrator of Lefteris Andronicou’s estate in her capacity as representative of the two under-age children Lefteris Andronicou had from his marriage with her. On 7 November 1994 the first and second applicants entered a caveat arguing that the children’s mother could not be appointed administrator and asking the court not to take any steps without notifying them. 142. On 18 January 1995 the first and second applicants instituted proceedings before the Paphos District Court against Lefteris Andronicou’s former wife and her lawyer. They asked to be appointed administrators of Lefteris Andronicou’s estate. 143. On 17 May 1995 the Attorney-General offered the applicants legal aid for the proceedings before the coroner in Paphos. A hearing had been planned for 29 May 1995, which was, however, adjourned at the request of the applicants’ lawyer. 144. On 7 June 1995 the Attorney-General informed the applicants’ lawyer that “the State [would] cover any advocates’ costs that the dependants of the deceased may sustain if and when they decide to bring a civil action for damages against anyone on the basis of the facts which led to the tragic deaths of Elsie Constantinou and Lefteris Andronicou”. 145. On 20 July 1995 the Attorney-General withdrew both offers of legal aid. No agreement on the payment of ex gratia compensation was reached between the applicants and the Government. 146. The right to life is guaranteed under Article 7 of the Constitution of the Republic of Cyprus. Article 7 provides: “1. Every person has the right to life and corporal integrity. 2. 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. 3. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary – (a) in defence of person or property against the infliction of a proportionate and otherwise unavoidable and irreparable evil; (b) in order to effect an arrest or to prevent the escape of a person lawfully detained; (c) in action taken for the purpose of quelling a riot or insurrection, when and as provided by law.” 147. The European Convention on Human Rights has been incorporated into the domestic law of the Republic of Cyprus and, under Article 169 of the Constitution, takes precedence over domestic law. 148. Article 16 of the Criminal Code provides as follows: “Except for murder and offences against the State punishable with death, no act is an offence which is done by a person who is compelled to do it by threats which at the time of doing it reasonably cause the apprehension that instant death to that person will otherwise be the consequence; provided that the person doing the act did not, of his own accord or from a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which he became subject to such constraint.” 149. Article 17 of the Criminal Code provides for a defence of necessity. Article 17 reads: “An act or omission which would otherwise be an offence may be excused if the person accused can show that it was done or omitted to be done only in order to avoid consequences which could not otherwise be avoided, and which if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided.” 150. Article 9 of the Criminal Procedure Law provides: “(1) In making an arrest, the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action. (2) If the person to be arrested forcibly resists the endeavour to arrest him or attempts to evade the arrest, the police officer or other person making the arrest may use all means necessary to effect the arrest: Provided that nothing in this subsection contained shall be deemed to justify the use of greater force than was reasonable in the circumstances in which it was employed or was necessary for the arrest of the offender. (3) Except when the person arrested is in the actual course of the commission of an offence or is pursued immediately after the commission of an offence or escapes from lawful custody, the police officer or other person making the arrest shall inform the person arrested of the cause of the arrest.” 151. Under section 2 of the Commissions of Inquiry Act 1959, which remained in force after the independence of Cyprus, the Governor has power to appoint a commission of inquiry and to invest it with the powers set out in section 7. Section 7 provides: “A Commission appointed under the provisions of this Law shall have such of the following powers as are conferred upon it by the Order of appointment required by section 2 of this Law – (a) to procure all such evidence, written or oral, and to examine all such persons as witnesses as the Commission may think it necessary or desirable to procure or examine; (b) to require the evidence, whether written or oral, of any witness to be made on oath or declaration, such oath or declaration to be that which could be required of the witness if he were giving evidence in a court of law; (c) to summon any person residing in the Colony to attend any meeting of the Commission to give evidence or produce any document in his possession and to examine him as a witness or require him to produce any document in his possession, subject to all just exceptions; (d) to issue a warrant to compel the attendance of any person who, after having been summoned to attend, fails to do so, and does not excuse such failure to the satisfaction of the Commission, and to order him to pay all costs which may have been occasioned in compelling his attendance or by reason of his refusal to obey the summons, and also to fine such person a sum not exceeding five pounds; (e) to fine in a sum not exceeding five pounds any person who, being required by the Commission to give evidence on oath or declaration or to produce a document, refuses to do so and does not excuse such refusal to the satisfaction of the Commission: Provided that, if the witness objects to answer any question on the ground that it will tend to incriminate him, he shall not be required to answer the question nor be liable to any penalties for refusing so to answer; (f) to admit any evidence, whether written or oral, which might be inadmissible in civil or criminal proceedings; (g) to admit or exclude the public from any meeting of the Commission; (h) to admit or exclude the press from any meeting of the Commission; (i) to award any person who has attended any meeting of the Commission such sum or sums as in the opinion of the Commission may have been reasonably incurred by such person by reason of such attendance.” | 0 |
train | 001-76313 | ENG | SVN | CHAMBER | 2,006 | CASE OF GRENKO v. SLOVENIA | 4 | Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | David Thór Björgvinsson;John Hedigan | 5. The applicant was born in 1979 and lives in Braslovče. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 22 July 1996 the applicant was injured in a car accident caused by a third person. The perpetrator’s liability was insured with the insurance company T. (“T”). 8. On 19 April 1999 the applicant instituted indemnity proceedings in the Celje District Court (Okrožno sodišče v Celju), claiming damages in the amount of 25,256,340 tolars (SIT). He requested to be exempted from payment of the court fees. 9. On 31 August 1999, 3 January and 14 November 2000 and on 19 January 2001 the applicant filed pleadings and/or submitted fresh evidence and/or requested that a date be set for a hearing. 10. On 5 February 2001 the hearing was held and the applicant’s proposal for the appointment of a traffic expert was upheld. 11. On 21 March, 21 May and 18 September 2001 the applicant requested that a date be set for a hearing. 12. On 9 May 2002 the applicant filed pleadings and submitted new evidence. 13. On 6 June 2002 the court requested the Žalec Local Court to consult a case-file in criminal proceedings. On 28 June 2002 the latter replied that the criminal proceedings were still pending before the Higher Court. On 2 June 2002 the Celje District Court repeated its request and on 11 September 2002 it received the criminal case-file. 14. On 4 September 2002 the applicant filed pleadings. 15. On 18 October 2002 the applicant requested that a date be set for a hearing. 16. On 10 January 2003 a hearing was held. The court upheld the applicant’s request to appoint two experts lodged on 23 January 2003. On 2 February 2004 they submitted their expert opinions. 17. On 18 February 2004 the applicant filed submissions. 18. On 16 March 2004, following the Court’s dismissal of one expert, a new expert was appointed. 19. On 23 March 2004 the applicant filed pleadings and on 17 May 2004 he requested that a date be set for a hearing. 20. On 9 June 2004 the applicant increased his request. 21. On 22 June and 21 September 2004 hearings were held. 22. On 8 October 2004 the court delivered a judgment, upholding the applicant’s claim in part. The judgment was served on the applicant on 23 November 2004. 23. On 3 December 2004 the applicant lodged an appeal and requested the District Court to correct the judgment. 24. The proceedings are pending. | 1 |
train | 001-4908 | ENG | GBR | ADMISSIBILITY | 1,999 | STACEY v. THE UNITED KINGDOM | 4 | Inadmissible | null | The applicant is a British citizen born in 1958 and currently residing on the Isle of Wight. The facts of the case, as they have been submitted by the applicant, may be summarised as follows : A. The applicant is a single parent, with a child or children residing with him, and between October 1996 to August 1997 he was in receipt of Income Support. It is not clear from the materials submitted by him how many children the applicant has living with him nor whether he is still in receipt of Income Support. In October 1996, the applicant received a letter from the Child Support Agency asking him to indicate on a specific form whether he authorised the Secretary of State to contact the absent parent to arrange and collect child maintenance (Declaration A) or else to declare any reasons why there would be a risk of harm or undue distress if the Secretary of State did so (Declaration B). It appears that the applicant returned Declaration A. He then failed to complete the maintenance application form which was sent to him on 4 November 1996. A meeting followed with the Child Support Agency and the applicant explained that he was unable to give the information about the mother of the children because he did not have her consent. He said to do so would be in breach of Article 8 of the European Convention on Human Rights, namely an interference in private life. On 20 January 1997, the applicant was informed that he still had to complete the application form. On 3 February 1997, the applicant repeated that he could not do so as he would be in breach of Article 8 of the Convention. On 7 February 1997, the applicant was notified that, since he had insufficient grounds for not complying with the requests for information, the Child Support Agency would consider reducing his benefits. A reduced benefit direction was subsequently imposed. In April 1997, the applicant applied for leave to apply for judicial review. Leave was refused on or around 25 June 1997 by Mr Justice Tuckey because : "The Secretary of State has acted under clear statutory powers given to him under the Child Support Act 1991. I can see no arguable grounds for judicial review of his decision in the material < the applicant has> provided." B. Relevant domestic law and procedure The Child Support Act 1991 ("the Act") provides for the assessment, collection and enforcement of periodical maintenance payable by parents in respect of children not in their care. The Act was designed to improve the position of children whose parents live apart. Research commissioned for the Government White Paper ("Children come First", 1990 Cmnd 1264) had indicated that 30% of lone mothers and 3% of lone Fathers received regular child maintenance and that the average payment was very low. It was considered that the burden of supporting lone parents fell largely on the State. Section 6 of the Act provides : "(1) Where income support...is claimed by or...paid to ..the parent of a qualifying child (s)he shall if- (a) (s)he is a person with care of the child; and (b) (s)he is required to do so by the Secretary of State, authorise the Secretary of State to take action under this Act to recover child support maintenance from the absent parent. (2) The Secretary of State shall not require a person ("the parent") to give him the authorisation mentioned in subsection (1) if he considers that there are reasonable grounds for believing that - (a) if the parent were to be required to give that authorisation; or (b) if (s)he were to give it, there would be a risk of her, or of any child living with her, suffering harm or undue distress as a result..... " | 0 |
train | 001-5003 | ENG | GBR | ADMISSIBILITY | 2,000 | CARAHER v. THE UNITED KINGDOM | 1 | Inadmissible | Nicolas Bratza | The applicant is an Irish citizen resident in Crossmaglen, Northern Ireland. She is represented before the Court by Mr Thomas Tiernan, a solicitor practising in Crossmaglen and Mr Douwe Korff, a lawyer practising in Cambridge. A. The facts of the case, as submitted by the parties, may be summarised as follows. On the afternoon of Sunday 30 December 1990, Liam Murphy and two brothers, Miceal Caraher and the applicant's husband, Fergal Caraher (aged 20), were in McGeeney's Public House, Cullyhanna in County Armagh, Northern Ireland. The three men left the Public House. Liam Murphy and Miceal Caraher left in Liam's red Ford Granada car, driven by Liam. They drove down Freeduff Road on to Slatequarry Road, turning right on to Tullinavall Road. As they came around the corner into Tullinavall Road, a grey Toyota Corolla with a Republic of Ireland registration had broken down. Liam Murphy and Miceal Caraher stopped to help the driver. They managed to get the car going and the Toyota car then drove off in a southerly direction. Just as the Toyota car drove off, Fergal Caraher came along in his white Rover car and stopped. Liam Murphy and the brothers had a conversation for a few minutes and decided to go to Dundalk. A patrol of four British soldiers came along and checked the three men out and allowed them to go on. Fergal Caraher drove off first and approached an army vehicle checkpoint (VCP) opposite the entrance to St Patrick's Church on the Tullinaval Road, which was a short distance from where they had been first questioned by soldiers. A number of civilians saw Fergal Caraher drive past but none of them saw any attempts by soldiers to stop his car. Soldiers later gave evidence that an attempt was made to stop the car. Having passed the checkpoint Fergal Caraher drove his car into the car park of the Lite 'N' Easy Public House very near to where the soldiers were stopping cars at the checkpoint, and parked his car directly facing on to the road. Fergal Caraher got out of the car. Liam Murphy then drove his car from the same direction and no attempt was made by the soldiers to stop his car either. Two soldiers left the VCP and went over to where Fergal Caraher was standing in the car park. According to the applicant's version of events, Liam Murphy drove down the road and stopped at the edge of the car park. Miceal Caraher got out of Liam Murphy's car and went over to where Fergal Caraher was standing. Liam Murphy drove off in the direction of the local Spar Shop. Miceal Caraher decided to drive Fergal Caraher's car which they were taking to Dundalk. Miceal Caraher got into the driver's seat, and Fergal Caraher into the front passenger seat. They began to move off onto the road, turning left in a southern direction. Just as the car was on the roadway, three soldiers knelt on the ground with their guns at their shoulders in a firing position. None of the soldiers were hit by the car and none of them were lying on the ground. As the car moved up the road, two soldiers fired their guns with what they described as "Twenty well aimed shots" at the car. None of the civilian witnesses saw any attempt to stop the vehicle from leaving the car park. As a result of the shooting, Fergal Caraher was killed and his brother Miceal seriously injured. The soldiers' versions of events, as given at the trial, was materially different (see below). Two soldiers, Marine E and Marine A, were charged with the murder of Fergal Caraher, attempted murder of Miceal Caraher and wounding Miceal Caraher with intent to do him grievous bodily harm. The case was heard at Belfast Crown Court before Lord Chief Justice Brian Hutton who acquitted both on all charges. Lord Chief Justice Hutton in his judgment of 23 December 1993 identified two main conflicts of evidence between the civilian and military witnesses, firstly, whether a soldier had attempted to stop Fergal Caraher as he drove past the checkpoint in his car and, secondly, what happened after Fergal Caraher drove into the car park where Marine B came across to talk to him. In particular, the civilian witnesses refuted the version of the soldiers, in that they had denied seeing any attempt by soldiers to flag him down, and in the car park saw no altercation between the two Carahers and the soldiers; none saw the smashing of the car window by a soldier or any soldier being hit or carried along by a car. The judge summarised the evidence of the soldiers as follows: Evidence of Marine E “After he (<Marine E>) had seen the white Rover pass behind him as he was checking one of the cars at the rear of the line of cars travelling toward Cullyhanna, and thinking that the white Rover had driven through the VCP disobeying Marine B's signal to stop, and seeing the white Rover turn into the car park at the Lite and Easy and stop there, he (<Marine E>) sent Marine B down to the car park to investigate. He (<Marine E>) then noticed that the driver of the white car had got out of the car and was standing in the car park and was acting "anti" towards Marine B. He (<Marine E>) heard raised voices, and he (<Marine E>) then went down to the car park. He approached the driver of the white car and Marine B and asked the driver what the problem was. The driver replied that there was no problem. The driver told him that he was not scared of them (ie. the soldiers) and asked <Marine E> and soldier B what they were going to do. <Marine E> could smell that the driver had been drinking and noticed that his speech was slurred. The driver told <Marine E> that he had been drinking and that he was drunk. <Marine E> asked him for his identification but the driver did not give it... A red Granada car then came from the same direction as the white Rover. It stopped a short distance past the entrance to the car park on the Dundalk side of the car park. The passenger got out of his red car when it stopped and walked in the direction of <Marine E>, Marine B and the driver of the white car. This person appeared to be hunched over and appeared to be shouting at <Marine E> and Marine B. The man also appeared to be shouting at the driver of the white car. <Marine E> did not know who this man was. <Marine E> could not make out what he was shouting, he could not understand him. The man from the red Granada shouted one thing which <Marine E> understood which was "Fuck this, I'll do it". This man then carried on to the white car and got into the driver's seat. The other man, who had driven the white Rover into the car park, initially did nothing, and then he turned and ran and got into the front passenger seat of the white car. At this stage <Marine E> was standing in front of the Rover car approximately 5 or 6 metres back from the front of it and to the driver's side of the front. Marine B was standing somewhere over his (<Marine E>'s) right shoulder. When the man from the red Granada got into the driver's seat of the white Rover he was revving the car intending to drive away. <Marine E> was not agreeable to that because he had not identified the person, (ie. the man who had driven the white Rover into the car park, to whom he had been talking). <Marine E> wanted to know who he was and why initially he had driven through the VCP. <Marine E> moved to the front of the white Rover and placed his left hand on the bonnet and shouted to the driver to stop and to get out of the car. He was holding his rifle with his right hand. When he was standing with his hand on the bonnet, he was at the front of the car on the driver's side. The driver did not respond to <Marine E>'s wish and he kangarooed the car forward as if he were a learner driver trying to pull away. This movement of the car pushed <Marine E> backwards and his feet were slipping in the shingle of the car park. <Marine E> was pushed back approximately 3 or 4 metres. At this stage <Marine E> was not aware where Marine B was other than that he was over his right shoulder somewhere in the car park. The driver appeared to slip the clutch and the car moved forward in continual motion. As the car surged forward it lifted <Marine E> up. His hand was still on the bonnet and he twisted himself on the driver's wing of the vehicle as it pulled out onto the road. As <Marine E> cleared the wing he was falling backwards in the opposite direction to the vehicle and he smashed the driver's window of the car by striking down at the window with the butt of his rifle whilst he was falling backwards. He did not fall on the ground as he broke his fall with his left arm by putting his left arm down behind him... At this point <Marine E> noticed Marine B. Marine B was in front of the car which was moving at this stage. The car reached Marine B and Marine B was trapped on the front of the car. The car had struck Marine B and he was trapped by the speed and motion of the car pulling away from the car park. It was the front passenger side on the front of the bonnet which appeared to strike Marine B. He (<Marine E>) noticed this as he was smashing the window. The car was accelerating away toward Dundalk. He (<Marine E>) formed the view that Marine B was trapped. Marine B was on the front of the car as it turned or went in the direction of Dundalk. He (<Marine E>) then cocked his rifle, and he looked at his rifle to cock it. He was trained to look at his rifle when he cocked it. Once he cocked the rifle he brought it up on aim. This involved moving the cheek plate up to his cheek and aligning his eye with the sight. He brought the sight straight up to his eye and closed his left eye. <Marine E> had never before fired his rifle outside the circumstances of training. As he brought the sight up to his eye he was kneeling on the road. He looked through the sight at the car. His intention in cocking the weapon and putting the sight to his eye was to stop the car moving away down the road. He tried to stop the vehicle by firing his rifle. He was aware that somebody joined them from the direction of the village, and he took it to be another member of his team. This person appeared to be to his right. He told him to "make ready, fire". He could not remember if he said this before or after he (<Marine E>) started to shoot. As he saw the car through the sight it appeared to move down the road towards Dundalk. He thought Marine B was on the front of the car. At no stage did he see him fall from the car. He did not see Marine B or anything that might be him on the front bonnet through the windscreens of the car. He (<Marine E>) fired at the driver. At no stage did he fire at the passenger. It was put to <Marine E> that there were bullet holes at the rear of the car which were not in the position where the driver would be. <Marine E> said that he was not conscious or aware of firing at any of those positions. He fired at the driver to stop the car. He wanted to stop the car because Marine B was on the bonnet of the car. When asked why did he think it necessary to stop the car or to fire at the driver because Marine B was on the bonnet <Marine E> replied: 'Because he (Marine B) could have been seriously hurt or killed'... It was not feasible to shoot at other portions of the car, such as the tyres, because the driver was the person in control of the car. His training did not involve being trained to shoot at the tyres of a car... The car travelled down the road and it seemed to lose power at some distance. He noticed that the driver's head made a slumping movement and he concluded that the driver of the vehicle had been hit. When he saw that he stopped firing. When he stopped firing he took the sight away from his eye and viewed the scene with both eyes. When he did that he saw Marine B. Marine B was at the Dundalk end of the car park on the mixture of shingle on the car park and the hard surface of the road. Marine B was sitting up from having been laid down. He (<Marine E>) then moved back onto the car park. He turned round and noticed that it was Marine <Marine A> who had joined him to his right...” Evidence of Marine A "He (<Marine A>) continued to check cars going in the direction of Cullyhanna. He then heard a car coming from Cullyhanna. It was a red Granada. He saw the driver and passenger in this red car. As it went past his location it beeped on the horn and the driver's passenger gave the V sign. The red car drove on in the direction of the south... He (<Marine A>) then looked at the car park. He saw Marine B signalling to him to come down. He was aware that a white Rover was there... at the southern end of the car park. It was about 4 or 5 metres back from the road and was at an angle slightly facing the south. Marine B signalled with his arm to come to him. Marine B was at the front of the white Rover and was talking to a civilian. He (<Marine A>) did not see <Marine E> at that stage. When he received the signal from Marine B he looked to the north and saw other soldiers coming down, and he shouted to one of them to take over, and he (<Marine A>) proceeded to the car park. He walked down towards the Lite and Easy car park and when he got into the vicinity of the car park he noticed <Marine E> at the white car as well. At this stage he reached the north end of the car park. Marine B was at the front of the white Rover... He was just aware of a civilian in the same vicinity as <Marine E> and Marine B. As he was walking towards the car he noticed another civilian walking from the south towards the white car. The first civilian seemed to be uncooperative with <Marine E> and Marine B. This was apparent from raised voices and the body language. There were raised voices and arms were up while speaking. As the second civilian got closer to the car he said something which he (<Marine A>) could not make out. It was just a raised voice as though shouting something. The second civilian just walked past the soldiers and the first civilian. <Marine E> was to the driver's side of the car with the first civilian and Marine B was more to the passenger's side. The second civilian got into the driver's seat and started the engine. The first civilian was at the front of the car at first and then he ran and got into the passenger seat. When the first man got into the car <Marine E> ran to the front of the car and put his hand on the bonnet and told him to stop the car. <Marine E> was on the driver's side of the car. At this time he (<Marine A>) was walking down towards the car park. Marine B was to the front of the car facing south. Marine B would have been in the car park. The car revved loudly, a big rev, and then went forward. <Marine E> had a hand on the bonnet shouting to stop the car. The car was pushing <Marine E> back. As the car surged forward <Marine E> came off on the driver's side, and as he came off he managed to smash the driver's window. Once <Marine E> smashed the window he (<Marine A>) ran forward. He was not aware at the time that <Marine E> had stayed on his feet. He (<Marine A>) saw the smashed window. As <Marine E> smashed the window the car was just coming onto the road. As he (<Marine A>) ran forward he could not see Marine B, he lost sight of Marine B. When he had last seen Marine B he was at the front of the car. Marine B would have been in the line of the car as it set off. When <Marine E> smashed the window he (<Marine A>) ran forward and tried to make a grab for the driver. He (<Marine A>) realised the car was going too fast. He (<Marine A>) had lost sight of Marine B. He thought he had been hit or had gone under the car. As the car came out of the car park he (<Marine A>) tried to grab for the driver. He (<Marine A>) followed the driver out and he (<Marine A>) set out to the right-hand side of the road. He (<Marine A>) thought that Marine B was on the bonnet or had gone under the car. He could not see Marine B. He went down in a kneeling position just to the right of <Marine E> and slightly to his front. He received the order from <Marine E> "Ready, Fire". He (<Marine A>) had already taken the decision to fire at the driver. He thought Marine B's life was in danger... The time between the breaking of the window and the firing of the first shot was a split second. It was one motion, it was so fast. He (<Marine A>) was in the kneeling position. <Marine E> fired the first two shots. He (<Marine A>) went down instantly, he made ready and came up on sight. He would have looked down to cock his weapon. At the stage he brought up the sight onto the target he could not see Marine B... As he brought up the weapon his left eye closed and stayed closed. When he brought the sight up to his eye he aimed at the back windscreen and at the driver. He did not know if he was able to see through the windscreen or not. He was not able to see to the left or right of the driver. He was concentrating on the tip of the sight which was on the driver. At no time when he was looking through the sight did he see Marine B. When he (<Marine A>) fired the shots he believed Marine B was still on the bonnet or under the car. He (<Marine A>) was firing at the driver to stop the car. He saw the vehicle slow down, he never saw it stop. He heard <Marine E> order "Stop Firing"... When he came off sight he noticed Marine B on the left to his front. At no time did he see Marine B on the sight picture. The first time he saw Marine B was when he came off aim and opened both eyes.” Evidence of Marine B "After Corporal <Marine E> nodded in the direction of the car he (Marine B) walked down towards the car park. He thought there was no particular danger at all in relation to the car... His intention was to find out why the driver had driven through the VCP. As he got closer to the driver he (the driver) started hurling abuse. He was swearing. He did not understand what the driver was saying, he had trouble understanding the south Armagh accent. The driver was unsteady on his feet and he (Marine B) formed the impression that he was drunk. He asked him why he had driven through the VCP. He did not understand what the driver replied. He was aware of Corporal <Marine E> arriving. He (Corporal <Marine E>) appeared over his left shoulder... At the time that Corporal <Marine E> appeared at his left shoulder he noticed a red car coming along from the direction of Cullyhanna. The red car continued to move past the car park and as soon as it cleared the car park it stopped. There was a passenger in the front passenger seat. Before the car stopped the passenger window was opened and the passenger was shouting abuse towards them. The passenger got out and he walked up to the car park. He was shouting when he started to walk up towards them. He (Marine B) did not understand what he was saying. The passenger was unsteady on his feet as well. He (Marine B) formed the view that he had been drinking as well. His shouting was abusive. To begin with the passenger directed his abuse at them in general in the car park. When the red car originally appeared he left Corporal <Marine E>'s side and walked down towards the red car. When the passenger passed him he (Marine B) understood what he was saying. He said "Get the fuck in, and fuck them". This was directed to the driver of the white car. Thereafter his (Marine B's) attention was focused on the red car. The red car drove off in the Silverbridge direction... He watched the red car until the Spar shop. He (Marine B) would have been facing south... As he watched the red car drive towards Silverbridge he could not see the white car behind him and slightly to his left. He (Marine B) could hear revving from behind when the red car had gone out of his sight or just before it had gone out of his sight. He did not do anything immediately because the red car had still a little way to go. Then he turned round to his left. He saw the white car. The white car was just in front of him and it was moving towards him. He was not aware of the vehicle moving towards him. He did not expect to see the vehicle moving towards him. The front of the car was closest to him. If he could have stepped out of the way he would have done so. The car was almost on top of him and was moving towards him. He thought he was going to be hit by the car and he put himself down onto the bonnet. The top half of his body was on the bonnet and his feet were still on the ground. His feet did not stay on the ground, he lifted them up. He thought that if his feet stayed on the ground he would be pulled under the car. He put himself onto the bonnet to avoid the car hitting him. He noticed Corporal <Marine E> on the driver's side wing of the car. He was holding the car in the corner, he (Marine B) was not sure how. Corporal <Marine E>'s whole body was in contact with the wing. About the same time as he (Marine B) turned round Corporal <Marine E> came off the wing. After that he saw Corporal <Marine E> smash the window of the car. When he (Marine B) turned and saw the car it was accelerating. As he went on to the bonnet the car continued to accelerate. He thought he was in the centre of the bonnet. The car accelerated onto the road and his (Marine B's) helmet came off and then he came off. He came off on the passenger's side of the car. The car set off in the Silverbridge direction. He (Marine B) landed on his back. He hurt his back on landing and his right elbow... He could not say for sure what portion of the road he landed on. He had not travelled that far on the bonnet when he came off. After he had fallen off he heard shots. He did not know what was being fired at. He sat up after a time... then started looking for his helmet. He got his helmet. His memory was not clear from the moment he came off the vehicle. He was dazed and shocked... He thought that if he had not lifted his legs up he could be dragged under the car. Before turning to see the car and ending on the bonnet a long time did not elapse. It wasn't seconds, it was about a split second. Marine B was rigorously cross-examined by Mr Weir as were the <Marine E> and the accused <Marine A>. In the course of his cross-examination Marine B was asked (inter alia) why he had not heard the series of sounds and actions described by Corporal <Marine E> in his evidence, which were the passenger from the red car getting into the driver's seat of the white car, the other man (Mr Fergal Caraher) running and getting into the passenger seat of the white car, the driver revving the white car, <Marine E> moving to the front of the white car and shouting to the driver to stop and to get out of the car, the kangarooing of the white car and the sound of <Marine E>'s feet slipping back three or four metres in the shingle of the car park..." The judge found the forensic evidence from Marine E's rifle butt and clothing supported his story as to smashing the car window. In assessing the credibility of the civilian witnesses, he reviewed the manner in which they had given their evidence to the police. "It may well be that the civilian witnesses did not trust the police to investigate in a completely impartial way the shooting incident involving members of the security forces and two young men from Cullyhanna. It also appears that some time later the civilian witness gave written answers to written questions sent to them by the police. But, notwithstanding this, I am satisfied, from hearing their answers in cross-examination and from watching their demeanour in the witness box, and having regard to the precise and detailed evidence given by police officers as to what happened in Newry police station on 7 January 1991 when the witnesses and Mr Tiernan gave the police the prepared statements and refused to answer questions from the police, that the civilian witnesses gave untruthful answers on oath in the witness box when they said that there was not a pre-arranged plan to give written statements to Mr Tiernan, and that some of them gave untruthful answers when they said that they did not refuse to answer questions to the police. It is quite contrary to common sense to accept that the civilian witnesses all went and gave statements to Mr Tiernan, and that he accompanied them to the police station and told the police that they would answer no questions, without some sort of plan or arrangement between them and, possibly, some other third party or third parties. Therefore, when assessing the truthfulness of the evidence of the civilian witnesses as to what they saw happen in the car park between <Marine E> and Marine B and Mr Fergal Caraher and Mr Miceal Caraher and when the car drove out of the car park, I have to bear in mind that they were prepared to lie in the witness box and did lie in the witness box about the way in which they gave their statements to the police. I also think it is probable that the civilian witnesses gave their statements to the police in this way because they did not want to let slip any piece of information which would help the soldiers or would harm Mr Fergal Caraher or Mr Miceal Caraher. This consideration therefore raises a question mark about their impartiality when they described in the witness box what they saw happen in the car park..." As regards the significance of the evidence, the Lord Chief Justice found: "There is no doubt that Mr Fergal Caraher and Mr Miceal Caraher were unarmed. It is also clear that they were not terrorists, and no suggestion was made by the two accused that they believed them to be terrorists. However the evidence given by the two accused clearly raised the defence (although the onus is not on the accused to establish this defence, but the onus is on the crown to disprove it beyond a reasonable doubt) that they fired because they believed that Marine B would be killed or seriously injured if they did not fire..." He stated the applicable law, inter alia, as follows: "A number of decisions of the highest courts, the House of Lords, the Privy Council and the Court of Appeal in England, have made it clear that where an accused raises the defence that he killed or injured a person in self-defence or in defence of a third person, the Crown must prove beyond a reasonable doubt that he was not acting in defence of himself or another person or that the force which he used was unreasonable. And these decisions also make it clear that in deciding whether the Crown has proved that the force used was unreasonable beyond doubt the tribunal of fact must have regard not to what actually happened, but to what the accused at the relevant time honestly believed was happening. Moreover the courts have made it clear that the tribunal of fact must assess this, not retrospectively in the calm of the courtroom, but by putting itself in the position of the accused and deciding the question taking account of the situation which the accused was in and of the pressures to which he was subjected and of the time in which he had to act... In the Attorney-General for Northern Ireland's Reference at 137 E Lord Diplock stated: '... The form in which the jury would have to ask themselves the question in a trial for an offence against the person in which this defence was raised by the accused would be: Are we satisfied that no reasonable man (a) with knowledge of such facts as were known to the accused or reasonably believed by him to exist (b) in the circumstances and time available to him for reflection (c) could be of opinion that the prevention of the risk of harm to which others might be exposed if the suspect were allowed to escape justified exposing the suspect to the risk of harm to him that might result from the kind of force that the accused contemplated using?...' ” The Lord Chief Justice concluded: "The two accused having raised the defence of acting in defence of Marine B, the issue which I have to determine in order to decide the guilt or innocence of each accused is whether I am satisfied beyond a reasonable doubt that the Crown has proved that the firing by the accused was not the use of reasonable force to protect Marine B from death or serious injury by being thrown off the bonnet of the car when it was driving away towards Silverbridge. In the context of this case the issue is whether there is a reasonable possibility that the white Rover car drove off from the car park with Marine B on the bonnet so that the two accused honestly believed that he was being carried away on the bonnet and that they had to fire at the driver of the car to stop the car in order to protect Marine B from death or serious injury by being thrown off the bonnet of the car... However in a case such as this where there is a complete conflict of evidence as to what happened at the vital time, and where there are grounds for doubting the truthfulness of the evidence of both the prosecution witnesses and the accused and their principal witness, it is important for the court to remind itself of the fundamental principle of the criminal law, which is that an accused person can only be convicted if the court is satisfied of his guilt beyond a reasonable doubt, and, of course, this principle applies to the trial of a soldier just as much as it applies to the trial of any other person. Therefore, at the end of this case, when I came to look back at, and to weigh and consider, all the evidence, bearing in mind the points made by both Mr Weir and Mr Smith in their closing speeches, I found that I had a reasonable doubt whether the accused were guilty. Stating the same thing in a different way, I considered that there was a reasonable possibility that Marine B was carried away on the bonnet of the white Rover car and that, in the emergency of the moment, there was a reasonable possibility that the two accused fired at the driver because they honestly believed it was necessary to do so to save Marine B from death or serious injury and that in the circumstances as the accused honestly believed them to be there was a reasonable possibility that this constituted reasonable force..." In reaching that conclusion, the Lord Chief Justice based himself on four factors: "1. ...<the probability> that the civilian witnesses were deliberately untruthful... 2. The clear scientific evidence of fibres on the nearside bonnet of the white Rover car which supported the proposition that the camouflage uniform of a soldier had been in contact with the nearside bonnet of the car and there were a number of scrapes and smears on the nearside front wing and bonnet of the car. These appeared to be recent and could have originated from clothing or another object moving across the surface of the bonnet and wing... 3. ...<the probability> that Marine B did sustain some injuries in or about the area of the Lite and Easy car park. And if he sustained injuries in that location it appears to be probable that this was due to contact with the car... 4. ...<The probability that> if Marine B did signal to Fergal Caraher to stop as he approached the VCP at the church and Mr Fergal Caraher failed to do so, it is clear that the soldiers did not fire at the white car at that stage just because it ignored a signal to stop at the VCP. If this is so, it seems unlikely that a few minutes later the soldiers would have fired at the car just because Mr Miceal Caraher ignored an order in the car park not to drive off, and without something having happened in the car park quite contrary to the account given by the civilian witnesses. As I have said, it seems unlikely that the soldiers would suddenly have abandoned the restraint which they had previously shown a few minutes before when the car ignored a signal to stop at the VCP. Accordingly, because I have a reasonable doubt as to the guilt of each accused, I find each of them not guilty on the three counts of the indictment." High Court proceedings in Northern Ireland for aggravated damages were issued by the applicant against the Ministry of Defence, alleging that her husband Fergal Caraher had been unlawfully killed and claiming, inter alia, negligence in the failure to give any or an adequate warning, a failure to give any or any adequate instruction or training, and causing or permitting the soldiers to act in a violent, dangerous and reckless manner. While the case was provisionally listed for hearing in the June 1997, due to difficulties with the attendance of witnesses it was listed for the first week of October 1997. The date was moved subsequently to 10 November 1997. On 29 and 30 October 1997, however, the applicant's solicitors contacted the Crown Solicitor (acting for the Ministry of Defence) informing him that they wished to amend their statement of claim, require additional discovery of documents and, in the related action brought by the brother of the deceased, served five medical reports. The High Court adjourned the case to enable the Crown Solicitor to have the brother medically examined and to deal with the other matters raised. The case was relisted for hearing on 8 June 1998. On 5 June 1998, counsel for the personal representatives of the deceased applied to the High Court for an adjournment on the grounds that the solicitors had failed to instruct senior counsel on behalf of the personal representatives. The judge agreed to the adjournment, ordering the solicitors to pay the costs of the application. The case was relisted for 28 September 1998. On 28 September 1998, the case was settled. The terms of the settlement between the applicant as administratix to the estate of Fergal Caraher and Ministry of Defence were, inter alia: - that the Ministry of Defence pay the applicant the sum of £50,000 in full and final settlement of all claims on her own behalf and on behalf of the estate and dependants of Fergal Caraher, as well as the applicant's legal costs; - that the Ministry of Defence made no admission as to any legal liability in respect of the said payment or in respect of the death of the deceased; - that the applicant and her solicitors should not disclose the terms of the agreement. B. Relevant domestic law and practice Section 3 of the Criminal Law Act (Northern Ireland) 1967 provides inter alia: “1. A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting the arrest or assisting in the lawful arrest of offenders or suspected offenders or persons unlawfully at large." Self-defence or the defence of others is contained within the concept of prevention of crime (see eg. Smith and Hogan on Criminal Law). The "Yellow Card" issued to soldiers in relation to use of fire-arms provides, inter alia, as follow: "Instructions for opening fire in Northern Ireland. ... You may only open fire against a person if he is committing or about to commit an act likely to endanger life and there is no other way to prevent the danger... The following are some examples of acts where life could be endangered, dependent always upon the circumstances:... (3) Deliberately driving a vehicle at a person and there is no other way of stopping him... If you have to open fire you should: Fire only aimed shots..." | 0 |
train | 001-105121 | ENG | POL | CHAMBER | 2,011 | CASE OF MIROSLAW GARLICKI v. POLAND | 3 | Remainder inadmissible;Violation of Art. 5-3;Non-pecuniary damage - award | Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva | 7. The applicant was born in 1960 and lives in Kraków. 8. The applicant is a doctor, specialising in cardiac surgery. He is one of the few specialists in Poland qualified to perform heart transplants. At the relevant time he was the Director of the Cardiac Surgery Clinic in the Ministry of Internal Affairs and Administration Hospital in Warsaw and an assistant professor at the Jagiellonian University Medical College in Kraków. 9. Following information submitted by doctors employed in the Ministry of Internal Affairs and Administration Hospital, on 12 December 2006 the Warsaw Regional Prosecution Office instituted an investigation into cases of alleged medical negligence and several counts of harassment of hospital staff by the applicant. It appears that the applicant was also suspected of receiving bribes from his patients. 10. On 12 February 2007 the applicant arrived at work at about 7 a.m. and started preparing for an operation which was planned for that morning. 11. At 7.40 a.m. a dozen masked and armed officers of the Central Anticorruption Bureau (CAB) stormed the Cardiac Surgery Clinic. Some of the officers burst into the applicant’s office pointing their firearms and shouting. The officers threw the applicant to the floor, pinned his head to the floor and then handcuffed his hands behind his back. They searched the applicant’s office. Subsequently, they allowed him to change his clothes and handcuffed him again, this time with his hands in front. 12. The applicant was taken, in handcuffs, out of his office to the hospital’s outdoor car park. There were a large number of masked and armed officers in the car park and some were in plain clothes. The applicant’s car was searched over a period of about one hour. A sniffer dog was also used. During this time the applicant stood nearby with his hands visibly handcuffed. The events were viewed by hundreds of hospital staff, patients and visitors. The applicant’s arrest was filmed continuously by one of the officers. 13. Subsequently the applicant was taken to his flat in Warsaw. Several dozen officers searched the flat over a period of nine hours. They seized several hundred objects, including bottles of alcohol, watches, fountain pens, cutlery, porcelain, and so on which were to be used as evidence of the applicant’s bribe-taking. The search of his flat was also filmed. 14. The applicant was then taken to a hospital for a medical check. At about midnight on 12 February 2007 the officers took the applicant to see Mr Mariusz Kamiński, the Head of the CAB, who shouted at him using offensive language. He said, among other things, that the applicant would not leave prison before turning seventy. The Government submitted that there was no information in the case file concerning the meeting between the Head of the CAB and the applicant. 15. The applicant was detained at Warsaw Police Headquarters. 16. According to the Government, the applicant did not appeal against his arrest (zażalenie na zatrzymanie) or object to the way in which the CAB’s officers executed the search of his flat. 17. On 13 February 2007 at about 3 p.m. the Warsaw Regional Prosecutor charged the applicant with twenty offences, including exposing a patient to a direct danger to his life or health (Article 160 § 1 of the Criminal Code (“CC”)), homicide of a patient (Article 148 § 1 of the CC), harassing a member of staff, forgery of medical documentation, and sixteen counts of taking bribes from patients. The prosecutor based his decision on the evidence gathered in the case, including statements of victims and secret video-recordings of some cases of receiving bribes. 18. According to the applicant, on 12 and 13 February 2007 he was not given any food. 19. On 14 February 2007 A.M., an assessor (junior judge) at the Warsaw-Mokotów District Court, remanded the applicant in custody until 11 May 2007. The order read as follows: “The evidence gathered in the case, in particular witnesses’ depositions and the suspects’ statements (...), expert reports (...) and documentation from the secret files (...) points to a strong likelihood that the suspect [applicant] committed the offences with which he is charged, and that is a basic evidentiary condition for the imposition of a preventive measure pursuant to Article 249 § 1 of the Code of Criminal Procedure. The investigation is in its early stage and it is necessary to undertake many further investigative measures to clarify fully the circumstances under investigation. Having regard to the nature of the charges and the surrounding circumstances, there is a reasonable risk that the suspect, if left at liberty, could engage in acts aimed at obstruction of the proceedings. Many persons who must necessarily be questioned in the course of the present proceedings are hierarchically subordinate to the suspect [applicant], and that necessitates preventing the suspect [applicant] from contacting them in any manner. Moreover, as Director of the Cardiac Surgery Clinic the suspect [applicant] has access to information which must be kept secure and is required by the authorities conducting the investigation to allow the circumstances which gave rise to the charges to be clarified in full. Furthermore, in respect of one of the offences with which the suspect is charged [homicide] he is liable to a sentence of 25 years’ imprisonment or life imprisonment, while in respect of many other offences he is liable to a maximum sentence of 8 years’ imprisonment. The real risk that a severe penalty might be imposed on him may thus induce the suspect to undertake illegal actions to obstruct the proceedings. ...” 20. On the same day, following the pronouncement of the WarsawMokotów District Court’s decision, the Minister of Justice Prosecutor General and the Head of the CAB held a press conference concerning the applicant’s case. 21. The applicant appealed against the detention order. He submitted that the evidence in the case was insufficient to charge him with homicide and that the prosecution had intentionally formulated the charge with a view to compelling the court to remand him in detention. Furthermore, the applicant contested the finding that he would obstruct the proceedings. He argued that the District Court should have considered the imposition of other, more lenient, preventive measures having regard to the applicant’s unblemished reputation and in view of the Court’s case-law. In addition, he submitted that remanding him in detention could expose his patients to death by preventing them from undergoing their planned cardiac operations. Lastly, referring to the Convention, the applicant raised the issue of the status of the assessor and averred that she did not enjoy the necessary guarantees of independence from the executive. 22. On 15 March 2007 the Warsaw Regional Court dismissed the applicant’s appeal. It found that the applicant was suspected of having committed a series of offences. The court noted: “even leaving aside the charge of homicide, other charges (bribery) attracted a statutory maximum sentence of at least eight years’ imprisonment”. Thus, the applicant’s detention on remand was justified by the severity of the anticipated penalty, in view of the significant number of bribery charges. 23. As to the applicant’s argument that the evidence in the case had been insufficient to charge him with homicide, the Regional Court noted that that was not the only charge against the applicant. In connection with other charges (including bribery) there was enough evidence to substantiate a reasonable suspicion that the applicant had committed the offences. The Regional Court further concurred with the District Court’s view that there was a risk that the applicant would attempt to influence witnesses, and that only custodial measures would ensure the proper conduct of the proceedings. The court did not respond to the argument concerning the status of the assessor. 24. On 7 May 2007 the Warsaw Regional Court, on an application from the prosecution, extended the applicant’s detention until 11 August 2007 but at the same time held that he would be released if he put up bail in the amount of PLN 350,000 (approximately EUR 90,000) by 31 May 2007. It reasoned as follows: “The prosecutor justifies his application for the extension of detention on remand by the severity of the likely penalty and the risk of obstruction [of the proceedings] by the suspect. The Code of Criminal Procedure requires the authorities conducting the proceedings to analyse, at every stage, whether the evidence gathered in the case sufficiently justifies the imposition of preventive measures. Thus, the court could not leave unaddressed the legal classification of the act allegedly committed by the suspect to the detriment of the victim J.G. under Article 148 § 1 of the Criminal Code, particularly as it appears from the grounds for the prosecutor’s application that the likelihood of a severe sentence of imprisonment (even life imprisonment) for that act is one of the grounds for extending Mirosław Garlicki’s detention. In the court’s view, the prosecution’s assessment cannot be sustained in any way. It has to be noted that the [prosecutor’s] application does not contain any reasons for giving such a legal classification to the suspect’s act. It cannot be maintained that the reports presented by experts Z.R. and A.B. point to a possibility of charging Mirosław Garlicki with homicide committed with conditional intent (“zamiar ewentualny”). Moreover, the prosecutor assumes such legal classification of the charge in isolation from the established case-law (...) Taking into account, as stated above that the charge [of homicide] is groundless, it evidently could not serve as a ground to grant the [prosecutor’s] application. However, the evidence gathered so far in the investigation, which, apart from witness statements, also includes evidence obtained by technical means as a result of covert measures (czynności operacyjne), points to a strong likelihood that the suspect committed the corruption-related offences with which he has been charged. Those offences attract a severe sentence of imprisonment, and having regard to their significant number it is likely that the suspect will be sentenced to a lengthy term of imprisonment. The last issue to determine is whether remand in custody is the only preventive measure which could secure the proper conduct of the proceedings. In the court’s view, contrary to the prosecutor’s position, there is no substantiated risk that the suspect would unlawfully obstruct the criminal proceedings, e.g. by inducing witnesses to give false testimonies. Such a risk is not in any way apparent from the statements or testimonies of persons indicated in the grounds for the [prosecutor’s] application. While it can be accepted that the need to remand the suspect in custody existed at the beginning of the proceedings, where there was a risk that he would influence the testimonies of his subordinates, there is clearly no , many public persons are willing to provide a guarantee that Mirosław Garlicki will not obstruct the pending proceedings. ... In those circumstances, in the court’s view, if bail in the amount of PLN 350,000 were paid within the fixed time-limit, that would be a sufficient preventive measure ensuring the proper conduct of the proceedings and the suspect’s appearance in response to every summons of the authorities conducting the proceedings.” 25. The prosecution appealed against the Regional Court’s decision. On 18 May 2007 the Warsaw Court of Appeal partly amended the impugned decision by imposing further preventive measures in the event of the applicant’s release. It ruled that guarantees given by A.W., deputy president of the Supreme Medical Chamber, and L.A., a member of the board of the Polish Transplantation Society, be produced. It also imposed a ban on the applicant’s leaving the country and ordered the seizure of his passport. For the rest, the Court of Appeal upheld the Regional Court’s decision. 26. On 18 May 2007 all the conditions specified by the Court of Appeal were met and the applicant was released. 27. It appears, as revealed by the Gazeta Wyborcza daily, that the investigation in the applicant’s case was code-named “Mengele” by the CAB. The Court of Appeal considered the code name to be inappropriate and informed the Prosecutor General accordingly. 28. On 12 May 2007 the applicant’s employment contract with the Ministry of Internal Affairs and Administration Hospital came to an end. 29. On 24 September 2007 the public prosecutor additionally charged the applicant with nine counts of violation of employees’ rights, harassment of his wife, subjecting a person to sexual intercourse several times while abusing a relationship of dependence, attempt to subject a person to sexual intercourse, and several counts of bribery. In total, the applicant was charged with forty-nine counts of bribery. 30. On 7 May 2008 the Warsaw Regional Prosecutor discontinued the investigation against the applicant in respect of the charges of exposing a patient to a direct danger to his life or health (Article 160 § 2 of the CC), homicide of a patient (Article 148 § 1 of the CC) and forgery of medical documentation on the grounds that there was no evidence that the applicant had committed those offences. In respect of the first two offences, the prosecutor based his decision on the expert evidence, in particular the report prepared by a German cardiology expert. 31. The bill of indictment against the applicant was filed with the Warsaw-Mokotów District Court on an unspecified date. 32. It appears that the applicant’s trial is pending. 33. On 13 February 2007 the Minister of Justice – Prosecutor General and the Head of the CAB convened a press conference on the applicant’s case for the following day. The press conference took place on 14 February 2007 at 2 p.m. shortly after the Warsaw-Mokotów District Court had pronounced its decision ordering the applicant’s detention on remand. 34. During the press conference the Minister of Justice – Prosecutor General and the Head of the CAB referred to the applicant as “Doctor G.”. However, at the outset they specified that the applicant was the Director of the Cardiac Surgery Clinic in the Ministry of Internal Affairs and Administration Hospital at Wołoska Street in Warsaw, which enabled the media to quickly establish the applicant’s identity. 35. According to the transcript of the press conference, the Head of the CAB stated in respect of the charges concerning bribe-taking: “The information gathered and the evidence obtained mean that today we can tell you clearly: Doctor G., acting the part of a virtuoso of Polish cardiac surgery, is a ruthless and cynical bribe-taker. We have knowledge of several dozen bribes accepted by this doctor.” 36. The Minister of Justice – Prosecutor General, Mr Z. Ziobro, stated in respect of the charge of homicide: “Life often writes the most brutal scenarios. The facts which the service headed by Minister Kamiński [the CAB] succeeded in unveiling are truly shocking. What we are seeing here was not limited to cynical abuse of human feelings, emotions and the affection of close relatives for their loved ones who were ill, and the exploitation of those feelings. Extorting money, robbing people not only of money but also of hopeoften, even when the hope was not really there, the money was still extorted. And not only that, the evidence shows that what could happen here is more than just massive corruption and gross negligence and medical malpractice. One of the charges made by the prosecution is that of homicide in one of the cases which the Minister Kamiński referred to me. ... Initially (...) I did not believe it. I could not get it into my mind that in the health service, in a very well known clinic, a very well known and, at least until recently, universally respected cardiac surgeon and professor could perpetrate shameful acts of this sort. But when I began to find out what evidence had been gathered by the CAB, and later also by the prosecutors, I changed my mind. I have changed my mind and, unfortunately, I am more and more overcome with sadness, but we can see this unfortunately sad discovery of the truth as an important event in the true sense of that expression, in that no-one else will ever again be deprived of life by this man (już nikt nigdy przez tego pana życia pozbawiony nie będzie). Ladies and Gentlemen, at the present moment I have one substantiated case indicating with high probability a possible homicide, and in this connection a charge based on Article 148 [intentional homicide] of the Criminal Code was made. Other cases where the circumstances of patients’ deaths are unclear are obviously also being examined. We don’t prejudge the character of those events. Ultimately, the court will decide the case; nonetheless, what we have already established and gathered as evidence at the present moment is truly shocking ... I would like to emphasise once again, that as the Prosecutor General, the person who directly supervised this case from a certain moment, I regard very highly the professionalism of the CAB’s officers, the professionalism of the prosecutors, thanks to which we succeeded in gathering strong evidence, which is rare and which definitely shows that we were dealing with a long-lasting criminal activity. ... If you will permit me, in respect of the charge of homicide, the [applicant’s] cynicism is demonstrated by the fact that where we can see from the evidence in our possession that a man [patient] was de facto sentenced to death, that did not prevent this gentleman [the applicant] from demanding a bribe from his close family, and as the family were poor, they had no possessions, they were farmers, he suggested that they sell their cow so as to have money purportedly to save their dear father. And how he went about saving [that patient] finds its expression in Article 148 of the Criminal Code, so I think that this example very [well] illustrates the attitude, the lofty morals of this virtuoso, as some media have called him. ... I wanted to stress that the Director of the Clinic [the applicant] in the Ministry of Internal Affairs and Administration Hospital has been charged with homicide; according to the prosecutors, acting with the conditional intent (“zamiar ewentualny”) of depriving a patient of life, and anticipating and accepting the result of his death, he undertook a series of acts which, in short, led to that [death]. That is what is meant by depriving of life with conditional intent, conduct which emerges from well documented evidence, hence the charge. It is a very striking and cynical desire for profit and arrogance, incredible and striking arrogance in the conduct of the person charged with committing those offences, those crimes ....” 37. During the press conference the CAB’s recording of the applicant’s arrest and the search of his apartment was shown. The recording emphasised the significant number of objects and money seized from the applicant’s flat which were to be used as evidence of his corruption. 38. The main news programme broadcast on the public television station on 14 February 2007 at 7.30 p.m. started with a news story about the applicant which was entitled “Doctor Death”. The news reader stated that “He [the applicant] had murdered a patient because he did not get a bribe from him” and informed viewers that the applicant had committed homicide and accepted bribes. News of the applicant’s arrest and the press conference was widely reported in all the media. 39. The Minister of Justice – Prosecutor General’s comments about the applicant prompted strong criticism from the former Ombudsman, the National Bar Council, the Polish Helsinki Committee and others. On 23 February 2007 the President of the Constitutional Court stated that the Minister of Justice – Prosecutor General had breached the Constitution by making statements about doctor G.’s [the applicant’s] guilt and that he should be held to account before the State Tribunal (Trybunał Stanu). 40. In response to that suggestion the Minister stated, as reported in the Rzeczpospolita daily of 24-25 February 2007: “A person who has just begun holding such office [as President of the Constitutional Court] sometimes says a few words too many. I don’t take back anything and I am ready to repeat it all. The judge [the President of the Constitutional Court] should go further and demand that I be charged before the Rwanda Crimes Tribunal [International Criminal Tribunal for Rwanda].” 41. On 12 September 2007 the applicant brought a civil action against Mr Z. Ziobro for infringement of his personal rights under Articles 24 and 448 of the Civil Code. He sought an order requiring the defendant to personally express the following apology on the main national radio and television stations and in four major newspapers: “I, Zbigniew Ziobro, apologise to Dr Mirosław Garlicki for what I said about him, namely that ‘no-one else will be deprived of life by this man’, which tarnished the good name and reputation of Dr Mirosław Garlicki. I express my regret and admit that these words were deceitful and insulting and should have never been spoken by me.” The plaintiff further sought an award of PLN 70,000 in compensation for non-pecuniary damage and an order enjoining the defendant to refrain from making any future statements which would suggest that the applicant had committed homicide. 42. On 25 August 2008 the Kraków Regional Court gave judgment. It ordered the defendant to publish an apology directly after the main evening news programmes on the three national television stations (TVP, Polsat and TVN). The apology read: “I, Zbigniew Ziobro apologise to Dr Mirosław Garlicki for having said about him that ‘no-one else will ever again be deprived of life by this man’, which tarnished the reputation of Dr Mirosław Garlicki.” „(Ja Zbigniew Ziobro przepraszam Pana dr Mirosława Garlickiego za wypowiedzenie pod jego adresem słów – już nikt nigdy przez tego Pana życia pozbawiony nie będzie – które naruszyły cześć Pana dr Mirosława Garlickiego).” The court awarded the applicant compensation in the amount of PLN 7,000. It dismissed the remainder of the applicant’s action. 43. When establishing the facts, the court based its findings on the transcript of the press conference held by the Head of the CAB and the Minister of Justice – Prosecutor General on 14 February 2007, various official and private documents, press releases and rectifications issued by the Ministry of Justice and press articles. 44. As regards the question whether there was an infringement of the applicant’s personal rights, the Regional Court held that the defendant had damaged the applicant’s reputation (cześć). In this respect it found, inter alia: “... the statements included in the defendant’s impugned announcement, including ... just the information about the prosecution’s charges brought against the claimant (whose identification was a simple matter since his first name, the first letter of his surname, his place of employment and the function held were given), without any need to refer to more categorical terms employed by the defendant such as ‘no-one else will ever again be deprived of life by this man’, or describing the claimant as a ruthless and cynical bribe-taker who de facto sentenced his patient to death and so on, objectively infringed the personal rights of the claimant...” 45. Once it was demonstrated that there was an infringement of the applicant’s personal rights, Article 24 of the Civil Code established a presumption that such infringement was unlawful. Accordingly, the Regional Court examined next whether there had been any grounds to exclude the defendant’s liability for unlawfully damaging the applicant’s reputation. The court held that the defendant’s actions had been unlawful, having regard to the nature of the allegations made against the claimant and the limitations stemming from the principle of the presumption of innocence. In this respect, the Regional Court found inter alia: “...it was or could have been within the powers of the Prosecutor General – the office held by the defendant at the material time – to inform the public about particular investigations and their progress, and also to disclose – within the boundaries set by the law – information regarding the suspect or the accused. ... However, those persons so authorised do not enjoy ‘complete freedom of expression’ as asserted by the defendant if their actions are undertaken in the public interest. That principle, despite the defendant’s assertion to the contrary, has not been accepted in the jurisprudence of the Polish courts; in particular it is not reflected in the position set out ... in the Supreme Court’s judgment of 23 July 2007 (case no. II CKN 285/97). It was clearly indicated [in this judgment] that a negative assessment of a person’s behaviour expressed by a State authority (or official) is not an unlawful assessment where, although it was not sufficiently verified or justified in the specific circumstances (because, for example, of the erroneous assessment of certain facts or the lack of complete factual material), it was nonetheless made within the scope of statutory competences and within the boundaries of matter-of-fact necessity (w ramach rzeczowej potrzeby). Worth noting here is the judgment of the European Court of Human Rights of 10 February 1995, ... which states that freedom of expression, guaranteed by Article 10 of the Convention, includes the freedom to receive and impart information. Article 6 § 2 cannot therefore prevent the authorities from informing the public about criminal investigations in progress, but it requires that they do so with all the discretion and circumspection necessary if the presumption of innocence is to be respected (application no. 15175/89 [Allenet de Ribemont v. France]; see also the judgment of the ECHR of 26 March 2002, application no. 48297/99 [Butkevičius v. Lithuania]). In the court’s assessment, the critical statement of the defendant fell short of this obligation. Indeed, the defendant did not only state the charge of having committed an offence specified in Article 148 of the Criminal Code as brought against the claimant on the basis of the prosecution’s decision and the circumstances justifying it, but in his emotional, exaggerated, unbalanced and judgmental statement emphasised this charge in a manner which excluded any doubts as to its correctness (lecz swoją emocjonalną, egzaltowaną, niewyważoną i ocenną wypowiedzią wyeksponował ów zarzut w sposób wykluczający jakiekolwiek wątpliwości co do jego słuszności). This effect was exacerbated by the statement that ‘no-one else will ever again be deprived of life by this man’ ... For in situations where there is unintentional deprivation of life it is rather accepted to use such terms as an accident, error, coincidence, misfortune or incident. ... It should be stated once more that at the press conference no accurate information was given about the results of the investigation, [and] almost no concrete information about the investigation at all. It should be underlined that the defendant undoubtedly had the right to disclose information related to the charge brought against the claimant; however due to the risk of misinterpretation of this information by the recipients he should have refrained from statements giving rise to belief in the claimant’s guilt. The more so since as the Prosecutor General, responsible for safeguarding the rule of law (section 2 of the Prosecution Authorities Act of 20 June 1985), [he] had the duty to comply with the important principle of the legal order imposing respect for the defendant’s presumption of innocence as a legally protected interest. In this connection, the defendant should have presented the information concerning the investigation, in particular in respect of the charge of homicide, in a moderate form, without passing his own judgment, which would go significantly beyond reporting on the proceedings. It should thus be considered that the behaviour of the defendant was not factual and cautious, [and] that the opinions expressed exceeded what was strictly necessary, and the terms employed were exaggerated in form and content.” 46. With regard to the redress for the damage to the applicant’s reputation, the Regional Court partly modified the text of the apology by having its second sentence deleted. In so doing it took into account the type of right infringed and the scope of the infringement. Concerning the enforcement of its judgment, it obliged the defendant to publish the apology at his expense rather than requiring him to express it personally. The court further considered that it would be appropriate to limit the number of places where the apology should be published to three major television stations (one public and two private). This decision was motivated by the need to achieve the compensatory and preventive rather than the repressive goal of the publication of an apology. 47. As regards compensation for non-pecuniary damage suffered on account of the infringement, the Regional Court held that the defendant’s fault, at least in the form of negligence, had been established. The use of words which clearly suggested that the claimant had undoubtedly committed homicide had breached the principle of the presumption of innocence, thereby infringing the claimant’s personal rights. At the relevant time the defendant had held the office of Minister of Justice – Prosecutor General, so he had been under a particular duty to formulate his statements carefully. The Regional Court awarded the applicant PLN 7,000 which it considered adequate in the circumstances, having regard to a number of relevant factors, including the gravity of the infringement and the extent of the damage suffered. It took into account that the applicant had failed to demonstrate what precise impact the impugned statement had had on his private life and that, in respect of his professional life, the applicant had been employed in a private hospital since the summer of 2008. 48. Both parties appealed. The applicant contested, inter alia, the manner of publication of the apology and the modification of its text. He took issue with the deletion of the second sentence from the apology, which he considered important for the restoration of his reputation. He further objected to the low amount of compensation for non-pecuniary damage. 49. The defendant challenged the Regional Court’s judgment in its entirety. He argued that he had not infringed the applicant’s personal rights and, alternatively, that any such infringement had been in accordance with the law. The defendant alleged that the court had erroneously applied substantive and procedural law. He also submitted that the order to publish the apology had taken the appearance of a financial sanction. 50. On 9 December 2008 the Cracow Court of Appeal held a hearing and gave judgment. It amended the first-instance judgment only in respect of the compensation awarded to the applicant which it increased to PLN 30,000. The Court of Appeal dismissed the remainder of the applicant’s appeal and dismissed the defendant’s appeal in its entirety. 51. The Court of Appeal noted that the claimant had established, in accordance with the burden of proof lying on him, that his personal right to respect for his reputation had been infringed by the defendant’s statement “no-one else will ever again be deprived of life by this man”. In that connection, it fully accepted the factual findings and legal assessment of the Regional Court. The infringement of the claimant’s personal right had been evident as the defendant had indicated that the charge of homicide had been made against the head of a specific department of a particular hospital. As regards the damage to the applicant’s reputation, the Court of Appeal found: “... the first-instance court did not violate the provisions of substantive and procedural law referred to by the defendant in his appeal. Similarly the allegation of errors in respect of factual findings which were relevant for the determination of the issue could not stand. The facts weighing in favour of the infringement of the claimant’s personal right to respect for his reputation on account of the defendant’s impugned statement were so obvious (contra factum nullum argumentum) that no argument by the defendant can entail the intended legal consequences. It is not open to doubt that since the impugned statement was made by the Minister of Justice Prosecutor General the public reaction of persons who had no professional dealings with the law in respect of the claimant ... had to be negative, i.e. they would be convinced of his guilt.” 52. With regard to the presumption of unlawfulness of the infringement, the Court of Appeal held that the defendant had failed to rebut the presumption. It found inter alia: “The constitutional and criminal-law principle of the presumption of innocence implies that an accused person (and even more so a suspect) must be presumed innocent until his guilt is proved and confirmed by a final court decision. ... The impugned statement [of the defendant] was inadmissible at that stage of the ongoing proceedings, and in particular because of the principle of the presumption of innocence. The defendant, even though he was the Minister of Justice - Prosecutor General, was not authorised to make such a statement in respect of the claimant since at that stage [of the proceedings] no final judgment convicting him of the alleged offence had been given. He [the defendant] had the unquestionable right to inform the public about the charges brought against the claimant ... but the manner in which he did it ... was not appropriate for the office which he held ... Moreover, the degree of unlawfulness of the defendant’s actions results from the fact that the prosecutor charged the claimant with homicide of a patient, and the court remanded the claimant in custody and his appeal was not allowed by the second-instance court. However, as it turned out later ... the evidence subsequently gathered in the investigation did not at all substantiate such accusations ... The defendant’s impugned statement in the light of the final result of the criminal proceedings against the applicant in respect of the offence specified in Article 148 § 1 of the CC clearly underlines the essence and the purpose of the principle of the presumption of innocence. In the circumstances of the present case the defendant cannot exactly claim that he acted in accordance with the law or in defence of a justifiable public interest. It cannot be accepted either that the impugned statement was made on the basis of information which was collected with due diligence. The principle of the presumption of innocence required that the defendant display exceptional care and diligence in formulating publicly any statements to the effect that the claimant, as a doctor, committed homicide on a patient, irrespective of the information and opinions given by the persons he requested to be heard as witnesses in the case. The defendant, being a lawyer holding a high public office, should in particular have consulted expert opinions. ...” 53. The Court of Appeal concurred with the Regional Court’s judgment in respect of the text of the apology and the form in which it was to be made. With regard to compensation for non-pecuniary damage, the Court of Appeal agreed that the defendant had been at fault through negligence, but held that it had been gross negligence. It found in this respect: “... the defendant is a lawyer, and at the time of the infringement of the claimant’s personal right he held the office of Minister of Justice – Prosecutor General, and as such he should have known what information from the investigation ... he could make public, as well as what he could say about a person who was charged and remanded in custody. On the other hand, as a politician he should have been aware of the media effect of such a categorical statement as ‘no-one else will ever again be deprived of life by this man’ in the claimant’s case and where the defendant divulged the necessary information to enable the claimant’s identification. ... The impugned statement, having regard to the stage of the ongoing criminal proceedings against the claimant, violated the basic written rules of legal knowledge (the presumption of innocence and in dubio pro reo). Moreover, in a case where a doctor – whose mission, vocation and task is to save human life and health – was charged with homicide of a patient in connection with a surgical operation (it is difficult to imagine a more serious allegation against a doctor in relation to his profession) he should have realised that to make publicly so categorical and definite a statement was highly unprofessional and irresponsible ...” The Court of Appeal, having regard to all’s statement attracted in the media and the moral suffering of the applicant, found that it would be appropriate to award PLN 30,000 for non-pecuniary damage. 54. Mr Z. Ziobro lodged a cassation appeal against the Court of Appeal’s judgment. On 29 October 2009 the Supreme Court refused to entertain his cassation appeal. It found that there had been no significant legal issue in the case which would justify the examination of the cassation appeal on the merits. 55. On an unspecified date the defendant paid the applicant the compensation awarded by the court. 56. On 9 January 2010 Mr Z. Ziobro’s apology was broadcast. 57. On 16 February 2007 the Regional Prosecutor made a seizure order in respect of the applicant’s property with a view to securing the payment of an anticipated fine in the amount of PLN 720,000 (EUR 180,000). The order extended to the applicant’s movable property, including money found in his flat, his salary and his bank accounts. The applicant was also prohibited from selling his car. 58. On the same day the prosecutor made a second seizure order in respect of the money found during the search of the house of the applicant’s parents. The prosecutor seized a total of approximately PLN 90,000. 59. The applicant appealed against the seizure orders, arguing that they were ultra vires at that stage of the investigation and clearly excessive in view of the charges against the applicant. 60. On 26 April 2007 the Warsaw-Mokotów District Court dismissed the applicant’s appeal. It found that the seizure orders had complied with the requirements specified in Article 291 §§ 1-2 of the Code of Criminal Procedure, namely that he had been charged with offences in respect of which a fine or obligation to compensate damage might be imposed. The court noted that at this stage of the proceedings the prosecutor’s decision could not be considered arbitrary, having regard to the evidence gathered in the case. Furthermore, the measure had been intended to effectively secure the payment of a significant fine which might be imposed on the applicant. 61. On 11 September 2007 the Warsaw Regional Prosecutor issued a press release announcing that some of the objects found in the applicant’s flat had been returned to him as they were his personal property and were irrelevant to the ongoing proceedings. 62. The relevant domestic law and practice concerning detention on remand (tymczasowe aresztowanie), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgment in the case of Kauczor v. Poland, no. 45219/06, §§ 25-27, 3 February 2009. 63. Article 42 § 3 of the Constitution provides: “Everyone shall be presumed innocent until proved guilty in a final decision of a court of law.” A similar principle is laid down in Article 5 § 1 of the Code of Criminal Procedure. 64. The Law of 20 June 1985 (as amended) on Prosecution Authorities (the Prosecution Authorities Act) (ustawa o prokuraturze) sets out general principles concerning the structure, functions and organisation of prosecution authorities. Section 1 of the Act, in the version applicable at the material time, stipulated, in so far as relevant: “1. The prosecuting authorities shall be the Prosecutor General and, subordinate to him, prosecutors, military prosecutors and prosecutors of the Institute of National Remembrance (...). 2. The Prosecutor General shall be the highest prosecution authority; his functions shall be carried out by the Minister of Justice.” Under section 7 of the Act, in carrying out his or her statutory duties, a prosecutor must abide by the principles of impartiality and equality of citizens before the law. Pursuant to section 8 of the Act, a prosecutor is independent in carrying out his or her duties, within the limits set out in this section. A prosecutor is required to abide by the instructions, guidelines and orders of his superiors. However, if an order relates to the substance of any action to be taken in proceedings, a prosecutor may request [his superior] to issue the order concerned with reasons in writing, to alter the order, to relieve him from performing an act prescribed by that order, or to remove him from conducting the case in question. Requests to be removed from a case must be decided by a hierarchical superior of the prosecutor who issued the order. 65. On 31 March 2010 the amendments to the Prosecution Authorities Act entered into force. The amended Act provides for the separation of functions between the Minister of Justice and the Prosecutor General. 66. The relevant domestic law and practice regarding the status of assessors, including the landmark judgment of the Constitutional Court of 24 October 2007 (case no. SK 7/06), are set out in the Court’s judgment in the case of Henryk Urban and Ryszard Urban v. Poland, no. 23614/08, §§ 16-25, 30 November 2010. | 1 |
train | 001-59080 | ENG | GBR | CHAMBER | 2,000 | CASE OF GLASER v. THE UNITED KINGDOM | 3 | No violation of Art. 8;No violation of Art. 6-1;No violation of Art. 9 | Nicolas Bratza | 8. The applicant was born in 1946 in India and lived for a period in South Africa, where he married in January 1979 and had three children: PM. born in 1982, A. born in 1984 and F. born in 1985. The family moved to England in 1986 but, following marital difficulties, the applicant’s wife left the family home with the children in September 1991. She agreed to return in November when the applicant agreed to move out. Divorce proceedings were instituted on 24 October 1991 and the divorce became final on 10 June 1993. 9. Contact between the applicant and his children was arranged by agreement with the mother present between November 1991 and March 1992. However, in March 1992, contact was stopped by the mother who claimed that the children no longer wanted to see their father. In April 1992, the applicant’s former wife made allegations that the applicant had sexually abused the children, but these allegations were not substantiated in investigations carried out by the Child Protection Unit in June 1992. It was however considered that the patterns of behaviour of the children were consistent with the behaviour of children under considerable stress and, with the consent of both parents, the family were referred to the Child, Adolescent and Family Centre for therapeutic intervention. Meanwhile, in May 1992, an application by the applicant for a residence (custody) order was refused. 10. On 2 September 1992, an interim contact order was made by the Kingston-Upon-Thames County Court providing for weekly supervised access. This contact never took place. 11. On 6 November 1992, the same County Court made a further interim order for supervised access, with Christmas access to be by arrangement. Two periods of supervised access took place on 21 November and 12 December 1992. The children were reported as showing no signs of distress and the two younger children as appearing to enjoy seeing the applicant. The Christmas access did not take place as the mother took the children to Wales. 12. A psychiatric report dated 7 January 1993 noted that the children had felt terrified of the applicant and raised concerns of emotional abuse. It found that the oldest child, PM., who suffered intrinsic learning difficulties, had been clearly disturbed by the applicant’s behaviour and distressed by his mother’s difficulties in the marriage. A. had been stressed and troubled, with the knowledge of the applicant’s suicide attempts adding to his emotional burden. The youngest child F. was the least troubled, though the memories of hitting and shouting were clearly also frightening and disturbing for her. All three children separately indicated that they wanted to live with their mother and were worried about contact with the applicant. There was evidence of a fairly ritualised and damaging cycle of events with the applicant being unreasonably harsh with his children on repeated occasions. Any further contact would have to be handled judiciously and it was of paramount importance to avoid further undue stress to the children. 13. The County Court made a further interim order for supervised access on 12 January 1993. This order was, in the main, complied with. A further order was made by the County Court on 16 March 1993 for weekly contact to take place in the presence of a mutual friend or in a public place. In a welfare report before the court at that time, the court welfare officer concluded that a break in contact would be unhelpful in counteracting the children’s negative views of their father and it was also noted that, if no contact order was made, then contact was unlikely to occur, whatever the children’s wishes. A psychiatric report dated 12 March 1993 suggested that there should be an increase in contact, unsupervised, and that there was no reason why overnight stays with the father could not be permitted. The report noted that the applicant had acknowledged hitting the children with a belt in the past, had provided a reason for it (his illness) and had apologised to the children for it. The applicant states that he represented himself in the hearings leading up to the June 1993 order. 14. On 15 June 1993, a contact order was made by the County Court including weekly access, overnight stays and making provision for Summer and Christmas holidays. This contact order has never been complied with. In July 1993, the applicant’s former wife left the family home with the children and moved, it subsequently transpired, to Scotland. 15. On 25 July 1993, the applicant brought to the attention of the County Court that the order of 15 June had not been complied with and applied for an order to compel his former wife to comply, failing which such penal action as the court deemed fit should be imposed. At the hearing of his application on 2 August 1993, the applicant appeared in person and his former wife was represented by counsel. The judge was told that the mother was very unhappy about contact, that the telephone was disconnected, that the house appeared to be occupied and that the door was unanswered. The applicant informed the judge that the mother might be suffering from depression. The applicant stated in his memorial that the County Court judge said that he had power to make an order requiring the mother to be brought before the court, but suggested instead that the matter should be dealt with by the High Court (Family Division) because of its greater powers. Therefore on the same day the applicant applied to the High Court ex parte. 16. The applicant’s application to the High Court requested that the contact order of 15 June be enforced. He stated that he effectively asked the judge to take such action as was necessary to enforce the order for contact, and that he did not make a specific application because he was following the suggestion of the County Court judge and did not know what to do. The applicant appeared in person. Mr Justice Singer invited the Official Solicitor to act as guardian ad litem for the children and, if accepted, granted leave to the Official Solicitor to submit documents in the case to such experts as he chose, and for those experts to carry out such examinations and investigations concerning the children as they thought appropriate. 17. The Official Solicitor accepted the invitation to act on or about 3 September 1993. He wrote to the mother at her last known address on 2, 9 and 14 September to arrange for an interview with the children. He received no response. On 13 September, he instructed enquiry agents in Edinburgh to seek to ascertain the location of the mother and children. They were unsuccessful. 18. Meanwhile, it appears that the applicant hired a private detective who traced the children to Edinburgh in August 1993. However, the mother moved them again to an unknown address. 19. The applicant applied ex parte to make the children wards of court and was represented at this stage by counsel. His application requested that the children be located immediately and that the mother be restrained from moving the children from their current address without the leave of the court and that arrangements be made for the children’s schooling. On 1 October 1993, the High Court issued an injunction prohibiting the children’s mother from removing them from jurisdiction without leave of the court and made the three children wards of court. It also directed the Tipstaff to seek and locate the children and to notify the applicant’s solicitors of their address. (The Tipstaff is a court official who executes orders of the court.) The Tipstaff was given a description of the children and addresses at which they might be living. He passed the information to the police who found no trace of them at those addresses. The police placed the names of the children and their mother on the police national computer so that, if they came to the attention of the police, their location would be notified to the Tipstaff. 20. On 26 October 1993, the Official Solicitor wrote to the Department of Social Security Contributions Agency (DSS) seeking an address for the mother. On 1 November 1993, the DSS forwarded a letter to the mother. The mother did not respond. 21. As however no progress was apparently being made, the applicant, who was still receiving advice from solicitors, made a further application ex parte to the High Court for information to be provided by particular bodies. On 17 December 1993, the High Court ordered the DSS (including the Child Support Agency), Kingston and Richmond Health Services, National Health Service Records and the Open University to divulge to the court any information which it had on the location of the children. 22. On 13 January 1994, the Official Solicitor wrote again to the DSS, asking them to forward a letter to the mother. She responded on 30 January 1994, declining to disclose her address or to take up the invitation to arrange interviews. 23. An address was provided to the High Court by the Child Support Agency during January 1994. The applicant’s solicitors wrote to the court requesting disclosure of this address. On 25 January 1994, leave was given by the High Court to disclose the address of the applicant’s former wife to the applicant’s solicitor on an undertaking that the solicitor would not disclose the same to the applicant. The applicant stated that this never happened, as his former wife and the children had changed address again. The Government disagreed, saying that the address was supplied but that the applicant’s enquiry agents were unable to locate the children who had been moved again. 24. As the applicant felt that he was not making any progress, he applied to the High Court again, this time in person. On 21 February 1994, the High Court again ordered the relevant authorities to disclose any information which they had as to the current address or whereabouts of the children. The High Court also ordered that any address or information would not be disclosed to the applicant without leave of the court, but that the court would notify him as soon as possible after receipt of relevant information for the purpose of enabling him to seek further directions. The applicant was informed by the court on 24 March 1994 that they had new addresses. 25. The applicant stated that the District Judge refused to disclose the address, so he applied in person ex parte to the High Court. The application was adjourned on 28 March 1994 pending the Official Solicitor agreeing to act for the children in the wardship proceedings. At the adjourned hearing on 12 April 1994, the applicant again appeared in person. The High Court disclosed the address to the Official Solicitor, the children were joined as defendants to the proceedings and the matter was adjourned until 10 May 1994 to allow the Official Solicitor to report on any information which he had on the whereabouts and welfare of the children. On 15 April 1994, the Official Solicitor wrote to the mother. As issued on 26 April 1994, the terms of the High Court order indicated that the children’s address (received from the National Health Service Central Register) be disclosed to the Official Solicitor only. 26. On 10 May 1994, the applicant again appeared in person before the High Court. He was granted indirect contact with the children, by way of letters, cards and presents, to be monitored by the Official Solicitor. Details of the address of the children and the social workers involved in the case were ordered not to be disclosed to the applicant. The matter was adjourned by the High Court for further directions in four weeks. 27. On 7 June 1994, the High Court disclosed to the applicant, who appeared in person, that his children were resident in Scotland although, despite his request, he was not informed of their address so as not to unsettle his former wife. Also on this date the High Court ordered the Official Solicitor to identify for the applicant the appropriate court in which he should issue proceedings in Scotland in order to enforce the order for contact made on 15 June 1993. The High Court also agreed that, upon receiving notice that the father has issued proceedings, it would forward to the relevant court in Scotland the address of the children and the social worker instructed in the case, it being for that court to decide whether, and if so when, to disclose this information to the applicant. It then adjourned the proceedings. 28. On 17 June 1994, following the applicant’s application of 14 June 1994 to the High Court to forward a copy of the contact order of 15 June 1993, that order was registered in the Court of Session in Scotland. This permitted the order to be treated as an order made by a Scottish court, which would enjoy the available powers to enforce it but did not confer any jurisdiction on the Scottish courts to vary the order. They had power to act immediately for the welfare of the children (section 12 of the Family Law Act 1986) or to issue interim directions to secure their welfare pending the determination of the application to enforce the contact order (section 29(2) of the 1986 Act). 29. On or about 12/13 July 1994, the applicant commenced proceedings for the enforcement of the English court order. The applicant stated that he was told that he had to have a solicitor in order to commence proceedings, unless he applied to waive this which would have meant further delay. He therefore instructed solicitors. The Government have submitted that this is not the correct position. There was no requirement for a solicitor to act in these type of proceedings, save that an advocate or solicitor advocate had to sign the petition for enforcement or permission (though permission could be obtained from the court to proceed in the absence of a signature). An order was made on 13 July 1994 for the service of the proceedings on the mother, and forbidding the mother from removing the children from Scotland, pursuant to the applicant’s request. 30. On 20 July 1994, the mother filed her answers to the proceedings alleging that it was not in the children’s interests for there to be contact and that the children would be at risk. The mother applied for an order staying the enforcement proceedings pending the commencement by her of proceedings to vary the June 1993 contact order. The applicant states that the allegations made by the mother in her answers had all been adjudicated on already by the English courts. 31. The applicant applied again to the High Court in England, which remained the court of primary jurisdiction, for an order directing the mother to appear before the court to show cause why the contact order should not be amended to provide for further staying and visiting contact at Christmas 1994 and Easter 1995 and thereafter in place of that originally ordered; why a penal notice should not be attached to the order; and to provide for an early hearing of the matters. On 27 July 1994, the High Court refused the application as the applicant had engaged in proceedings in Scotland to enforce the contact order and it would be a duplication of those proceedings to consider the same matters. The High Court considered it appropriate for the courts of Scotland to adjudicate concerning enforcement of the contact order and/or to make their own order for such contact. 32. On 5 August 1994, the applicant lodged a motion asking the Scottish court to make an order enforcing the June 1993 order. This application was heard on 9 August 1994. Though it was not opposed, it was not proceeded with by the applicant. The applicant says that when it became clear that the judge was not going to grant enforcement of the order, as the judge did not consider the order made sense, the applicant’s counsel withdrew the application (without the applicant’s specific instructions) fearing that a refusal of the order would make it difficult for any other judge to disagree. 33. On 17 August 1994, the applicant lodged another motion asking the Scottish court to make an order enforcing the June 1993 order. On 19 August 1994, the matter was heard before a different judge and this time the application was defended. In the light of allegations of sexual abuse (which had been rejected following investigation in England) made by the applicant’s former wife, a new report was ordered to be prepared quam primum by an advocate. The order stated that a named advocate was to enquire into and report on all the circumstances of the children and the proposed arrangements for their care and upbringing, with particular reference to the question of access. The applicant appealed this order but leave to appeal was refused on 1 September 1994. The applicant stated that he had to appear in person as his lawyer would not act. 34. An advocate, Ms J., was appointed on 27 September 1994 to carry out enquiries and submit a report. The advocate visited the mother at home on 22 October 1994 and on 23 January 1995, and saw the children alone on 22 October 1994 and 31 January 1995. She spoke to the applicant on the telephone at the beginning of November and arranged to see him on 11 November 1994, when they spoke for three hours. On 21 November 1994, the advocate visited the doctor, Dr C., who had reported on the children in the family proceedings in England, seeing the videos of meetings and also the social worker, Mrs T., involved with those proceedings. She visited the teachers of the younger children and saw the guidance teacher of the oldest child on 5 December 1994. On 12 January 1995, she spoke to Mrs N., a Scottish social worker involved with the family from June 1994, when the mother’s doctor had made a referral for the family to be assessed as a matter of urgency by the Royal Hospital for Sick Children, Edinburgh, due to concerns that the children were showing disturbed behaviour. She noted that Mrs N. had talked to the social worker Mr P., who had told her that only PM. had told him that he did not want to see the applicant. The hospital team had not completed its assessment of the children due, inter alia, to the mother’s failure to respond to an invitation for a further interview. The advocate also incorporated in her report the report of May/June 1994 prepared for the Official Solicitor by the social worker Mr P., who had carried out two interviews with the children, two interviews with the mother and interviews with the children’s head teacher and class teachers. The advocate submitted her report to the court on 31 January 1995. 35. The advocate’s report recounted the history of the proceedings and her own contact with the children, their mother and the applicant. It concluded: “This is a complex case. One fact that I think is established is that these children were found by a number of professionals ... in the period 1992 and 1993 to be under stress. What was never established to anyone’s apparent satisfaction was the reason for that. It seems to me from my investigations ... that the stress is likely to have been brought on by their parents’ relationship and the way that impinged on them. I think it is also most probable given the children’s (particularly <A.>’s) accounts of being belted by the <applicant> that that behaviour was at least part of the cause of their stress. I accept the <applicant’s> point that the children’s stance may have been influenced a great deal even if only indirectly by the fact that they live with and now rely on <their mother>. I have to give the children some credit however particularly at their age for knowing their own minds. They seem to have quite clearly determined to communicate to me both by words and deed that they did not wish to see their father and that they were in <A.’s> words ‘better with their mother than they were with both of them’. ... The question is what is the best way forward for them ... . The <applicant> however accepts that at this stage some eighteen months since the order and since he last saw them that it would not be appropriate for him to have the access that was ordered in June 1993. It would not be in their interests for him simply to turn up and take them over the times ordered. If there were to be access it would have to be as he acknowledged built up over time starting with supervised access of some sort possibly with some sort of counselling. ... I also accept to some extent what he suggests to the effect that the <mother> has made it her business to ensure the children will not see him. What is difficult to get to the bottom of is her motive. I think I accept that she is motivated by what she believes is in the best interests of the children even if she may on occasions be misguided. I think she has not always told the truth ... . Effectively she did not want to do anything to make access work. She was only keen to take those steps which she had to show that it would not work. ... The <mother> has also been good at passing certain anxieties which could perhaps have been kept from ... the children whether deliberately or otherwise <Her suspicion that the applicant had killed the children’s guinea pig, that they were being tracked down by a private detective> ... She has thus instilled fear in the children which she has fuelled by changing their Christian names ... . ... I also accept that some of the evidence I heard and saw appeared to contradict the <mother’s> absolute view that the children were always terrified about seeing the <applicant>. It may be that my only role in this Petition is to report to your Lordship on the circumstances of the children and I think I have done that in perhaps more detail than might be desired. If I am to give a recommendation with regard to disposal of this Petition it is clear as stated above that it would not be in the best interests of the children that it be immediately granted in the terms sought. I am not clear if I am expected thereafter to give a view as to whether any access should be awarded in this or any other Process. If I were to be expected to do so it would clearly be the most difficult task. On the one side I accept that the <mother> has managed to manipulate the situation to a great extent and has deliberately flouted the English order and kept the children from their father for eighteen months. I also accept that it is generally thought to be preferable, other things being equal, for children to grow up seeing both parents ... . But if I were to have to give a view I think I would have to allow myself to be influenced by what I saw of these children and of their parents. The <applicant> appeared to have an obsessive personality and be particularly obsessed by his relationship with the <mother>. His attitude and intensity would be wearing on anyone including his children. Further I did gain the impression even at this stage that he was more interested in the <mother> than the children. The <mother> was certainly pleasant in demeanour even if she was obviously much more determined and hardnosed than she appeared. She certainly had manipulated the situation effectively. But ultimately I think the only course which it would be in this case appropriate to take would be to listen to and observe the children. They not only told me and meant it ... that they did not wish to see their father. They also seemed ... to be genuinely much happier than they had been and to be very much more settled and confident than they ever have been. It would be unfortunate if this were to be disturbed by a further attempt to re-establish a relationship with their father ... particularly when it seems in all the circumstances that it would probably be unsuccessful. For these reasons ... I would humbly recommend ... with some hesitation, that the children be allowed to continue as they are and not be asked to go through further arranged visits with their father at this stage.” 36. Following extended discussion and correspondence between the applicant and his legal advisers, on 11 May 1995 the applicant applied, it appears with the assistance of a lawyer, for a hearing of his petition which the court on 16 May 1995 listed for June 1995. On 29 May 1995, the applicant applied for leave to amend the order sought by him - firstly, to insert a plea that the mother’s answers should be rejected and the orders sought by the applicant be granted in full and, secondly, for an order that the mother deliver the children into the care and control of the applicant between 9 am and 7 pm on one weekday forthwith, and on every second weekend thereafter between 9 am on Saturday until 7 pm on Sunday, and between 9 am and 7 pm on one weekend day every four weeks after the said initial access period. This arguably would have had the effect of increasing the contact from two out of four weekends to three out of four weekends. 37. On 14 June 1995, the mother applied for an order withdrawing her answers to the applicant’s petition, which was unopposed by the applicant and granted by the court on 16 June 1995. 38. On 22 June 1995, an order was made by the court allowing the applicant’s petition to be amended and an order for contact was made in the amended terms. 39. On 5 September 1995, the applicant commenced proceedings seeking to have the mother punished for contempt for failure to comply with the order of 22 June 1995. On 25 September 1995, the mother applied for the rescission of the order of 22 June 1995 on the basis that it was incorrect because it was at variance with the order of June 1993, lacked clarity and contained material errors. 40. The applicant returned to the High Court in England requesting that the original order of June 1993 be varied. This approach was taken on the basis that the Court of Session could not refuse to enforce a fresh order. However, given the change in circumstances, the applicant decided in December 1995 that the chances of getting any court to enforce the order of 15 June 1993 were remote, and he decided to withdraw the action for enforcement. 41. On 31 October 1995, the mother applied to the courts in England for an order removing proceedings to Scotland and, on 7 November 1995, the applicant applied again for a contact and/or residence order. The mother mistakenly lodged her application with the County Court that issued the original contact order, which on 24 November 1995 declined to hear the matter as it was now a High Court case. In a judgment handed down on 31 January 1996 by the High Court, Mr Justice Singer found it appropriate that the decisions as to contact be considered by the Scottish courts, and made an order under section 2(A)4 of the 1986 Act. This decision was taken with particular regard to the statement by the former wife’s Scottish lawyers that they could issue proceedings within a week in Scotland to determine custody and contact. The children were however to remain wards of court and it would be open to the applicant to apply to lift the stay on proceedings in England if the proceedings in Scotland were not pursued. The judge noted that the applicant claimed that he would be disadvantaged by the change of jurisdiction, as he was not conversant with Scottish procedures and as it would be more expensive for him to travel to Scotland for hearings and to consult with lawyers. However, he found that the mother and children were firmly settled in Scotland and that any difficulties posed by the mother in filing evidence or co-operating with interim orders would be more speedily dealt with if the proceedings were before the Scottish courts. He commented that to some extent the Scottish courts had already entered into the merits and that the reporter, who had been unclear as to her role, may have gone beyond her remit in assisting the court in its enforcement role when indicating that the June 1993 order was not one which she would subscribe to. 42. On 16 April 1996, the mother commenced proceedings in the Court of Session in which she sought an order that there should be no contact between the children and the applicant. The applicant sought an order for contact by a defence lodged on 29 April 1996. A hearing was set down in Scotland for November 1996. 43. On 19 July 1996, the order of 22 June 1995 was rescinded by the Scottish court on the joint application of the mother and the applicant. 44. On 23 September 1996, the applicant applied for interim contact, which application came before the court on 27 September 1996 but was not proceeded with by the applicant’s counsel. The hearing set for November 1996 was deferred by agreement of both parties, following the mother’s voluntary co-operation in seeing a psychologist, allowing the children to be seen by the psychologist and permitting the applicant to send the children cards and presents. 45. On 27 May 1997, an order was made by consent that the applicant should have contact as agreed between the applicant and his former wife and as consented to by the children. The applicant stated that as a result he has had indirect contact on a handful of occasions when either the applicant’s sister or sister-in-law were allowed to see the children and convey messages, an indirect means of getting letters, presents and pocket money to the children and, very recently, via e-mail. A contact meeting was arranged, for the first time, since June 1993, for the afternoon of February 2000. 46. In determining applications for contact, as with any question with respect to the upbringing of a child, the courts’ paramount consideration is the welfare of the child - section 1(1) of the Children Act 1989 (“the 1989 Act”) for England and Wales and sections 3(2) of the Law Reform (Parent and Child) Act 1986 and subsequently section 11(7) of the Children (Scotland) Act 1995 for Scotland. The case-law recognises that the rights of the parents should only be interfered with when required by the welfare of the child (e.g. In re K.D. [1988] A.C. 806) and that it is almost always in the interests of the child that he or she should have contact with the non-custodial parent where the parents are separated (e.g. Re H [1992] 1 FLR 148, Re R [1993] 2 FLR 762, Re P (Contact: Supervision) [1996] 2 FLR 314). 47. The courts may issue orders relevant to altering the residence of the child or the general powers of enforcement available in respect of failure to comply with a court order. In particular, they can commit a parent to prison or sequester their assets. 48. The Court of Appeal has stated that the courts should not hesitate to use their powers of enforcement where it will overall promote the welfare of the child but that cases may arise, if infrequently, where a court may be compelled to conclude that in the existing circumstances an order for immediate direct contact should not be ordered where to do so would injure the child (Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124). 49. The County Court has power pursuant to section 34 of the Family Law Act 1986 to authorise an officer of the court or police constable to take charge of a child and deliver him or her to a person to whom an order requires that the child be given up for, inter alia, purposes of contact. 50. The High Court may make a “seek and find” order, requiring that the Tipstaff find the relevant child and take him or her into custody for the purposes of delivering as directed by the court; or a “seek and locate” order requiring that the child be located only. The Tipstaff is a court official who executes orders of the Court. He does not fulfil the role of an investigator or enquiry agent. It is not his function to set up independent lines of enquiry of his own. The Tipstaff acts on information provided to him by the parties in a case and will be assisted by the police, including a special department of New Scotland Yard which conducts investigations on his behalf. 51. The orders that the High Court makes depend on the nature of the application made to the court by a party in the case and on the evidence provided. The court does not determine what order to make independently of this. 52. The types of order include : i) permitting publicity, through the media, about the child and the fact that there is a court order trying to locate the child; ii) requiring any one who has relevant information about the child’s whereabouts, to disclose it to the Tipstaff, and the Court; and iii) requesting the disclosure of addresses from Government departments. 53. The Official Solicitor is Official Solicitor only to the Supreme Court of England and Wales (section 90 of the Supreme Court Act 1981). He or she has no legal powers or role in Scotland nor any independent power to enforce any order, any such step having to be taken through the court and subject to the court’s control. The court can invite the Official Solicitor to act for children but cannot require him or her to do so. When the Official Solicitor is invited to act as guardian ad litem for children in proceedings he or she does not have any role independent of the proceedings, only being there to represent the children in those proceedings. He or she collects evidence and participates in the proceedings as considered appropriate. The Official Solicitor is not in the position of a court welfare officer and is not part of the social welfare authorities. 54. The Family Law Act 1986 (“the 1986 Act”) confers on the court dealing with the matrimonial affairs the primary jurisdiction over the granting of children orders except where it considers it would be “more appropriate” for matters to be determined in another part of the United Kingdom (sections 2A(4) and 13(6)). 55. Section 25 of the 1986 Act provides for the recognition of children orders made in any part of the United Kingdom. The procedure requires the court which made the order to send the relevant documents to the appropriate court in the other part of the United Kingdom, where the prescribed officer of the receiving court on receiving the certified order must forthwith cause the order to be registered. The new court in which the order is registered has the “same powers for the purpose of enforcing the order as it would have if it had itself made the order” (section 29). The decision of how to enforce the order must depend on what “will overall promote the welfare of the child” (Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124). In balancing the competing interests of those involved, the courts retain jurisdiction to refuse an order if satisfied, for example, that enforcement would result in physical or moral injury to the child (Woodcock v. Woodcock 1990 SLT 848 at 853B). | 0 |
train | 001-84112 | ENG | BGR | CHAMBER | 2,007 | CASE OF NIKOLOVA AND VELICHKOVA v. BULGARIA | 2 | Preliminary objection (victim) joined to merits and dismissed;Violation of the substantive aspect of Art. 2;Violation of the procedural aspect of Art. 2;No separate issue under Art. 3;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed | Peer Lorenzen | 6. The applicants are the wife and daughter of Mr Atanas Velichkov Nikolov. Mr Nikolov died on 1 October 1994 as a result of assault and battery by two police officers on 27 September 1994. 7. At about 2 p.m. on 27 September 1994 the twelve members of the rapid response force of the Shumen Regional Police Department were training just outside town. They spotted at a distance Mr Nikolov, aged sixtytwo at the time, and Mr N.R., who were testing a homemade metal detector. The leader of the team, lieutenant I.I., assumed that the two were treasurehunters and sent a party to verify his suspicion. Two police officers approached Mr N.R., while two others, chief sergeants B.I. and H.T., moved towards Mr Nikolov. None of the officers was in uniform. Chief sergeants B.I. and H.T. reached Mr Nikolov as he was trying to hide a hoe in nearby bushes. Surprised by the sudden appearance of the two men, Mr Nikolov did not throw the hoe away, but held it in front of him, taking a defensive posture. Chief sergeant B.I. brusquely pulled it out of his hands and threw it to a safe distance. Each of the officers then proceeded to deliver blows to Mr Nikolov's head. They then brought him to the ground, handcuffed him, and took him to their colleagues. A car was called and Mr Nikolov and Mr N.R., who had also been apprehended, were taken to the premises of the Shumen Regional Police Department. At about 3 p.m., while waiting to be questioned on the precinct premises, Mr Nikolov fainted. An ambulance was subsequently called and he was taken to hospital, where it was found that he had slipped into a coma. 8. After an unsuccessful operation to evacuate a subdural haematoma, Mr Nikolov died on 1 October 1994. A medical report drawn up in the course of the criminal proceedings opened pursuant to his death concluded that the cause of death was a severe cranial and cerebral trauma and internal brain haemorrhage. 9. On 2 October 1994 criminal proceedings were opened into the incident by the Shumen Regional Investigation Service. The offence was provisionally characterised as murder under Article 115 of the Criminal Code of 1968 (“the CC”) (see paragraph 39 below). 10. On 3 October 1994 the investigator in charge of the case questioned chief sergeants B.I. and H.T. Mr N.R. was also questioned on the site of the incident in the presence of a medical doctor. The investigator took a number of pictures of the site. 11. Most of the other witnesses were interviewed in October 1994 and in March and May 1995. Several expert reports were drawn up. 12. Chief sergeants B.I. and H.T. were charged and questioned again on 27 April 1995. They were released on bail. 13. The two officers who had arrested Mr N.R. were likewise charged and questioned on 2 May 1995. 14. On 12 May 1995 the investigator in charge of the case drew up his final report, concluding that chief sergeants B.I. and H.T. should be tried for wilfully inflicting grievous bodily harm on Mr Nikolov and thus having negligently caused his death, contrary to Article 124 § 1 of the CC (see paragraph 37 below). He also concluded that the two officers who had arrested Mr N.R. should be tried for inflicting light bodily harm on him. He noted, inter alia, that all of the officers had denied any wrongdoing, in spite of the evidence to the contrary, had drawn no lessons from their act and had shown no signs of remorse. He also noted that chief sergeant B.I. and one of the officers who had assaulted Mr N.R. had been charged with inflicting light bodily harm on another person on 18 April 1994, only a few months before the act in issue in the proceedings. Reflecting on the conditions which had led to the perpetration of the alleged offences, the investigator expressed the opinion that these were “the recent increase in crime which ha[d] led lawenforcement officers to suspect a criminal intent in all citizens until proven otherwise; the physicality of their training at the [police officers' school in the town of Pazardzhik], where, year after year, they [we]re instructed in how to deal with violent resistance but [we]re inadequately trained on the legal aspects of law enforcement, a practice that ha[d] been maintained within the newlyformed rapid response force centre in Shumen, as evidenced by the curriculum attached to the case file: it abound[ed] in physical training classes and lack[ed] any classes in legal training; the sense of authority that the law-enforcement officers ha[d] over the public, who [were] expected to show unconditional submission with no regard to their own rights and interests and with no regard to their dignity and inviolability as citizens; the sense of impunity; the absence of any eyewitnesses to the two offences, committed in a forested area out of the public's sight, and the hope that all [would] be covered up”. 15. In view of an amendment in June 1995 to the Code of Criminal Procedure of 1974, whereby military courts were given jurisdiction to try police officers, on an unspecified date in 1995 the case was sent to the Varna Regional Military Prosecutor's Office. Apparently it was not processed there until January 1998. The applicants complained about this inactivity to the President of the Republic, the Chief Prosecutor and the Council of Ministers. All of them forwarded the complaints to the military prosecution authorities. 16. On 12 January 1998 the Varna Regional Military Prosecutor's Office sent the case to a military investigator for further processing. 17. In a letter of 6 February 1998 the Varna Regional Military Prosecutor's Office informed the applicants that the work on the case had been held up until the beginning of 1998 because of staffing and backlog problems. 18. In June 1998 the military investigator in charge of the case was transferred to another post. For this reason, on 31 July 1998 the case was assigned to another military investigator. 19. Having concluded his work on the case, on 30 December 1998 the investigator drew up his final report, proposing that chief sergeants B.I. and H.T. be committed for trial. He noted, inter alia, that, by that date, chief sergeant B.I. was a unit commander at the riotpolice sector of the Shumen Regional Police Department and that chief sergeant H.T. was a police officer at the specialised unit in charge of bank and cash transfer safety in Sofia. 20. On 18 August 1999 the Varna Regional Military Prosecutor's Office issued an indictment against chief sergeants B.I and H.T. It noted, inter alia, that on 15 January 1999 chief sergeant B.I. had resigned from the police force and that chief sergeant H.T. was still on the force, assigned as a guard in a commercial bank. Concerning the factors which had led to the perpetration of the offence, the prosecutor observed that these were “the defendants' sense of impunity as officers of the special force of the [Ministry of Internal Affairs], their lack of respect for human dignity and the health and inviolability of citizens and their habit of treating citizens as dummies for testing their physical force and abilities, which [were] only needed for apprehending dangerous criminals”. 21. The trial at the Varna Military Court started on an unspecified date in the autumn of 1999. 22. On 13 November 1999 the applicants and Mr Nikolov's son brought claims for compensation against the two police officers (5,000 Bulgarian levs (BGN) for the first applicant, BGN 4,000 for the second applicant and BGN 4,000 for Mr Nikolov's son) and joined the proceedings as private prosecuting parties alongside the public prosecutor. 23. The court held a hearing on 3 December 1999. It heard the applicants, Mr Nikolov's son and the accused officers. It also heard the concluding argument of the parties. In his argument the public prosecutor noted that no disciplinary proceedings had taken place against chief sergeants B.I. and H.T. He requested that immediate custodial sentences, ranging between four and a half and five years' imprisonment, be imposed. In their final statement the defendants said that they were not guilty and asked the court to acquit them. 24. In a judgment of 3 December 1999 the Varna Military Court convicted chief sergeants B.I. and H.T. of having negligently caused the death of Mr Nikolov by wilfully inflicting grievous bodily harm on him, contrary to Article 124 § 1 of the CC. It sentenced each of them to three years' imprisonment, suspended for five years. It also awarded the first applicant BGN 4,000, the second applicant BGN 3,000, and Mr Nikolov's son BGN 3,000, payable jointly and severally by the two officers. The court described in detail the events of 27 September 1994 and held, as relevant: “... the act was committed negligently ... The case at hand concerns a complex offence, where the intention in respect of the lesser outcome is combined with negligence in respect of the more serious outcome, in other words, the offence was committed with both forms of mens rea ... The court is of the opinion that both of the defendants wilfully inflicted grievous bodily harm on [Mr Nikolov], which later brought about his death. The intentions must be judged through their actions. Taking into account the subjective attitude of the defendants towards their act, the court deems that their intention did not go beyond inflicting bodily harm. They merely behaved negligently in respect of the ensuing death. The objective analysis of the defendants' conduct shows that they did not foresee the imminent death of [Mr Nikolov] and neither wished nor envisaged a fatal outcome, their intention being solely to inflict bodily harm... ...The evidence in the case suggests that no persons other than the defendants were in physical contact with [Mr Nikolov]... All the traumatic injuries which were established were inflicted at the same time, in quick succession. The evidence shows that between 2 and 2.15 p.m. on 27 September 1994 in the area of the Shumen plateau the defendants, ..., in their capacity as officers of the Shumen Regional Police Department, arrested [Mr Nikolov] using physical force, and in the process delivered numerous blows to his body, some of which were strong, as a result of their prior training in arrests. There is a direct and proximate causal link between the beating and [Mr Nikolov']s traumatic injuries and the ensuing fatal outcome. In pursuing their direct aim of inflicting bodily harm on [Mr Nikolov], the defendants did not envisage the end result, but – in view of the force and the direction of the blows, they could have. It must however also be noted that, as members of the rapid response force, the defendants had acquired special skills for subduing and apprehending offenders. They were executing an order given by their immediate superior ... which included the arrest of [Mr Nikolov]... In this connection, the court finds that the conduct of the head of the team, lieutenant I.I., is also reprehensible, because he was the individual who could and should have determined whether Mr Nikolov and Mr N.R. were offenders who had to be apprehended without fail. ... The causes and the conditions for the commission of the offence are the defendants' feeling of impunity as members of the special force of the Ministry of Internal Affairs. In determining the type and the quantum of the penalty the court had regard both to the defendants' young age and to their good character as mitigating circumstances. The court deemed the unlawful use of physical force as an aggravating circumstance. The court imposed the penalties having regard to the preponderance of mitigating circumstances... Taking into account the personality of the offenders, the gravity of the offence, and the fact that the defendants have no prior convictions, and bearing in mind the aims of punishment ... the court considers that the penalties do not need to be served immediately. For this reason ... the serving of the sentences is postponed ... The main purpose of punishment in our law is general deterrence, which is achieved through the imposition of just punishment. In matching the severity of the punishment to the gravity of the offence [the court] must have regard to the personality of the offender as an additional factor. In the case of a suspended sentence, [the court] must put the emphasis on individual deterrence, namely reform of the offender. In the instant case, the court, having regard to the facts as established above, the type of mens rea involved – negligence –, and the low level of public threat of the two offenders, who perpetrated their act in the relatively distant past, concludes that there is no need for the penalties of imprisonment to be served immediately in order to achieve the aims of the criminal law. ...” 25. Both the applicants and the officers appealed to the Military Appellate Court. The applicants submitted that the sentence was too lenient and that the compensation awarded was too low. They argued that the lower court had erred in assessing the gravity of the offence and had wrongly opted for the minimum possible penalty. In their view, the officers ought to be sentenced to an effective prison term of about five years. 26. Having held a hearing on 25 October 2000, in a judgment of 29 December 2000 the Military Appellate Court partly upheld and partly reversed the lower court's judgment. It increased the amount of compensation to BGN 5,000 for the first applicant, BGN 4,000 for the second applicant and BGN 4,000 for Mr Nikolov's son, but upheld the sentence. The court described in detail the events of 27 September 1994 and held that “in view of the police officers' numerical superiority, their younger age, their special training, the proximity of their colleagues, and the fact that in his further actions [Mr] Nikolov [had not] resisted or refused to obey their lawful orders, the physical force used had been in breach of section 40(1)(1) and (2) and section 41(2) and (4) of the National Police Act [1993], in force at the material time” (see paragraphs 42 and 43 below). The court's opinion continued, as relevant: “The factual findings of the [lower] court are based on the evidence gathered and are fully accepted by [this] court. In view of the facts, the acts committed by the defendants were properly characterised as an offence under Article 124 § 1 of the CC... I. Concerning the defendants' appeal In the indictment the prosecution brought charges against the two defendants for an offence ... committed in concert. The prosecution has not taken into consideration that the offence under Article 124 § 1 of the CC is only negligent as regards the graver consequence [death]. Complicity in a criminal offence is only possible in respect of wilful offences, as it presupposes the joint wilful participation of two or more persons, whose actions lead in their entirety to the perpetration of the offence, provided always that these persons realise that they are acting in concert with others. The actus reus of the offence under Article 124 [§ 1 of the CC] is complex. The intention to achieve the lesser outcome [bodily harm] is combined with negligence in respect of the graver outcome, i.e. the offence is committed with differing types of mens rea, which excludes the possibility of complicity. ... The defendants' objection concerning the unfoundedness of the lower court's judgment as regards the authors of the offence is groundless. The experts' conclusion is that the cranial and cerebral traumas were caused by two separate blows to the head, with or against a solid object, delivered with considerable force. The experts provide two explanations as to its possible source. According to the first explanation, one blow was to the head, either on the left temple or on the right occiput, followed by a fall to the ground and a further blow to the opposite side. According to the second explanation, the two injuries may be due to two separate consecutive blows with a blunt, solid object. The experts categorically exclude the possibility that the blows were inflicted with the sharp (metal) part of the hoe... The [lower] court was correct in accepting the second explanation, which is supported by the remaining evidence... In their statements, including those made at the trial, the two defendants admit the fact that they acted violently in apprehending [Mr] Nikolov. ... [B]oth defendants state that the victim did not fall on the ground at any point. Both aver that [Mr] Nikolov was standing or squatting. It was therefore impossible for one of the injuries ... to have been the result of a fall to the ground. The defendants' assertion that the victim's death was the result of light and not grievous bodily harm, as accepted by the [lower] court, is groundless and completely unsubstantiated. The conclusions of both medical expert reports are categorical on the point that the heavy cranial and cerebral trauma has in itself resulted in a continuing overall lifeendangering disruption to health, i.e. it corresponded to the medical and biological indications of grievous bodily harm. The [lower] court has correctly found that the two defendants wilfully inflicted grievous bodily harm resulting in death. Its reasoning regarding the intention to inflict bodily harm and the negligence as regards the final result – death – are convincing and fully accepted by [this] court, so there is no need to repeat them. ... II. Concerning the [applicants'] appeal The appeal is partially well-founded. The punishments imposed – three years' imprisonment – although the minimum possible by law, are not disproportionately lenient. The [lower] court has examined and taken account of all the factors which are material in determining the sentence. On the one hand, it is true that a human life was taken in a situation which did not call for the use of such intense physical violence in respect of [Mr] Nikolov. On the other hand, the defendants have no prior convictions, are of good character, each of them administered one blow to the head of the victim, the death was caused negligently, the [defendants] acted with a view to arresting an offender pursuant to the direct orders of their immediate superior, [Mr] Nikolov did not initially obey and did not throw away the hoe which he was holding and the defendants were discharged from the [police]. In view of all this the [court] finds that the [lower] court's conclusions as to the quantum of the penalties are wellfounded, as is its conclusion that the correction and reform of the defendants do not call for the imposition of an immediate custodial sentence. The appeal is ... wellfounded as regards [the amount of compensation awarded]. The quantum of the compensation for non-pecuniary damage is to be determined at the time of delivery of the judgment. At present the courts' practice is to allow claims in respect of nonpecuniary damage for amounts higher than the claims submitted by the [applicants]. For this reason the [court] finds that the judgment should be revised, by increasing the sums awarded to each of the applicants up to the full amount of their claims. This level of compensation will reflect the actual pain and suffering which [the applicants] have sustained from the loss of their relative.” 27. Both the applicants and the police officers appealed to the Supreme Court of Cassation. The applicants again submitted, inter alia, that the suspended sentence was too lenient. They argued that the lower court's characterisation of chief sergeant B.I. as a person “of good character” was questionable as he had been charged with the battery of a detainee six months before the beating of Mr Nikolov. The police officers submitted, inter alia, that the lower courts had imposed a very severe punishment. 28. Having held a hearing on 5 December 2001, in a final judgment of 14 January 2002 the Supreme Court of Cassation upheld the lower court's judgment in the following terms: “As regards the [applicants'] appeal: It is being argued that the [lower] courts have erred in ordering the suspension of the sentences of the two defendants, and a request is made to order that they serve their sentences. This ground of appeal ... is not supported by the materials in the case file and is illfounded. In applying Article 66 of the CC, [the lower courts] have weighed all the factors relating to the individual and general deterrence functions [of the criminal law]. Taking into consideration [the defendants'] clean criminal record, their good character, the manner in which the offence was committed, namely one blow each, the form of the mens rea, namely, negligence by each of the defendants, the behaviour of the victim, and in view of the aims of the punishment ..., the conclusion that the correction and reform of the defendants does not call for the sentence is lawful. This court fully shares it... As regards the appeal by the two defendants: The grounds of appeal are a breach of the substantive law and the obvious inequity of the sentences imposed and compensation awarded Bearing in mind the [lower courts'] findings of fact, which are not subject to review [by this court], this court is of the view that the argument of a violation of the substantive law is unfounded and not supported by the materials in the case file. The authorship of the offence has been proven beyond doubt, and the legal characterisation is correct. Each of the accused ... has executed all the elements of the offence under Article 124 § 1 of the CC. The evidence – the statements of the defendants, the witness testimony, combined with the medical expert report and the other written evidence, correctly assessed by both levels of jurisdication ... has led them to hold that the two have committed the offence independently of each other, in their capacity of police officers on active duty, in connection with the performance of their duties, thus negligently bringing about the death of [Mr Nikolov] by wilfully causing him grievous bodily harm. The personal conviction of the courts has been based on objective, comprehensive and complete assessment of all the facts of the case, which have been subjected to a serious and through analysis. In view of the facts, as thus established by the appellate court, the conclusions concerning the actus reus and the mens rea are lawful. In this connection, the defendants' objection that death resulted from light bodily harm is unfounded. An identical objection was made before the appellate court, which reviewed it and ultimately rejected it. The reasons given are detailed and based on the evidence, and therefore shared by this court. ... The arguments concerning the obvious inequity of the sentences imposed and compensations awarded are likewise groundless. In determining the punishment of the two defendants, [the lower courts] analysed all the mitigating and aggravating circumstances. They correctly found a preponderance of the former and have imposed [a minimal suspended sentence, within the bounds provided for by law]. Extra lenience would be unwarranted, as it would not further [the deterrent and reforming purposes of the criminal law]. The amounts of compensation are likewise equitable. The reparation of the nonpecuniary damage resulting from the offence is assessed by the court on the basis of the facts of the case and the principles of equity... Taking into account the pain and suffering as well as the irreversibility of the loss sustained, this court considers that the amount set by the [lower] court is just and would recompense the [applicants] to the utmost degree.” 29. The applicants obtained writs of execution against the two police officers on 25 January 2002. As the latter apparently refused to pay the applicants of their own accord, on 28 December 2002 the applicants issued enforcement proceedings against them. During the period 200204 the enforcement judge at the Shumen Regional Court tried to collect the amounts from the two officers, but to no avail, since the officers did not own any seizable assets. For this reason the two enforcement proceedings were discontinued towards the end of 2004 at the applicants' request. 30. On 24 July 1997 the two applicants and Mr Nikolov's son brought a tort action against the Ministry of Internal Affairs and the Shumen Regional Police Department before the Shumen District Court. They sought nonpecuniary damages for Mr Nikolov's death in the amount of 1,500,000 Bulgarian levs (BGL) for the first applicant, BGL 750,000 for the second applicant and BGL 750,000 for Mr Nikolov's son. 31. At the first hearing on 16 October 1997, the Shumen District Court stayed the proceedings in anticipation of the outcome of the investigation against the officers. Following completion of the criminal proceedings on 14 January 2002 (see paragraph 28 above), on 16 July 2003 the Shumen District Court resumed examination of the case. 32. The court held three hearings, on 5 November 2003 and 30 January and 12 May 2004. It admitted the judgments given in the criminal proceedings against the police officers in evidence and heard the parties' pleadings. In a bench ruling of 12 May 2004 it discontinued the proceedings against the Ministry of Internal Affairs, holding that the Shumen Regional Police Department, which had employed the police officers, was the only entity capable of being vicariously liable for their actions. 33. In a judgment of 24 June 2004 the Shumen District Court ordered the Shumen Regional Police Department to pay BGN 1,500 to the first applicant, BGN 750 to the second applicant and BGN 750 to Mr Nikolov's son, together with interest at the statutory rate, from 27 September 1994, the date of Mr Nikolov's death. It also awarded costs and expenses in the amount of BGN 149.40. It held that the facts surrounding Mr Nikolov's death and the nonpecuniary damage sustained by the applicants as a result had been fully established in the judgments of the criminal courts which had tried the police officers. These judgments, which assessed the applicants' nonpecuniary damage at BGN 5,000 and BGN 4,000 respectively, were binding on the civil court. The court further noted that the applicants had not been able to collect the awards made in the criminal proceedings and concluded that this called for an award of damages to be paid by the entity which was vicariously liable for the police officers' actions. It observed however that the applicants had claimed lesser amounts – BGN 1,500 and BGN 750 – and it was therefore unable to increase the amount of the awards. 34. On 19 July 2004 the Shumen Regional Police Department appealed. On 15 November 2004 the applicants increased their claims to BGN 5,000 and BGN 4,000 respectively. The Shumen Regional Court held five hearings, on 16 November and 14 December 2004 and on 11 January, 1 and 24 February 2005. 35. In a final judgment of 29 March 2005 the Shumen Regional Court upheld the lower court's judgment. It likewise took into account the findings of the criminal courts and noted that the applicants had not been able to effectively enforce the award of damages made against the police officers. Concerning the increase in the applicants' claims, the court held that this could not be taken into account, since it had been made for the first time on appeal and as only the defendant had appealed against the firstinstance judgment. 36. The Shumen Regional Police Department paid the award of damages to the applicants shortly after the end of the proceedings. 37. Article 124 § 1 of the CC provides that whoever negligently causes the death of another by wilfully inflicting bodily harm on him or her is punishable by a term of imprisonment ranging from three to twelve years in the case of grievous bodily harm, from two to eight years in the case of intermediate bodily harm, and up to five years in the case of light bodily harm. 38. Articles 128 § 2, 129 § 2 and 130 § 2 of the CC differentiate bodily harm as grievous, intermediate or light, on the basis of various medical criteria. 39. Under Article 115 of the CC, murder is punishable by ten to twenty years' imprisonment. Under Article 116 § 1 (2) of the CC, murder committed by police officers in the performance of their duties is punishable by fifteen to twenty years' imprisonment or life, with or without parole. 40. Article 54 § 1 of the CC directs the criminal court to determine the sentence within the bounds provided for by law, taking into account the general rules of criminal law, the dangerousness of the offence and of the offender, the motives for committing the offence, and the remainder of the mitigating and aggravating circumstances. 41. Under Article 66 § 1 of the CC, the court may suspend a sentence of up to three years' imprisonment for three to five years, provided that the offender has not previously been sentenced to a term of imprisonment for a publicly prosecutable offence, and also provided that the court finds that the aims of the criminal law (in particular, reform of the offender) may be furthered without the sentence being served immediately. 42. The relevant part of section 40(1) of the now repealed National Police Act 1993 („Закон за националната полиция“), as in force at the material time, provided: “... police [officers] may use ... force ... when performing their duties only if they [have no alternative course of action], in cases of: 1. resistance or refusal [by a person] to obey a lawful order; 2. arrest of an offender who does not obey or resists the police [officers]; ... 5. attack against citizens or police [officers]; ...” 43. Under section 41(2) of the Act, the use of force had to be commensurate to, inter alia, the specific circumstances and the personality of the offender. Section 41(3) of the Act directed police officers to “protect, if possible, the health ... of the persons against whom [force was being used].” Section 41(4) of the Act provided that the use of force had to be discontinued immediately after its aim had been attained. 44. Under section 49 of the Contracts and Obligations Act 1951 („Закон за задълженията и договорите“), legal persons – including public bodies – are vicariously liable for the tortuous conduct of individuals employed by them. | 1 |
train | 001-81976 | ENG | GRC | ADMISSIBILITY | 2,007 | KASUMAJ v. GREECE | 4 | Inadmissible | Loukis Loucaides | The applicant, Mr Ilaz Kasumaj, is of Albanian origin living in Kosovo, Republic of Serbia. He is represented before the Court by Mr A. Vula, a lawyer practising in Pristina, Kosovo. The Greek Government (“the Government”) were represented by the delegates of their Agent, Mr K. Georgiadis, Adviser at the State Legal Council and Mrs Z. Hatzipavlou, Legal Assistant at the State Legal Council. The Government of Serbia did not make use of their right to intervene (Article 36 § 1 of the Convention). The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is the owner of two plots of land situated in Varosh in the municipality of Ferijah, which cover a total of 2.69 hectares. In June 1999 this land, which was used for agricultural purposes, was occupied by Greek KFOR (NATO-led peacekeeping forces) soldiers and became the main national base in Kosovo for the Greek KFOR contingent. Since then the applicant was denied access to and use of his land. | 0 |
train | 001-83273 | ENG | RUS | CHAMBER | 2,007 | CASE OF KHAMIDOV v. RUSSIA | 3 | Violations of Art. 8;Violations of P1-1;Violations of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - domestic and Convention proceedings | Peer Lorenzen | 6. The applicant was born in 1954 and lives in the village of Bratskoye, Nadterechny District, Chechnya. 7. The facts of the case as submitted by the parties are summarised in section A below (paragraphs 8-54). A description of the documents submitted by the parties is contained in section B below (paragraphs 55-84). 8. The applicant is a co-owner of real estate in the village of Bratskoye. The other co-owner is the applicant's brother, Mr Dzhabrail Abulkhanovich Khamidov, who is not a party to the proceedings before the Court. In reply to the Registry's specific query in that respect, the applicant's representative stated in a letter of 14 February 2004 that the applicant's brother did not intend to participate in the proceedings before the Court, that the applicant had participated in the domestic proceedings by himself (see below) and that in any event the applicant had furnished the Court with a general power of attorney granted to him by his brother. The document in question confirms the applicant's right to represent his brother before the Court if necessary. 9. Prior to the events described below, the applicant and his brother registered a limited liability company called Nedra (общество с ограниченной ответственностью «Недра») and, together with their families (hereafter “the applicant's family”), ran a bakery business. According to the applicant, this business was their main source of income. 10. The estate (hereafter “the applicant's estate”) comprises a plot of land of 1.5 hectares transferred to the Nedra company under an indefinite lease, a house of 251.3 square metres owned by the applicant, a house of 186 square metres owned by his brother and industrial buildings and equipment, including a mill, a bakery and storage facilities with a total surface of 2,000 square metres assigned to the Nedra company. 11. In late 1996, as alleged by the Government, or in early 1998, as alleged by the applicant, he and his family left their estate as they were constantly threatened by Chechen rebel fighters, who then moved in. 12. At the beginning of September 1999 the fighters left and the applicant and his family returned to their estate. According to the applicant, they found quarters that had been built by the fighters on the plot of land using the applicant's building materials, but the houses, industrial premises and equipment had remained intact and they restarted their business. 13. In early October 1999 the Russian Government launched a counter-terrorist operation in the Chechen Republic. Fearing possible attacks, the applicant and his relatives left the village. 14. On 13 October 1999 the Tambov consolidated police units of the Ministry of the Interior (Тамбовский сводный отряд милиции МВД РФ – “the police units”) moved onto the applicant's estate. 15. On 19 October 1999 the applicant and his family tried to return, but the police units denied them access to the estate. 16. On 4 November 1999 the applicant requested the Nadterechny Temporary Office of the Interior (временный ОВД Надтеречного района – “the VOVD”) to vacate his houses and industrial premises. 17. By a letter of 19 December 1999 the VOVD refused the applicant's request. The letter stated that they would only vacate the buildings after the termination of the hostilities in the region and the withdrawal of the Russian troops. As to the alleged damage to the applicant's property, the letter advised him to lodge a compensation claim with a court. 18. Since, at the material time, the courts on the territory of the Chechen Republic were inoperative, the applicant only submitted his claims in January 2001. 19. The applicant and his family spent the winter of 1999-2000 in a refugee tent camp in the village of Znamenskoye, Chechnya. According to him, poor living conditions in the camp resulted in the death of his nephew, who was one year and seven months' old. The applicant submitted medical death certificate no. 00-172 issued in respect of his nephew on 29 December 2000. It states that the boy died of acute double bronchial pneumonia. The date and place of death are recorded as 27 December 1999, Northern refugee camp. The applicant also claimed that the health of other family members had seriously deteriorated. 20. On 27 January and 16 October 2000 respectively, the head of the local council of the village of Bratskoye (глава органа местного самоуправления с. Братское) issued three similar certificates in respect of the applicant, his brother and their company Nedra, stating that federal police units had been occupying the applicant's estate since 13 October 1999 and refused to move out. 21. On 25 May 2000, upon the applicant's request, the military commander of the Nadterechny District (военный комендант Надтеречного района) ordered the police units to ensure that no damage would be caused to the applicant's property. According to the applicant, no measures to protect his property followed. 22. On 26 May 2000, upon the applicant's request, a commission composed of the head of the local council of Bratskoye, representatives of planning and building organisations (представитель проектной организации, представитель подрядной организации) and the military commander drew up evaluation reports (дефектные акты) reflecting in detail the poor state of the applicant's property (see paragraphs 63-67 below). 23. Another commission made up of the head of the local council and several residents of Bratskoye issued a certificate stating that federal interior troops had been stationed on the applicant's estate from 13 October 1999 until 26 May 2000, and that they had damaged the applicant's houses and industrial premises, the damage having been certified by the above-mentioned evaluation reports. The undated certificate was signed and sealed by the commission members and the military commander. 24. In a letter of 12 September 2000 an acting prosecutor of the Nadterechny District (исполняющий обязанности прокурора Надтеречного района) suggested that the military commander should order the police units either to vacate the applicant's house or enter into a lease agreement with him. The commander never responded. 25. By a letter of 25 December 2000 an acting prosecutor of the Nadterechny District invited the applicant to apply to a court in the event of the police units' refusal to follow the above recommendation. 26. From November 1999 to December 2000 the applicant also lodged a large number of complaints with State bodies, including military authorities, prosecutors at various levels and other law-enforcement agencies, regional and federal administrative authorities, seeking eviction of the police units. Mostly he received formal responses by which his complaints were transmitted to other bodies, but no effective measures were taken. 27. In January 2001 the courts in Chechnya became operational again. The applicant, in his own name and on behalf of his brother, brought an action in which he sought the eviction of the Tambov consolidated police units from his estate. 28. By a default judgment of 14 February 2001 the Nadterechny District Court of the Chechen Republic confirmed the title of the applicant and his brother to the plot of land and the houses and industrial premises, with reference to numerous documents submitted by the applicant. The court, having examined the evidence submitted by the applicant, found as follows: “...Internal troops and police units from various regions of Russia involved in the counter-terrorist operation in the Chechen Republic occupied the houses and industrial premises belonging to the Khamidovs, without seeking approval of the rightful owners and in breach of all the provisions of law in force and the Constitution of Russia. The power structures, called upon to protect the interests of civilians, have themselves turned to breaching the Constitution of Russia... ... The well-foundedness of [the applicant's] claim can also be confirmed by the district prosecutor's letter addressed to the district military commander, which states that since 13 October 1999 the police units of the federal troops have been occupying the residential and industrial premises belonging to [the applicant] on the western outskirts of the village of Bratskoye in the Nadterechny District. The actions of the police units of the federal forces have flagrantly breached [the applicant's] housing and civil rights secured by the Constitution of Russia and by housing and civil legislation. ... Earlier, on 25 May 2000, the military commander of the Nadterechny District issued an order obliging the defendant to preserve the Khamidovs' property and upon the expiry of a three-month period to return them their property intact. The defendant ignored this order.” The court concluded that the Tambov police units of the Ministry of the Interior had adversely occupied the applicant's estate and ordered their eviction, thus allowing the applicant's claim in full. 29. On 24 February 2001 the judgment came into force and enforcement proceedings were commenced accordingly. A bailiff's attempts to enforce the judgment proved to have been in vain, as the police units refused to comply with the writ of execution. In his attempts to enforce the judgment the bailiff unsuccessfully sought the assistance of the head of the administration of the Nadterechny District, the military commander of the Nadterechny District and the military commander of the Chechen Republic. 30. The applicant's numerous complaints to local and federal administrative bodies were to no avail. 31. On 2 March 2001 the Supreme Court of the Chechen Republic forwarded the applicant's request to enforce the judgment in his favour to the Chechen Minister of Justice and invited him to take the necessary measures. 32. According to the Government, in April 2001, within the statutory time-limit provided for in domestic law for the enforcement of a final judgment, the Tambov police units vacated the buildings on the applicant's estate, but relocated to the applicant's plot of land instead. 33. On 21 May 2001 the Special Envoy of the Russian President for Rights and Freedoms in the Chechen Republic (Специальный представитель Президента Российской Федерации по соблюдению прав и свобод человека в Чеченской Республике) requested the Russian Minister of the Interior to order the enforcement of the judgment of 14 February 2001. On 18 July 2001 the Special Envoy sent the applicant's new complaint to the Minister of the Interior and stated that he had still not received any reply to his previous query of 21 May 2001. 34. On 22 May 2001 the President of the State Duma Commission for the Promotion of the Normalisation of the Political, Social, and Economic Situation and the Protection of Human Rights in the Chechen Republic (Комиссия по содействию нормализации общественно-политической и социально-экономической обстановки и соблюдению прав человека в Чеченской Республике) notified the Minister of the Interior of the unlawful occupation by the police units of the applicant's estate and their refusal to comply with the judgment in the applicant's favour and requested that the Minister take up the applicant's case, given that it had already attracted the attention of the Commissioner for Human Rights of the Council of Europe. 35. On 30 May 2001 the first deputy-head of the Office of the President of Russia (Администрация Президента – “the President's Office”) transmitted the applicant's complaint to the Minister of the Interior for examination. 36. On 7 June 2001 the General Prosecutor's Office forwarded the applicant's complaint to the prosecutor's office of the Chechen Republic (прокуратура Чеченской республики) “for examination on the merits”. 37. By letter of 13 June 2001 the first deputy commander of the United Group Alignment in the Northern Caucasus (первый заместитель командующего ОГВ(с) в СКР – “the deputy commander”) informed the Nadterechny District Court that the judgment in the applicant's favour had been executed and the defendant units had left the applicant's estate. In reply, on 26 June 2001 a bailiff reported that the judgment remained unenforced. He stated that he had visited the applicant's estate and found out that even though the Tambov consolidated police units had left, the Tula consolidated police units (Тульский сводный отряд милиции) had moved into the applicant's property. 38. On 18 June 2001 the prosecutor's office of the Chechen Republic invited the Chief Bailiff of Russia (главный судебный пристав РФ) to provide information as to what measures had been taken to enforce the judgment in the applicant's favour and whether the question of administrative or criminal liability for evasion from enforcement by the personnel of the consolidated police units had ever been raised. It is unclear whether any answer was given to this query. 39. On 26 June 2001 the Chief Bailiff informed the President's Office that the term allowed for the examination of the applicant's complaint regarding the prolonged non-enforcement had been extended for 30 days. 40. On 27 June 2001 the Ministry of the Interior informed the President's Office that the judgment of 14 February 2001 had been enforced. 41. In a letter of 30 June 2001 the prosecutor's office of the Chechen Republic, with reference to the letter of the deputy commander of 13 June 2001, notified the applicant that the judgment had been executed. 42. According to the Government, on 4 July 2001 the bailiff imposed a fine equal to 200 times the minimum monthly salary on the police units for their refusal to comply with the court judgment. The fine, however, could not be recovered because of delays in the payment of wages to military personnel in Chechnya. The Government also submitted that on 14 July 2001 the Tambov police units had left the territory of the applicant's estate, and the bailiff had closed the enforcement proceedings and returned the writ of execution to the Nadterechny District Court on 17 July 2001, but thereafter the Tula police units had occupied the applicant's estate. 43. On 30 July 2001, in the course of the eviction proceedings, the bailiff drew up three reports on the eviction of the police units from the applicant's houses and industrial premises. The reports listed items of the applicant's property that had been destroyed or damaged and were signed by the applicant, the bailiff and two attesting witnesses (see paragraphs 68-71 below). It does not appear that the actual eviction took place. 44. In a letter of 10 August 2001 a Deputy Chief Bailiff of Russia informed the applicant of the developments in his case, stating that the execution of the judgment depended in fact on the Ministry of the Interior rather than on the efforts of a bailiff. 45. By a letter of 13 August 2001 the President's Office transmitted the applicant's new complaint to the Ministry of Justice. It also referred to the Chief Bailiff's letter of 26 June 2001 and stated that even though 30 days had already passed, no information had been submitted on the developments in the enforcement proceedings. 46. On 26 February 2002 the bailiff reported that on an unspecified date the police had vacated the houses, but remained in quarters they had built on the applicant's land and continued using the applicant's resources for their needs. The report also stated that the Tula consolidated police units had been replaced by the Kaluga consolidated police units (сводный отряд милиции УВД Калужской области), that trenches, check-points and barbed wire restricted access to the land, and that the applicant could not enter it even for a short time, let alone permanently reside there. 47. On 14 June 2002 the bailiff closed the enforcement proceedings, as the police units had finally left the applicant's estate. The bailiff drew up a report on the eviction, briefly indicating the damage to the applicant's property. It was signed by the applicant, the bailiff and two attesting witnesses (see paragraph 72 below). 48. On 30 July 2001 the applicant, acting in his own name and on behalf of his brother, brought an action against the Russian Ministry of the Interior in the Zamoskvoretskiy District Court of Moscow (Замоскворецкий межмуниципальный суд г. Москвы – “the District Court”). He complained that the consolidated police units of the Ministry of the Interior had occupied and wrecked his estate and had been refusing to comply with the judgment of 14 February 2001. He sought recovery of possession of his movables and real property as well as compensation in an amount of 10,787,040 Russian roubles (RUB; approximately EUR 315,732) for pecuniary losses that he had sustained as a result of the adverse occupation of his estate and compensation in an amount of RUB 5,241,175 (approximately EUR 153,418) for the damage caused thereto. The applicant also stated that as a result of the unauthorised occupation of his estate he and his family had had to live in a refugee camp in appalling conditions which had resulted in the death of his nephew, and he claimed compensation of RUB 10,000,000 (approximately EUR 292,685) in respect of non-pecuniary damage. 49. The applicant filed numerous documents in support of his claims, including those confirming his and his brother's title to the houses, industrial buildings and the plot of land, two registration certificates in respect of the Nedra company, his applications to various State bodies and respective replies, a copy of the judgment of 14 February 2001 and the bailiff's reports on the police units' failure to comply with that judgment as well as the certificate issued by the commission made up of the head of the local council of Bratskoye and local residents (see paragraph 23 above), together with the evaluation reports of 26 May 2000 and estimates of repair costs for his property. 50. On 23 January 2002 the District Court delivered its judgment. At the trial the defendant Ministry did not contest, as such, the accuracy of the applicant's submissions or the evidence he had presented, but denied its responsibility for the consolidated police units, stating that they had formed part of the federal troops within the territory of Chechnya and had been under the command of the military authorities of the United Group Alignment. The court made no comment in respect of those submissions by the defendant Ministry. It examined the material before it and established that the applicant owned the property in question, that the local council had certified on 16 October 2000 the unauthorised occupation of that property by federal police units, that the applicant had requested the authorities to ensure his estate be vacated and that by a judgment of 14 February 2001 the Nadterechny District Court had ordered the eviction of the Tambov consolidated police units from the applicant's premises. The court further found as follows: “The plaintiffs have filed a certificate issued by [the commission composed of] the head of the local council and residents of Bratskoye. The certificate states that the federal military were located on the plaintiffs' estate from 13 October 1999 until 26 May 2000 and that they caused damage to the plaintiffs' property. The plaintiffs have produced evaluation reports and estimates of repair costs to corroborate their arguments concerning the property damage. The plaintiffs have also adduced a calculation of lost profit ... Having assessed the evidence in its entirety, the court sees no reason to allow the plaintiffs' claims, since the houses and industrial premises have already been vacated, as the [first] plaintiff has confirmed during the hearing. Besides, another judgment in force ordered the police units' eviction, and enforcement proceedings were commenced. The court cannot award repair costs and compensation for property damage either, since the plaintiffs have failed to present sufficient proof that their houses and the industrial premises were damaged through the fault of the Ministry of the Interior. The only evidence the plaintiffs have produced to corroborate their claims is the certificate issued by the head of the local council of Bratskoye, which states that the federal interior troops caused the property damage. However, the court cannot consider this document as evidence, since the date of its issue is missing. Besides, there is nothing in this document to suggest that the real amount of the damage corresponds to that indicated by the plaintiffs. ... The plaintiffs have adduced photographs of their houses and industrial premises. The court cannot admit these photographs in evidence, since there is no indication that they represent the plaintiffs' houses and industrial premises. In view of the fact that during the trial the plaintiffs' arguments that it was the Ministry of the Interior which adversely occupied their property have proved groundless, the court finds the Khamidovs' claims unfounded.” 51. The court rejected the applicant's claims accordingly, without separately addressing his claims regarding compensation for the adverse occupation of his estate or that in respect of non-pecuniary damage. 52. The applicant appealed against the above-mentioned judgment. He pointed out, among other things, that the District Court's finding to the effect that “during the trial the plaintiffs' arguments that the Ministry of the Interior unlawfully occupied their property had proved groundless” was arbitrary and contravened Article 55 of the Code of Civil Procedure which stated that the facts established by a court judgment that had entered into force should not have to be proved again during examination of other civil disputes between the same parties. The applicant also claimed that the District Court had been arbitrary in that it had rejected the certificate drawn up by the commission consisting of the head of the local council and residents of Bratskoye by merely referring to the fact that this certificate was undated, even though the said document directly referred to the evaluation reports of 26 May 2000 that had been enclosed with it and submitted to the first-instance court. 53. On 8 April 2002 the Moscow City Court dismissed the applicant's appeal. It restated, in essence, the reasoning of the first-instance judgment and confirmed that all the findings had been correct. 54. The applicant's subsequent requests for supervisory review were to no avail. 55. Among a considerable number of other documents, the applicants submitted the following. 56. Registration certificates nos. 322 and 323 issued on 18 October 2000 by a competent local authority in respect of the applicant's house and that of his brother confirm that the houses belong to the applicant and his brother respectively. 57. A temporary registration certificate of 5 September 1996 issued by a competent authority confirms the transfer of the plot of land of 1.5 hectares to the Nedra company under an indefinite lease. 58. Certified technical descriptions issued to the applicant and his brother for their respective houses and to the Nedra company in respect of the industrial premises indicate the surface area of the buildings (see paragraph 10 above) and contain a plan of the buildings showing their dimensions. 59. The Charter of the Nedra company was approved by its founders on 22 March 1996 and registered with the Chechen Ministry of Justice on 3 April 1996 under number 3398. It states that the multifunctional firm Nedra is a limited liability company and a legal entity. The founders of the company are the applicant and his brother. The Charter stipulates that the founders are the company's owners and that in case of their death the right of ownership shall be transferred to their heirs. The liability of the founders for the company's debts is limited to the amount of their shares. They are empowered to appoint the director of the company. 60. Certificate no. 3398 issued by the Chechen Ministry of Justice on 3 April 1996 confirms the registration of the Nedra company on the same date. The certificate states that Nedra is a private company, indicates the company's registered address and the amount of the charter capital and states that the company's “director (founder) is Mr Dzhabrail Abulkhanovich Khamidov”, the applicant's brother. 61. Certificate no. 273 of 16 August 2000 confirms that the Nedra company was re-registered on the same date. It states that Nedra is a private company, indicates the company's registered address and the amount of the charter capital and states that the company's “director (founder) is Mr Dzhabrail Abulkhanovich Khamidov”. 62. Extract no. 602a of 1 December 2006 from the Unified State Register of Legal Entities provides a very detailed account regarding the Nedra company, stating, in particular, that “the founders (owners) of the company are two natural persons”, namely the applicant and his brother. 63. The applicants submitted four evaluation reports issued in the presence of the applicant and his brother on 26 May 2000 by a commission composed of the deputy head of the commission, Mr I., the head of the local council of Bratskoye, Mr T., a representative of the planning organisation, Mr M., and a representative of the building organisation, Mr Ib. The reports are countersigned by the military commander of the Nadterechny District, General-Major K., and the head of the administration of the Nadterechny District, Mr Z. The reports are issued in respect of the applicant's house, his brother's house, the storage facility and the industrial equipment and state that each item of the property in question has been damaged and that its restoration requires a certain amount of work as listed below. 64. The report issued in respect of the applicant's house lists the following types of work: Repair of the roof – 140 square metres; Interior plasterwork – 190 square metres; Double whitewashing of walls – 1,150 square metres; Installation of 4 doorways measuring 2.6 x 1.3 metres – 14 square metres; Installation of 9 doorways measuring 2.2 x 1.8 metres – 22 square metres; Installation of 7 window openings – 28 square metres; Glazing of windows – 110 square metres; Cementing of the floor – 250 square metres; Covering of the floor with linoleum – 250 square metres; Repair of two boilers; Laying of 20 mm heating pipes – 10 metres; Laying of 32 mm heating pipes – 50 metres; Laying of 50 mm heating pipes – 160 metres; Installation of 20 heating radiators – 48 equivalent square metres; Repair of the ceiling – 30 cubic metres; Sanitary equipment – 100 per cent; Electrical equipment – 100 per cent; Major repair of electric wiring – 400 metres; Covering of the floor with ceramic tiling – 48 square metres; Covering of the walls with ceramic tiling – 50 square metres; Painting of doors, windows, pipes and radiators – 280 square metres; Repair of the iron fence – 80 metres; Repair of 50 [concrete fence] blocks – 25 square metres; Backfilling of the dug-outs and trenches – 100 per cent; Removal of debris – 20 cubic metres; Repair of a gravel driveway – 2,400 square metres. 65. The report issued in respect of the house belonging to the applicant's brother lists the following work: Repair of the roof – 110 square metres; Interior plasterwork – 60 square metres; Installation of 4 doorways – 9.7 square metres; Installation of 3 window openings – 12 square metres; Glazing of windows – 63 square metres; Cementing of the floor – 150 square metres; Covering of the floor with linoleum – 180 square metres; Major repair of electric wiring – 400 metres; Repair of a boiler; Laying of 20 mm heating pipes – 5 metres; Laying of 32 mm heating pipes – 40 metres; Laying of 50 mm heating pipes – 120 metres; Installation of 11 heating radiators – 26 equivalent square metres; Repair of the ceiling – 20 cubic metres; Sanitary equipment – 100 per cent; Electrical equipment – 100 per cent; Covering of the floor with ceramic tiling – 40 square metres; Covering of the walls with ceramic tiling – 28 square metres; Painting of doors, windows, pipes and batteries – 85 square metres; Repair of the iron fence – 100 metres; Repair of the gates measuring 3.5 x 5 metres; Repair of 62 [concrete fence] blocks – 37 square metres; Backfilling of the dug-outs and trenches – 100 per cent; Removal of debris – 20 cubic metres. 66. As regards the storage facility the report lists at the outset three types of necessary work revealing that the roof was destroyed completely. The report continues as follows: Replacement of 4 entrance gates – 86 square metres; Replacement of 2 exit gates – 34 square metres; Installation of 8 window openings – 24 square metres; Glazing of windows – 48 square metres; Covering of 8 windows with bars – 24 square metres; Cementing of the floor – 1,600 square metres; Installation of paving borders – 180 metres; Repair of the paving around the building – 240 square metres; Asphalting of an area of 1,400 square metres; Repair of two boilers; Installation of 2 heating radiators; Repair of a gas-flow line – 200 metres; Major repair of electric wiring – 500 metres; Electrical equipment – 100 per cent; Installation of electric cable – 120 metres; Repair of 26 luminescent bulbs; Repair of 3 electric control units; Repair of 4 electric switches; Repair of 186 [concrete fence] blocks – 112 square metres; Backfilling of the dug-outs and trenches – 100 per cent; Removal of debris – 50 cubic metres; Repair of a gravel driveway – 3,600 square metres. 67. The report issued with respect to the industrial equipment states that the mill machinery and the mini-bakery had been disassembled completely. 68. The applicant submitted three bailiff's reports on the eviction of the police units dated 30 July 2001 (see paragraph 43 above). The reports were drawn up in respect of the applicant's house, his brother's house and the industrial equipment and premises, in the presence of the applicant, his brother and two attesting witnesses. They are signed by the applicant, the bailiff and the witnesses. The reports list the items of the applicant's property that were destroyed or damaged and indicate the degree of damage caused. 69. The report relating to the applicant's house provides the following details: The roof is damaged – 140 square metres; The plaster inside the building is damaged – 190 square metres; The ceiling is damaged – 48 square metres; 9 window openings are broken – 22 square metres; Window glass is broken – 110 square metres; 4 doorways measuring 2.6 x 1.3 metres have been removed – 14 square metres; 9 doorways measuring 2.2 x 1.1 metres have been removed – 22 square metres; The heating system is non-functional and has been disassembled completely – 100 per cent; Floor linoleum has been removed – 250 square metres; Floor ceramic tiles have been removed – 48 square metres; A bath and sanitary facilities are missing – 100 per cent; A fence of iron sheets is missing – 80 square metres; 50 [concrete fence] blocks are missing – 25 square metres; A drinking water well has been filled up with debris – 100 per cent; Electric wiring has been dismantled; Furniture and household belongings are missing completely – 100 per cent; Infrastructure inside and around the building is damaged because of trenches, dug-outs and debris; A driveway's hard coating is broken completely – 2,400 square metres. 70. The report drawn up in respect of the house of the applicant's brother lists damage as follows: The roof is damaged – 110 square metres; The plaster inside the building is damaged – 60 square metres; 7 doorways have been removed – 9.7 square metres; 3 window openings are broken – 12 square metres; Window glass is broken – 63 square metres; Floor linoleum has been removed – 180 square metres; Floor ceramic tiles have been removed – 40 square metres; The heating system is non-functional, a boiler and heating radiators have been removed – 100 per cent, to be restored completely; A bath and sanitary facilities are missing – 100 per cent; A fence of iron sheets is missing – 100 square metres; 62 [concrete fence] blocks are missing – 37 square metres; Iron entrance gates are missing – 17.5 square metres; Electric wiring has been dismantled – 100 per cent; Infrastructure inside and around the building is damaged (trenches, dug-outs, debris) – 100 per cent; Furniture and household belongings are missing completely – 100 per cent. 71. The report drawn up in respect of the industrial equipment and premises states as follows: Mill machinery has been disassembled; A four-core cable is missing – 890 metres; Bakery equipment is missing completely; The roof has been dismantled – 2,000 square metres; 4 entrance gates have been removed – 85 square metres; 2 exit gates have been removed – 34 square metres; 8 window openings with bars have been removed – 24 square metres; Window glass is missing – 48 square metres; 2 iron main beams are damaged – 22 metres; The concrete ceiling is damaged – 1,600 square metres; The paving around the building is broken – 240 square metres; An asphalt area of 1,400 square metres is broken; The heating system in the mill has been destroyed – 100 per cent; A gas-flow line has been destroyed – 200 metres; Electric illumination of the mill has been destroyed – 100 per cent; 186 [concrete] blocks are missing from the fence – 112 square metres; A driveway's hard coating is broken completely – 3,600 square metres; An area of 3,500 square metres has been alienated and re-planned and [built upon] using the materials [of the applicant and his brother]. 72. The report of 14 June 2002 states that the police units were evicted from “[the applicant's] private house and the Nedra company's premises”. The state of the house is described as follows: The heating system has been destroyed; The ceiling has been dismantled; The electric wiring has been destroyed; Doors are missing completely; Windows are partly broken. 73. The Government did not furnish the Court with any documents before the admissibility decision was taken. After the case was declared admissible the Government submitted a number of documents, including certificate no. 3398 of 3 April 1996 (see paragraph 60 above), a temporary registration certificate of 5 September 1996 (see paragraph 57), a decision of 4 January 2000 taken by the applicant's brother to re-register the Nedra company in accordance with the Russian legislation in force and to appoint the applicant as the company's director, an evaluation report of 26 May 2000 issued in respect of the storage facility (see paragraph 66), certificate no. 273 of 16 August 2000 (see paragraph 61), registration certificate no. 322 of 18 October 2000 (see paragraph 56) and extract no. 10123 of 17 January 2007 from the Unified State Register of Legal Entities which provides information identical to that contained in extract no. 602a (see paragraph 62). 74. The other documents submitted by the Government may be summarised as follows. 75. A certificate of 12 January 2007 issued by a housing authority of the Nadterechny District states that the residential properties of the village of Bratskoye have never been included in a register for administration by the said housing authority and that the latter has no information as to whether the applicant and his brother have any housing. 76. A written explanation given by Mr T., the head of the local council of Bratskoye, on 12 January 2007 states that the applicant and his brother used to live in Bratskoye but no longer reside there. According to Mr T., in 1995 the applicant was assigned a plot of land of 1.5 hectares for construction purposes and the applicant built a storage facility and two houses thereon. The explanation further states that in the period from 1997 to 1999 the applicant's estate was occupied by Chechen rebel fighters who had built quarters on the applicant's land and that in late 1999 they were replaced by federal police who remained on the estate until 2001 or 2002. In Mr T.'s submission, he does not remember the exact period during which various military structures were placed on the applicant's estate, and cannot indicate the legal basis for the occupation of the estate. According to him, “after the police units left, the situation on the estate was as it is now; there were only slight defects in the rooms of the house, which we reported when drawing up documents”. In his explanation Mr T. submits that he does not remember the date on which the said documents were drawn up, and that the local council of Bratskoye does not have these documents at its disposal. 77. One of three certificates issued by Mr T., the head of the local council of Bratskoye, on 12 January 2007 states that the limited liability company Nedra situated on a plot of land of 1.5 hectares on the outskirts of Bratskoye is registered in the names of the applicant and his brother, but the latter two, themselves, are not registered in the village. The remaining two certificates state that the houses of the applicant and his brother respectively are not listed in the property register of the village of Bratskoye. 78. Two certificates issued by the State enterprise “Russian Real Estate Centre” on 12 January 2007 state that “as a result of military actions within the territory of the Chechen Republic the archive of the Chechen branch of the Russian Real Estate Centre was completely destroyed (burnt)” and that “according to the archive data since 27 April 2000, as at the date of 12 January 2007, there is no housing registered for the applicant and his brother respectively”. 79. The Government submitted a number of photographs taken on 12 January 2007 which represent two houses photographed from the outside and situated in close proximity to each other and a long construction with a missing roof and missing floor. Some photographs represent a partly broken fence made from concrete blocks. The Government did not make any comments regarding the photographs. 80. The Government also submitted three undated evaluation reports drawn up in the applicant's presence by a commission comprising a technical expert, Mr I., a representative of the administration of the Nadterechny District, Mr Ib., and the head of the local council of Bratskoye, Mr T. The reports are countersigned by the deputy head of the administration of the Nadterechny District. They do not specify in respect of which particular building they are made, but contain a hand-drawn plan of the respective building and indicate the work required to restore the property. 81. One of the reports lists work very similar to that indicated in the evaluation report of 26 May 2000 issued in respect of the applicant's house (see paragraph 64 above): Repair of the roof – 140 square metres; Interior plasterwork – 1,150 square metres; Double whitewashing of walls – 1,150 square metres; Installation of 4 doorways measuring 2.6 x 1.3 – 14 square metres; Installation of 9 doorways measuring 2.2 x 1.1 – 22 square metres; Installation of 7 window openings – 28 square metres; Glazing of windows – 110 square metres; Cementing of the floor – 250 square metres; Covering of the floor with linoleum – 250 square metres; Repair of two boilers; Laying of 120 mm heating pipes – 10 metres; Laying of 32 mm heating pipes – 50 metres; Laying of 50 mm heating pipes – 160 metres; Installation of 20 heating radiators – 48 equivalent square metres; Repair of the ceiling – 30 cubic metres; Sanitary equipment – 100 per cent; Electrical equipment – 100 per cent; Major repair of electric wiring – 400 metres; Covering of the floor with ceramic tiling – 48 square metres; Covering of the walls with ceramic tiling – 50 square metres; Painting of doors, windows, pipes and batteries – 280 square metres; Repair of the iron fence – 80 metres; Replacement of 50 [concrete fence] blocks – 25 square metres; Backfilling of the dug-outs and trenches – 100 per cent; Repair of a gravel driveway – 2,400 square metres. 82. Another report lists work very similar to that indicated in the evaluation report of 26 May 2000 issued in respect of the house of the applicant's brother (see paragraph 65 above), such as: Repair of the roof – 110 square metres; Interior plasterwork – 450 square metres; Installation of 4 doorways – 9.7 square metres; Installation of 3 window openings – 12 square metres; Glazing of windows – 63 square metres; Cementing of the floor – 150 square metres; Covering of the floor with linoleum – 180 square metres; Major repair of electric wiring – 300 metres; Repair of a boiler; Laying of 20 mm heating pipes – 5 metres; Laying of 32 mm heating pipes – 40 metres; Laying of 50 mm heating pipes – 120 metres; Installation of 11 heating radiators – 26 equivalent square metres; Repair of ceiling – 20 cubic metres; Sanitary equipment – 100 per cent; Electrical equipment – 100 per cent; Covering of the floor with ceramic tiling – 40 square metres; Covering of the walls with ceramic tiling – 28 square metres; Painting of doors, windows, pipes and batteries – 85 square metres; Repair of the iron fence – 100 metres; Repair of the gates measuring 3.5 x 5 metres – 17.5 square metres; Replacement of 62 [concrete fence] blocks – 37 square metres; Backfilling of the dug-outs and trenches – 100 per cent; Removal of debris – 20 cubic metres. 83. The third report lists work very similar to that indicated in the evaluation report of 26 May 2000 issued in respect of the industrial premises (see paragraph 66 above). In particular, the first three types of work indicate that the roof of the respective building has been completely destroyed. The report further states as follows: Installation of 4 entrance gates – 86 square metres; Installation of 2 exit gates – 34 square metres; Repair of 8 window openings – 24 square metres; Glazing of windows – 48 square metres; Covering of 8 windows with bars – 24 square metres; Cementing of the floor – 1,600 square metres; Installation of paving borders – 180 metres; Repair of the paving around the building – 240 square metres; Asphalting of an area of 1,400 square metres; Repair of two boilers; Installation of 2 heating radiators; Repair of a gas-flow line – 200 metres; Major repair of electric wiring – 500 metres; Electrical equipment – 100 per cent; Installation of electric cable – 120 metres; Replacement of 26 luminescent bulbs; Replacement of 3 electric control units; Replacement of 4 electric switches; Repair of 186 [concrete fence] blocks – 112 square metres; Backfilling of the dug-outs and trenches – 100 per cent; Removal of debris – 50 cubic metres; Repair of a gravel driveway – 3,600 square metres. 84. Finally, the Government submitted written statements by eight police officers who were stationed on the applicant's estate at various times in 2000 – 2002. The statements were made in the period between 16 and 18 November 2004. Officer S. submitted that the property had been kept in the same condition in which it had been taken over; officers G. and Sh. stated that nothing had been plundered from the estate, and that the condition of the property had been assessed as being good at the time of its transfer to other police units. Five other officers submitted that they had been stationed in the quarters on the applicant's land plot, and that they had been unaware who had owned the property in question. 85. Article 25 of the Constitution provides that housing shall be inviolable and that no one shall have the right to enter housing against the will of those living there, except in the cases established by a federal law or pursuant to a court decision. 86. Article 35 § 1 states that the right of private property shall be protected by law. 87. Article 40 § 1 provides that no one may be arbitrarily deprived of his or her home. 88. Under Article 55 § 3 the rights and freedoms set forth in the Constitution may only be limited by the federal law to the extent necessary for the protection of the fundamental principles of the constitutional system, morality, health, the rights and lawful interests of other people, or for ensuring defence of the country and security of the State. 89. Article 301 of the Civil Code provides that an owner has the right to recover his property from adverse possession. 90. By virtue of Article 303, an owner, when recovering property from adverse possession, has the right to claim from a person who knows, or should have known, that his possession is adverse (the possessor in bad faith), the return or reimbursement of all profits which that person has, or should have, received during the entire period of the possession. 91. Article 304 states that an owner is entitled to seek the elimination of all violations of his property rights even if such violations do not involve deprivation of possession. 92. Article 1064 provides that damage caused to the property of an individual or of a legal entity shall be compensated for in full by the person who inflicted such damage. The latter may be released from the obligation to make compensation if he or she can prove that the damage was not inflicted through his or her own fault; however, the law may provide for compensation in respect of damage even in the absence of fault by the person who caused it. Damage inflicted by lawful actions shall be compensated for in cases established by law. 93. By virtue of Article 1067, damage inflicted in a situation of absolute necessity, and notably for elimination of a danger threatening the tortfeasor or third parties, if the danger, in the circumstances, could not be eliminated by any other means, shall be compensated for by the tortfeasor. Having regard to the circumstances in which the damage was caused, a court may impose an obligation to compensate for such damage on a third party in whose interests the tortfeasor acted, or release from such an obligation, partially or in full, both the third party and the tortfeasor. 94. Article 1069 stipulates that a State agency or a State official will be liable towards a citizen for damage caused by their unlawful actions or failure to act. Compensation for such damage will be awarded at the expense of the federal or regional treasury. 95. Article 50 of the Code of Civil Procedure states that each party to proceedings must prove those circumstances to which it refers in support of its submissions. A court decides what circumstances are relevant for the case and which party must prove them and proposes those circumstances for discussion even if some of them have not been referred to by any of the parties. Evidence is submitted by the parties and other persons involved in the proceedings. A court may propose that the parties or other persons involved in the proceedings submit additional evidence. If it is complicated for the parties or other persons involved in the proceedings to submit additional evidence, the court, on their request, assists them in obtaining that evidence. 96. Article 55 provides that the facts established by a court judgment that has entered into force will not have to be proved again during examination of other civil disputes between the same parties. 97. Article 117 establishes, as a general rule, that actions must be brought in the court of the defendant's place of residence. 98. Article 118 stipulates the plaintiff's right to bring a claim of compensation for damage to his or her property in the court of his or her choosing – either that of the defendant's place of residence or that of the place where the damage has been caused. 99. Under Article 119, actions concerning the determination of rights over immovable property may only be brought in the court of the place where such property is situated. 100. The Law on Suppression of Terrorism of 25 July 1998 (Федеральный закон от 25 июля 1998 г. № 130-ФЗ «О борьбе с терроризмом»), as in force at the relevant time provided as follows: “For purposes of the present Federal Law the following basic concepts shall be applied: ... 'suppression of terrorism' shall refer to activities aimed at the prevention, detection, suppression and minimisation of consequences of terrorist activities; 'counter-terrorist operation' shall refer to special activities aimed at the prevention of terrorist acts, ensuring the security of individuals, neutralising terrorists and minimising the consequences of terrorist acts; 'zone of a counter-terrorist operation' shall refer to an individual terrain or water surface, means of transport, building, structure or premises with adjacent territory where a counter-terrorist operation is conducted; ...” “1. In the zone of a counter-terrorist operation, the persons conducting the operation shall be entitled: (1) if necessary, to take measures aimed at temporary restriction or prohibition of vehicle and pedestrian traffic in the streets and on the roads, to prohibit the access of transport vehicles, including those of embassies and consulates, and that of citizens to certain territories or objects, or to remove citizens from certain territories or objects and to tow away transport vehicles; (2) to check the identity documents of private persons and officials and, where they have no identity documents, to detain them for identification; (3) to detain persons who have committed or are committing offences or other acts in defiance of the lawful demands of persons engaged in a counter-terrorist operation, including acts of unauthorised entry or attempted entry to the zone of the counter-terrorist operation, and to convey such persons to the local bodies of the Ministry of the Interior of the Russian Federation; (4) to enter unimpeded (penetrate) private residential or other premises or plots of land belonging to individuals, or the territory and premises of an organisation regardless of to whom such organisation may belong ... while suppressing a terrorist act or pursuing persons suspected of committing such an act, when a delay may entail a real risk for human life or health; (5) to search persons, their belongings and vehicles entering or exiting the zone of a counter-terrorist operation, including with the use of technical means; (6) to use, for duty purposes, any means of communication, including special ones, belonging to a citizen or organisation regardless of to whom such organisation may belong; (7) to use, for duty purposes, transport vehicles belonging to an organisation regardless of to whom such organisation may belong, except for those of embassies, consulates or other representations of foreign States and international organisations, and to use, in the event of emergency, transport vehicles belonging to citizens for the purpose of preventing a terrorist act, or pursuing and detaining persons who committed such an act, or conveying persons in urgent need of medical assistance to medical institutions, and arriving at the scene of an incident. 2. In the zone of a counter-terrorist operation, the activity of representatives of the mass-media shall be regulated by the head of the operational headquarters for a counter-terrorist operation, unless federal law provides otherwise.” “On the basis of the legislation and within the limits established by it, damage may be caused to the life, health and property of terrorists, as well as to other legally-protected interests, in the course of a counter-terrorist operation. However, servicemen, experts and other persons engaged in the suppression of terrorism shall be exempted from liability for such damage, in accordance with the legislation of the Russian Federation.” 101. Section 9 of the Law on Enforcement Proceedings provides that a bailiff's order on the institution of enforcement proceedings must fix a time-limit for the defendant's voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow, should the defendant fail to comply with the time-limit. 102. Under Section 13, enforcement proceedings should be completed within two months following receipt of the writ of enforcement by the bailiff. 103. Decree no. 1255c of the Russian President “On Measures Aimed at Increasing the Effectiveness of Counter-Terrorist Operations within the Territory of the North-Caucasian Region of the Russian Federation” of 23 September 1999 (указ Президента Российской Федерации от 23 сентября 1999 № 1255с «О мерах по повышению эффективности контртеррористических операций на территории Северо-Кавказского региона Российской Федерации») provided that the United Group Alignment be formed in the North-Caucasian region from units and detachments of the Russian armed forces, those of the interior troops and departments of the Russian Ministry of the Interior, departments of the Russian Ministry for Emergency Situations, those of the Federal Security Service and the Federal Guard Service. The decree also empowered the commander of the United Group Alignment to take decisions that were binding for all the forces forming the United Group Alignment. | 1 |
train | 001-101621 | ENG | HRV | ADMISSIBILITY | 2,010 | C AND D v. CROATIA | 4 | Inadmissible | Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | The applicants, daughter and mother, are Croatian nationals and live in Z. They are represented before the Court by Mrs I. Bojić, a lawyer practising in Zagreb. The Croatian Government (“the Government”) are represented by their Agent, Mrs Š. Stažnik. The facts of the case, as submitted by the parties, may be summarised as follows. On 19 March 2005 the first applicant was placed in pre-trial detention in Z. Prison, charged with the murder of her husband, who had been killed on the same day. In a judgment of the Z. County Court (Županijski sud u Z.) of 11 September 2006 the first applicant was convicted of murdering her husband in imperfect self-defence and sentenced to nine years' imprisonment. The sentence was reduced to five years' imprisonment by the Supreme Court (Vrhovni sud Republike Hrvatske) on 25 January 2007. After her conviction the first applicant had, in October 2005, been sent to serve the remainder of her sentence in Požega Penitentiary (Kaznionica u Požegi). Meanwhile, on 19 March 2005, following the first applicant's arrest, her son, E, born in 1996, was placed in the care of his paternal grandmother by a decision of the Z. Welfare Centre (Centar za socijalnu skrb Z.). This decision was upheld by the same Centre on 4 July 2005. In 2008 the President of Croatia reduced the first applicant's sentence to three and a half years' imprisonment. The applicant was released on 27 June 2008. On 13 April 2005 the first applicant asked the Z. Welfare Centre to allow her access rights in respect of E. By a decision of 6 July 2005 the Z. Welfare Centre granted the first applicant visiting rights in respect of E every Wednesday from 9 a.m. to 10 a.m. at the Z. County Court, if necessary in the presence of a psychologist. E's guardian was instructed to bring him to these premises. The relevant parts of the decision read as follows: “The report drawn up by the psychologist ... on 1 June 2005 recommended that it was in the best interests of the child to continue contact with his mother in order both to treat his trauma and to establish a natural relationship between the mother and the child, which was seen as a precondition for the latter's further proper mental and physical development. ... In adopting the above decision the Centre's expert team has been guided primarily by the best interests of the child and the [need for the] protection of his rights since he has recently been left without the direct parental care of both of his parents. He has been receiving psychotherapy owing to the consequences he is suffering. He has shown a wish and readiness for contact with his mother and the psychologist considers this [contact] necessary for his treatment in order to avoid ... permanent [negative] consequences for his mental and physical development.” It appears that the visits took place and that the last one was in September 2005. The child's paternal grandmother, as his guardian, lodged an appeal against the above decision and on 30 December 2005 the Ministry of Health and Social Welfare (Ministarstvo zdravstva i socijalne skrbi) quashed the impugned decision and remitted the case to the Z. Welfare Centre for fresh consideration. On an unspecified date the case was transferred to the Z. Municipal Court (Općinski sud u Z.). The hearings were held on 30 March, 12 and 29 May and 8 June 2006. On 9 June 2006 the Municipal Court granted the first applicant visiting rights every Thursday from 10 a.m. to 11 a.m. at the Z. Welfare Centre. She was also granted the right to telephone E every Monday and Friday between 5 p.m. and 6 p.m. This decision was quashed by the Z. County Court on 13 September 2006 on appeals lodged by the first applicant and on behalf of E; it remitted the case to the first-instance court for fresh consideration. The hearings before the latter court were held on 30 November and 22 December 2006 and 2 February and 2 March 2007. On 10 April 2007 the court ordered psychological and psychiatric reports on the first applicant and E. The expert concluded that contact between the first applicant and E would not be possible because the child had categorically refused to see the first applicant. In order to overcome that difficulty, it was recommended that E undergo psychotherapy once a week for six months, after which it would have to be established whether his psychological condition allowed for contact with the first applicant. It was stressed that the therapy was needed to come to terms with the tragic event and prepare E for contact with his mother. As to the first applicant, the expert opinion recommended psychotherapy in order to come to terms with the tragic event and create conditions in which that issue could be discussed by the first applicant and E. Further hearings before the Z. Municipal Court were held on 5 and 27 September and 6 November 2007. On 12 November 2007 a decision was adopted refusing the first applicant's request for access rights in respect of E. Meanwhile, on 4 July 2007, the first applicant complained to the Z. County Court about the length of the proceedings. The complaint was dismissed by the Z. County Court on 19 November 2007. The first-instance decision of 12 November 2007 was upheld by the Z. County Court on 28 March 2008. The applicant then lodged a constitutional complaint arguing that her rights under Article 35 of the Constitution and Article 8 of the Convention had been violated. On 20 May 2009 the Constitutional Court accepted the complaint, quashed the decisions of the Z. Municipal and Z. County Courts and ordered the Z. Welfare Centre to take all necessary steps to ensure effective meetings and contact between the first applicant and E. The relevant part of the Constitutional Court's decision reads: “7. ... As regards the present case, the Constitutional Court endorses the principle that the incarceration of a parent does not break the tie of family life between that parent and a child. Moreover, in such circumstances the State has a special obligation to encourage the preservation of family ties between the prisoner and his or her family members. ... 8. ... Positive obligations include a duty on the part of the State to be proactive in order to ensure that its citizens' family life is respected and efficiently protected, even when that requires regulation of their private relations. These obligations are expressed in the following Articles of the Constitution which refer to social rights: Article 61(1) The family is under special State protection. Article 62 The State protects maternity, children and young persons and creates social, cultural, educational, economic and other conditions in order to promote the right to dignified life. ... 9. ... In the case at issue, the competent administrative and judicial bodies determined the access rights of the mother (the applicant) in respect of her son, a minor, during her incarceration in Požega Penitentiary. ... In the opinion of the Constitutional Court the proceedings concerning the appointment of a legal guardian to the child as well as proceedings concerning the access rights of parents ... are both relevant ... These proceedings are both judicial and administrative ... Therefore, the Constitutional Court finds that possible infringements of the right to respect for one's family life under Article 35 of the Constitution and ... under Article 8 of the Convention require that all proceedings prior to a decision of the Constitutional Court be viewed as a whole, irrespective of the nature of these proceedings (administrative, judicial) or the bodies which conducted them ... 11. ... The applicant's detention made contact between the mother and her child impossible and it therefore amounts to an interference of the State with the applicant's right to respect for her family life within the meaning of Article 35 of the Constitution and Article 8 of the Convention. ... ... 13. The Constitutional Court finds that the delays in the proceedings concerning the protection of the child's well-being, such as proceedings on appointing his legal guardian, access and visiting rights of parents... might run contrary to the procedural requirements of Article 35 of the Constitution and Article 8 of the Convention. ... In the case at issue the length of the administrative and judicial proceedings concerning the applicant's visiting and access rights in respect of her child exceeded three years and ended with a judicial decision denying such rights so that the last time the applicant saw her child was on 13 September 2005. ... 's father (19 March 2005); the failure of the judicial authorities to commission the necessary expert report in time; the failure to consider the possibility of appointing a special guardian for the child during his psychotherapy, irrespective of the fact that his paternal grandmother had been appointed his legal guardian, in order to 'work out' the event, which had tragic consequences both for the child and his paternal grandmother; the fact that the additional expert report recommended by court experts was not compiled; and the delays in the proceedings concerning the visiting and access rights, which opened the possibility of influencing and changing the child's attitude towards his mother, resulting in his categorical refusal to see her – indicate that the Constitutional Court cannot but find that the conduct of the competent authorities amounted to a violation of the applicant's right to respect for her family life guaranteed under Article 35 of the Constitution and Article 8 of the Convention ...” In a letter of 8 June 2009 the Z. Welfare Centre invited the first applicant to attend a meeting scheduled for 19 June 2009 at 12.30 p.m. in order to “participate in the proceedings on consultation and assistance in overcoming special difficulties”, all according to the above decision of the Constitutional Court. In the case the first applicant was prevented to attend, the Centre invited her to inform it within twenty-four hours following the receipt of the letter. The letter was served on the first applicant on 11 June 2009. On 19 June 2009 the first applicant wrote a letter to the Centre informing it that she would not attend the meeting scheduled for the same day and invited the Centre to inform her of any steps envisaged by the Centre in order to ensure her contact with her child. However, she did attend the meeting and insisted that the Centre organise a meeting between her and the child. She also said that she would not attend any further meetings unless her child was present. In June 2009 the Centre also devised an action plan in order to comply with the Constitutional Court's decision. The action plan was to be implemented by a team of experts, composed of a social worker, five psychologists and two lawyers, established for that purpose. The action plan was concentrated on three main purposes: establishing contacts with the first applicant and her son; work with the family members; and mediation between the two families. In July 2009 the first applicant accepted employment on a cruise ship. In a telephone conversation on 13 July 2009 E. told a psychologist of the Centre that he did not wish to see the first applicant. On 16 July 2009 the second applicant informed the Centre that the first applicant was expected to come back to Zadar in October 2009. On 21 July 2009 the first applicant lodged a request for compensation with the competent State Attorney's Office. This request was denied on 15 October 2009. On 8 December 2009 the first applicant informed the Centre that she had come back to Zadar and would stay there until 4 January 2010. In a telephone conversation on 10 December 2009 E. again told a psychologist of the Centre that he did not wish to see the first applicant. The psychologist informed the first applicant about it on 11 December 2009 and advised her to send E. a Christmas card and a present. On 16 March 2010 the Centre invited the applicants to a hearing on 29 March 2010 at 8 a.m, E.'s paternal grandparents at 10 a.m. and E. for consultations with a psychologist on the same day at noon. On 24 March 2010 the second applicant informed the Centre that the first applicant could not attend because she was still working on a cruise ship. The second applicant attended and informed the Centre's psychologist that she had been seeing a counsellor. She also said that the first applicant had sent several text messages to E. and that he had sent short replies, not wishing to establish contact with the first applicant. E.'s paternal grandmother also attended. E. came to the Centre on 30 March 2010 and told the psychologist that he did not wish to see the first applicant. On 31 May 2010 separate consultations between the Centre's psychologist and the second applicant, E.'s paternal grandmother and E. were held at the Centre. The second applicant said that the first applicant was still abroad. E. told the psychologist that he had been seeing a counsellor once a month. He repeated that he did not wish to see the first applicant. Consultations scheduled for 12 July 2010 were attended by the second applicant only. She informed the Centre that the first applicant would probably come to Zadar in September or October 2010. The Centre's psychologist suggested that she call E. by telephone and send him letters. On 1 June 2005 the second applicant, E's maternal grandmother, requested the Z. Welfare Centre to grant her visiting rights in respect of E. On 15 June 2005 the Centre heard evidence from E's paternal grandmother and legal guardian, and on 30 June 2005 from the second applicant. On 11 July 2005 both grandmothers met at the Centre's premises and agreed that the second applicant and E should meet on 19 July at the Centre, in the presence of the Centre's psychologist. On 7 September 2005 the grandmothers met again at the Centre and agreed that the second applicant would meet E. on her own each Saturday for two hours. However, only one such meeting took place, allegedly because E refused to continue with these meetings. On 1 January 2006 jurisdiction in matters concerning child custody was transferred to the municipal courts. Hearings before the Z. Municipal Court were held on 21 February, 9 March, 14 April and 31 May 2006 and 3 and 17 May and 5 and 14 September 2007. On 24 September 2007 a decision was adopted ordering bi-monthly meetings between the second applicant and E at the Centre's premises. On 11 July 2007 the second applicant complained to the Z. County Court that the length of the proceedings was excessive. The complaint was dismissed on 3 October 2007. On 22 April 2008 the Z. County Court upheld the first-instance decision of 24 September 2007. Article 35 of the Croatian Constitution (Ustav Republike Hrvatske) reads: “Respect for and legal protection of everyone's private and family life, dignity, reputation and honour is guaranteed.” The relevant part of section 62 of the Constitutional Court Act (Official Gazette no. 49/2002, of 3 May 2002, Ustavni zakon o Ustavnom sudu Republike Hrvatske) 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) ... ...” The relevant provisions of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 35/2005 and 42/2008) read as follows: “(1) Every legal entity and every natural person has the right to respect for their personal integrity under the conditions prescribed by this Act. (2) The right to respect for one's personal integrity within the meaning of this Act includes the right to life, physical and mental health, good reputation and honour, the right to be respected, the right to respect for one's name and privacy of personal and family life, freedom et alia. ...” “Damage is ... infringement of the right to respect for one's personal integrity (non-pecuniary damage).” The relevant part of section 186(a) of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/91, 91/92, 58/93, 112/99, 88/01 and 117/03 reads as follows: “A person intending to bring a civil suit against the Republic of Croatia shall first submit a request for a settlement to the competent State Attorney's Office. ... Where the request has been refused or no decision has been taken within three months of its submission, the person concerned may file an action with the competent court. ...” In decision no. U-III-1437/2007 of 23 April 2008 the Constitutional Court found that the conditions of detention of a prisoner, P.M., in Lepoglava State Prison amounted to inhuman treatment. It also addressed the question of P.M.'s claim for just satisfaction. The relevant parts of the decision read: “In particular, the Constitutional Court finds the [lower] courts' opinion that in this case an award for non-pecuniary damage cannot be made under section 200 of the Civil Obligations Act on the ground that such compensation claim is unfounded in law, unacceptable. ... Section 1046 of the Civil Obligations Act defines non-pecuniary damage as infringement of the right to respect for one's personal integrity. In other words, every infringement of the right to personal integrity amounts to non-pecuniary damage. Section 19(2) of the Civil Obligations Act defines the right to personal integrity for the purposes of that Act as: right to life, physical and moral health, reputation, honour, dignity, and name, privacy of personal and family life, freedom and other rights. ... it must be concluded that in this case there has been a violation of human, constitutional and personal rights because the applicant was placed in prison in conditions incompatible with the standards prescribed by the Enforcement of the Prison Sentences Act the conditions of which are also incompatible with the legal standards under Article 25(1) of the Constitution. For that reason the courts are obliged to award compensation for the infringement of the applicant's dignity. ...” | 0 |
train | 001-85253 | ENG | POL | CHAMBER | 2,008 | CASE OF BUCZKIEWICZ v. POLAND | 4 | Violation of P1-1 | Ján Šikuta;Josep Casadevall;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi | 5. The applicants’ legal predecessors owned a plot of land with a surface area of 3,625 sq. m. located in the municipality of WarszawaWłochy, listed in a land register under entry no. 29552. In 1993 the applicants inherited this property as coowners. The property was designated, by an administrative decision given on an undetermined date, apparently prior to 1993, for agricultural use. 6. By a letter of 30 October 1991 the first applicant was informed by the WarszawaOchota Muncipal Office that the starting date for the development foreseen by the draft land development plan for the municipality had not yet been yet fixed, but that it was most likely that work would begin after 1995. 7. According to the relevant local development plan, which was adopted in 1992 and later amended in 1995, the entire property had been designated for construction of a major roadway, connecting the municipality with Warsaw, and various commercial buildings. As a result, the applicants could continue to use their property for gardening or agricultural purposes, but could not carry out any development. A number of owners lodged objections against this plan, which were ultimately dismissed by the Supreme Administrative Court. 8. In June 1992 the applicants requested the municipality to specify the use to which their property would be put under the land development plan and to indicate timelimits for the works to begin. They also requested the municipality to acquire the property from them. This offer apparently remained unanswered. 9. On 13 May 1999 the applicants made an enquiry with the municipality as to the development plans in respect of their property. 10. In a reply of 14 June 1999 they were informed that their property remained covered by the development plan adopted in 1992 under which it was designated for construction of a roadway and for various commercial buildings. 11. On 12 November 2001 the applicants renewed their request for the municipality to acquire their plot. This was refused on 21 December 2001. 12. On 27 December 2001 the applicants complained to the municipal authorities that the local land development plan had not been implemented and that no timeframe for its implementation had been foreseen, even tentatively. As a result, they could not carry out any development of the property and had been left in a prolonged state of uncertainty as to its future fate. It could not be used for leisure purposes as it was situated in a rather unattractive area. They had been contacted by many potential buyers who, having learnt about the lack of possibilities to develop the land immediately, had lost interest in buying the property. Their requests that the municipality acquire their land had been unsuccessful. As a result of the legal situation of the property, their ownership had been stripped of all economic value. 13. On 7 January 2002 the applicants were informed by the Municipal Office that their land would be acquired in the future by a company which would construct the roadway foreseen under the 1992 development plan. 14. On 11 April 2002 the applicants requested, for the first time, that an initial approval of a development project (decyzja o warunkach zabudowy) be issued for the construction of a small house on their land. 15. In a reply of 20 May 2002 the WarszawaWłochy Municipal Office informed them that such a decision could not be issued as it would not be compatible with the local land development plan adopted in 1992. 16. In a further letter of 2 August 2002 the WarszawaWłochy Municipal Office informed the applicants that the mere fact that their property had been foreseen for future expropriation for the purposes of the construction of the roadway did not entail for the municipality an obligation to acquire their land from them. Accordingly, there were no immediate plans to purchase the properties designated in the local development plan for the construction of the roadway. They were also informed that a new land development plan was being prepared by the municipality. 17. On 27 March 2003 the applicants complained to the Supreme Administrative Court about the local administration’s failure to adopt a new land development plan. They referred to the restrictions which the 1992 plan imposed on the exercise of their ownership. 18. On 16 April 2003 the Supreme Administrative Court rejected their complaint, holding that a complaint against the administration’s failure to act could not be made in respect of proceedings concerning elaboration of local land development plans. 19. On 31 December 2003 the relevant local development plan expired, pursuant to the Local Planning Act 2003 (see paragraph 23 below). Apparently to date no new land development plan has been adopted by the municipality. 20. From 1984 to 1 January 1995 questions of land development were governed by the Local Planning Act of 12 July 1984. 21. On 7 July 1994 a new Local Planning Act was enacted. It entered into force on 1 January 1995. 22. On 21 December 2001 Parliament passed a law amending the Local Planning Act 1994. 23. On 27 March 2003 a new Local Planning Act was enacted which repealed the 1994 Act. 24. Under the Local Planning Act of 12 July 1984 owners of properties to be expropriated in the future were not entitled to any form of compensation for damage resulting from restrictions on the use of their property or the reduction in its value originating in expropriations to be carried out at an undetermined future date. 25. Section 36 of the Local Planning Act enacted in 1994 created for local authorities a number of obligations towards owners whose properties were designated for expropriation at an undetermined future date under land development plans adopted by the competent municipal authorities. The municipalities were obliged to buy such property, replace it with other land within six months of an owner’s request, or provide compensation for the damage caused by the designation. 26. However, pursuant to section 68 § 1 of the Act, these obligations and the corresponding claims of the owners applied only to plans adopted after the Act had entered into force, i.e. to plans adopted by local municipalities after 1 January 1995. 27. Pursuant to the 1994 Act, plans adopted before its entry into force were to expire on 31 December 1999. 28. In 1999 an amendment to the 1994 Act was adopted under which the validity of such plans was extended for a further two years until 31 December 2001. Again, on 21 December 2001, Parliament passed a law amending the Local Planning Act 1994 which extended until the end of 2002 the validity of the land development plans adopted before 1 January 1995. 29. Under section 87 of the 2003 Act (see paragraph 23 above), all local plans adopted before 1 January 1995 remained valid, but not beyond 31 December 2003. 30. Compensation entitlements for owners, provided for by the 1994 Act (see paragraph 25 above), were in essence maintained by the 2003 Act. Pursuant to section 36 of that Act, when, following the adoption of a new local land development plan, the use of property in the manner provided for by a previous plan has become impossible or has been restricted, it is open to the owner to claim compensation from the municipality, or to request the municipality to buy the plot. Any litigation which may arise in this respect between municipalities and owners can be pursued before the civil courts. It would appear that the operation of section 36 is not retroactive, thus limiting the scope of any such claims to the period after the adoption of the 2003 Act. 31. Other relevant legislative provisions are extensively set out in the Court’s judgment of 14 November 2006 in the case of Skibińscy v. Poland (no. 52589/99, §§ 2853). 32. In its judgment of 5 December 1995 (K 6/95), the Constitutional Court examined the request submitted to it by the Ombudsman to determine the compatibility with the Constitution of section 68 § 1 of the Land Planning Act 1994 insofar as it excluded the application of section 36 of that Act to land development plans adopted before 31 December 1994. The court referred to its established case-law to the effect that ownership could not be regarded as ius infinitivum. Consequently, its exercise was normally restrained by many legal and practical considerations, including the necessity of balancing the owners’ interests against those of other persons. Local land development plans were to be regarded only as a practical expression of restraints originating in numerous statutes regulating the lawful exercise of ownership. In particular, owners of properties “frozen” for the purpose of future expropriations as a result of the adoption of such plans could normally continue to use their properties as they had been using them prior to the adoption of such plans. This did not amount to such an interference with ownership that it could be regarded as being incompatible with the constitutional protection of ownership. | 0 |
train | 001-113930 | ENG | SVK | CHAMBER | 2,012 | CASE OF MAJCHRÁK v. SLOVAKIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Access to court) | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria | 5. The applicant was born in 1958 and lives in Bratislava. 6. On 28 January 1996 the applicant, in his capacity as an architect, concluded a contract with the Customs Directorate of the Slovak Republic (Colné riaditeľstvo Slovenskej republiky) in which he agreed to produce project documentation for a border crossing between Slovakia and Hungary in return for a fee. 7. On 20 April 2000 the Customs Directorate brought a civil action against the applicant for late completion of the documentation, seeking an order for the payment of a contractual penalty as well as late-payment interest on that penalty. 8. On 24 September 2003 the Bratislava V District Court (Okresný súd) dismissed the action, but its judgment was quashed by the Bratislava Regional Court (Krajský súd) following an appeal (odvolanie) by the applicant. At the same time, the case was remitted to the District Court for re-examination. 9. On 6 June 2005 the District Court allowed the action. It found that the applicant and the defendant had agreed on a contractual penalty amounting to 0.1% of the agreed fee per day of delay on the part of the applicant. It also found that the deadline for the applicant to fulfil his obligations under the contract had been 31 July 1997 and that the applicant had not done so until 8 March 1998. The applicant appealed. 10. On 19 October 2005 the Regional Court declared the appeal inadmissible as having been lodged outside the statutory appeal period. It applied a legal fiction under Article 47 § 2 of the Code of Civil Procedure (Law no. 99/1963 Coll., as applicable at the relevant time), pursuant to which the commencement of the appeal period in the given circumstances is determined with reference to the third day after a written copy of the contested decision has been deposited for the appellant at the local post office, irrespective of when the decision is actually received by the appellant (see paragraph 37 below). The applicant challenged the decision of the Regional Court by way of an appeal on points of law (dovolanie) to the Supreme Court (Najvyšší súd). 11. The applicant’s appeal on points of law per se had no suspensive effect and, consequently, the judgment of 6 June 2005 was considered final and binding (see section D on “Enforcement” below). 12. However, on 19 April 2006, the Supreme Court made a separate ruling suspending the effects of the judgment of 6 June 2005 pending the outcome of the appeal on points of law. 13. On 7 December 2006 the Supreme Court, having found that the statutory requirements for applying the above-mentioned legal fiction had not been met, quashed the decision of 19 October 2005 and remitted the applicant’s appeal against the District Court’s judgment of 6 June 2005 to the Regional Court. 14. It was then incumbent on the Regional Court to re-examine the applicant’s appeal against the judgment of the District Court of 6 June 2005. 15. On 20 June 2007 the Regional Court upheld the judgment of 6 June 2005 in so far as the applicant had been ordered to pay the contractual penalty. However, it reversed the ruling that the applicant should pay interest on the contractual fine. It held that a contractual fine and latepayment interest had both the nature of a sanction and that cumulating these two sanction mechanisms was excluded by the nature of things. 16. A written version of the Regional Court’s judgment of 20 June 2007 was received by the District Court on 12 July 2007. It was then incumbent on the District Court to ensure that the judgment was served on the parties in person (do vlastných rúk). 17. According to the law, once the judgment of 20 June 2007 had been served on both parties, the matter was resolved with final and binding effect (právoplatnosť). 18. The actual service of the written version of the judgment of 20 June 2007 was carried out as follows: On 23 and 24 July 2007 the postal service was unable to reach the applicant’s lawyer. Accordingly, on the latter date, a written version of the judgment was deposited at the local post office and a notice to that effect was left in her mailbox. On 24 July 2007 the judgment was served on the Customs Directorate. On 7 August 2007 the applicant’s lawyer collected the applicant’s copy of the judgment from the post office. 19. As to the effective service of the judgment of 20 June 2007 on the applicant, the Government have submitted – and it has not been disputed by the applicant – that it occurred on 27 July 2007, by virtue of the legal fiction (see paragraph 10 above and paragraph 37 below), three days after the deposition of the judgment at the local post office (see the preceding paragraph). 20. The Government have also submitted – this has not been disputed by the applicant either – that the judgment actually became final and binding on the day of its effective service on the last of the parties, that is to say the applicant, on 27 July 2007. 21. On 7 September 2007, on the applicant’s request, the District Court stamped (doložka právoplatnosti) his copy of the judgment of 6 June 2005 certifying that, together with the Regional Court’s judgment of 20 June 2007, it had become final and binding on “28 July 2005”. 22. On 25 September 2007, the District Court provided the Constitutional Court (Ústavný súd) on its request (see paragraph 25 below), with a different copy of the judgment of 6 June 2005 with a similar stamp certifying that, together with the judgment of the Regional Court of 20 June 2007, it had become final and binding on 24 July 2007. 23. The applicant then lodged a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) with the Constitutional Court (Ústavný súd). As to the date of commencement of the two-month period for lodging the complaint (see paragraph 34 below), the applicant took as decisive the date stamped on his copy of the judgment of 6 June 2005, that is to say “28 July 2005” (see paragraph 21 above), assuming that the reference to year 2005 was an obvious typographical error actually meaning 2007, and submitted his stamped copy of that judgment to the Constitutional Court. Accordingly, the applicant dated and mailed his complaint on 24 and 25 September 2007, respectively. The complaint was received at the Constitutional Court on 26 September 2007. 24. The applicant relied on Article 6 § 1 of the Convention and challenged the Regional Court’s judgment of 20 June 2007 as being contrary to his right to a fair hearing and the general prohibition of discrimination. In substance, the applicant contested the assessment of the facts and the application of the law by the ordinary courts. 25. On 6 December 2007 the Constitutional Court declared the complaint inadmissible. It noted that it had procured of its own initiative a copy of the contested decisions with a stamp concerning their final and binding effect. This stamp indicated that the matter had been resolved with final and binding effect on 24 July 2007 (see paragraph 22 above). As the applicant’s constitutional complaint had only been mailed on 25 September 2007, it had been lodged outside the two-month time-limit laid down in section 53(3) of the Constitutional Court Act (Law no. 38/1993 Coll., as amended) (see paragraph 34 below). 26. The applicant subsequently complained to the President of the Constitutional Court that, according to his stamped copy, the challenged decisions had become final and binding on 28 July 2007, the mention of the year 2005 (see paragraph 21 above) being an obvious typographical error actually meaning 2007. He had lodged his constitutional complaint on 25 September 2007 and had therefore met the deadline. 27. In a letter of 25 April 2008 the President of the Constitutional Court notified the applicant that the two-month time-limit for filing his constitutional complaint had commenced on 24 July 2007 when the contested decisions had become final and binding. It had accordingly ended on 24 September 2007. The applicant’s complaint had only been mailed on 25 September 2007 and had therefore failed to meet the deadline. Nevertheless, if the applicant had sustained any damage as a result of the incorrect information in the stamped copy he had received, it was open to him to claim compensation under the State Liability Act (Law no. 514/2003 Coll., as amended). 28. On 24 January 2006 a lawyer lodged a petition on behalf of the Customs Directorate with a judicial enforcement officer (súdny exekútor) for enforcement of the judgment of 6 June 2005 against the applicant. 29. The enforcement proceedings were first authorised, but eventually discontinued in view of the Supreme Court’s judgment of 7 December 2006 (see paragraph 13 above). 30. Nevertheless, on 11 May 2005, while the enforcement was still pending, the District Court ordered the applicant to pay the court fees for objections (námietky) that he had lodged earlier. 31. On 31 August 2007 the Regional Court upheld the District Court’s decision of 11 May 2005 following the applicant’s appeal. 32. On 28 February 2008 the Constitutional Court declared inadmissible a complaint under Article 127 of the Constitution, in which the applicant had relied on Articles 6 § 1 and 13 of the Convention and had challenged the decision on fees for his objections as being arbitrary and contrary to his rights to a fair hearing and an effective remedy. The Constitutional Court found that the applicant’s duty to pay the court fees had its legal basis in section 5(1) of the Court Fees Act and that the contested decision had been legally and factually correct. 33. Article 127 of the Constitution, subsumed under Section (Oddiel) One (dealing with Judicial Power) of Part (Hlava) Seven (dealing with the Constitutional Court), provides: “1. The Constitutional Court shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash such decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order such authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation. 3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to the person whose rights under paragraph 1 have been violated.” 34. Section 53(3) of the Constitutional Court Act provides that a complaint to the Constitutional Court must be lodged within two months of the date on which the decision in question has become final and binding or on which a measure has been notified or notice of other interference with the complainant’s interests has been given. As regards measures and other types of interference, this period commences when the complainant has a reasonable opportunity to become aware of them. 35. Under section 31a, the provisions of the Code of Civil Procedure and the Code of Criminal Procedure are to be applied accordingly in proceedings before the Constitutional Court, except where otherwise provided or where the nature of the matter at hand precludes their application. 36. The service of summonses and other documents is regulated by Articles 45 et seq. of the Code of Civil Procedure. Documents are to be served in person if so provided by statute or so ordered by a court (Article 47 § 1). 37. If the addressee of a document to be served in person cannot be reached, even though he or she stays at the address provided, the deliverer must notify the addressee in an appropriate manner when a new attempt at service takes place. If the new attempt at service fails, the deliverer must deposit the document at a post office or municipal office and advise the addressee accordingly in an appropriate manner. If the addressee does not collect the document within three days of its deposition, the last day of that period is deemed to be the date of effective service, irrespective of whether the addressee has actually learned of the deposition (Article 47 § 2, as applicable at the relevant time). 38. The relevant provisions of the State Liability Act are summarised, for example, in the Court’s judgment in the case of Ištván and Ištvánová v. Slovakia (no. 30189/07, §§ 30-35, 12 June 2012). | 1 |
train | 001-22739 | ENG | TUR | ADMISSIBILITY | 2,002 | KAYSERI v. TURKEY | 4 | Inadmissible | Ireneu Cabral Barreto;Mark Villiger | The applicant, Mr Mahir Kayseri, is a Turkish national, who was born in 1965 and lives in Istanbul. The facts of the case, as submitted by the parties, may be summarised as follows. Following an administrative ordinance issued by the General Staff (Genel Kurmay Başkanlığı) on 20 June 1995 the applicant and his family were denied to access to the military premises on the grounds that a photo showing his wife wearing an Islamic scarf was not acceptable for the military and social security identity cards. The applicant’s close relatives wearing Islamic scarves were also not allowed in the military buildings. On 16 June 1998 the Supreme Military Council (Yüksek Askeri Şura) decided to discharge the applicant from the army on grounds of acts of “insubordination and immoral conduct” pursuant to Article 94(b) of Law 926. The Government submit the following in the light of the intelligence reports concerning the applicant: The applicant, a non-commissioned officer, was a member of the Nakşibendi sect. He was involved in disseminating the ideology of the sect. He was further involved in activities contrary to the secular republic. He had an antisocial character and refused to participate in social gatherings on account of his religious beliefs. He was considered as an undisciplined and insubordinate soldier. A committee of nine members of the armed forces concluded, in the light of the findings of the above intelligence reports, that the applicant had breached military discipline and that he should be discharged from the army. Subsequently, the Supreme Military Council based its decision on that opinion. The relevant provisions of the Constitution are as follows: “None of the rights and freedoms set forth in the Constitution may be exercised with the aim of undermining the territorial integrity of the State or the indivisible unity of its people, imperilling the existence of the Turkish State and the Republic, abolishing fundamental rights and freedoms, handing over control of the State to a single individual or group or bringing about the dominance of one social class over the others, establishing discrimination on the grounds of language, race, religion or adherence to a religious sect or setting up by any other means a State order based on such beliefs and opinions.” “Everyone shall have the right to freedom of conscience, faith and religious belief. Prayers, worship and religious services shall be conducted freely, provided that they do not violate the provisions of Article 14. No one shall be compelled to participate in prayers, worship or religious services or to reveal his religious beliefs and convictions; nor shall he be censured or prosecuted because of his religious beliefs or convictions. ... No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal influence thereby.” “All acts or decisions of the administration are subject to judicial review ... Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of the Supreme Military Council shall not be subject to judicial review. ...” Article 129 §§ 2, 3 and 4 of the Constitution provides that a disciplinary action cannot be imposed to the civil servants provided that that the right to defence is respected. Moreover, it lays out that the disciplinary actions, other that the warnings and the reprimands are subject to legal control. The provisions concerning the soldiers are reserved. Article 21 of Law on the Military Administrative High Court stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control. Section 22 (c) of the Military Legal Service Act provides: “Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held, shall be subject to the provisions of the Turkish Pensions Act. ... Where their conduct and attitude reveal that they have adopted unlawful opinions.” Section 50 (c) of the Military Personnel Act provides: “Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of the Turkish Pensions Act. The Regulations for Military Personnel shall lay down which authorities have jurisdiction to commence proceedings, to examine, monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings. A decision of the Supreme Military Council is required to discharge an officer whose case has been submitted by the Chief of Staff to the Supreme Military Council.” Section 94 (b) of the Military Personnel Act provides: “(b) Discharge from the army for the acts of insubordination and immoral conduct: Notwithstanding the seniority in the service, the non-commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to Law on the Turkish Pension Fund. The investigation, examination and follow-up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non-commissioned officers. The General Staff determines which non-commissioned officers’ cases concerning their discharge from the army should be examined by the Supreme Military Council.” Article 99 of the Regulations on assessment of officers and non-commissioned officers provides: “Irrespective of length of service, the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held: ... (e) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful, subversive, separatist, fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions.” | 0 |
train | 001-4497 | ENG | DEU | ADMISSIBILITY | 1,998 | LOGANATHAN v. GERMANY | 4 | Inadmissible | Matti Pellonpää | The applicant, born in 1955, is a citizen of Sri Lanka. He is currently staying in Wuppertal. He is a kitchen helper by profession. The applicant entered Germany on 5 September 1994. On 13 September 1994 he filed a request for asylum. In the course of his questioning by the Federal Office for Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge), he submitted that in 1991 his house had been destroyed by the armed forces. He also stated that in 1993 (later corrected as 1994) he had been arrested by the armed forces and detained several months on the - false - suspicion of having supported the Liberation Tigers of Tamil Eelam (LTTE). He had allegedly been tortured in the course of his detention. His release had been arranged by a friend who had subsequently brought him to an office of the Red Cross. He feared that upon his return he would again be arrested by the armed forces or, if he returned to his home town, he risked to be forced to support the LTTE. On 27 September 1994 the Federal Office for Refugees dismissed the applicant’s request for asylum and ordered him to leave Germany voluntarily, warning him that he would otherwise be expelled. On 22 April 1998 the Düsseldorf Administrative Court (Verwaltungsgericht) dismissed the applicant's action challenging the decision of 27 September 1994. In its detailed judgment, the court found that the applicant had failed to show that he had left Sri Lanka on account of political persecution or that he risked to be exposed to such persecution in case of his return. The court considered in particular that the applicant's submissions regarding his personal situation in Sri Lanka was not credible, as there were major contradictions in his statements. In this respect, the court noted the contradictions in his indications as to exact dates, varying even in months and years, which could not be explained by alleged disturbances of memory. Furthermore, his explanations concerning his release and his leaving the country were incredible. Finally, his statements about his activities in support of the LTTE were contradictory. The court had regard to case-law and reports of the German Foreign Office (Auswärtiges Amt) relating to the general situation in Sri Lanka. It noted that on the Jaffna peninsula the total number of interferences with liberty and security of Tamils, by security forces, did not justify the conclusion that any Tamil faced a real risk of being subjected to such action. In the court’s view, similar considerations applied to the region of Colombo and the southern and western parts of Sri Lanka. The court noted that in Colombo the security forces regularly carried out ‘cordon and search operations’ and, on a random basis, arrested Tamils in order to find LTTE activists and supporters. Cases of lengthy detention, ill-treatment in the course of the detention or disappearance had occurred. However, the number of such cases, considering the number of Tamils living in this area, did not justify the conclusion that every Tamil faced a real risk of persecution. The applicant’s submissions as to his personal situation did not disclose any special circumstances. There were no reasons to assume that the applicant would face a real risk for life, limb or liberty in the whole territory. In this respect, the court took into account that the security forces, by means of administrative measures, attempted to avoid that Tamils originating from the northern parts of Sri Lanka would take a lawfully residence in Colombo. They thereby intended to make these persons move back to their home towns. Taking into account the increasingly stable control of the Sri Lankan armed forces in large areas of the Jaffna peninsula and the reconstruction measures, there was no risk of death or serious injuries even if the applicant, upon his return to Sri Lanka, were to take residence in the north. On 5 August 1998 the North-Rhine Westphalia Administrative Court of Appeal (Oberverwaltungsgericht) refused to allow his appeal. The Court of Appeal dismissed the applicant's complaint that his submissions about his alleged activities for the LTTE had not duly been taken into account. In this respect, the Court of Appeal noted that the Administrative Court had regarded these statements as incredible. The applicant did not lodge a constitutional complaint (Verfassungsbeschwerde) with the Federal Constitutional Court (Bundesverfassungsgericht), pursuant to Article93 §1 (4)(a) of the Basic Law (Grundgesetz) in conjunction with sections 90 et seq. of the Constitutional Court Act (Bundesverfassungsgerichtsgesetz). | 0 |
train | 001-61366 | ENG | POL | CHAMBER | 2,003 | CASE OF D.M. v. POLAND | 2 | Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award | Nicolas Bratza | 4. The applicant was born in 1927 and lives in Zamość, Poland. 5. In 1991 the applicant noticed a lump on her neck and went to the Lublin Hospital. After a general examination she was diagnosed with a noncancerous salivary gland tumor. In October 1991 she underwent a surgery. Only after her operation were the relevant tests carried out, which proved the malignant nature of her tumor. Subsequently, the applicant turned to another hospital, in Szczecin, where she underwent a second operation. This additional surgery has led to serious complications such as jaundice and post-traumatic stress disorder. 6. On 27 January 1994 the applicant initiated before the Lublin District Court (Sąd Rejonowy w Lublinie) civil proceedings for compensation against the State Treasury represented by the Lublin Hospital. She claimed that she was a victim of medical malpractice because of the errors committed while making the diagnosis and during the first surgery which led to additional surgery and caused enormous suffering and general deterioration of her health. 7. On 17 March 1994 the applicant was partly exempted from the courtfees. 8. On 20 June 1994 the trial court held a first hearing. 9. Between 21 November 1994 and 28 March 1995 six hearings were held. The trial court heard witnesses and the applicant, and ordered preparation of expert opinions. 10. In April and July 1995 two expert opinions prepared by the Lublin Medical Academy were submitted to the court. 11. Between 29 March 1995 and 19 August 1996 no hearings were held. 12. At the hearings held on 20 August and 10 December 1996 the court ordered two additional expert medical opinions. 13. On 17 March 1997 the court, sitting in camera, dismissed the parties’ applications for another expert opinion because they had failed to pay the costs of the opinion. 14. At the hearing held on 4 April 1997 the court allowed the parties’ application for an additional expert opinion. 15. On 9 June 1997 the opinion was submitted to the court. 16. Subsequently, the trial court held hearings on 2 September and 27 November 1997. 17. In 1998 the trial court held in total six hearings and on 24 November 1998 it gave judgment. It awarded the applicant PLN 3,500 in compensation and dismissed the remaining part of her action. 18. Both parties appealed against the judgment. 19. On 6 May 1999 the Lublin Regional Court (Sąd Wojewódzki) held a hearing and on 20 May 1999 it gave judgment. The court quashed the firstinstance judgment and remitted the case to the Lublin District Court. 20. On 4 November 1999 the trial court held the first hearing at which the applicant changed the value of her claim. In consequence, the case was transferred to the Lublin Regional Court. 21. Subsequently, hearings were held on 25 January and 21 March 2000. 22. On 4 May 2000 the trial court, sitting in camera, decided that in view of the changes in the law on the administrative organisation of Poland the Lublin Governor would represent the Lublin Hospital. 23. On 18 July 2000 the applicant further extended her action. She requested PLN 35,000 as compensation for non-pecuniary and pecuniary damage. 24. On 7 September 2000 the trial court, sitting in camera, ordered two medical expert opinions. The court also exempted the applicant from the courtfees for the extended value of her claim. 25. On 11 September, 11 December 2001 and 23 January 2002 the court held hearings. 26. On 1 February 2002 the Lublin Regional Court gave judgment. It awarded the applicant PLN 20,000 for non-pecuniary damage and PLN 4,000 for pecuniary damage. The court found, inter alia, that the surgery carried out in the Lublin Hospital did not satisfy the requirements of diligent medical care (niezgodna z zasadami sztuki lekarskiej) and was done without the obligatory consent of the applicant. The malpractice during the surgery had to be remedied by the second, additional, operation which resulted in unnecessary physical and psychological suffering on the part of the applicant and prolonged the period of insecurity about the final diagnosis of her life-threatening illness. 27. The parties did not appeal against this judgment and it became final. | 1 |
train | 001-110757 | ENG | SWE | ADMISSIBILITY | 2,012 | BIRAGA AND OTHERS v. SWEDEN | 4 | Inadmissible | André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska | 1. The first applicant, Alem Biraga, and the second applicant, Yosef Kashsay Tekle, are Ethiopian nationals, born in 1976 and 1980, who live in Sweden. The third applicant, Abigail Kahsay, is their daughter, an Ethiopian national, born in Sweden in 2009. They are represented before the Court by Mr Bo Karlsson, a lawyer practising in Sollentuna. 2. The Swedish Government (“the Government”) were represented by their Agent, Ms Gunilla Isaksson from the Ministry for Foreign Affairs. 3. On 1 February 2010 the President of the former Third Section decided, in the interest of the parties and the proper conduct of the proceedings, to indicate to the Government of Sweden, under Rule 39 of the Rules of Court that the first applicant should not be deported to Ethiopia for the duration of the proceedings before the Court. 4. The application was transferred to the Fifth Section of the Court, following the re-composition of the Court’s sections on 1 February 2011. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. At some unknown time the first applicant entered Sweden and requested asylum. In support of her request she explained that she had been a member of the political party CUD (Coalition for Unity and Democracy) since 2005. Following the election in May 2005, a conflict arose between the Government party and the CUD. She was summoned by the police in June 2006 but did not appear, as she knew that three other members of the CUD had disappeared after being summoned by the police. She was summoned a second time and went into hiding with her sister. In December 2006 she fled the country. She travelled by plane from Addis Ababa to Sweden on a false passport. 7. On 27 May 2008 the Migration Board (Migrationsverket) refused the first applicant’s request and ordered her deportation to Ethiopia. It noted that she had not proved her identity, but in assessing her request for asylum it assumed that she was from Ethiopia as she maintained. It found that the general situation in Ethiopia alone could not justify granting asylum. As to the applicant’s personal situation, it questioned her credibility, notably because during the interviews she had shown little knowledge of the CUD and had given divergent information about where and with whom she had been hiding from June to December 2006. Moreover, noting that the applicant had not played a leading role within the party, the Board found it unlikely that she would be of interest to the police, especially more than one year after the election, and that, if she had been of such interest, the police had not come to find her at her sister’s home. The Migration Board also noted that, according to international sources, many members of the CUD had in fact been arrested in connection with the election, but that almost all had been released in 2006. Those remaining were convicted in June 2007 and granted amnesty in August 2007. In these circumstances, the Migration Board did not find that the applicant had substantiated fulfilling the criteria for being granted asylum. 8. The first applicant appealed to the Migration Court (Migrationsdomstolen) and added that for one year and nine months she had had a relationship with the second applicant, an Ethiopian national, who had been granted a permanent residence permit in Sweden on 31 August 1998 in order to join his mother. On 18 April 2009 the first and the second applicants had a daughter, the third applicant, of whom the parents have joint custody. 9. On 24 August 2009, the Migration Court upheld the Migration Board’s decision as to the request for asylum. 10. As to the first applicant’s relationship with her partner and child, the Migration Court pointed out that by virtue of Chapter 5, Section 18 of the Aliens Act, an alien who wants a residence permit in Sweden must have applied for and been granted such a permit before entering the country. An application for a residence permit may not be granted after entry into Sweden except, among other grounds, if the alien has a very strong connection to a person residing in Sweden and it cannot reasonably be demanded that the alien travel to another country to hand in an application there. According to the preparatory work, a request to be exempted from the main rule should be refused if the alien’s identity cannot be established and the alien does not have a right to protection in Sweden. 11. In the present case the Migration Court noted that the third applicant did not have a residence permit in Sweden at the relevant time, thus the first applicant could not invoke the strong connection to her child to obtain a residence permit there. As regards the first applicant’s relationship with the second applicant, the Migration Court found on the one hand that it spoke in the first applicant’s favour that the couple had a child together. On the other hand, it spoke against her that she had not pointed to any reasons why it could not reasonably be demanded that she return to her home country and hand in her application for a residence permit there. In conclusion the Migration Court did not find the conditions fulfilled to apply the said exception set out in Chapter 5, Section 18, of the Aliens Act. 12. Leave to appeal to the Migration Court of Appeal (Migrationsöverdomstolen) was refused on 23 September 2009. The deportation order thus became enforceable. 13. By decision of 12 October 2009 the Migration Board granted the third applicant a permanent residence permit in Sweden on account of her ties to her father. 14. Subsequently, invoking Chapter 12, Section 18 of the Aliens Act the applicant maintained that there were impediments to her deportation because of her strong ties to her partner and her daughter. 15. By decision of 30 November 2009 the Migration Board refused to suspend the deportation order of the first applicant. It noted that Chapter 12, Section 18 of the Aliens Act was an extraordinary remedy and that the invoked new circumstances could not constitute an impediment within the said provision. 16. On 1 July 2010 a new Act entered into force in Sweden amending Chapter 5, Section 18 and Chapter 12, Section 18 the Aliens Act (see relevant domestic law below). 17. Invoking the amended Chapter 12, Section 18 of the Aliens Act, again the first applicant maintained that there were new circumstances which amounted to an impediment to enforce the deportation order. In particular she submitted that the second applicant objected to her taking their daughter with her to Ethiopia to apply for family reunification. Moreover, the second applicant worked as a truck driver, which meant that he was away for long periods and therefore could not take care of their daughter in Sweden. 18. By decision of 4 October 2010 the Migration Board refused the application since the applicant had not presented her original passport and therefore had not fulfilled the conditions set out in Chapter 12, Section 18, of the Aliens Act. 19. Submitting a valid passport, the first applicant re-maintained that there were impediments to her deportation by virtue of Chapter 12, Section 18 of the Aliens Act. 20. By decision of 15 November 2010 the Migration Board disagreed. It commenced by examining whether it could be considered clear that a residence permit would have been granted the first applicant, if her application had been examined before her entry into Sweden. 21. Firstly, at the relevant time the first and the second applicants did not fulfil the conditions set out in Chapter 5, Section 3, of the Aliens Act according to which a residence permit could be granted to an alien who is the spouse of, or cohabiting partner, with someone who is residing in Sweden. It was recalled in this respect that the applicants were not married and they had not lived together before the first applicant entered Sweden. 22. Secondly, at the relevant time the first and the second applicant did not fulfil the conditions set out in Chapter 5, Section 3 a) of the Aliens Act, which stipulated that a residence permit could be granted to an alien who intended to marry or cohabit with someone who was legally residing in Sweden, if their relationship was serious and no special reasons spoke against granting such a residence permit. It was recalled in this respect that the applicants’ relationship had only commenced in Sweden. 23. Accordingly, it could not be concluded that “it was clear that a residence permit would have been granted to the first applicant if the application had been examined before her entry into Sweden”. 24. Thereafter, the Migration Board found that there were no new circumstances or impediments to the enforcement of the deportation order under Chapter 12, Section 18 of the Aliens Act. It pointed out though that the implementation thereof had been suspended while the case was pending before the Court in accordance with the Rule 39 indication. 25. The basic provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act (Utlänningslagen, 2005:716). It defines the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions. 26. Chapter 5, Section 1, of the Aliens Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, Section 1, of the 2005 Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, Section 2, of the Aliens Act). 27. Moreover, if a residence permit cannot be granted on the above grounds, a permit may nevertheless be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) as to allow him or her to remain in Sweden (Chapter 5, section 6 of the Aliens Act). During this assessment, special consideration should be given to, inter alia, the alien’s state of health. In the preparatory works to this provision (Government Bill 2004/05:170, pp. 190-191), life-threatening physical or mental illness for which no treatment can be given in the alien’s home country could constitute a reason for granting a residence permit. 28. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, Section 1, of the Aliens Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, Section 2, of the Aliens Act). 29. Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, Section 18, of the 2005 Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances presented by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, of the Aliens Act, and these circumstances could not have been presented previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a reexamination (Chapter 12, Section 19, of the Aliens Act). 30. The provisions on family reunification relating to a spouse, registered partner or cohabiting partner etc. of a person who is resident in Sweden are set out in Chapter 5, Section 3, of the Aliens Act and were given their present wording on 30 April 2006 in connection with the implementation of the EC Directive on the right to family reunification (Directive 2003/86/EC of 22 September 2003, hereinafter "the Family Reunification Directive"(see below). 31. Under Chapter 5, Section 3, first paragraph of the Act, unless otherwise provided in Sections 17-17b (about special grounds against granting a residence permit), a residence permit shall be granted to an alien who is a spouse or cohabiting partner (sambo) of someone who is resident in Sweden or who has been granted a residence permit to settle in Sweden, and under certain conditions to the alien’s minor children. 32. Under Chapter 5, Section 3 a) first paragraph of the Act a residence permit may be granted to an alien who intends to marry or become a cohabiting partner with someone who is legally residing in Sweden, if their relationship is serious and no special reasons speak against granting such a residence permit. 33. By virtue of Chapter 5, Section 18, of the Act, an alien who wants a residence permit in Sweden on account of family ties or serious relationships must have applied for and been granted such a permit before entering the country. An application for a residence permit may not, as a general rule, be approved after entry. However, exemptions from this rule can be made for example if the alien has strong ties to a person who is resident in Sweden and it cannot reasonably be required that he or she travel to another country to submit an application there (Chapter 5, Section 18, second paragraph, point 5). An exemption may also be made if there are some other exceptional grounds (Chapter 5, Section 18, second paragraph, point 6). The requirement that, in principle, residence permits for family members have to be granted before entry into Sweden was introduced as one of a number of measures aimed at reducing the possibilities of obtaining a residence permit by means of marriages or relationships of convenience. Subsequently, the Swedish Government and Parliament have underlined on several occasions that the requirement that residence permits be obtained before entry into Sweden is an important part of measures to maintain regulated immigration. Moreover, the preparatory works to the Aliens Act state that it is important that aliens staying in Sweden illegally do not enjoy a better position than those who comply with decisions by the authorities to return to their country of origin in order to apply for a permit from there (Government Bill 1999/2000:43). The same requirement is found in Chapter III, Article 5, point 3 of the Family Reunification Directive (see below). 34. As regards the exemptions that can be made according to Chapter 5, Section 18, second paragraph, point 5 of the Aliens Act, the preparatory works to the provision (Government Bill 1999/2000:43, p. 55 et seq.) state that the main emphasis should be placed on the question of whether it is reasonable to require that the alien return to another country in order to submit an application there. Relevant elements, which may be favourable for the alien, may be whether he or she can be expected, after returning home, to encounter difficulties in obtaining a passport or exit permit and this is due to some form of harassment on the part of the authorities in the country of origin. It may also be whether the alien will be required to complete a long period of national service or service under unusually severe conditions. It may also be relevant whether the alien has to return to a country where there is no Swedish foreign representation and where major practical difficulties and considerable costs are associated with travelling to a neighbouring country to submit the application there. Relevant elements, which may count against the alien, may be that he or she is staying in the country illegally, that their identity is unclear or if there are strong ties to the country of origin. 35. Under the Aliens Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances; the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3, and Chapter 16, Section 9, of the Aliens Act). 36. On 1 July 2010 Chapter 5, Section 18 was amended adding in the last paragraph “when assessing what is reasonable under the second paragraph, point 5, particular attention shall be paid to the consequences for a child of being separated from its parent, if it is clear that a residence permit would have been granted if the application had been examined before entry into Sweden”. The wording was thus: An alien who wants a residence permit in Sweden must have applied for and been granted such a permit before entering the country. An application for a residence permit may not be approved after entry. However, the rule given in the first paragraph does not apply if 1. the alien is entitled to a residence permit here as a refugee or other person in need of protection under Section 1 or can be granted a residence permit here pursuant to Chapter 21, Section 2, 3 or 4, 2. the alien should be granted a residence permit here pursuant to Section 6, 3. an application for a residence permit concerns extension of a temporary residence permit that has been granted to an alien with family ties pursuant to Section 3, first paragraph, point 1 or 2b or first paragraph, point 1 or 2b or Section 3a, first paragraph, point 1 or second paragraph, 4. the alien can be granted or has a temporary residence permit pursuant to Section 15, 5. the alien has strong ties, as defined in Section 3, first paragraph, points 1-4 or Section 3a, first paragraph, points 1-3 or second paragraph, to a person who is resident in Sweden and it cannot reasonably be required that the alien travel to another country to submit an application there, 6. an application for a residence permit concerns extension of a temporary residence permit that has been granted to an alien pursuant to Section 10 in a case referred to in Chapter 6, Section 2, first paragraph. 7. the alien can be granted a residence permit under Section 15a, 8. the alien has been granted a temporary residence permit for studies pursuant to Section 10 and has either completed studies equivalent to 30 higher education credits or has completed one academic term in the case of postgraduate education, or 9. there are some other exceptional grounds. Furthermore, the rule given in the first paragraph does not apply if the alien has been granted a visa to visit an employer in Sweden or is exempt from the visa requirement if he or she is applying for a residence permit for work in a type of occupation in which there is great demand for labour. An additional requirement is that it would cause the employer inconvenience if the alien had to travel to another country to submit an application there or that there are some other special grounds. When assessing what is reasonable under the second paragraph, point 5, particular attention shall be paid to the consequences for a child of being separated from its parent, if it is clear that a residence permit would have been granted if the application had been examined before entry into Sweden. With regard to a residence permit for an alien who is to be refused entry or expelled in accordance with a judgment or order that has become final and non-appealable, the regulations in Section 15a, Chapter 8, Section 14 and Chapter 12, Sections 18-20 apply. 37. This provision was also amended on 1 July 2010 adding in the last paragraph “when assessing under the first paragraph, point 3 ... particular attention shall be paid to the consequences for a child of being separated from its parent, if it is clear that a residence permit would have been granted ... if the application had been examined before entry into Sweden”. The wording was thus: If, in a case concerning the enforcement of a refusal-of-entry or expulsion order, new circumstances come to light that mean that 1. there is an impediment to enforcement under Section 1, 2 or 3, 2. there is reason to assume that the intended country of return will not be willing to accept the alien or 3. there are medical or other special grounds why the order should not be enforced, the Swedish Migration Board may grant a permanent residence permit if the impediment is of a lasting nature. If there is only a temporary impediment to enforcement, the Board may grant a temporary permit. When assessing under the first paragraph, point 3, whether there are other special grounds why an order should not be enforced, particular attention shall be paid to the consequences for a child of being separated from its parent, if it is clear that a residence permit would have been granted on the grounds of strong ties under Chapter 5, Section 3, first paragraph, points 1-4, or Chapter 5, Section 3a, first paragraph, points 1-3, or second paragraph, if the application had been examined before entry into Sweden. The Swedish Migration Board may also order a stay of enforcement. 38. The Government submitted that according to information received from the Embassy of Sweden in Addis Ababa in September 2011, it would take approximately two months to process an application for a residence permit at the Embassy. The subsequent processing time by the Migration Board in Sweden would normally be less than eight months depending on whether the application needed to be supplemented or not. Cases involving children were given priority. The time from the filing of an application at the Embassy until a decision is reached should thus not be longer than ten months. The applicants disputed this information. Referring to e-mail correspondence between the Embassy and their representative from February 2010, they maintained that it would take at least one year to have an application considered. 39. Council Directive, 2003/86/EC of 22 September 2003 on the right to family reunification, which applies to all EU Member States, except the United Kingdom, Denmark and Ireland, deals with the conditions for the exercise of the right to family reunification by third country nationals residing lawfully in the territory of the Member States. Its Chapter III, Article 5, which carries the heading “Submission and examination of the application”, provides: 1. Member States shall determine whether, in order to exercise the right to family reunification, an application for entry and residence shall be submitted to the competent authorities of the Member State concerned either by the sponsor or by the family member or members. 2. The application shall be accompanied by documentary evidence of the family relationship and of compliance with the conditions laid down in Articles 4 and 6 and, where applicable, Articles 7 and 8, as well as certified copies of family member(s)’ travel documents. If appropriate, in order to obtain evidence that a family relationship exists, Member States may carry out interviews with the sponsor and his/her family members and conduct other investigations that are found to be necessary. When examining an application concerning the unmarried partner of the sponsor, Member States shall consider, as evidence of the family relationship, factors such as a common child, previous cohabitation, registration of the partnership and any other reliable means of proof. 3. The application shall be submitted and examined when the family members are residing outside the territory of the Member State in which the sponsor resides. By way of derogation, a Member State may, in appropriate circumstances, accept an application submitted when the family members are already in its territory. 4. The competent authorities of the Member State shall give the person, who has submitted the application, written notification of the decision as soon as possible and in any event no later than nine months from the date on which the application was lodged. In exceptional circumstances linked to the complexity of the examination of the application, the time limit referred to in the first subparagraph may be extended. Reasons shall be given for the decision rejecting the application. Any consequences of no decision being taken by the end of the period provided for in the first subparagraph shall be determined by the national legislation of the relevant Member State. 5. When examining an application, the Member States shall have due regard to the best interests of minor children. | 0 |
train | 001-5646 | ENG | PRT | ADMISSIBILITY | 1,999 | YONGHONG v. PORTUGAL | 1 | Inadmissible | null | The applicant, [Mr Chen Yonghong], was born in 1954 and is a Chinese national with Taiwanese nationality. When the application was lodged, he was being held in a prison at Coloane in Macao. He is represented before the Court by Mr J.L. da Cruz Vilaça, Mr L.M. Pais Antunes and Mr R. Oliveira, of the Lisbon Bar. The facts of the case, as presented by the parties, may be summarised as follows. The applicant was arrested by the Macanese police on 27 May 1999 under an international arrest warrant issued by the Nanjing (People’s Republic of China) State Security Department on suspicion of fraud, within the meaning of Articles 152 and 266 of the Chinese Criminal Code. On 1 July 1999 the Chinese Ministry of Foreign Affairs lodged a formal request with the Portuguese Embassy in Peking for the applicant’s extradition. The request was forwarded to the Governor of Macao, who, on 9 July 1999 and in accordance with the relevant domestic legislation, gave leave for the extradition proceedings to continue. The case file was therefore lodged for consideration by Macao Higher Court of Justice (Tribunal Superior de Justiça). In a judgment of 20 August 1999, the Higher Court of Justice authorised the applicant’s extradition. It relied essentially on the fact that the offence of which the applicant was accused was punishable not by death, but at most by life imprisonment. The Chinese Ministry of Foreign Affairs had given an assurance that that penalty would not be imposed on the applicant. On 6 September 1999 the applicant appealed against that decision to the full court of the Higher Court of Justice relying in particular on the fact that Article 266 of the Chinese Criminal Code also contained a cross-reference to Article 264 of that Code, which provided that the death penalty could be imposed for the offences concerned. He also maintained that the assurances given by the Chinese Ministry of Foreign Affairs could not be regarded as credible as they were not binding on the Chinese courts. In a decision of 3 November 1999, the Higher Court of Justice, sitting as a full court, dismissed the appeal and upheld the impugned judgment. By virtue of Article 292 of the Portuguese Constitution and the joint declaration made by Portugal and China on 13 April 1987, Macao is considered a Chinese territory under Portuguese administration until the date appointed for the transfer of sovereignty to China (20 December 1999). Under the terms of Article 2 of the Basic Law of Macao (which was adopted by the Portuguese Parliament, on the proposal of the Macanese legislative assembly, on 17 February 1976, and amended on 14 September 1979, 10 May 1990 and 29 July 1996), Macao is deemed to be a “juristic person of domestic public law”. For the time being and until 20 December 1999, the Portuguese Constitution is applicable to Macao by virtue of the Basic Law. However, laws of the Portuguese Republic are applicable in Macao only if they have been published in the territory’s official gazette. The Governor has primary responsibility for the administration of Macao. He is accountable to the President of the Portuguese Republic. The territory has its own judicial organisation. An appeal used to lie against decisions of the Macao Higher Court of Justice, either to the Supreme Court or, in constitutional cases, to the Constitutional Court of Portugal. However, by Decree no. 118–A/99 of 20 March 1999, the President of the Republic decided, in accordance with the Basic Law, that the Macanese courts would have exclusive jurisdiction for the entire territory from 1 June 1999. The extradition rules applicable in Macao are to be found in Legislative-Decree no. 437/75 of 16 August 1975, which provides for an initial administrative phase after which the Government may give leave for the extradition proceedings to continue. Thereafter it is for the courts to determine whether the request for extradition is lawful. The applicant alleges that his extradition to China would entail a violation of Article 1 of Protocol No. 6 and of Articles 3 and 6 of the Convention. | 0 |
train | 001-96121 | ENG | NLD | ADMISSIBILITY | 2,009 | O. v. THE NETHERLANDS | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra | 1. The applicant, Mr O., was born in 1974. He is a national of Mauritania where he is currently living. He is known to the Netherlands authorities under this and at least two other identities. He was represented before the Court by Mr M. Ferschtman and Ms V. Essenburg, who are both lawyers practising in Amsterdam. 2. 3. On 28 October 1999 the applicant entered the Netherlands, where on 14 November 1999 he applied for asylum. He stated, inter alia, that he had left his passport and identity card behind in Mauritania and that he had travelled as a stowaway on a ship to the Netherlands. His parents and five siblings as well as fifteen half-siblings were all living in Mauritania. He stated that, on account of his Soninké origin, he had been discriminated against in Mauritania where, moreover, his father, his oldest brother and one of his sisters had encountered problems from the side of the Mauritanian authorities. He had also left Mauritania because of problems encountered on two occasions from the side of relatives of his fiancée. They objected to the applicant’s intended marriage. 4. Noting that the applicant did not hold any travel documents and had not immediately applied for asylum upon his arrival in the Netherlands, and finding that no credence could be attached to his asylum account, the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant’s asylum request on 16 November 1999. The applicant did not avail himself of the possibility to appeal against this decision, which thus became final. Although under a formal obligation to leave the country, the applicant continued to reside illegally in the Netherlands. 5. The applicant was arrested on 30 August 2002 and detained on remand on suspicion of, inter alia, participation in a criminal organisation pursuing the aim of prejudicing the Netherlands State by providing assistance to enemy forces who are conducting a holy war against – amongst others – the Netherlands; and which organisation is further involved in drug-trafficking, forgery of documents, providing third persons with forged documents, and/or ordering or inciting others to commit criminal offences. These suspicions were based on the content of various intelligence reports drawn up by the Netherlands national security agency (Binnenlandse Veiligheidsdienst; “BVD”, succeeded on 29 May 2002, pursuant to the 2002 Intelligence and Security Services Act (Wet op de inlichtingen- en veiligheidsdiensten), by the General Intelligence and Security Service (Algemene Inlichtingen- en Veiligheidsdienst; “AIVD”)). 6. The applicant and a number of co-accused were subsequently formally charged and summoned to appear before the Rotterdam Regional Court (rechtbank) in order to stand trial. In its judgment of 5 June 2003, the Regional Court acquitted the applicant of all charges, finding that these had not been legally and convincingly proven, and ordered the applicant’s release from pre-trial detention. The hearing of 5 June 2003 during which the Regional Court’s judgment was delivered was attended by an official of the Mauritanian mission in the Netherlands. 7. The prosecution initially lodged an appeal against this judgment but withdrew it on 6 September 2005, before the trial proceedings on appeal had commenced. 8. On 28 May 2003, the applicant filed a second application for asylum in the Netherlands. He stated, inter alia – contrary to what he had previously asserted –, that he had taken his passport, personal identity card and declaration of nationality with him to the Netherlands in 1999 and that, for the purposes of possibly obtaining a Spanish residence title, he had later sent his passport to Spain where one of his brothers was living. He had not submitted these identity documents in the proceedings on his first asylum request in order to prevent his immediate removal from the Netherlands. On this passport, issued in 1999 shortly before his departure, he had travelled by plane from Senegal to France from where – following brief stays in Italy and the United Kingdom – he had eventually travelled by train to the Netherlands where he had applied for asylum. 9. His new asylum request was based, inter alia, on the criminal proceedings that had been taken against him in the Netherlands. The applicant claimed that these proceedings had attracted the attention of the Mauritanian authorities as illustrated by the presence of an official of the Mauritanian mission during the Rotterdam trial. Despite the fact that he had been acquitted, his relatives in Mauritania continued to be questioned about him. Further emphasising the general situation in Mauritania, the applicant submitted that he feared treatment in breach of Article 3 of the Convention as he was a person marked for life as a terrorist. 10. On 5 June 2003, immediately after his release from pretrial detention following his acquittal, the applicant was placed in aliens’ detention for expulsion purposes (vreemdelingenbewaring). 11. In a letter of 7 July 2003 sent to the applicant’s lawyer, Amnesty International (Netherlands Branch) stated that it was likely that the applicant had attracted the negative attention of the Mauritanian authorities on account of the nature of the suspicions that had arisen against him in the Netherlands. As the Mauritanian authorities had been engaged since April 2003 in a campaign of oppression directed against all persons suspected of having links with religious groups considered “extremist” and as Amnesty International received regular reports of torture of persons detained in Mauritania, it feared that the applicant’s expulsion to Mauritania could expose him to a risk of treatment proscribed by Article 3 of the Convention. 12. On 11 July 2003, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie; “the Minister”) rejected the applicant’s second asylum application, but withdrew this decision on 18 July 2003. 13. On 24 July 2003, an individual official report (ambtsbericht) on the applicant was drawn up by the AIVD. According to this report, the applicant was involved in a network of extremist Muslims engaged in the material, financial and logistic support of international jihad, as well as in the propagation of, planning of and incitement to use violence for the purposes of such jihad. 14. On 7 August 2003 the Regional Court of The Hague sitting in Dordrecht concluded that the applicant should have been released from aliens’ detention on 18 July 2003. The applicant was released on the same day. 15. On 5 March 2004 the applicant filed an appeal with the Regional Court (rechtbank) of The Hague against the Minister’s failure to determine his second asylum application. On 18 October 2004, the Regional Court accepted the applicant’s appeal and ordered the Minister to determine the applicant’s asylum request within six weeks. 16. In a fresh decision taken on 26 November 2004, the Minister again rejected the repeat asylum request, finding that it had not been established that the applicant, if expelled to Mauritania, would be exposed to a risk of treatment proscribed by Article 3 of the Convention. The applicant filed an appeal with the Regional Court of The Hague on 21 December 2004. 17. On 16 March 2006, following a hearing held on 20 October 2005, the Regional Court of The Hague sitting in Amsterdam accepted the applicant’s appeal, quashed the decision of 26 November 2004 and ordered the Minister to take a fresh decision within six weeks. The Regional Court rejected the Minister’s request to take into account the effects of the military coup d’état in Mauritania of 3 August 2005 in which the regime of President Maaouya Ould Taya had been overthrown, including reports in the press that after this coup many opposition members had returned to Mauritania and that many detainees, including Islamic extremists, had been released. Although the Regional Court accepted that the regime change could, as such, be seen as a new fact or circumstance which could be taken into account in accordance with article 83 of the Aliens Act 2000 (Vreemdelingenwet 2000), it also found that the Minister had failed to indicate in a targeted and concrete manner what consequences this should entail in respect of the appeal at hand. Furthermore, it did not find that the effects of the regime change had become fully crystallised yet. Consequently, the requirement of article 83 § 2 of the 2000 Aliens Act that new facts and circumstances can only be taken into account if relevant to the decision at issue was not met in the instant case. The Regional Court therefore decided to ignore what had happened on or after 3 August 2005 in Mauritania. 18. The Regional Court further agreed with the parties that the appeal concerned a repeat request within the meaning of article 4:6 of the General Administrative Law Act which should be based on relevant newly emerged facts or altered circumstances. It held that the applicant’s arrest and prosecution on charges of participation in a terrorist organisation in the Netherlands, his acquittal by the Rotterdam Regional Court and the public attention these proceedings had attracted were new facts unknown on 16 November 1999 when the applicant had filed his first asylum request. The question which remained was whether these new facts warranted a revision of the negative decision on that first asylum request. On the basis of the contents of Amnesty International’s letter of 7 July 2003 and other materials concerning the suppressive attitude of the regime of the Mauritanian President Maaouya Ould Taya as regards Islamic extremists, the Regional Court found that there were sufficient concrete indications that the Mauritanian authorities, in particular since 2001, pursued an increasingly repressive policy towards perceived Islamic fundamentalists. It could therefore not be considered excluded that the applicant would risk persecution within the meaning of the 1951 Geneva Convention Relating to the Status of Refugees. The Regional Court further accepted as sufficiently plausible that the Mauritanian authorities had become aware of the suspicions that had arisen against the applicant in the Netherlands. Also noting that the most recent official report (ambtsbericht) on Mauritania had been drawn up by the Minister of Foreign Affairs as long ago as May 2000, the Regional Court concluded that the Minister’s conclusion in the impugned decision lacked adequate reasoning on specific points. Having reached this conclusion, the Regional Court did not find it necessary to examine and determine the parties’ arguments on the AIVD individual official report on the applicant of 24 July 2003. 19. On 13 April 2006 the Minister filed an appeal with the Administrative Jurisdiction Division of the Council of State (Administrative Jurisdiction Division of the Council of State). 20. On 14 September 2006, the Administrative Jurisdiction Division accepted the Minister’s appeal, quashed the Regional Court’s judgment of 16 March 2006 and rejected the applicant’s appeal against the Minister’s decision of 26 November 2004. Referring to the general principles under Article 3 of the Convention as defined by the Court in its judgments in the cases of Vilvarajah and Others v. the United Kingdom, (judgment of 30 October 1991, Series A no. 215) and Venkadajalasarma v. the Netherlands, (no. 58510/00, 17 February 2004), the Administrative Jurisdiction Division held: “The [asylum] application, rejected in the above-cited decision of 26 November 2004, was based on the claim that [the applicant] must now fear that, in view of the criminal trial proceedings taken against him, the Mauritanian authorities have become aware of the suspicions having arisen against him in the Netherlands as to his involvement in a terrorist organisation and that this is not altered by the fact that he has been acquitted. [The Administrative Jurisdiction Division considers that], even if such awareness has to be assumed to exist, the Minister did not have to find – on the basis of the [applicant’s] mere reference to the suspicions having arisen against him, the subsequent prosecution which ended in his acquittal and speculation about the possible consequences of this upon his return to his country of origin – that it had been established by the [applicant] that he, if expelled, would be exposed to a real risk of being subjected to treatment within the meaning of Article 3 of the Convention. The general information submitted by the [applicant] concerning the attitude of the Mauritanian authorities towards terrorism offers no basis for the conclusion that the Minister was incorrect in finding no reasons for considering that the criminal proceedings will lead to asylum-related problems. It was not for the Minister to demonstrate that this alleged risk did not in fact exist. The appeal succeeds.” No further appeal lay against this decision. 21. On 21 September 2006 the Minister informed the applicant of the intention (voornemen) to declare him an undesirable alien entailing the imposition of an exclusion order (ongewenstverklaring), as the applicant was considered to pose a threat to national security, which conclusion was based on an individual official report drawn up on the applicant by the AIVD on 24 July 2003, according to which the applicant was involved in a network of extremist Muslims involved in the material, financial and logistic support of international jihad, and in the propagation of, planning of and incitement to use violence for the purposes of such jihad. According to a subsequent official AIVD report of 20 September 2006, this information remained pertinent. 22. On 5 October 2006, the applicant filed written comments on the intention with the Minister, arguing inter alia that such an exclusion order would be in violation of his rights under Article 3 of the Convention and that the intended decision to impose an exclusion order lacked adequate reasoning. The applicant relied, inter alia, on a letter dated 4 October 2006 from Amnesty International (Paris Research Office), stating that the applicant, given his past, was at risk of being arrested and tortured if returned to Mauritania. 23. At the time of the introduction of the application, these proceedings were still pending before the Minister. No further information about these proceedings has been submitted to the Court. 24. In October 2006, the applicant was expelled from the Netherlands to Mauritania. He travelled on his own, authentic and valid passport which had been issued for all countries in Nouakchott (Mauritania) in 1999. In March 2004, the validity of this passport had been prolonged in Nouakchott by three years. The applicant had applied for that prolongation by correspondence. 25. The applicant arrived unaccompanied in Mauritania. He passed the passport and customs control with the help of a related customs officer who had been informed of the arrival by the applicant’s family. This customs officer shepherded him through the checkpoints as the border guards were allegedly on alert for the applicant and would have arrested and questioned him. Since his return to Mauritania, the applicant has been living in hiding in order to avoid persecution by the Mauritanian authorities. 26. Until 1 April 2001, the admission, residence and expulsion of aliens were regulated by the 1965 Aliens Act (Vreemdelingenwet). Further rules were laid down in the Aliens Decree (Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift Vreemdelingen) and the Aliens Act Implementation Guidelines (Vreemdelingencirculaire). The General Administrative Law Act (Algemene Wet Bestuursrecht) applied to proceedings under the 1965 Aliens Act, unless indicated otherwise in this Act. 27. On 1 April 2001, the 1965 Aliens Act was replaced by the 2000 Aliens Act. On the same date, the Aliens Decree, the Regulation on Aliens and the Aliens Act Implementation Guidelines were replaced by new versions based on the 2000 Aliens Act. Unless indicated otherwise in the 2000 Aliens Act, the General Administrative Law Act continued to apply to proceedings on requests by aliens for admission and residence. 28. Under article 29 of the 2000 Aliens Act, an alien is eligible for a residence permit for the purposes of asylum if, inter alia, he or she is a refugee within the meaning of the Convention relating to the Status of Refugees of 28 July 1951, or he or she has established that he or she has well-founded reasons to assume that he or she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin. 29. Article 4:6 of the General Administrative Law Act provides that an applicant must adduce newly emerged facts or altered circumstances (nieuw gebleken feiten of veranderde omstandigheden) if a repeat request is filed following a decision in which the original request is, either totally or partially, rejected. When no such facts or altered circumstances have been adduced, the administrative authority may reject the new request with reference to the decision on the original request. Article 4:6 thus embodies the res iudicata principle in administrative law. Nevertheless, an exception has been made in this particular area of the law, in that an alien may adduce exceptional facts and circumstances relating to him or her personally, on the basis of which the new request may be assessed outside the framework of article 4:6. In the case of a repeat asylum application in which the risk of treatment contrary to Article 3 of the Convention is also invoked, an assessment by the court outside the framework of article 4:6 is therefore possible. 30. On 16 August 2009, the Immigration and Refugee Board of Canada issued “Mauritania: The country’s situation, including the human rights situation and the political situation (August 2005 - August 2006)”. It reads, in so far as relevant (references omitted): “In August 2005, a military coup d’état led by Colonel Ely Ould Mohamed Vall "put an end to the totalitarian practices" of President Maaouiya Ould Taya, who had been in power since 1984. The Military Council for Justice and Democracy (Conseil militaire pour la justice et la démocratie, CMJD), headed by Colonel Vall, now runs the country. ... In September 2005, Colonel Vall allowed "a general, full and complete amnesty to all Mauritanians condemned for political crimes or offences, in order to permit them to participate in the work of building the country in complete freedom". However, approximately 20 "Islamists" have been imprisoned since April 2005; accused of being part of terrorist cells, they have not been given a trial as of July 2006. “ 31. On 28 August 2006, the Immigration and Refugee Board of Canada published the “query response” entitled “Mauritania: National identity documents in use in Mauritania, including the passport, identity card, birth certificate and marriage certificate; description of those documents; procedures for obtaining those documents (August 2006)”, which reads in respect of passports (references omitted): “Passport In correspondence, the First Counsellor at the Embassy of Mauritania ... indicated that the Mauritanian passport is issued by the national security branch. In order to obtain a passport, a person must submit a valid birth certificate and recent police record and report in person to receive his or her passport. No additional information on the documents that a person must produce or on the procedures he or she must follow to obtain a Mauritanian passport could be found among the sources consulted by the Research Directorate within the time constraints for this Response. According to the First Counsellor at the Embassy of Mauritania, a passport is valid for three years and contains the following information: the holder’s given name, family name, date and place of birth; the card’s period of validity; the name of the issuing authority; and a photograph. Keesing Reference Systems provides information on two types of Mauritanian passports. The first type has a six-digit number, preceded by a letter. The number appears as perforations at the top of all pages and is printed on the first page. Other information on the passport includes the following: Passport 1 validity 3 years, page 5 a 3-year extension possible booklet c. 153 x 103 mm / 6.0 x 4.1 in. 32 pages laminate pages 1 and 3, clear laminate, sewn in photo glued, with an ink stamp. The second type of passport has a seven-digit number, preceded by a letter. The number appears as perforations at the top of all pages and is printed on the first page under the title. Other information about the passport includes the following: Passport 2 validity 5 years, page 5 entry ‘It expires on’ extension possible booklet c. 125 x 88 mm / 4.9 x 3.5 in. 32 pages laminate pages 1 and 3, matt laminate with print, sewn in photo glued, with an ink stamp. No information on why Mauritania has two types of passports could be found among the sources consulted by the Research Directorate within the time constraints for this Response. ...” 32. The Annual Report on International Religious Freedom for 2006 on Mauritania, released by the U.S. Department of State on 15 September 2006 and covering the period between 1 July 2005 and 30 June 2006, states in its relevant part: “The constitution establishes the country as an Islamic republic and recognizes Islam as the religion of its citizens and the state. However, a military junta took power on August 3, 2005, overthrew the elected president, dissolved parliament, suspended parts of the constitution, and formed a transitional government. The transitional government maintained laws regarding human rights and religious freedom and made some advances in both areas. ... Following the 2003 crackdown on Islamic activists, the former government closed a number of Saudi-funded and Gulf-funded Islamic schools and charities. These organizations remained closed at the end of the period covered by this report. The former government also closed an Islamic charity association in 2003 for its alleged connections to local Islamic activists. The government-funded Institute for Islamic Science, Studies, and Research (ISERI), remained open and fully funded. From March to July of 2005, the former government detained approximately eighty Islamists, including Islamist leaders Cheikh Mohamed El Hacen Ould Dedew and Moctar Ould Mohamed Moussa, who it claimed were tied to terrorism. On May 28, 2005, the former government charged thirty-seven with membership in unrecognized groups or for inciting violence and making harmful political statements at mosques. The former government released fourteen others, leaving sixty-six in prison (thirty-seven of whom had been charged). A majority of the arrests appeared to be based on alleged political activities rather than religious beliefs. The transitional government released twenty-one of the sixty-six Islamists soon after assuming power, and on September 2, 2005, released an additional twenty-four for lack of evidence, leaving twenty-one in prison. Three prisoners escaped April 27, 2006, leaving eighteen in prison. The transitional government stated that it had sufficient evidence to hold the remaining eighteen for terrorist activities and was preparing its case against them at the end of the reporting period. Unlike in the previous reporting period, there were no reports of former or transitional government officials searching mosques, seizing Qur’anic texts or arresting mosque officials. As in the previous reporting period, both the former and transitional governments restricted the use of mosque loudspeakers exclusively for the call to prayer and Friday service, in accordance with a 2003 law that prohibits the use of mosques for any form of political activity, including the distribution of propaganda and incitement to violence. ... Excluding the Islamists previously mentioned, there were no additional reports of religious prisoners or detainees.” 33. On 11 March 2008, the U.S. Department of State released the “2007 Country Reports on Human Rights Practices – Mauritania”, which states inter alia: “Mauritania, with an estimated population of three million, is a highly centralized Islamic republic governed by President Sidi Mohamed Ould Cheikh Abdallahi, whose April 19 [2007] inauguration highlighted the country’s first successful transition to democracy in its 50 years of independence. President Abdallahi replaced Colonel Ely Ould Mohammed Vall, who had taken power in the August 2005 coup that ended the 23-year presidency of Maaouya Ould Sid’Ahmed Taya. The presidential elections were judged free and fair by international and national observers. The civilian authorities generally maintained effective control of the security forces. ...” | 0 |
train | 001-73409 | ENG | EST | ADMISSIBILITY | 2,006 | RAND v. ESTONIA | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Jüri Rand, is an Estonian national who was born in 1955 and lives in Tallinn. He was represented before the Court by Mr M. Susi, a lawyer practising in Estonia. By a decision of 17 May 2004 the Lääne-Viru County Court (Lääne-Viru Maakohus) discontinued criminal proceedings in respect of the applicant who had been charged with having committed an aggravated fraud involving substantial material damage (Article 143 § 2 (1-1) of the Criminal Code (Kriminaalkoodeks)). The decision was taken at the request of the prosecutor, under Article 168-2 of the Code of Criminal Procedure (Kriminaalmenetluse koodeks), according to which criminal proceedings could be discontinued if the punishment liable to be imposed on the accused would be negligible compared to the punishment which would be likely to be imposed on him or her for the commission of another criminal offence. The County Court made reference to other proceedings pending before the Tallinn City Court (Tallinna Linnakohus) which are summarised below. By a judgment of 17 November 2004 the Tallinn City Court convicted E.B. and V.K. of illicit trafficking of gasoline by a group of persons (Article 76 § 3 (2) of the Criminal Code). The applicant was convicted of aiding and abetting the above offence (Article 76 § 3 (2) and Article 17 § 6 of the Criminal Code). He was sentenced to two years’ imprisonment, less the time spent in pre-trial detention. M.K. was convicted of misuse of his official position (Article 161 of the Criminal Code). The court granted the civil claim of the Customs Board against the applicant, E.B. and V.K. in the amount of 34,917,918 kroons (EEK) (approximately 2,231,177 euros (EUR)). Finally, it decided to confiscate the property (gasoline) that had been seized from the applicant, E.B. and V.K. in order to meet the civil claim. On 23 February 2005 the Tallinn Court of Appeal (Tallinna Ringkonnakohus) upheld the City Court’s judgment in substance insofar as it concerned the applicant. The Supreme Court (Riigikohus) refused the applicant leave to appeal on 15 June 2005. On 20 June 2005 the applicant requested the Tallinn City Court to postpone the enforcement of his prison sentence for up to one year, as he was critically ill with rheumatoid arthritis and in case his medical treatment were to be discontinued, the inflammation of joints would become more acute. The applicant submitted that he was the sole supporter of his sick parents and that he provided subsistence to a one-year-old child. On 21 June 2005 the City Court postponed the enforcement of the applicant’s imprisonment for six months. On 22 June 2005 the applicant requested the Tallinn City Court to lift his sentence due to his incurable illness. By a decision of 28 September 2005 the City Court dismissed his request. It found, on the basis of medical certificates submitted by the applicant, that he had been prescribed pills which could also be taken in prison. It considered that the necessary medical examinations (once every three months) could be arranged by the prison authorities in cooperation with a hospital. Therefore, the City Court dismissed the applicant’s request and noted that according to the City Court’s decision of 21 June 2005 the applicant had to appear in the Tallinn Prison on 6 January 2006 at the latest to start serving his sentence (1 year, 9 months and 18 days). The applicant did not appeal against the decision. | 0 |
train | 001-119046 | ENG | RUS | CHAMBER | 2,013 | CASE OF PETUKHOVA v. RUSSIA | 3 | Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-b - Lawful order of a court);Non-pecuniary damage - award | Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković | 5. The applicant was born in 1937 and lives in Moscow. 6. On 13 December 2005 she complained to the police about her neighbours. She stated that a “gang” of neighbours had damaged her property and had used “psychotronic generators” in their apartments and cars to cause damage to her health and mind. The applicant also mentioned in the complaint that she had in the past made submissions to the Federal Security Service, the President of the Russian Federation and the State Duma, which had been unsuccessful. 7. On 20 January 2006 a police officer took statements from the applicant’s neighbours, who stated that she had behaved unreasonably, walked naked on the streets, shouted at people and accused them of various illegal activities. 8. The Psychoneurological Outpatient Clinic no. 20 of Moscow (“the POC”) was requested by the police on 20 January 2006 to carry out a psychiatric examination of the applicant. 9. On 14 July 2006 a resident psychiatrist at the POC (Ms K.) issued a report confirming the need for a psychiatric examination of the applicant relying on the evidence obtained seven months before. The report stated that the nature of the applicant’s complaints to various authorities gave reason to believe that they were brought about by a pathology associated with a psychiatric disorder. The psychiatrist concluded that an examination of the applicant was necessary, because progressive development of the disorder might cause a deterioration in her health and aggressive behaviour towards others. The report was certified by the head physician of the POC. It is not clear whether the psychiatrist examined the applicant in person before issuing the report. 10. On the same day Ms K. filed an application with the Kuzminskiy District Court of Moscow (“the District Court”) seeking authorisation for an involuntary psychiatric examination under section 23, subsection 4 (c) of the Law of the Russian Federation on Psychiatric Assistance and Guarantees of the Citizens’ Rights Related to Its Administration 1992 (“the Psychiatric Assistance Act”). The application stated that there was evidence of “a psychiatric disorder resulting in significant damage to health due to the deterioration of a psychiatric condition in the absence of psychiatric assistance”. It also indicated that on 20 January 2006, during a police interview, the applicant had refused to consent to undergo a voluntary psychiatric examination. The application was also certified by the head physician of the POC. 11. Evidence attached to the application included the above-mentioned psychiatrist’s report of 14 July 2006, the applicant’s complaint to the police of 13 December 2005, the police officer’s request of 20 January 2006, and the applicant’s neighbours’ statements of 20 January 2006. 12. The application was received by the District Court on 27 July 2006 and a hearing was scheduled for 18 August 2006. On 14 August 2006 the court sent a summons to the applicant by registered letter, but that was later returned to the sender after several unsuccessful delivery attempts. 13. On 18 August 2006 the District Court considered the psychiatrist’s application for involuntary psychiatric examination of the applicant. Neither the applicant nor the representative of the POC were present at the hearing. It was noted in the court transcript and decision that both parties had been duly notified of the hearing but that neither had chosen to appear in court. The District Court authorised a psychiatric examination of the applicant without her consent and ordered it to be carried out either at her home or at the POC. It reasoned as follows: “The court, having examined the evidence, namely the report of the POC on the need for a psychiatric examination, considers the application well-founded ... for the following reasons. In accordance with Section 23, subsection 4 of the Psychiatric Assistance Act 1992 ... a psychiatric examination of a person may be carried out without his or his legal representative’s consent when the evidence available suggests that the examinee performs acts giving reason to presume the existence of a severe psychiatric disorder which causes feebleness, i.e. the inability to autonomously satisfy one’s basic needs, or significant damage to health due to the deterioration of a psychiatric condition in the absence of psychiatric assistance. The said condition ... has been proven by the POC’s medical report, a copy of the applicant’s complaint to [the police] concerning the use of various types of secret weapons, a copy of a statement by Ms Sh. (Ms Petukhova’s neighbour), who stated that Ms Petukhova behaved unreasonably, walked naked on the streets and shouted at people, as well as by other evidence confirming the need for a psychiatric examination of Ms Petukhova.” 14. The Court has received no evidence to suggest that the applicant was either notified of the decision or provided with a copy. 15. More than three months later, on 1 December 2006, the POC sent a request to the police seeking their assistance in the applicant’s apprehension in order to prevent her from potentially behaving aggressively towards others. The request stated that the clinic was unable to ensure that the applicant would attend an examination. 16. On the same day at around 10 a.m. three policemen visited the applicant’s flat and took her by force to a police station. Having spent four hours there she was transferred by ambulance to Psychiatric Hospital no. 13 (“the PH-13”). At 2.30 p.m. on arrival at the hospital, the applicant was informed that she had been brought there under the authorisation of the District Court. It is not clear whether she was allowed to read the court order. 17. Later that day at 4.30 p.m. the applicant was examined by a medical counselling panel and diagnosed with paranoid schizophrenia aggravated by paranoid syndrome. 18. After her release from the hospital on 4 December 2006 the applicant requested the District Court to provide her with a copy of its decision of 18 August 2006 authorising her involuntary psychiatric examination. 19. On 18 December 2006 the applicant appealed against that decision. She argued, inter alia, that the District Court had examined the case in her absence and that she had not been duly notified of the hearing; that the decision did not contain reasons and that it was based on a single psychiatric report which was accepted by the court without scrutiny. 20. On 15 February 2007 the Moscow City Court after hearing the applicant and her representative dismissed the applicant’s appeal and upheld the authorisation for an involuntary psychiatric examination. The court reasoned that the applicant’s presence at the District Court hearing was not required under Article 306 of the Code of Civil Procedure. Furthermore, it stated that the psychiatric report was well-founded because it contained details of the applicant’s actions giving grounds to presume the existence of a psychiatric disorder. 21. The applicant applied for supervisory review, but to no avail. 22. The applicant lodged a constitutional complaint about Article 306 of the Code of Civil Procedure. She alleged that this legal provision did not guarantee her a right to be present during the hearing of an application for involuntary psychiatric examination, since it specified that such applications shall be considered by “a single judge”. 23. On 18 December 2007 the Constitutional Court of the Russian Federation dismissed the applicant’s complaint. It argued that the term “single judge” for the purposes of Article 306 of the Code of Civil Procedure referred only to the composition of a court and did not preclude the parties’ participation in a hearing. 24. On 1 December 2006 after the applicant was brought to the hospital and diagnosed with paranoid schizophrenia aggravated by paranoid syndrome (see paragraphs 16-17 above), the medical panel of the PH-13 concluded that involuntary hospitalisation of the applicant was required under section 29 of the Psychiatric Assistance Act 1992 in order to prevent potentially significant damage to her health due to the deterioration of a psychiatric condition in the absence of psychiatric assistance. The application for involuntary hospitalisation was filed with the Lyubinskiy District Court of Moscow on the same day. 25. On 4 December 2006 the applicant was discharged from PH-13 and advised to follow an outpatient treatment programme. Later that day the deputy head physician of PH-13 requested the Lyubinskiy District Court of Moscow to discontinue the proceedings concerning the applicant’s involuntary hospitalisation in the light of her discharge from the facility. The request was granted and the proceedings discontinued on 6 December 2006. 26. The applicant did not initiate any proceedings for review of her hospitalisation. 27. Article 306 of the Code of Civil Procedure of the Russian Federation of 2002, which entered into force on 1 February 2003, regulates the procedure for the judicial authorisation of involuntary psychiatric examinations. It reads as follows: “An application for involuntary psychiatric examination of a citizen shall be lodged by a psychiatrist with the court at the place of the citizen’s place of residence. A reasoned report by a psychiatrist on the need to conduct such an examination and other evidence shall be attached to the application. Within three days of the application being filed, a single judge shall consider the application for involuntary psychiatric examination and shall decide to either authorise the involuntary psychiatric examination of a citizen or refuse [it].” 28. The Psychiatric Assistance Act 1992 in section 5 subsection 2 provides a list of the rights of persons suffering from a psychiatric disorder, including the right to be informed of their rights, the nature of their disorder and available treatment, the right to the least restrictive methods of treatment, and the right to the assistance of a lawyer, legal representative or other person. Section 5 subsection 3 prohibits restrictions on the rights of persons suffering from a psychiatric disorder solely on the basis of their diagnosis or their admission to a specialised facility. 29. Sections 23 and 25 of the Act regulate the procedure for conducting involuntary psychiatric examinations. The relevant parts read as follows: “(1) A psychiatric examination shall be conducted in order to determine whether the examinee suffers from a psychiatric disorder and needs psychiatric assistance, and to determine the type of such assistance. (2) A psychiatric examination, as well as a prophylactic examination, shall be conducted at the examinee’s request and with his consent ... ... (4) A psychiatric examination of a person may be carried out without his or his legal representative’s consent in cases when the available evidence suggests that the examinee performs acts giving reason to presume the existence of a severe psychiatric disorder which causes: ... c) significant damage to health due to the deterioration of a psychiatric condition in the absence of psychiatric assistance ...” “... (4) In cases when a person does not present an immediate danger to himself or others, the application for a psychiatric examination shall be submitted in writing and shall contain detailed information giving reasons for the need for examination and an indication of the refusal by the person or his or her legal representative to consult a psychiatrist. The psychiatrist may request additional information necessary for making the decision. (5) Having established that the application ... is well-founded the psychiatrist submits to a court at the place of the person’s residence his written reasoned conclusion as to the need of the examination as well as the application for examination and other available materials. The judge gives sanction within three days from receiving all of the materials ...” 30. The Police Act 1991 in section 10 establishes the duties of police in law enforcement. In the relevant part it reads as follows: “The police in line with assigned tasks shall: ... (22) deliver to healthcare institutions ... for medical treatment persons refusing to appear, suffering from diseases and presenting danger to themselves and others, and also ... to ensure together with healthcare institutions in cases and under a procedure prescribed by law supervision over persons suffering from mental disorders ... and presenting danger to others ...” 31. In its decision of 10 March 2005 (no. 62-O) interpreting the Psychiatric Assistance Act 1992, the Constitutional Court stated that judicial proceedings in cases concerning psychiatric assistance must be adversarial and respect the principle of equality of parties. Consequently, a psychiatric facility lodging an application with a court was under an obligation to provide evidence confirming the information stated in such an application. 32. In the decision of 21 April 2011 (no. 592-O-O) concerning procedural guarantees afforded to individuals subjected to involuntary psychiatric examination, the Constitutional Court concluded that such guarantees were essentially the same as those afforded in the course of involuntary hospitalisation and that they included the duty of the courts to verify all the evidence presented to them. 33. Article 304 of the Code of Civil Procedure of 2002 establishes the procedural guarantees afforded to a person placed in a psychiatric facility. In the relevant part it reads as follows: “1. An application for involuntary placement to a psychiatric facility, or extension of a period of involuntary placement, of a citizen who is suffering from a psychiatric disorder shall be considered by a judge within five days from the date on which the proceedings were initiated. The court shall hold a hearing in the courtroom or in the psychiatric facility. The citizen has the right to personally participate in the hearing concerning his involuntary placement to a psychiatric facility or the extension of a period of his involuntary placement. In cases when according to the information provided by the representative of the psychiatric facility the citizen’s mental state prevents his personal participation in the court hearing ... , the application ... shall be considered by the judge in the psychiatric facility. 2. The case shall be considered with the participation of a prosecutor, a representative of the psychiatric facility which applied to the court ... , and the citizen’s representative ... .” 34. Articles 220 and 221 of the Code of Civil Procedure establish the grounds for discontinuation of the proceedings and its consequences. In the relevant part they read as follows: “The court discontinues the proceedings on the case, if: ... a plaintiff withdraws his lawsuit and the court accepts the withdrawal ...” “The proceedings in the case are discontinued by a decision of the court, which states that repeated submission of the lawsuit regarding the dispute between the same parties, on the same matter and the same grounds in not permitted.” 35. Section 7 subsections 1 and 3 of the Act (as in force at the material time) specified that persons suffering from a psychiatric disorder had the right to a representative of their own choosing. The administration of the psychiatric facility had the obligation to ensure the opportunity for the individual to obtain legal representation by a lawyer (except for urgent cases). 36. Section 29 of the Act sets out the following grounds for involuntary placement of a person in a psychiatric facility: “A person suffering from a mental disorder may be hospitalised at an inpatient psychiatric facility without his or his representative’s consent prior to judicial authorisation only if his medical examination or treatment is not possible outside of an inpatient facility, the mental disorder is severe and causes: a) a immediate danger to himself or others, or b) feebleness, i.e. the inability to autonomously satisfy basic needs c) significant damage to health due to the deterioration or aggravation of the psychiatric condition in the absence of psychiatric assistance.” 37. Section 32 of the Act specifies the procedure for the examination of patients involuntarily placed in a psychiatric facility: “1. A person placed in a psychiatric hospital on the grounds defined by section 29 of the present Act shall be subject to compulsory examination within 48 hours by a panel of psychiatrists of the hospital, who shall take a decision as to the need for hospitalisation. ... 2. If hospitalisation is considered necessary, the conclusion of the panel of psychiatrists shall be forwarded to the court having territorial jurisdiction over the hospital, within 24 hours, for a decision as to the person’s further confinement in the hospital.” 38. Sections 33-35 set out the procedure for judicial review of applications for the involuntary in-patient treatment persons suffering from a psychiatric disorder: “1. Involuntary hospitalisation for in-patient psychiatric treatment on the grounds laid down in section 29 of the present Act shall be subject to review by the court having territorial jurisdiction over the hospital. 2. An application for the involuntary placement of a person in a psychiatric hospital shall be filed by a representative of the hospital where the person is confined ... 3. A judge who accepts an application for review shall simultaneously order the person’s detention in a psychiatric hospital for the term necessary for that review.” “1. An application for the involuntary placement of a person in a psychiatric hospital shall be reviewed by a judge, on the premises of the court or hospital, within five days of receipt of the application. 2. The person has the right to personally participate in the hearing concerning his involuntary placement to a psychiatric facility or the extension of a period of his involuntary placement. In cases when according to the information provided by the representative of the psychiatric facility the citizen’s mental state prevents his personal participation in the court hearing ... , the application ... shall be considered by the judge in the psychiatric facility ...” “1. After examining the application on the merits, the judge shall either grant or refuse it. ... ” 39. On 22 September 2004 the Committee of Ministers adopted Recommendation Rec(2004)10 concerning the protection of the human rights and dignity of persons with mental disorder. In the relevant part the Recommendation provides: “2. The law may provide that exceptionally a person may be subject to involuntary placement, in accordance with the provisions of this chapter, for the minimum period necessary in order to determine whether he or she has a mental disorder that represents a significant risk of serious harm to his or her health or to others if: i. his or her behaviour is strongly suggestive of such a disorder; ii. his or her condition appears to represent such a risk; iii. there is no appropriate, less restrictive means of making this determination; and iv. the opinion of the person concerned has been taken into consideration.” “1. The decision to subject a person to involuntary placement should be taken by a court or another competent body. The court or other competent body should: i. take into account the opinion of the person concerned; ii. act in accordance with procedures provided by law based on the principle that the person concerned should be seen and consulted ... 4. Involuntary placement, involuntary treatment, or their extension should only take place on the basis of examination by a doctor having the requisite competence and experience, and in accordance with valid and reliable professional standards.” “1. Persons subject to involuntary placement or involuntary treatment should be promptly informed, verbally and in writing, of their rights and of the remedies open to them ...” 2. They should be informed regularly and appropriately of the reasons for the decision and the criteria for its potential extension or termination.” “1. In the fulfilment of their legal duties, the police should coordinate their interventions with those of medical and social services, if possible with the consent of the person concerned, if the behaviour of that person is strongly suggestive of mental disorder and represents a significant risk of harm to him or herself or to others. 2. Where other appropriate possibilities are not available the police may be required, in carrying out their duties, to assist in conveying or returning persons subject to involuntary placement to the relevant facility. 3. Members of the police should respect the dignity and human rights of persons with mental disorder. The importance of this duty should be emphasised during training.” | 1 |
train | 001-23077 | ENG | SWE | ADMISSIBILITY | 2,003 | PAHVERK v. SWEDEN | 4 | Inadmissible | Matti Pellonpää | The applicant, Väinö Pahverk, is a Swedish national, who was born in 1932 and lives in Tumba. He was represented before the Court by Mr U. Jacobson, a lawyer practising in Stockholm. The respondent Government were represented by Ms E. Jagander, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. Following the applicant’s laryngectomy operation in February 1989, at which his cancerous larynx was removed, the Social Insurance Office (försäkringskassan; hereinafter “the Office”) of the County of Stockholm granted him disability benefits under the Social Insurance Act (Lagen om allmän försäkring, 1962:381; hereinafter “the 1962 Act”) amounting to 65% of a basic amount geared to the price index (basbelopp). On 9 September 1992 the Office reviewed the applicant’s eligibility for disability benefits and decided that such payments should be discontinued as he had retired from work and no longer had needs or additional costs which entitled him to further benefits. The applicant requested the Office to review its decision under chapter 20, section 10 a of the 1962 Act. Attaching a list of alleged additional costs, he claimed that the decision of 9 September 1992 had been based on incomplete information. On 10 February 1993 the Office, having regard to the applicant’s submissions, changed its earlier decision and granted the applicant disability benefits amounting to 36% of the basic amount. In an attached document, the Office indicated which additional costs had been accepted and which ones had not. In regard to several items, it also stated summary reasons for its decision. The applicant appealed to the County Administrative Court (länsrätten) of the County of Stockholm, requesting that the benefits be fixed at a higher percentage of the basic amount. In substance, he maintained what he had submitted to the Office. By a judgment of 15 February 1994 the County Administrative Court rejected the appeal, subscribing to the reasons given by the Office. The court did not hold an oral hearing, nor did the applicant request one. On 11 March 1994 the applicant appealed to the Administrative Court of Appeal (kammarrätten) in Stockholm, essentially maintaining his previous submissions on additional costs and complaining that the Office and the County Administrative Court had failed to give reasons for their decisions. He completed his appeal on 17 October 1994, submitting further arguments in regard to his costs. At the end of that document, the following handwritten note had been added: “P.S. Requesting an oral hearing.” No reasons for the request were given. On 12 April 1995 the appellate court rejected the request for an oral hearing. After having restated section 9 of the Administrative Court Procedure Act (Förvaltningsprocesslagen, 1971:291; hereinafter ”the 1971 Act”; see further below), the court gave the following reasons: “Having regard to the subject-matter at issue and the information that has come to hand in the case, [the court] finds that an oral hearing is unnecessary and rejects the request to that effect. ... [The applicant] is invited to state the further circumstances he wishes to invoke and submit his final written observations in the case within two weeks after having been notified of this decision. The case can be determined notwithstanding a failure to submit such written observations.” The applicant reiterated his request for an oral hearing on 17 May 1995 stating that it was necessary in order to “clarify circumstances relating to the subject-matter of importance to the outcome of the case”. By a judgment of 10 January 1996 the Administrative Court of Appeal rejected the applicant’s appeal and his renewed request for an oral hearing. It stated that it shared the conclusion reached by the lower instances that the applicant’s needs and additional costs were not such that he was entitled to higher disability benefits than had already been granted. The applicant appealed to the Supreme Administrative Court (Regeringsrätten). He complained about the lack of oral hearings in the lower courts and asked the Supreme Administrative Court to hold one. In those respects, he claimed that the case had not been adequately investigated. By a letter of 13 February 1996 the court informed the applicant that it normally did not hold oral hearings. He was given the opportunity to submit further observations in writing. He made such submissions on 19 February 1996 repeating, in regard to the oral-hearing issue, that a hearing had been necessary in order clarify circumstances relating to the subject-matter of the case. On 18 December 1997 the Supreme Administrative Court refused the applicant leave to appeal. According to chapter 9, section 2 of the 1962 Act, a person who is ill or handicapped is entitled to disability benefits, provided that, before reaching the age of 65, he or she has become functionally impaired for a considerable time and to such a degree that he or she needs time-consuming assistance from another person in everyday life or continuing assistance in order to be gainfully employed or otherwise has considerable extra expenses. The total need of support and assistance determines the eligibility for disability benefits and the amount of compensation. It is thus necessary to look at the whole situation of the person in question and to add together the need for different types of assistance and the extra expenses. A decision by the Social Insurance Office under the 1962 Act may be appealed against to the County Administrative Court and from there on to the Administrative Court of Appeal and the Supreme Administrative Court. Appeals may be made against the Office’s ordinary decision or a decision upon review under chapter 20, section 10 a of the 1962 Act. The latter provision enables the Office to change a decision it has previously taken in order to rectify certain obvious defects of that decision, provided that it has not already been reviewed by a court. Thus, the Office must change its earlier decision if it contains a writing error, miscalculation or similar mistake or if it is incorrect due to it being based on obviously incorrect or incomplete information or an obviously incorrect application of the law or other similar reason. A decision is to be changed under this provision even if a request to that effect has not been made by the individual concerned. The procedure in the administrative courts is governed by the provisions of the 1971 Act. Section 9 provides: “The proceedings are in writing. An oral hearing may be held in regard to a certain issue, when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case. In the Administrative Court of Appeal and the County Administrative Court an oral hearing shall be held if requested by an individual party to the proceedings, unless it is unnecessary or there are particular reasons against holding a hearing.” The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before the Supreme Administrative Court. According to the preparatory documents to the 1971 Act, an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in two situations in particular: firstly, when it is necessary to hear a witness, an expert or a party or when it is difficult for a party to present the case in writing and, secondly, when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute. In the latter case, the oral hearing takes on a preparatory character. It was stressed, however, that an oral hearing should not to be seen as an alternative to the written procedure but as a complement to it (see Government Bill 1971:30, p. 535). It was further stated, in respect of the third paragraph of section 9, that a party’s request for an oral hearing should be given great consideration. However, such a request should not have a decisive influence on the matter, as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case. Still, other circumstances may be of relevance, for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party’s understanding of a future decision in the case. Nevertheless, if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case, there could be reason not to hold an oral hearing (p. 537). | 0 |
train | 001-102912 | ENG | UKR | COMMITTEE | 2,011 | CASE OF KADUK v. UKRAINE | 4 | Violation of Art. 6-1;Violation of Art. 13 | Mirjana Lazarova Trajkovska;Rait Maruste;Zdravka Kalaydjieva | 4. The applicant was born in 1967 and lives in the village of Solontsievka, Kharkiv Region, Ukraine. 5. On 15 March 1998 the applicant’s husband, who worked as an electrician at the construction site, died as a result of a work-related accident. On 10 September 1998 the applicant instituted proceedings in the Dzerzhynsky District Court of Kharkiv against a joint stock company “T.”(“the company”) claiming compensation for pecuniary and non-pecuniary damage sustained as a result of his death. 6. On 15 September 1998 the case was transferred to the Zhovtnevy District Court of Kharkiv, which on 24 January 2001 allowed in part the applicant’s claims. 7. On 24 April 2001 the Kharkiv Regional Court upheld this judgment. It became final. 8. On 21 June 2001 the amendments to the Code of Civil Procedure entered into force. They provided a right to lodge a cassation appeal within a three-month period with the Supreme Court against court decisions adopted before 21 June 2001 and which had entered into force before that date. On 19 July 2001 the company lodged an appeal in cassation. 9. On 28 February 2002 the Supreme Court quashed the decisions of the lower courts and remitted the case for a fresh consideration to the first instance court. 10. In the course of the proceedings before the first instance court three other companies and the local department of the State Insurance Fund for Work-Related Accidents and Diseases (“the Fund”) were joined as co-defendants. 11. On 10 March 2006 the Zhovtnevy District Court of Kharkiv found in part for the applicant. The court awarded her, inter alia, UAH 68,648.34 (about EUR 11,366) to be paid by the Fund. 12. The Fund appealed against that judgment; however, on 24 October 2006 the Kharkiv Regional Court of Appeal declined its appeal as lodged out of time. The Fund appealed in cassation. On 13 December 2007 the Lugansk Regional Court of Appeal, sitting as a court of cassation, quashed that decision and remitted the matter of the admissibility of the appeal for a fresh consideration. 13. On 5 November 2008 the Kharkiv Regional Court of Appeal partly allowed the appeal by the Fund and ruled that the above amount of UAH 68,648.34 should be paid by the company and not by the Fund. It upheld the remainder of the judgment. | 1 |
train | 001-103061 | ENG | HRV | ADMISSIBILITY | 2,011 | PTICAR v. CROATIA | 4 | Inadmissible | Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | The applicant, Mr Krešimir Ptičar, is a Croatian national who was born in 1939 and lives in Zagreb. He was represented before the Court by Ms S. Bezbradica, an advocate practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is the owner of a house in Zagreb. During 1974 and 1975 his neighbours, V.B. and J.Ž., built a house and a garage on the adjacent plot of land, which in his opinion destabilized the foundations of his house. On 10 May 1975 the applicant instituted administrative proceedings before the first instance administrative authority competent for building inspection (hereafter - “the Building Inspectorate”) arguing that: (1) his neighbours had significantly departed from building regulations for row houses in that: (a) their house was not leaning against his, there was a gap between the walls, (b) they had not isolated the foundations of the two houses, and (c) their house was one metre lower than his; and (2) that they had departed from the building permit granted to them on 10 November 1972 by building an underground garage. It appears that the case-file was lost. Therefore, on 18 September 1996 the applicant re-submitted his request. As the Building Inspectorate did not render a decision on his request within the statutory time-limit of sixty days, on 16 January 1997 the applicant lodged an appeal for failure to respond (žalba zbog šutnje administracije) with the competent Ministry. On 20 February 1997 the Building Inspectorate issued a decision ordering the applicant’s neighbours to make the necessary modifications in order to comply with the building permit or, otherwise, to apply for a new building permit. This decision was not served on the applicant. Given that the Ministry also failed to decide on the applicant’s appeal for failure to respond within the statutory time-limit of sixty days, on 2 April 1997 the applicant brought an action for failure to respond (tužba zbog šutnje administracije) against the Ministry in the Administrative Court (Upravni sud Republike Hrvatske). On 10 July 1997 the Ministry issued a decision discontinuing the appellate proceedings because it found that the Building Inspectorate had in the meantime decided on the applicant’s request of 18 September 1996. On 28 July 1997, the applicant modified his administrative action of 2 April 1997 and challenged the Ministry’s decision of 10 July 1997. On 4 November 1998 the Administrative Court adopted a judgment whereby it quashed the Ministry’s decision of 10 July 1997. It held that since the Building Inspectorate’s decision of 20 February 1997 had not been served on the applicant, the Ministry could not have dismissed his appeal of 16 January 1997. Since, following the judgment of the Administrative Court, the Ministry failed to issue a new decision on his appeal of 16 January 1997 within the statutory time-limit of sixty days, on 12 April 1999 the applicant requested the Administrative Court to decide on his appeal, that is to say, act as a court of full jurisdiction and issue its own decision replacing that of the Ministry, in accordance with the relevant provisions of the Administrative Disputes Act. On 30 April 1999 the Ministry issued a decision ordering the Building Inspectorate to issue a new decision on the applicant’s request of 18 September 1996 and serve it on him. On 2 October 2000 the Building Inspectorate issued a decision ordering the applicant’s neighbours to demolish the garage and certain parts of the house erected on their land which had been built outside the limits of the building permit. The decision was served on the applicant who did not appeal against it. According to the Construction Act, that decision was immediately enforceable. On 7 February 2001 the Administrative Court dismissed the applicant’s request of 12 April 1999, finding that the Ministry had in the meantime (on 30 April 1999) issued the decision sought. On 26 March 2001 the applicant lodged a constitutional complaint against the Administrative Court’s decision, which the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed on 11 October 2001. On 20 July 2002 the competent Ministry issued a decision dismissing an appeal by the applicant’s neighbours and upheld the first-instance decision, which thereby became definitive (konačna). Shortly afterwards, the applicant’s neighbours brought an action in the Administrative Court contesting the Ministry’s decision. On 4 May 2006 the Administrative Court issued a judgment dismissing the action of the applicant’s neighbours. The first-instance decision of 2 October 2000 thereby became final (pravomoćna). The Administrative Court’s judgment also was served on the applicant as a third (interested) party (zainteresirana strana). It appears that to date no measures have been taken to enforce the first-instance decision of 2 October 2000. On 23 October 2000, following the Building Inspectorate’s decision of 20 October 2000, the applicant filed a petition for reopening of the above administrative proceedings, arguing that he had not been heard by the building inspector in those proceedings. On 25 April 2001 the Building Inspectorate declared inadmissible the applicant’s petition for reopening. On 8 May 2001 the applicant appealed against that decision to the Ministry. On 14 February 2003 the Ministry allowed the applicant’s appeal of 8 May 2001, quashed the first instance decision of 25 April 2001 and remitted the case to the Building Inspectorate. On 6 November 2009 the Building Inspectorate again declared the applicant’s petition inadmissible. Following an appeal by the applicant, on 23 November 2009 the Ministry issued a decision whereby it first quashed the first-instance decision for lack of jurisdiction and then, having found that it was the competent authority to decide on the applicant’s petition for reopening, itself declared that petition inadmissible. The Ministry held that the applicant was not a party to the administrative proceedings and was thus not entitled to lodge a petition for their reopening. On 7 December 2009 the applicant brought an action in the Administrative Court challenging the Ministry’s decision. It would appear that the proceedings are currently pending before that court. On 25 February 2009 the applicant lodged a request for the protection of the right to a hearing within a reasonable time under the Courts Act with the Supreme Court (Vrhovni sud Republike Hrvatske), complaining about the length of the proceedings concerning his petition to reopen the administrative proceedings. On 12 November 2009 the Supreme Court declared the applicant’s request inadmissible on the ground that, under the case-law of the European Court of Human Rights, the guarantees of Article 6 § 1 of the Convention, including the right to a hearing within a reasonable time, did not apply to proceedings concerning a petition for reopening of a case. On 10 December 2009 the applicant lodged a constitutional complaint against the Supreme Court’s decision. It would appear that the proceedings are currently pending before the Constitutional Court. On 3 December 2001 the applicant lodged his first application (no. 4016/02) with the Court. He complained under Article 6 § 1 of the Convention about the unfairness of the administrative proceedings concerning the alleged illegal construction. He also complained under Article 13 of the Convention claiming that the Administrative Court’s decision of 7 February 2001 and the Constitutional Court’s decision of 11 October 2001 deprived him of an effective remedy for the protection of his rights. On 8 November 2002 the Court, sitting in a Committee of three Judges, adopted a decision declaring that application inadmissible as manifestly ill-founded. The relevant provisions of the Administrative Procedure Act (Zakon o općem upravnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia 47/1986 (consolidated text), and Official Gazette of the Republic of Croatia no. 53/1991) provide as follows: Section 49 defines a party to administrative proceedings as a person at whose request the proceedings have been instituted, a person against whom the proceedings have been brought or any other person who is entitled to participate in the proceedings in order to protect his or her rights or interests. Section 278(1) provides that the authority in charge of administrative enforcement shall, of its own motion or at the request of a party, issue an enforcement order. Such an order shall declare that the decision to be enforced has become enforceable and determine the method of the enforcement. Section 278(2) provides, inter alia, that the authority in charge of administrative enforcement shall issue an enforcement order with a view to enforcing a decision rendered of its own motion without delay and at the latest within 30 days after such a decision became enforceable. The other relevant provisions of the Administrative Procedure Act, in particular those governing an appeal for failure to respond (žalba zbog šutnje administracije), are set out in Rauš and Rauš-Radovanović v. Croatia (dec.), no. 43603/05, 2 October 2008. In its judgment no. Us-3746/1997 of 11 November 1998 the Administrative Court held that the owner of a neighbouring plot of land who filed a report with the Building Inspectorate had a status of a party in the inspection proceedings within the meaning of section 49 of the Administrative Procedure Act and could, for example, lodge an appeal for failure to respond in accordance with the same Act. The relevant provisions of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/1977, and Official Gazette of the Republic of Croatia nos. 53/1991, 9/1992 and 77/1992) governing an action for failure to respond, tužba zbog šutnje administracije) are set out in Rauš and Rauš-Radovanović, cited above. The relevant provisions of the same Act governing an “action against an unlawful act” (tužba za zaštitu od nezakonite radnje) are set out in Hackbarth v. Croatia (dec.), no. 27897/02, 3 November 2005. In its judgment no. Us-772/81 of 11 November 1981 the Administrative Court held that “a failure to respond” (šutnja administracije) existed in the administrative enforcement proceedings when the competent administrative authority, following an application by the party, did not issue an enforcement order within the statutory time-limit. In its judgment Us-2387/1995 of 7 May 1998 the Administrative Court held that a party could rely on the relevant provisions of the Administrative Disputes Act governing an action for failure to respond, in case the competent administrative authority did not issue an enforcement order within the statutory time-limit. In its judgments nos. Us-1865/1979 of 28 November 1979 and Us-2099/89 of 21 September 1989 the Administrative Court held that failure of the administrative authorities to carry out their own enforcement order constituted an “unlawful factual act” within the meaning of the Administrative Disputes Act against which the aggrieved party could bring an “action against an unlawful act”. In its decision no. Gž-9/1993 of 6 April 1993 the Supreme Court reached the same conclusion. The Construction Act (Zakon o gradnji, Official Gazette nos. 52/1999, 75/1999, 117/2001 and 47/2003), which was in force at the material time, provided as follows: Section 85 provided that when a building inspector found a breach of the relevant regulations, it could issue a decision even without hearing the parties. Section 96(7) provided that an appeal lodged against a decision of a building inspector did not postpone its enforcement. Section 99(1) provided that a decision of a building inspector could not be enforced ten years after it had become definitive. The relevant provisions of the Courts Act (Zakon o sudovima, Official Gazette nos. 150/2005, 16/2007 and 113/2008), which entered into force on 29 December 2005, governing a request for the protection of the right to a hearing within a reasonable time are set out in Pavić v. Croatia, no. 21846/08, § 16, 28 January 2010. | 0 |
train | 001-101740 | ENG | PRT | GRANDCHAMBER | 2,010 | CASE OF PERDIGAO v. PORTUGAL | 2 | Violation of P1-1;Pecuniary and non-pecuniary damage - award | Alvina Gyulumyan;András Sajó;Christos Rozakis;Elisabet Fura;Françoise Tulkens;George Nicolaou;Giorgio Malinverni;Ineta Ziemele;Ireneu Cabral Barreto;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Mark Villiger;Mihai Poalelungi;Nicolas Bratza;Peer Lorenzen;Sverre Erik Jebens;Vladimiro Zagrebelsky;Zdravka Kalaydjieva | 9. The applicants were born in 1932 and 1933 respectively and live in Lisbon. 10. The applicants owned a piece of land measuring 128,619 m² in the region of Evora. By order of the Ministry of Public Works, published in the Official Gazette on 11 September 1995, the land was expropriated in favour of BRISA – Auto-Estradas de Portugal S.A. (“BRISA”), a publicly owned company at the time, to build a motorway. 11. As no agreement was reached between the applicants and the authorities, the case was submitted, in accordance with the applicable legislation, to the President of the Evora Court of Appeal, who appointed an arbitration committee to value the land. The committee assessed its value at 177,987.17 euros (EUR). 12. On 3 March 1997 the Evora first-instance court issued an order notifying the applicants of the arbitration committee's decision. 13. On 21 March 1997 the applicants lodged an appeal against the arbitration decision with the Evora court. In their opinion the experts had underestimated the value of their farmland and omitted to place a value on a quarry located on the land. They argued that the potential profit from exploiting the quarry should be taken into account when calculating the amount to be paid in compensation for the expropriation. In their opinion they were entitled to EUR 20,864,292 in compensation. 14. BRISA also challenged the arbitration value, which they considered too high. They thought the value should not exceed EUR 72,643. Their appeal was initially rejected by the Evora court as being out of time, but it was later admitted after the Evora Court of Appeal had delivered a judgment on 11 December 1997 setting aside the initial decision. 15. On 7 April 1997 the Evora court registry calculated the total court fees due in the applicants' case to be EUR 158,381. 16. On 24 April 1998 the Evora court decided that no compensation should yet be paid to the applicants as the court fees might well be higher than the minimum sum that might be awarded to the applicants in compensation according to the appeals lodged by the parties, BRISA having requested that the sum be fixed at EUR 72,643. The court then appointed a new arbitration committee made up of three experts appointed by the court and two appointed by the parties (one each). On 11 March 1999, by a majority, the arbitrators set the compensation at EUR 191,116. The arbitrator appointed by the applicants expressed the view that they should be paid EUR 4,040,897. 17. By an order of 25 March 1999 the court, of its own motion, requested a new expert report, restricted this time to the question of the economic potential of the quarry located on the land. Three geologists from the University of Evora were accordingly appointed as experts. They submitted their report on 9 February 2000, concluding that the maximum amount the exploitation of the quarry could be expected to yield was EUR 9,704,113. 18. By a judgment of 30 June 2000 the court dismissed both parties' appeals. Considering that the potential gain from the quarry was not to be taken into account, it fixed the compensation for the expropriation at EUR 197,236.25. 19. On 14 July 2000 the applicants lodged an appeal against that judgment with the Evora Court of Appeal. 20. In a judgment of 10 July 2003 the Court of Appeal upheld the judgment in full. 21. On 11 November 2003 the applicants appealed to the Supreme Court but, in an order dated 30 September 2004, the judge rapporteur of the Supreme Court declared the appeal inadmissible. 22. On 26 October 2004 the applicants lodged a constitutional appeal, which the Constitutional Court declared inadmissible by a summary decision on 20 December 2004. 23. On 26 January 2005 the file was transmitted to the Evora court. 24. On 4 February 2005 the applicants received notice from the Evora court of the court fees owed for the expropriation proceedings. The sum they were expected to pay amounted to EUR 489,188.42. 25. On 22 February 2005 the applicants filed a complaint about the fees, alleging in particular that they violated the principles of fair compensation and the right of access to a court. They considered that the sum to be paid, if it was to be proportionate, should not exceed EUR 15,000. They also pointed out what they considered to be various inaccuracies and miscalculations in the court fees. They challenged the basis used before the Evora court to calculate the court tax (which they claimed should have been that stipulated in Article 18 § 2 of the Court Fees Code), as well as the legitimacy of being required to pay anything at all in respect of costs and expenses (custas de parte) to BRISA, which, as a State enterprise, was exempt from paying court fees. 26. On 1 April 2005, acting on information provided by the registry, the Evora court judge acknowledged the mistakes the applicants had pointed out and ordered their rectification. The amount owed was thus reduced to EUR 309,052.71 so, once the compensation awarded to the applicants had been deducted, they still owed the State EUR 111,816.46. The judge dismissed the applicants' complaint regarding the alleged violations of the principles of fair compensation and the right of access to a court. 27. The applicants appealed to the Evora Court of Appeal. In a judgment of 13 December 2005, of which they were notified on 19 December 2005, the court dismissed the appeal. 28. On 12 May 2006 the applicants lodged a constitutional appeal against that decision, alleging that the interpretation of the relevant provisions of the Court Fees Code, particularly Article 66 § 2, was contrary to the principles of fair compensation and the right of access to a court guaranteed in the Constitution. In their view, court fees should on no account exceed the sum awarded in compensation for an expropriation. 29. In a judgment of 28 March 2007 the Constitutional Court dismissed their appeal. After noting that it could only examine the constitutionality of Article 66 § 2 of the Court Fees Code, the only provision the courts below had applied, it went on to hold that the provision concerned was not contrary to Articles 20 (access to a court) and 62 § 2 (fair compensation) of the Constitution. Concerning access to a court, it pointed out that while excessively high court fees could in some circumstances be an obstacle to access to a court, this was not the case in this instance as the applicants had been required to pay only EUR 15,000, a sum it considered reasonable. On the subject of fair compensation, the Constitutional Court found that compensation for the loss suffered as a result of expropriation was quite unrelated to the matter of court fees, and that there was accordingly no reason why court fees should not exceed the sum awarded in compensation. 30. On 20 April 2007 the applicants filed a request to have that judgment rectified, claiming that the Constitutional Court had made a factual mistake, in so far as it had considered in its reasoning that the applicants owed EUR 15,000 in court fees when they were in fact expected to pay EUR 111,816.46. 31. In a judgment of 25 September 2007 the Constitutional Court acknowledged its mistake and the need to rectify the judgment in respect of Article 20 of the Constitution. It found that EUR 111,816.46 was a large enough sum to have affected the right of access to a court. It accordingly declared Article 66 § 2 of the Court Fees Code, as interpreted by the lower courts, contrary to Article 20 of the Constitution. In respect of Article 62 § 2 of the Constitution concerning fair compensation, however, it held that its earlier decision needed no rectification. 32. On 6 November 2007 the applicants, wishing to know the exact sum they owed in court fees, filed a request for clarification of the judgment of 25 September 2007. 33. In a judgment of 13 November 2007 the Constitutional Court rejected that request, considering that it was for the lower court to determine the sum to be paid. 34. In an order of 4 January 2008, the Evora court, to which the case had been referred back, decided, without giving reasons, that the fees should not exceed the compensation awarded by more than EUR 15,000. 35. On 20 February 2008 the applicants paid the outstanding sum of EUR 15,000. 36. On 7 April 2005 the applicants lodged an application (no. 12849/05) with the Court complaining about the lack of compensation in respect of the quarry. The application was rejected by a committee on 30 August 2005, as being out of time. 37. Article 20 of the Constitution guarantees the right of access to a court. Article 62 of the Constitution guarantees the right of property and the right to fair compensation in the event of expropriation. 38. The general rule governing court fees is set forth in Article 446 of the Code of Civil Procedure, under the terms of which it is in principle for the unsuccessful party to pay the court fees. 39. At the time of the expropriation in issue, the applicable Expropriations Code was that introduced by Legislative Decree no. 438/91 of 9 November 1991. 40. The expropriation procedure at the time took the following form: if no agreement could be reached between the expropriating authority and the expropriated owner, the President of the Court of Appeal with jurisdiction over the area in which the property to be expropriated was located appointed an arbitration committee to value the property. The owner could appeal against the arbitration decision before the court of first instance, and a new valuation would be ordered if necessary. The decision of the first-instance court was open to appeal before the Court of Appeal, whose decision was final (legislative precedent (assento) of the Supreme Court of 30 May 1995, binding on all courts and published in the Official Gazette of 15 May 1997). 41. In Portugal court fees are likened to taxes. The Supreme Court considers that the obligation for litigants to pay court fees is the same as the obligation for taxpayers to pay taxes. The State, as the “active subject” of the fiscal obligation concerned, thus has the right to collect the fees; in exchange, it must give people (the “passive subjects”) access to judicial services (judgment of the Supreme Court of 5 February 2004, in case no. 03B3809). 42. At the material time court fees were regulated by the Court Fees Code, as embodied in Legislative Decree no. 224-A/96, of 26 November 1996, before it was amended by Legislative Decree no. 324/2003, of 27 December 2003. 43. The relevant provisions of the Code read as follows: “1. Court fees shall include the court tax (taxa de justiça) and the other charges (encargos). 2. Unless otherwise prescribed by law, all proceedings are subject to court fees.” “1. Without prejudice to the provisions of special laws, the following shall be exempted from court fees: a) The State and all its services and bodies, even if they have their own legal personality; ...” “1. In the cases mentioned below, the value of the litigation, for the purposes of calculating court fees, shall be as follows: ... s) in appeals concerning expropriations, the difference between the compensation for expropriation fixed by the arbitration committee and the sum claimed by [the expropriated party] ... ...” “1. Without prejudice to the following provisions, procedural costs shall be taxed on the basis of the table below and calculated according to the value of the actions, applications and appeals. ... “... 2. In all types of appeals against decisions pronounced in any action or application ... the court tax shall be half the amount shown in the tax column in the table [in Article 13]. ...” “... 2. No advance payment shall be required in expropriation proceedings ...” “1. A party ordered to pay court fees who is awarded a sum of money by decision of the court may request, within the time-limit for voluntary payment, that the court fees owed be deducted from the sum awarded. 2. Court fees owed by an expropriated party shall be deducted from the compensation awarded for the expropriation.” 44. The custas de parte (costs and expenses) are sums payable to the successful party at the end of the proceedings. Under Article 33 of the Court Fees Code as applicable at the material time, they included the sums the successful party had been obliged to spend in connection with the proceedings. 45. On 24 February 2008 a new Court Fees Code was introduced (Legislative Decree no. 34/2008). The explanatory memorandum includes the following passage: “According to the new scale, the court tax is not calculated simply on the basis of the value in dispute. It has been found that the sum in dispute is not a decisive factor in assessing the complexity of the proceedings or in the costs generated for the legal system. The search for a better way to calculate the court tax has led to the establishment of a mixed system based on the value in dispute up to a certain limit, with the possibility of correcting the amount where the proceedings are complex, independently of the economic value considered to be at stake.” 46. Under the new system there is therefore an upper limit on the amount that can be charged in court fees. At present, for proceedings at first instance, that amount equals 60 units of account for ordinary proceedings or 90 units of account if the proceedings are particularly complex. The charge for appeals is 20 units of account. Applications made during the proceedings continue to be taxed, of course, at a rate of up to 20 units of account, depending on the type of application (see tables appended to Legislative Decree no. 34/2008 and Articles 6, 7, 8, 11, 12, 13 and 17 of that text). 47. The Court undertook a comparative law study concerning the payment of court fees in a number of member States of the Council of Europe. 48. The study revealed that, generally speaking, the court fees charged vary according to the sum claimed (except in countries where fees charged are not based on the sum in dispute). The fees may represent a percentage of that sum, a lump sum, or a combination of the two. In many States where the fees charged are linked to the value of the claim, there is an upper limit on how much one party can be charged, but in some States there is no such limit. 49. In general the unsuccessful party is required to pay the costs of the other party. Where a claim is allowed only in part, most of the States covered by the study leave it to the discretion of the courts to decide who pays what fees. In some States special rules apply to expropriation proceedings. In one such State, for example, when fees are calculated as a percentage of the compensation offered, the principle is that the expropriated owner must nevertheless be repaid in full; in other words, all the costs effectively incurred by that party must be reimbursed, as he normally has a right to full reparation for the prejudice suffered. 50. In many States there is no guarantee that a complainant will not be charged costs and expenses in excess of the sum likely to be awarded in respect of his claim, especially when only a small part of the claim is allowed. No such risk exists in those States where court fees are calculated only at the end of the proceedings and based on the sum effectively awarded by the court. | 0 |
train | 001-111682 | ENG | DEU | CHAMBER | 2,012 | CASE OF S. v. GERMANY | 3 | Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-a - After conviction;Article 5-1-c - Reasonably necessary to prevent offence;Article 5-1-e - Alcoholics;Persons of unsound mind);Non-pecuniary damage - award;Pecuniary damage - claim dismissed | André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger | 5. The applicant was born in 1961 and is currently detained in Straubing Prison. 6. On 23 February 1996 the Munich I Regional Court acquitted the applicant of, inter alia, six counts of assault, nine counts of dangerous assault, of sexual assault and of procuring for lack of criminal responsibility and ordered his placement in a psychiatric hospital under Article 63 of the Criminal Code (see paragraph 46 below). 7. The Regional Court found that between 1991 and 1995 the applicant, who had previously been convicted, in particular, of several counts of assault in Romania and Germany, had committed the offences he had been charged with. The applicant was found, in particular, to have violently threatened with a gun and knife, hit and attempted to strangulate his wife, partly using dangerous instruments or teargas, on a number of occasions. He inflicted on his wife multiple injuries including fractures of her jaw, cheekbones, nose and skull, snags to her nose and genitals as well as lacerations, bruises and swellings all over her body. He had further forced his wife to prostitution for his own material benefit, had forced her to dance naked for an acquaintance and had chased her naked in a forest. Moreover, he had assaulted and sexually assaulted his female friend and a relative of his wife with whom he had an intimate relationship (fettering the latter naked to a tree, urinating on her and introducing fir cones into her rectum and vagina). 8. The Regional Court, having consulted three medical experts, found that the applicant suffered from a brain disorder, a borderline personality disorder manifesting itself in emotional instability and a paranoiac jealousy and had partly been drunk during his acts. Owing to his pathological mental disorder, it could not be excluded that he had acted without criminal responsibility. The Regional Court further considered that the applicant was to be placed in a psychiatric hospital as he was liable to commit further serious offences and was therefore dangerous to the public. 9. Following the Regional Court’s judgment, the applicant was placed in different psychiatric hospitals. From 23 February 1996 onwards, he was in Haar psychiatric hospital, from 7 February 1997 onwards in Straubing psychiatric hospital, from 26 October 1999 onwards in Düren psychiatric hospital and from 5 April 2000 onwards in Bedburg-Hau psychiatric hospital. Following his escape from that clinic in October 2002, he was again detained in Düren psychiatric hospital from 18 December 2002 onwards and subsequently in Lippstadt psychiatric hospital. His detention in a psychiatric hospital was confirmed yearly by the competent Regional Court. 10. On 22 November 2005 the city of Düren ordered the applicant’s expulsion to Romania after he had renounced German nationality in February 2004. The decision became final. 11. On 9 February 2007 the Paderborn Regional Court terminated the applicant’s detention in a psychiatric hospital ordered by the Munich I Regional Court on 23 February 1996 (Article 67d § 6 of the Criminal Code, see paragraph 42 below). It further delivered its decision, taken the day before, to order the applicant’s provisional detention pending the competent court’s decision whether or not he was to be placed in preventive detention retrospectively. 12. Having heard evidence from a psychiatric expert, K., who had examined the applicant in person, the Paderborn Regional Court found that the applicant suffered from a personality disorder with paranoiac and dissocial elements. However, that disorder did not exclude or diminish his criminal responsibility. His continued dangerousness for women, in particular for his ex-wife, did not result from a pathological mental disorder but from his chosen attitude towards women. 13. The applicant was accordingly transferred from the psychiatric hospital to prison. 14. On 30 July 2008 the Munich I Regional Court, relying on Article 66b § 3 of the Criminal Code (see paragraph 41 below), which it considered compatible with the Basic Law, ordered the applicant’s preventive detention retrospectively (nachträgliche Sicherungsverwahrung). 15. The Munich I Regional Court noted that, as required by Article 66b § 3 of the Criminal Code, the Paderborn Regional Court had terminated the applicant’s placement in a psychiatric hospital on 9 February 2007 pursuant to Article 67d § 6 of the Criminal Code. 16. The Regional Court further found that the requirements of Article 66b § 3 (1) of the Criminal Code were met. The Munich I Regional Court had ordered the applicant’s placement in a psychiatric hospital in February 1996 as the applicant had committed, inter alia, several counts of dangerous assault, an offence listed in Article 66 § 3 of the Criminal Code. 17. Furthermore, the Regional Court considered that a comprehensive assessment of the applicant, his offences and his development during his placement in the psychiatric hospitals revealed that it was very likely that, if released, he would again commit serious offences, similar to those following which he had been placed in a psychiatric hospital, against women related to him, resulting in considerable psychological and physical harm to the victims (Article 66 b § 3 (2) of the Criminal Code). It noted that both psychiatric experts it had consulted had convincingly diagnosed the applicant with a dissocial personality disorder necessitating therapy, and one of them, in addition, with sexual sadism, without his criminal responsibility being diminished or excluded thereby. Expert H., in particular, had considered that the applicant suffered from a combined personality disorder with dissocial, psychopathic, paranoiac and emotionally unstable elements and had formerly abused alcohol. Expert S. had found, in particular, that the applicant was a psychopath. 18. The Regional Court considered that the applicant’s offences disclosed a violent, degrading and partly sadist attitude towards women which had not changed during his placement in different psychiatric hospitals. The preventive detention of the applicant, who had a propensity to commit serious violent offences, was proportionate. In particular, the applicant’s planned departure to Romania was irrelevant in that respect because Article 66b § 3 of the Criminal Code served to protect potential victims not only in Germany, but also in other States including Romania. 19. On 1 August 2008 the applicant lodged an appeal on points of law which he reasoned on 13 October 2008. He argued that Article 66b § 3 of the Criminal Code and the decisions ordering his preventive detention retrospectively, which were based on that provision, violated his right to liberty and were thus incompatible with the Basic Law and with Article 5 § 1 of the Convention. 20. On 13 May 2009 the Federal Court of Justice dismissed the applicant’s appeal on points of law as ill-founded. 21. On 4 June 2009 the applicant, represented by counsel, lodged a constitutional complaint with the Federal Constitutional Court. He argued that the retrospective order for his preventive detention, based on Article 66b § 3 of the Criminal Code, violated his right to liberty under Article 2 § 2 of the Basic Law. It also disproportionately interfered with that right because his expulsion to Romania would have been as effective as his detention in order to protect potential victims in Germany while interfering less with his fundamental rights. 22. On 4 November 2009 a chamber of three judges of the Federal Constitutional Court, without giving reasons, declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1237/09). 23. According to the Government, in Straubing Prison, five doctors, five psychologists, four educationists and nine social workers offer help to detainees (it has not been specified for how many detainees these staff members were responsible). Sexual and violent offenders may be transferred to a suitable social therapeutic institution if their reintegration into society may be better furthered thereby. If a group therapy proves unsuitable, they may be offered an individual therapy. There are additional courses aimed at preventing further offences on release, including antiaggression, anti-violence and reasoning and rehabilitation training. Furthermore, detainees who committed their offences under the influence of alcohol or drugs are offered addiction counselling. 24. The applicant had initially not been ready to apply for his transfer to Straubing Prison’s social therapeutic institution which, according to the prison therapists, would offer him a suitable social therapy for sexual offenders. He claimed to be a violent offender in the first place and to have undergone a sexual therapy already in the psychiatric hospitals. The Erlangen prison authorities later refused the applicant’s request dated 14 September 2009 to be admitted to its social therapeutic institution for violent offenders. It argued that he did not fit into the institution’s therapeutic concept targeted at offenders sentenced for offences of an average gravity. The applicant did not apply to be admitted to another social therapeutic institution in Kaisheim Prison. He further did not apply for any training courses or addiction counselling. 25. The applicant has been working in Straubing Prison. He received a visit from his sister once, spoke to his mother on the phone regularly and exchanged letters with her and with two other acquaintances. He has not received any relaxations in the conditions of his detention in view of the enforceable expulsion order against him. 26. On 29 October 2009 the Regensburg Regional Court dismissed the applicant’s request to declare his preventive detention unlawful. On 11 December 2009 the Nuremberg Court of Appeal dismissed the applicant’s appeal. 27. On 4 November 2010 the Regensburg Regional Court dismissed the applicant’s request of 5 June 2010 to declare the execution of his preventive detention unlawful. It found, in particular, that the judgment of the European Court of Human Rights of 17 December 2009 in the case of M. v. Germany (no. 19359/04, ECHR 2009) did not constitute a bar to the execution of the judgment in the applicant’s case. That court’s judgments were only binding between the parties to the proceedings in the case of M. v. Germany, which had, moreover, concerned a different subject-matter. 28. On 13 December 2010 the Nuremberg Court of Appeal dismissed the applicant’s appeal. It took the view that the question of whether the applicant’s preventive detention breached the prohibition of retrospective punishment could not be examined in the present proceedings concerning the execution of the applicant’s preventive detention. That issue had to be dealt with in review proceedings under Article 67e of the Criminal Code (see paragraph 45 below). In those proceedings, it had to be examined whether, owing to specific circumstances relating to his person or his conduct, it was highly likely that the applicant would commit the most serious crimes of violence or sexual offences if released. 29. On 13 October 2011 the Regensburg Regional Court, in review proceedings under Articles 67d § 2 and 67e of the Criminal Code (see paragraphs 44-45 below), declared the applicant’s preventive detention ordered by the Munich I Regional Court on 30 July 2008 terminated and ordered the applicant’s supervision of conduct. 30. The Regional Court noted that in her report dated 15 August 2011, psychiatric expert L. had considered that the applicant suffered from a personality disorder with paranoiac, dissocial and narcissistic elements and from emotional instability. There was a risk of 44 per cent that the applicant would commit further violent offences against a person related to him in the seven years to come if released. The applicant therefore suffered from a mental disorder within the meaning of the Therapy Detention Act. However, in the Regional Court’s view, there was not a high risk, owing to specific circumstances relating to the applicant’s person or conduct, that he would commit the most serious crimes of violence or sexual offences if released. The requirements set up in the Federal Constitutional Court’s judgment of 4 May 2011 for a continuation of the applicant’s retrospective preventive detention, which applied a fortiori in a case like that of the applicant who had initially been acquitted for lack of criminal responsibility, had therefore not been met. 31. On 19 December 2011 the Nuremberg Court of Appeal, allowing the prosecution’s appeal, quashed the decision of the Regensburg Regional Court and ordered the applicant’s preventive detention to continue. Contrary to the Regional Court, it considered that under the Federal Constitutional Court’s judgment of 4 May 2011, it was sufficient for preventive detention ordered under Article 66b § 3 to continue if there was a risk, owing to specific circumstances relating to the applicant’s person or conduct, that the person concerned would commit serious crimes of violence or sexual offences. These requirements were met in the applicant’s case. It was not necessary that there was a high risk of the most serious crimes of violence or sexual offences or that the applicant suffered from a mental disorder. These requirements applied only to the (different) cases of preventive detention with retrospective effects which had been at issue in the Federal Constitutional Court’s judgment. 32. On 4 November 2010 the Straubing District Court, having heard the applicant in person, dismissed the request made by the city of Straubing to order the applicant’s placement in a psychiatric hospital under the Bavarian (Mentally Ill Persons’) Placement Act (see paragraph 47 below). It found that the disorder the applicant suffered from was not so serious as to affect the applicant’s free will. Consequently, the requirements for his detention under Article 1 § 1 of the Bavarian (Mentally Ill Persons’) Placement Act were not met. It was not the purpose of the said Act to authorise the detention of all persons suffering from a mental disease or to close gaps in the provisions on preventive detention. 33. On 3 January 2011 the Straubing Prison authorities lodged a request with the Regensburg Regional Court to order the applicant’s detention under Article 1 of the Therapy Detention Act (see paragraph 48 below). 34. On 24 October 2011 the Regensburg Regional Court ordered the applicant’s provisional detention for a maximum period of three months under the Therapy Detention Act from the moment the termination of the applicant’s retrospective preventive detention became final. It noted that the psychiatric experts H. and L. had found in their reports, drawn up on the basis of the case-file alone, that the applicant suffered from a personality disorder with dissocial, psychopathic / narcissistic and paranoiac elements and emotional instability. He had previously abused alcohol. He might suffer, in addition, from sexual sadism. The experts had considered that there was a high and a medium to high risk respectively that the applicant would commit further violent offences, in particular against persons closely related to him, if released. The court, endorsing the experts’ findings, therefore considered that there were grounds for concluding that the requirements for the applicant’s detention under the Therapy Detention Act were met. 35. A comprehensive summary of the provisions of the Criminal Code and of the Code of Criminal Procedure governing the distinction between penalties and measures of correction and prevention, in particular preventive detention, and the making, review and execution in practice of preventive detention orders, is contained in the Court’s judgment in the case of M. v. Germany (no. 19359/04, §§ 45-78, ECHR 2009). A summary of the provisions of the Basic Law governing the right to liberty (Article 2 § 2) and the ban on retrospective application of criminal laws (Article 103 § 2) can also be found in that judgment (ibid., §§ 57 and 61). The provisions referred to in the present case provide as follows: 36. Measures of correction and prevention (see Articles 61 et seq. of the Criminal Code) cover, in particular, placement in a psychiatric hospital (Article 63 of the Criminal Code) or in preventive detention (Article 66 of the Criminal Code). They may be ordered for offenders in addition to their punishment (compare Articles 63 et seq. of the Criminal Code). They must, however, be proportionate to the gravity of the offences committed by, or to be expected from, the defendants as well as to their dangerousness (Article 62 of the Criminal Code). 37. Article 66 of the Criminal Code governs orders for a person’s preventive detention made by the sentencing court when finding the person guilty of an offence. That court may, at the time of the offender’s conviction, order his preventive detention (a so-called measure of correction and prevention) under certain circumstances in addition to his prison sentence (a penalty), if the offender has been shown to be a danger to the public. 38. Under Article 66 § 3, first sentence, of the Criminal Code, in its version in force at the time of the order for the applicant’s retrospective preventive detention, preventive detention may be ordered in addition to a prison sentence if the perpetrator is sentenced for certain serious offences, including murder, rape and dangerous assault, to at least two years’ imprisonment, if he has previously been convicted (only) once of one or more such offences to at least three years’ imprisonment and if the remaining requirements laid down in Article 66 § 1 (2) and (3) are met. 39. The Retrospective Preventive Detention Act (Gesetz zur Einführung der nachträglichen Sicherungsverwahrung) of 23 July 2004, which entered into force on 29 July 2004, inserted Articles 66b and 67d § 6 into the Criminal Code; the latter provision was amended by an Act of 13 April 2007. The provisions in question were aimed at preventing the release of persons who could no longer be detained in a psychiatric hospital because the conditions for placement under Article 63 of the Criminal Code were no longer met (including cases in which they had never been met from the outset), but who were still dangerous to the public (see German Federal Parliament documents (BTDrucks), no. 15/2887, pp. 10, 13/14). 40. In fact, under the case-law previously established by the courts dealing with the execution of sentences, a person’s placement in a psychiatric hospital had to be terminated and the person concerned had to be released if he no longer suffered, or had in fact never suffered, from a condition excluding or diminishing his criminal responsibility, even if that person was still dangerous to the public (see Hamm Court of Appeal, no. 4 Ws 389/81, decision of 22 January 1982, Neue Zeitschrift für Strafrecht (NStZ) 1982, p. 300; Karlsruhe Court of Appeal, no. 1 Ws 143/82, decision of 30 June 1982, Monatsschrift für Deutsches Recht (MDR) 1983, p. 151; Federal Court of Justice, no. 3 StR 317/96, judgment of 27 November 1996, Collection of decisions of the Federal Court of Justice in Criminal Matters (BGHSt) no. 42, p. 310; see also Federal Constitutional Court, nos. 2 BvR 1914/92 and 2105/93, decision of 28 December 1994, Neue Juristische Wochenschrift (NJW) 1995, p. 2406; and Federal Court of Justice, no. 4 StR 577/09, decision of 12 May 2010, § 13 with further references). 41. Article 66b § 3 of the Criminal Code, in its version in force at the relevant time, provided: “(3) If an order for placement in a psychiatric hospital has been declared terminated pursuant to Article 67d § 6 because the conditions excluding or diminishing criminal responsibility on which the order was based no longer persisted at the time of the decision terminating the placement, the court may order preventive detention retrospectively if 1. the placement of the person concerned under Article 63 was ordered on the basis of several of the offences listed in Article 66 § 3, first sentence, or if the person concerned had either already been sentenced to at least three years’ imprisonment or had been placed in a psychiatric hospital because of one or more such offences, committed prior to the offence having led to that person’s placement under Article 63, and 2. a comprehensive assessment of the person concerned, his offences and, in addition, his development during the execution of the measure revealed that it was very likely that he would again commit serious offences resulting in considerable psychological or physical harm to the victims.” 42. Article 67d § 6 of the Criminal Code, in its version in force at the relevant time, provided: “(6) If, after enforcement of an order for placement in a psychiatric hospital has started, the court finds that the conditions for the measure no longer persist or that the continued enforcement of the measure would be disproportionate, it shall declare the measure terminated. On termination of the measure, the conduct of the person concerned shall be supervised. ...” 43. The said two provisions remained valid also under the Reform of Preventive Detention Act (Gesetz zur Neuordnung des Rechts der Sicherungsverwahrung) of 22 December 2010, which entered into force on 1 January 2011, for offences committed after the entry into force of that Act. As a result of the abolition of paragraphs 1 and 2 of Article 66b of the Criminal Code by the said Act, the former paragraph 3, slightly amended, became the only provision of that Article. 44. Article 67d of the Criminal Code governs the duration of preventive detention. Paragraph 2, first sentence, of that Article provides that if there is no provision for a maximum duration or if the time-limit has not yet expired, the court shall suspend on probation the further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his release. 45. Pursuant to Article 67e of the Criminal Code, the court (that is, the chamber responsible for the execution of sentences) may review at any time whether the further execution of the preventive detention order should be suspended and a measure of probation applied or should be declared terminated. It is obliged to do so within fixed time-limits (paragraph 1 of Article 67e). For persons in preventive detention, this time-limit is two years (paragraph 2 of Article 67e). 46. The detention of mentally ill persons is provided for, first of all, in the Criminal Code as a measure of correction and prevention if the detention is ordered in relation to an unlawful act committed by the person concerned. Article 63 of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility or with diminished criminal responsibility, the court will order his placement – without any maximum duration – in a psychiatric hospital if a comprehensive assessment of the defendant and his acts reveals that, as a result of his condition, he can be expected to commit serious unlawful acts and that he is therefore a danger to the general public. 47. Secondly, pursuant to sections 1 § 1, 5 and 7 of the Bavarian Act on the Placement in an Institution of Mentally Ill Persons and Their Care of 5 April 1992 (Bavarian (Mentally Ill Persons’) Placement Act – Bayerisches Gesetz über die Unterbringung psychisch Kranker und deren Betreuung) a court may order a person’s placement in a psychiatric hospital at the request of the authorities of a town or county if the person concerned is mentally ill and thereby poses a severe threat to public security and order. Such an order may only be executed as long as no measure under Article 63 of the Criminal Code has been taken (section 1 § 2 of the said Act). 48. Furthermore, on 1 January 2011, following the Court’s judgment in the case of M. v. Germany (cited above), the Act on Therapy and Detention of Mentally Disturbed Violent Offenders (Therapy Detention Act – Gesetz zur Therapierung und Unterbringung psychisch gestörter Gewalttäter) entered into force. Under sections 1 § 1 and 4 of that Act, the civil sections of the Regional Court may order the placement in a suitable institution of persons who may no longer be kept in preventive detention in view of the prohibition of retrospective aggravations in relation to preventive detention. Such a therapy detention may be ordered if the person concerned has been found guilty by final judgment of certain serious offences for which preventive detention may be ordered under Article 66 § 3 of the Criminal Code. The person must further suffer from a mental disorder owing to which it is highly likely that he will considerably impair the life, physical integrity, personal liberty or sexual self-determination of another person. The person’s detention must be necessary for the protection of the public. 49. On 4 May 2011 the Federal Constitutional Court delivered a leading judgment concerning the retrospective prolongation of the complainants’ preventive detention beyond the former ten-year maximum period and also concerning the retrospective order for a complainant’s preventive detention under Article 66b § 2 of the Criminal Code (file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). Reversing its previous position, the Federal Constitutional Court held that all provisions concerned, both on the retrospective prolongation of preventive detention and on the retrospective ordering of such detention, were incompatible with the Basic Law as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law, read in conjunction with the constitutional right to liberty. 50. The Federal Constitutional Court further held that all the relevant provisions of the Criminal Code on the imposition and duration of preventive detention were incompatible with the fundamental right to liberty of persons in preventive detention. It found that those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment (Abstandsgebot). These provisions included, in particular, Article 66 of the Criminal Code in its version in force since 27 December 2003 and Article 66b § 3 of the Criminal Code in its version of 23 July 2004. 51. The Federal Constitutional Court ordered that all provisions declared incompatible with the Basic Law remained applicable until the entry into force of new legislation and until 31 May 2013 at the latest. In relation to detainees whose preventive detention had been prolonged retrospectively, or ordered retrospectively under Article 66b § 2 of the Criminal Code (but not preventive detention ordered under Article 66b § 3 of the Criminal Code), the courts dealing with the execution of sentences had to examine without delay whether the persons concerned, owing to specific circumstances relating to their person or their conduct, were highly likely to commit the most serious crimes of violence or sexual offences and if, additionally, they suffered from a mental disorder within the meaning of section 1 § 1 of the newly enacted Therapy Detention Act. As regards the notion of mental disorder, the Federal Constitutional Court explicitly referred to the interpretation of the notion of “persons of unsound mind” in Article 5 § 1 sub-paragraph (e) of the Convention made in this Court’s case-law (see §§ 138 and 143-156 of the Federal Constitutional Court’s judgment). If the above pre-conditions were not met, those detainees had to be released no later than 31 December 2011. The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality; as a general rule, proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released. 52. In its reasoning, the Federal Constitutional Court relied on the interpretation of Article 5 and Article 7 of the Convention made by this Court in its judgment in the case of M. v. Germany (cited above; see §§ 137 ss. of the Federal Constitutional Court’s judgment). It stressed, in particular, that the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment and the principles laid down in Article 7 of the Convention required an individualised and intensified offer of therapy and care to the persons concerned. In line with the Court’s findings in the case of M. v. Germany (cited above, § 129), it was necessary to provide a high level of care by a team of multi-disciplinary staff and to offer the detainees an individualised therapy if the standard therapies available in the institution did not have prospects of success (see § 113 of the Federal Constitutional Court’s judgment). | 1 |
train | 001-97557 | ENG | RUS | CHAMBER | 2,010 | CASE OF SAVENKOVA v. RUSSIA | 4 | Violation of Art. 5-1-c;Violation of Art. 5-3;Violation of Art. 5-4 | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | 6. The applicant was born in 1958 and lives in Tambov. 7. The applicant's father and Mrs K. co-owned a cottage in Tambov. The applicant's father decided to sell his share of the cottage and authorised the applicant to organise the sale. 8. On 4 July 2001 Mrs K. was murdered. On the same date Mr Z., who had carried out certain repair works for the applicant, was arrested by the police and confessed to the murder. He told the police that the applicant had instigated the crime and promised him remuneration for the murder. On the same day the police conducted a search of the applicant's flat. 9. The date and time of the applicant's arrest are disputed between the parties. According to the applicant, she was arrested at 6 p.m. on 4 July 2001. According to the Government, she was arrested at 2.40 a.m. on 5 July 2001, the time indicated in the arrest report drawn up by the investigator and signed by the applicant. On 6 July 2001 the Prosecutor of the Oktyabrskiy District of Tambov authorised the applicant's pre-trial detention. The order stated as follows: “[Taking into account] the gravity of the crime committed by [Mrs] Savenkova, and also the fact that at the present time there are insufficient grounds for bringing charges against her, the fact that she may abscond from the investigation and fail to appear at court, commit another crime or interfere with the establishment of the truth in the criminal case, [the investigator] has decided to choose with regard to [Mrs] Savenkova Tatyana Rafailovna ... detention in the Tambov SIZO-1 as a measure of restraint ...” 10. On 13 July 2001 the applicant was charged with incitement to murder. 11. On 6 August 2001 the applicant changed her legal counsel. 12. On 9 August 2001 the applicant made an application for the measure of restraint to be changed to an undertaking not to leave her place of residence. She submitted that her second son, having been injured in an accident, was in hospital, and her younger daughter of three needed to be taken care of. 13. On 22 August 2001 the Oktyabrskiy District Court of Tambov dismissed the application as follows: “On 6 July 2001 a measure of restraint was chosen by the Prosecutor of the Oktyabrskiy District in respect of [Mrs] Savenkova. [Mrs] Savenkova requests that the measure of restraint be changed as she is not guilty, has three children, and her son has been injured in an accident. The measure of restraint was chosen lawfully and reasonably, and took into consideration the gravity of the charges. Pursuant to Article 220-2 of the [RSFSR] Code of Criminal Procedure, [the court] has decided to dismiss the complaint. This decision may be appealed against to the Tambov Regional Court within seven days.” 14. The applicant did not appeal against the decision. 15. On 29 August 2001 the acting Prosecutor of the Oktyabrskiy District of Tambov extended the applicant's pre-trial detention to 5 October 2001, referring to the gravity of charges as grounds. 16. On 2 October 2001 the acting Deputy Prosecutor of the Tambov Region extended the applicant's pre-trial detention to 4 November 2001, referring to the gravity of charges and the risk of fleeing justice and obstructing the investigation. 17. On 29 October 2001 the acting Deputy Prosecutor of the Tambov Region extended the applicant's pre-trial detention to 4 December 2001, referring to the gravity of the charges and the risk of fleeing justice and obstructing the investigation. 18. On 4 December 2001 the criminal case file was submitted to the Tambov Regional Court for examination on the merits. 19. On 10 December 2001 the applicant's counsel sent a telegram to the Tambov Regional Court requesting it to terminate the applicant's prosecution and release her from custody. 20. On 19 December 2001 the Tambov Regional Court scheduled the first trial hearing to take place on 4 January 2004 and held that the preventive measure applied to the applicant, the detention in the Tambov SIZO-1, “should remain unchanged”. 21. On 14 March 2002 the Tambov Regional Court found the applicant guilty of incitement to murder and sentenced her to eight years' imprisonment. Z. was found guilty of murder and sentenced to twelve years' imprisonment. 22. On 14 June 2002 the Supreme Court of the Russian Federation examined and dismissed an appeal by the applicant. The applicant and Z. were transferred to correctional facilities to serve their sentences. 23. On 30 August 2002 the Deputy Prosecutor General, at the applicant's request, lodged an application for supervisory review of the judgment. 24. On 23 October 2002 the Presidium of the Supreme Court of the Russian Federation granted the request for supervisory review, quashed the judgment on the grounds of inadequate legal assistance to Z., and remitted the case to the first-instance court for fresh examination. The Supreme Court ordered the applicant and Z. to remain in custody. 25. On 13 November 2002 the case file was transferred to the Tambov Regional Court. On an unspecified date the applicant and Z. were transferred to the Tambov SIZO-1 and remained there awaiting the second trial. 26. On 20 November 2002 the Tambov Regional Court conducted a hearing of the criminal case where the applicant allegedly challenged the detention order and requested to be released. She provided a copy of the application, signed by her counsel Kh., but claims that the court did not examine it. 27. According to the applicant, on 9 December 2002 her lay representative, R., lodged another application with the Tambov Regional Court for the measure of restraint to be changed to an obligation not to leave her place of residence. According to the Government, this application was lodged on 20 January 2003. 28. On 20 January 2003, before the hearing of her case by the Tambov Regional Court, the applicant's counsel Kh. made an application to the court challenging the applicant's continued pre-trial detention and requesting that the measure of restraint be changed to an undertaking not to leave her place of residence. The application was examined and dismissed by the Tambov Regional Court with reference to the gravity of the charges. 29. On 9 April 2003 the Tambov Regional Court acquitted the applicant and Z. of all charges because of lack of evidence. They were released in the court room. The prosecutor appealed against the acquittal. 30. On 9 June 2003 the Supreme Court of the Russian Federation granted the prosecutor's appeal, reversed the judgment of 9 April 2003 and remitted the case for a fresh first-instance examination. 31. On 19 February 2004 the Tambov Regional Court found the applicant guilty as charged and sentenced her to eight years' imprisonment. Z. was sentenced to twelve years' imprisonment. They were taken into custody from the court room. 32. On appeal, on 16 April 2004 the Supreme Court of the Russian Federation upheld the judgment of 19 February 2004 in substance, but reduced the applicant's sentence to five years' imprisonment and Z.'s sentence to nine years' imprisonment. 33. On 14 January 2005 the Supreme Court of the Russian Federation granted the applicant's request for the suspension of her imprisonment and she was released. 34. Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the RSFSR (Law of 27 October 1960, “the old CCrP”). From 1 July 2002 the old CCrP was replaced by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the new CCrP”). 35. “Preventive measures” (меры пресечения) include an undertaking not to leave a town or region, personal security, bail and detention (Article 89 of the old CCrP, Article 98 of the new CCrP). 36. The Russian Constitution of 12 December 1993 establishes that a judicial decision is required before a defendant can be detained or have his or her detention extended (Article 22). 37. Under the old CCrP, a decision ordering detention could be taken by a prosecutor or a court (Articles 11, 89 and 96). 38. The new CCrP requires a judicial decision by a district or town court on a reasoned request by a prosecutor supported by appropriate evidence (Article 108 §§ 1 and 3-6). 39. When deciding whether to remand an accused in custody, the competent authority is required to consider whether there are “sufficient grounds to believe” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend (Article 89 of the old CCrP). It must also take into account the gravity of the charge, information on the accused's character, his or her profession, age, state of health, family status and other circumstances (Article 91 of the old CCrP, Article 99 of the new CCrP). 40. Before 14 March 2001, detention was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year's imprisonment or if there were “exceptional circumstances” in the case (Article 96). On 14 March 2001 the old CCrP was amended to permit defendants to be remanded in custody if the charge carried a sentence of at least two years' imprisonment or if they had previously absconded or had no permanent residence in Russia, or if their identity could not be ascertained. The amendments of 14 March 2001 also repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had committed. The new CCrP reproduced the amended provisions (Articles 97 § 1 and 108 § 1) and added that a defendant should not be remanded in custody if a less severe preventive measure was available. 41. The Codes distinguished between two types of detention: detention “pending the investigation”, that is, while a competent agency – the police or a prosecutor's office – investigated the case, and detention “before the court” (or “during the trial”), that is, while the case was being tried in court. Although there was no difference in practice between them (the detainee was held in the same detention facility), the calculation of the time-limits was different. 42. After arrest the suspect is placed in custody “pending the investigation”. The maximum permitted period of detention “pending the investigation” is two months but it can be extended for up to eighteen months in “exceptional circumstances”. Extensions were authorised by prosecutors of ascending hierarchical levels (under the old CCrP) but must now be authorised by judicial decisions taken by courts of ascending levels (under the new CCrP). No extension of detention “pending the investigation” beyond eighteen months is possible (Article 97 of the old CCrP, Article 109 § 4 of the new CCrP). 43. The period of detention “pending the investigation” is calculated up to the day when the prosecutor sends the case to the trial court (Article 97 of the old CCrP, Article 109 § 9 of the new CCrP). 44. Access to the case file materials is to be granted no later than one month before the expiry of the authorised detention period (Article 97 of the old CCrP, Article 109 § 5 of the new CCrP). If the defendant needs more time to study the case file, a judge, at the request of a prosecutor, may grant an extension of detention until such time as the file has been read in full and the case sent for trial (Article 97 of the old CCrP, Article 109 § 8 (1) of the new CCrP). Under the old CCrP, such an extension could not be granted for longer than six months. 45. Under the old CCrP, the trial court had the right to remit the case for an “additional investigation” if it established that procedural defects existed that could not be remedied at the trial. In such cases the defendant's detention was again classified as “pending the investigation” and the relevant time-limit continued to apply. If, however, the case was remitted for an additional investigation but the investigators had already used up all the time authorised for detention “pending the investigation”, a supervising prosecutor could nevertheless extend the detention period for one additional month from the date he received the case. Subsequent extensions could only be granted if the detention “pending the investigation” had not exceeded eighteen months (Article 97). 46. From the date the prosecutor forwards the case to the trial court, the defendant's detention is “before the court” (or “during the trial”). 47. Before 14 March 2001 the old CCrP set no time-limit for detention “during the trial”. On 14 March 2001 a new Article 239-1 was inserted which established that the period of detention “during the trial” could not normally exceed six months from the date the court received the file. However, if there was evidence to show that the defendant's release might impede a thorough, complete and objective examination of the case, a court could – of its own motion or on at the request of a prosecutor – extend the detention by no longer than three months. These provisions did not apply to defendants charged with a particularly serious criminal offence. 48. The new CCrP establishes that the term of detention “during the trial” is calculated from the date the court receives the file to the date the judgment is given. The period of detention “during the trial” may not normally exceed six months, but if the case concerns serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3). 49. Under the old CCrP, the detainee or his or her counsel or representative could challenge a detention order issued by a prosecutor, and any subsequent extension order, before a court. The judge was required to review the lawfulness of and justification for a detention or extension order no later than three days after receipt of the relevant papers. The review had to be conducted in camera in the presence of a prosecutor and the detainee's counsel or representative. The detainee had to be summoned and a review in his absence was only permissible in exceptional circumstances if the detainee waived his right to be present of his own free will. The judge could either dismiss the challenge or revoke the pre-trial detention and order the detainee's release (Article 220-1). 50. An appeal to a higher court lay against the judge's decision. It had to be examined within the same time-limit as appeals against a judgment on the merits (Article 331 in fine). 51. Under the new CCrP, an appeal may be lodged with a higher court within three days of a judicial decision ordering or extending detention on remand. The appeal court must decide the appeal within three days of its receipt (Article 108 § 10). 52. Upon receipt of the case file, the judge must determine, in particular, whether the defendant should remain in custody or be released pending trial (Articles 222 § 5 and 230 of the old CCrP, Articles 228 (3) and 231 § 2 (6) of the new CCrP) and rule on any application by the defendant for release (Article 223 of the old CCrP). If the application is refused, a fresh application can be made once the trial has commenced (Article 223 of the old CCrP). 53. At any time during the trial the court may order, vary or revoke any preventive measure, including detention (Article 260 of the old CCrP, Article 255 § 1 of the new CCrP). Any such decision must be given in the deliberations room and be signed by all the judges of the bench (Article 261 of the old CCrP, Article 256 of the new CCrP). 54. An appeal against such a decision lies to the higher court. It must be lodged within ten days and examined within the same time-limit as an appeal against a judgment on the merits (Article 331 of the old CCrP, Article 255 § 4 of the new CCrP). 55. Under the old CCrP, within fourteen days of receipt of the case file (if the defendant was in custody), the judge was required either: (1) to fix the trial date; (2) to return the case for an additional investigation; (3) to stay or discontinue the proceedings; or (4) to refer the case to a court with jurisdiction to hear it (Article 221). The new CCrP empowers the judge, within the same time-limit, (1) to refer the case to a competent court; (2) to fix a date for a preliminary hearing (предварительное слушание); or (3) to fix a date for trial (Article 227). The trial must begin no later than fourteen days after the judge has fixed the trial date (Article 239 of the old CCrP, Article 233 § 1 of the new CCrP). There are no restrictions on fixing the date of a preliminary hearing. 56. The duration of the trial is not limited. 57. Under the old CCrP, the appeal court was required to examine an appeal against the first-instance judgment within ten days of its receipt. In exceptional circumstances or in complex cases, or in proceedings before the Supreme Court, this time-limit could be extended by up to two months (Article 333). No further extensions were possible. 58. The new CCrP establishes that the appeal court must start the examination of the appeal no later than one month after its receipt (Article 374). | 1 |
train | 001-94113 | ENG | TUR | CHAMBER | 2,009 | CASE OF UYANIK AND KABADAYI v. TURKEY | 4 | Violation of Article 6 - Right to a fair trial;Violation of Article 5 - Right to liberty and security | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky | 5. On 16 May 1996 the applicants were arrested and taken into police custody by officers of the İstanbul security police in connection with an investigation into an illegal organisation. On 30 May 1996 the applicants were brought before the İstanbul public prosecutor and the investigating judge respectively, who remanded the applicants in custody. 6. By an indictment dated 27 June 1996, the public prosecutor at the İstanbul State Security Court initiated criminal proceedings against the applicants and a number of others, accusing them, inter alia, of membership of an illegal armed organisation and of taking part in its activities. 7. On 4 June 2003 the İstanbul State Security Court sentenced the applicants to life imprisonment, pursuant to Article 146 § 1 of the Criminal Code. On 20 January 2004 the Court of Cassation quashed the judgment of the first-instance court and remitted the case. State Security Courts were abolished by constitutional amendments introduced on 7 May 2004. Subsequently, the applicants’ case was resumed before the 12th Assize Court of İstanbul. 8. Referring to recent amendments in domestic law, on 27 December 2004 the applicants requested to be released pending trial. Relying on the accusations against the applicants, the length of their detention and the content of the case file, the 12th Assize Court of İstanbul refused the applicants’ request on 29 December 2004. The applicants appealed. On 18 January 2005 the 13th Assize Court of İstanbul dismissed their appeal without further reasoning. 9. On 1 February 2006 the applicants were released pending trial. 10. On 30 April 2008 the 12th Assize Court of İstanbul sentenced the applicants as charged. According to the information in the case file, as submitted by the parties, the proceedings are pending before the Court of Cassation. | 1 |
train | 001-91726 | ENG | UKR | CHAMBER | 2,009 | CASE OF SERGEY VOLOSYUK v. UKRAINE | 3 | Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Violations of Art. 8;Non-pecuniary damage - award | Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk | 5. The applicant was born in 1976 and is currently imprisoned. 6. On 31 December 1999 the applicant, Mr D. and Mr G. were arrested by the police on suspicion of having committed a murder. 7. On 3 January 2000, given the gravity of the offence of which the applicant was suspected, the investigator of the Druzhkivka District Prosecutor’s Office decided that the applicant should be remanded in custody for up to two months. The same day the Druzhkivka District Prosecutor issued the arrest warrant, authorising thereby the investigator’s decision. 8. On 20 February 2000 the Druzhkivka District Prosecutor extended the term of the applicant’s detention until 31 March 2000. 9. On 23 March 2000 the applicant, Mr D. and Mr G. were charged with murder. 10. On 24 March 2000 the investigator completed the investigation and gave the applicant and the co-accused access to the case file. However, on 11 April 2000 the investigator reopened the investigation and additionally charged the applicant with aggravated robbery. On 12 April 2000 the investigation was completed and the applicant and the co-accused continued studying the case-file until 27 April 2000. 11. On 6 May 2000 the supervising prosecutor approved the bill of indictment and transferred the case file to the Donetsk Regional Court of Appeal (hereafter “the Court of Appeal”) for trial proceedings. 12. On 17 May 2000 the Court of Appeal committed the applicant and the co-accused for trial and held that the preventive measure in their respect was to remain unchanged. The hearing took place in the presence of the prosecutor, but the applicant and his lawyer were absent. 13. On 2 October 2001 the Court of Appeal held a hearing in the applicant’s case, where it considered several applications submitted by the co-accused and adjourned consideration of the case until the requisite technical facilities could be installed for the proceedings. According to the applicant, the Court of Appeal also adjourned consideration of his release request, lodged before the hearing. 14. According to the applicant, in the period between 2 October 2001 and 6 October 2003 he lodged about twenty requests for his release with the Court of Appeal, referring to his health problems and relying on his right to a trial within a reasonable time or release pending trial as guaranteed by Article 5 § 3 of the Convention. Those requests remained unanswered however. 15. On 6, 7, 8, 9 and 10 October 2003 the Court of Appeal held hearings in the case during which it examined the evidence and questioned the defendants and witnesses. 16. Further court hearings took place on 26 and 27 January, 9, 10, 11, 15, 23, and 24 March, and 26 and 28 April 2004, during which the Court of Appeal continued examining the evidence and questioning witnesses. Within that period the hearings were adjourned three times because one of the defendants was feeling ill and twice because the counsel of the other defendant failed to appear before the court. 17. In a letter of 4 March 2004 the Deputy President of the Court of Appeal informed the applicant that his latest complaint about the excessive length of the proceedings had been rejected on the same basis as the previous ones, namely that there were compelling and valid reasons for the delays in the proceedings. However, the nature of those reasons was not specified in the letter. 18. On 6 May 2004 the Court of Appeal considered the applicant’s release requests and rejected them, holding that he was charged with a grave offence and, if at large, might influence the proceedings. The Court of Appeal further adjourned the case in order to question additional witnesses. 19. On 14 May 2004 the Court of Appeal found, inter alia, that the applicant was guilty of having committed a murder and aggravated robbery. It sentenced him to fourteen years’ imprisonment, minus the time spent in pre-trial detention, and ordered the confiscation of his property. On 16 December 2004 the Supreme Court upheld that judgment. 20. During his detention on remand the applicant wrote letters in which he complained about his conditions of detention to various officials, including a public prosecutor supervising penitentiary establishments, the Ombudsman, the Prisons Department and Members of Parliament. In accordance with the prescribed procedure, these letters were sent through officials at the detention centre, who dispatched them to the addressees. The applicant’s letters were subject to automatic monitoring and censorship except for those addressed to the prosecutors and, in the later stages of his detention, to the Ombudsman. 21. According to the applicant, in February 2003, while being held in the detention centre, he wrote a complaint to the Donetsk Directorate of the Prisons Department, describing the ill-treatment and arbitrary punishment inflicted on him by officials at the detention centre. He sent the complaint without going through the officials at the detention centre, in violation of the domestic legislation. Shortly after the complaint had reached the addressee, the governor of the detention centre punished the applicant with ten days’ confinement in a disciplinary cell for breaching the procedure for sending letters. 22. Article 236-3 of the Code provides that the detainee or his defence counsel or legal representative may appeal against the prosecutor’s arrest warrant to the relevant district (city) court. The appeal may be lodged directly with the court or through the officials at the pre-trial detention centre, who must send the appeal to the relevant court within twenty-four hours of receiving it. 23. On 21 June 2001 amendments were introduced to the Code, providing that within seventy-two hours the arrested criminal suspect was to face the court for deciding on his further detention. 24. Article 273 of the Code provides, inter alia, for the court to set out interim decisions on preventive measures in the form of a separate document. 25. According to Article 274 of the Code the court, if appropriate, may order, change, or discontinue a preventive measure in respect of the defendant. 26. Section 13 of the Act provides, inter alia, for persons detained on remand to be able to correspond with relatives, other persons and legal entities upon written consent by the authority in charge of the criminal case against the detainee concerned. The officials of the detention centre must review all the letters of the detainees except for those which are addressed to the prosecutor. Since 6 February 2003 this exception has been extended to cover letters addressed to the Ombudsman. If the letter is related to the criminal case against the detainee concerned it has to be handed over within three days to the authority in charge of the detainee’s criminal case for consideration. Letters containing information which can obstruct justice must not be dispatched to the addressee but must be handed over to the authority in charge of the detainee’s criminal case. The detainee and the prosecutor must be informed of the interception made. If a letter is not related to the detainee’s criminal case, it must be answered by the officials at the detention centre or sent to the addressee. 27. The same section of the Act requires any appeal against the prosecutor’s arrest warrant authorising pre-trial detention as a preventive measure to be sent by the detention centre to the relevant court within twenty-four hours. The prosecutor must be notified at the same time. 28. Under section 15 of the Act detention centre officials may impose on detainees who violate detention regime rules such penalties as warnings or reprimands, additional cleaning of the cell or a one-month ban on buying food and receiving parcels. If a detainee intentionally violates detention regime rules, he may be placed in a disciplinary cell for up to ten days, following a reasoned order issued by the governor of the detention centre. The section further stipulates that the penalties imposed on detainees should be proportionate to the gravity and nature of the infringement. 29. Paragraph 1 of the Resolution provides that in accordance with Article 236-3 of the Code of Criminal Procedure, the subject of appeal shall only be the arrest warrant issued by the prosecutor for the detention of the suspect or accused, and not the decision of the investigator or the investigating body concerning the applicable custodial preventive measure or the decision of the court (judge) to detain the defendant. | 1 |
train | 001-69392 | ENG | RUS | CHAMBER | 2,005 | CASE OF LABZOV v. RUSSIA | 4 | Violation of Art. 3;No violation of Art. 34;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Christos Rozakis | 8. The applicant was born in 1956 and lives in Cheboksary. He used to work as a manager of a private building partnership. In April 2000 the police charged him with embezzlement. They accused the applicant of having fraudulently appropriated a tractor and a tank truck belonging to the partnership. 9. On 10 April 2000, the investigator in charge of the applicant's case interviewed the applicant and decided to put him in a remand prison. Since the applicant had had a heart condition during the interview, the investigator had to put him in a prison hospital instead. 10. Diagnosed with a coronary heart disease, the applicant spent the next 36 days in hospital UL-34/4. During this time, he was 14 times examined by a cardiologist and once by a neurologist. The doctors treated the applicant with medicines and made laboratory tests. As soon as the applicant's condition had stabilised, he was discharged from the hospital. 11. On 16 May 2000, the applicant was relocated to remand prison IZ-21/2 in Tsivilsk. The parties' descriptions of the prison and of the life in it differ. 12. According to the applicant, prisoners were delivered to the prison in armoured vans. Even though the heat outside reached 30oC, each van carried as many as 30–40 prisoners. The air in the vans was stuffy. Guards clubbed the prisoners and set the dogs on them. The prison building, built in the 18th century, had never been renovated. Dirt-filled floors let no air through. Cells were illuminated with 40 watt filament lamps, too dim to read by. The prison administration confiscated all the medicines the applicant had and gave no replacement. 13. According to the Government, the applicant was delivered to the prison in a van that could carry 22 prisoners. The air outside was cool, 6oC, and the van carried as few as 14 prisoners. The guards used no clubs or dogs. In 2002–03 the prison building was renovated: sanitary equipment was replaced, walls were repainted, a forced ventilation system was installed. During the applicant's stay in the prison, all cells were sufficiently lit with filament lamps. Windows were large enough to read and work by natural light. The temperature and humidity in the cells were within the established norms. The prison had a central continuous supply of potable water from its own artesian well. The quality of the water was routinely inspected by a bacteriological laboratory. Every cell had a cistern of potable water. In addition, daily at 7 a.m. and 4 p.m. prisoners received boiled drinking water. The applicant always had a separate bed, a mattress, a blanket, two sheets, a pillow, and a pillow-case. He could have shower at least once a week. After each shower, the applicant received fresh bedding and underwear. Prison doctors treated him and gave him necessary medicines. The applicant could not, however, have any medicines of his own. 14. On his arrival to the prison, the applicant was put in Cell 16, in which he spent half a day. The parties' descriptions of this cell differ. 15. According to the applicant, this cell was in a poor technical condition. Its floor was flooded with excrements. 16. According to the Government, this cell measured 19.3 m². It housed 20 prisoners, even though it was designed to house 10. There was a doubleglazed window of 115 × 95 cm. The window had a 115 × 20 cm window leaf to ventilate the cell. In one corner of the cell there were a toilet and a wash-basin. The toilet was fixed 70 cm above the floor and could be reached by two steps. It was separated from the rest of the cell with a curtain and a tiled wall, at least 1 m high. The toilet had flushing taps and central sewage. The wash-basin provided cold running water. 17. In the evening of 16 May 2000, the applicant was relocated to Cell 49 in which he spent the next 29 days. The parties' descriptions of this cell differ. 18. According to the applicant, this cell measured 15 m². It housed, on average, 35–40 prisoners, even though it had only 20 beds. The prisoners had to take turns to sleep. Sleeping was impossible because the lights were always on, and because the prisoners listened to music and talked day and night. The windows were covered with metal blinds which let through too little light. No bedding, crockery, or cutlery was available. As the dinner table was small, the prisoners had their meals in shifts, often sharing the crockery with the ill. The food was hardly edible. Cock-roaches, ants, rats, mice, and lice abounded. Hot water supply was limited to 20 litres a day. The toilet was fixed 1.2 m above the floor, right in front of the guards' peephole. As the guards were mostly women, using the toilet was a humiliation. The cell was overpopulated, and five prisoners suffered of dysentery. Therefore, the toilet was always occupied. Once in a fortnight, a prisoner could spend five minutes in a shower. Once a day, the prisoners had an hour-long walk in a small yard on the roof of the building. 19. According to the Government, this cell measured 21.2 m². During the applicant's stay, the cell on average housed 22 prisoners, even though it was designed to house 10. There were two double-glazed windows of 120 × 120 cm each. Each window had a 25 × 25 cm window leaf to ventilate the cell. In one corner of the cell there were a toilet and a wash-basin. The toilet was fixed 25 cm above the floor. It was separated from the rest of the cell with a tiled wall, at least 1 m high. The toilet had flushing taps and central sewage. The wash-basin provided cold running water. There were no prisoners suffering from dysentery in the cell. Prisoners suffering from intestinal infections, vermin, veneral diseases, and acute tuberculosis were housed apart. 20. As the applicant's health had worsened, on 14 June 2000 he was relocated to a temporary detention unit, and on 16 June 2000 – back to hospital UL-34/4. He spent the next 36 days in the somatic ward of the hospital. During this period, a cardiologist examined the applicant 13 times and treated him. As soon as the applicant's condition had stabilised, he was discharged from the hospital. 21. On 22 July 2000, the applicant was returned to the prison and put in Cell 18 where he spent the next 2 days. The parties' descriptions of this cell differ. 22. According to the applicant, windows in this cell had no glass. Instead, they were tightly covered with halved metal tubes. Small holes in the tubes let through little light. The cell was located in the basement and had no ventilation. No bedding, crockery, or cutlery was available. The toilet was fixed 1.8 m above the floor. Next to it stood a dinner table. As the cell housed as many as 78 prisoners, the toilet and the table were always occupied, often at the same time. Smokers made non-smokers' life a misery. Whenever someone fell unconscious, guards dragged him out into the corridor for a breath of fresh air. 23. According to the Government, this cell was located in the ground floor and measured 23 m². During the applicant's stay, the cell on average housed 17 prisoners, even though it was designed to house 10. There were two doubleglazed windows of 70 × 70 cm each. Each window had a 70 × 20 cm window leaf to ventilate the cell. In one corner of the cell there were a toilet and a wash-basin. The toilet was fixed 45 cm above the floor and could be reached by a step. It was separated from the rest of the cell with a tiled wall, at least 1 m high. The toilet had flushing taps and central sewage. The wash-basin provided cold running water. 24. On 24 July 2000, the applicant was taken to the temporary detention unit for interrogation. 25. On 28 July 2000, he was returned to the prison and put in Cell 49 where he spent the next 4 days. 26. On 31 July 2000, the investigating authorities dropped the charges against the applicant under an amnesty law. 27. On 1 August 2000, the applicant was released. 28. In January 2003 the applicant left Russia for Strasbourg. The parties' accounts of the events preceding the departure differ. 29. On 20 December 2002, an investigating officer of the Ministry of the Interior of the Chuvash Republic telephoned the applicant. Without naming himself, the officer invited the applicant to an interview concerning a criminal investigation. The applicant was not aware of any investigations. 30. On 21 December 2002, K., a Deputy Director of the Economic Crimes' Department of the Ministry of the Interior of the Chuvash Republic, telephoned the applicant. He interrogated the applicant about his application to the Court. K. hinted that the applicant had better withdraw his case from the Court, or else the police would find a pretext for a new criminal case and imprison him again. 31. On 23 December 2002, P., the Director of the Economic Crimes' Department, telephoned the applicant and invited him for an interview. During the interview, P. ordered the applicant with gestures to speak low because the room was bugged. Afraid to speak, P. wrote down all crucial phrases and showed them to the applicant. Such precaution not being enough, P. and the applicant continued their conversation in the corridor. P. told the applicant that he would start a new criminal case against him, imprison him, and let him languish to death. P. demanded the applicant to withdraw his application from the Court because it had troubled influential officials of the Chuvash Republic. 32. On 26 December 2002, the applicant's car ran into four lorries. The applicant alleges that the accident must have been set up by his persecutors, because the traffic police ignored it. 33. The accident convinced the applicant that the threats were serious. He and his wife went to Moscow, received French tourist visas, and left for Strasbourg to seek political asylum. 34. The applicant had to leave behind his minor daughter, a student, because she had no travel documents. After the applicant's departure, the police threatened to kill the daughter. She would have joined her parents in Strasbourg, but the parents wished her to finish the studies. As soon as the daughter had passed her first-year exams, she received a travel passport and on 13 July 2003 came to Strasbourg. 35. On an unspecified date, D., the manager of the partnership defrauded by the applicant, requested the police to reinvestigate the applicant's case. He asserted that the investigation had been superficial, and that the applicant had not made good the damage inflicted to the partnership. 36. In December 2002, K. and P., officers of the Economic Crimes' Department of the Ministry of the Interior of the Chuvash Republic, invited the applicant for an interview in connection with D.'s allegation. Since the officers had failed to record D.'s oral application formally, their superiors warned them. 37. The relevant extracts from the General Reports by the European Committee for the prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows: “46. Overcrowding is an issue of direct relevance to the CPT's mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint. 47. A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners... [P]risoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature... 48. Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard... It is also axiomatic that outdoor exercise facilities should be reasonably spacious... 49. Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment... 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. 51. It is also very important for prisoners to maintain reasonably good contact with the outside world. Above all, a prisoner must be given the means of safeguarding his relationships with his family and close friends. The guiding principle should be the promotion of contact with the outside world; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations...” “13. As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee's mandate (cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive. The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention...” “28. The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports... 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... Large-capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions. 30. The CPT frequently encounters devices, such as metal shutters, slats, or plates fitted to cell windows, which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation. They are a particularly common feature of establishments holding pre-trial prisoners. The CPT fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners... [E]ven when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy...” | 1 |
train | 001-97494 | ENG | SWE | ADMISSIBILITY | 2,010 | VALQUIST v. SWEDEN | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra | 1. The applicant, Mr Lars Valquist, is a Swedish national who was born in 1956 and lives in Staffanstorp. 2. On 12 November 2007 the applicant sent an e-mail to the headquarters of the Swedish Armed Forces (Försvarsmakten) in which he requested access to all information about him held by the Armed Forces. He was convinced that the Armed Forces had information about him as he claimed that he had been under surveillance since the early 1980s, when he had given a tip about a person to them and he had later turned down an offer to work for them. He alleged that he had, inter alia, been the victim of telephone tapping, camera surveillance, invasion of his correspondence, intrusion into his home, bugging and monitoring of his computer, e-mail and Internet as well as of involuntary medication. As the applicant now wished to initiate proceedings against the Swedish State for illegal surveillance and harassment in order to obtain compensation, he needed all the information about him kept by the Armed Forces to prove his case. 3. On 7 December 2007 the Armed Forces granted his request as concerned four official documents, namely three e-mails and one print-out from the Armed Forces' register, which all concerned the applicant's present request. As concerned eight other internal documents, which had also been created as a result of the applicant's request, the Armed Forces rejected the request on the ground that these documents had not yet been dispatched (expedierade). As the documents related to a case which was not yet finalised, they were not considered to have been created within the meaning of the Freedom of the Press Act (Tryckfrihetsförordningen, 1949:105 –hereafter “the 1949 Act”) and, consequently, they had not yet become official. Thus, the applicant could not obtain access to them. Lastly, the Armed Forces noted that most information held by the Armed Forces about individuals was not secret in relation to the person it concerned. However, certain information could be confidential under the Secrecy Act (Sekretesslagen, 1980:100), such as information relating to national security. In this respect, it could be harmful to national security to inform a person that the Armed Forces either had or did not have information about him or her. For this reason, it rejected the remainder of the applicant's request about whether or not there existed any more information about him. 4. The applicant appealed against the decision to the Administrative Court of Appeal (kammarrätten) in Stockholm. On 28 February 2008, after having visited the Armed Forces' headquarters and examined the files, the appellate court upheld the Armed Forces' decision in full. 5. Upon further appeal, the Supreme Administrative Court (Regeringsrätten) refused leave to appeal on 23 April 2008. 6. Chapter 2, section 1, of the 1949 Act stipulates that every Swedish citizen shall be entitled to free access to official documents in order to encourage the free exchange of opinion and the availability of comprehensive information. However, according to Chapter 2, section 2, of the 1949 Act, the right of access to official documents may be restricted in specific circumstances, such as if the restriction is necessary having regard to the security of the State or its relations with another State or an international organisation. Any restriction on the right of access to official documents must be carefully specified in a special law, or if more appropriate in a particular situation, in another law to which the special law refers (Chapter 2, section 2, paragraph 2). 7. Moreover, Chapter 2, section 3, of the 1949 Act stipulates that a document is considered to be official if it is kept by a public authority and if it can be deemed to have been received or created by a public authority (Chapter 2, section 3). In this respect, Chapter 2, section 7, of the 1949 Act states that a document is deemed to have been created by a public authority when it has been dispatched. A document which has not been dispatched is considered to have been created when the matter to which it relates has been finally settled by the authority or, if the document does not relate to a specific matter, when it has been finally checked and approved by the authority, or has otherwise received final form. 8. According to Chapter 2, section 2, of the Secrecy Act, as in force at the relevant time, information which related to activities to defend the country or planning or preparing such activities or otherwise related to the Armed Forces was secret if the disclosure of such information was likely to harm the country's defence or otherwise endanger national security. | 0 |
train | 001-57487 | ENG | CHE | CHAMBER | 1,988 | CASE OF MÜLLER AND OTHERS v. SWITZERLAND | 2 | No violation of Art. 10 | null | 8. The first applicant, Josef Felix Müller, a painter born in 1955, lives in St. Gall. The other nine applicants are: (a) Charles Descloux, art critic, born in 1939 and living in Fribourg; (b) Michel Gremaud, art teacher, born in 1944 and living at Guin, Garmiswil; (c) Christophe von Imhoff, picture restorer, born in 1939 and living at Belfaux; (d) Paul Jacquat, bank clerk, born in 1940 and living at Belfaux; (e) Jean Pythoud, architect, born in 1925 and living in Fribourg; (f) Geneviève Renevey, community worker, born in 1946 and living at Villars-sur-Glâne; (g) Michel Ritter, artist, born in 1949 and living at Montagny-la-Ville; (h) Jacques Sidler, photographer, born in 1946 and living at Vuisternens-en-Ogoz; (i) Walter Tschopp, assistant lecturer, born in 1950 and living in Fribourg. 9. Josef Felix Müller has exhibited on his own and with other artists on many occasions, particularly since 1981, both in private galleries and in museums, in Switzerland and elsewhere. With the assistance of the Federal Office of Culture, he took part in the Sydney Biennial in Australia in 1984, as Switzerland’s representative. He has been awarded several prizes and has sold works to museums such as the Kunsthalle in Zürich. 10. In 1981, the nine last-mentioned applicants mounted an exhibition of contemporary art in Fribourg at the former Grand Seminary, a building due to be demolished. The exhibition, entitled "Fri-Art 81", was held as part of the celebrations of the 500th anniversary of the Canton of Fribourg’s entry into the Swiss Confederation. The organisers invited several artists to take part, each of whom was allowed to invite another artist of his own choosing. The artists were meant to make free use of the space allocated to them. Their works, which they created on the spot from early August 1981 onwards, were to have been removed when the exhibition ended on 18 October 1981. 11. In the space of three nights Josef Felix Müller, who had been invited by one of the other artists, produced three large paintings (measuring 3.11m x 2.24m, 2.97m x 1.98m and 3.74m x 2.20m) entitled "Drei Nächte, drei Bilder" ("Three Nights, Three Pictures"). They were on show when the exhibition began on 21 August 1981. The exhibition had been advertised in the press and on posters and was open to all, without any charge being made for admission. The catalogue, specially printed for the preview, contained a photographic reproduction of the paintings. 12. On 4 September 1981, the day of the official opening, the principal public prosecutor of the Canton of Fribourg reported to the investigating judge that the paintings in question appeared to come within the provisions of Article 204 of the Criminal Code, which prohibited obscene publications and required that they be destroyed (see paragraph 20 below). The prosecutor thought that one of the three pictures also infringed freedom of religious belief and worship within the meaning of Article 261 of the Criminal Code. According to the Government, the prosecutor had acted on an information laid by a man whose daughter, a minor, had reacted violently to the paintings on show; some days earlier another visitor to the exhibition had apparently thrown down one of the paintings, trampled on it and crumpled it. 13. Accompanied by his clerk and some police officers, the investigating judge went to the exhibition on 4 September and had the disputed pictures removed and seized; ten days later, he issued an attachment order. On 30 September 1981, the Indictment Chamber dismissed an appeal against that decision. After questioning the ten applicants on 10, 15 and 17 September and 6 November 1981, the investigating judge committed them for trial to the Sarine District Criminal Court. 14. On 24 February 1982, the court sentenced each of them to a fine of 300 Swiss francs (SF) for publishing obscene material (Article 204 § 1 of the Criminal Code) - the convictions to be deleted from the criminal records after one year - but acquitted them on the charge of infringing freedom of religious belief and worship (Article 261). It also ordered that the confiscated paintings should be deposited in the Art and History Museum of the Canton of Fribourg for safekeeping. At the hearing on 24 February, it had heard evidence from Mr. Jean-Christophe Ammann, the curator of the Kunsthalle in Basle, as to Josef Felix Müller’s artistic qualities. In its judgment, the court pointed out first of all that "the law [did] not define obscenity for the purposes of Article 204 CC [Criminal Code] and the concept [had] to be clarified by means of interpretation, having regard to the intent and purpose of the enactment as well as to its place in the legislation and in the overall legal system". After referring to the Federal Court’s case-law on the subject, it said among other things: "In the instant case, although Mr. Müller’s three works are not sexually arousing to a person of ordinary sensitivity, they are undoubtedly repugnant at the very least. The overall impression is of persons giving free rein to licentiousness and even perversion. The subjects - sodomy, fellatio, bestiality, the erect penis - are obviously morally offensive to the vast majority of the population. Although allowance has to be made for changes in the moral climate, even for the worse, what we have here would revolutionise it. Comment on the confiscated works is superfluous; their vulgarity is plain to see and needs no elaborating upon. ... Nor can a person of ordinary sensitivity be expected to go behind what is actually depicted and make a second assessment of the picture independently of what he can actually see. To do that he would have to be accompanied to exhibitions by a procession of sexologists, psychologists, art theorists or ethnologists in order to have explained to him that what he saw was in reality what he wrongly thought he saw. Lastly, the comparisons with the works of Michelangelo and J. Bosch are specious. Apart from the fact that they contain no depictions of the kind in Müller’s paintings, no valid comparison can be made with history-of-art or cultural collections in which sexuality has a place ..., but without lapsing into crudity. Even with an artistic aim, crude sexuality is not worthy of protection ... . Nor are comparisons with civilisations foreign to western civilisation valid." On the question whether to order the destruction of the pictures under paragraph 3 of Article 204 (see paragraph 20 below), the court said: "Not without misgivings, the court will not order the destruction of the three works. The artistic merit of the three works exhibited in Fribourg is admittedly less obvious than is supposed by the witness Ammann, who nevertheless said that the paintings Müller exhibited in Basle were more ‘demanding’. The court would not disagree. Müller is undoubtedly an artist of some accomplishment, particularly in the matter of composition and in the use of colour, even though the works seized in Fribourg appear rather scamped. Nonetheless, the court, deferring to the art critic’s opinion while not sharing it, and concurring with the relevant findings of the Federal Court in the Rey judgment (ATF 89 IV 136 et seq.), takes the view that in order to withhold the three paintings from the general public - to ‘destroy’ them - it is sufficient to place them in a museum, whose curator will be required to make them available only to a few serious specialists capable of taking an exclusively artistic or cultural interest in them as opposed to a prurient interest. The Art and History Museum of the Canton of Fribourg meets the requirements for preventing any further breach of Article 204 of the Criminal Code. The three confiscated paintings will be deposited there." 15. All the applicants appealed on points of law on 24 February 1982; in particular, they challenged the trial court’s interpretation as regards the obscenity of the relevant paintings. For example, it was argued by Josef Felix Müller (in pleadings of 16 March 1982) that something which was obscene sought directly to arouse sexual passion, and that this had to be its purpose, with the essential aim of pandering to man’s lowest instincts or else for pecuniary gain. This, it was alleged, was never the case "where artistic or scientific endeavour [was] the primary consideration". 16. The Fribourg Cantonal Court, sitting as a court of cassation, dismissed the appeals on 26 April 1982. Referring to the Federal Court’s case-law, it acknowledged that "in the recent past, and still today, the public’s general views on morality and social mores, which vary at different times and in different places, have changed in a way which enables things to be seen more objectively and naturally". The trial court had to take account of this change, but that did not mean that it had to show complete permissiveness, which would leave no scope for the application of Article 204 of the Criminal Code. As for works of art, they did not in themselves have any privileged status. At most they might escape destruction despite their obscenity. Their creators nonetheless fell within the thrust of Article 204, "since that statutory provision as a whole [was] designed to protect public morals, even in the sphere of the fine arts". That being so, the court could dispense with deciding the question whether the pictures complained of were the outcome of "artistic ideas, though even then, intention [was] one thing and realisation of it another". Like the trial court, the appellate court found that Josef Felix Müller’s paintings aroused "repugnance and disgust": "These are not works which, in treating a particular subject or scene, allude to sexual activity more or less discreetly. They place it in the foreground, depicting it not in the embrace of man and woman but in vulgar images of sodomy, fellatio between males, bestiality, erect penises and masturbation. Sexual activity is the main, not to say sole, ingredient of all three paintings, and neither the appellants’ explanations nor the witness Mr. Ammann’s learned-seeming but wholly unpersuasive remarks can alter that fact. To go into detail, however distasteful it may be, one of the paintings contains no fewer than eight erect members. All the persons depicted are entirely naked and one of them is engaging simultaneously in various sexual practices with two other males and an animal. He is kneeling down and not only sodomising the animal but holding its erect penis in another animal’s mouth. At the same time he is having the lower part of his back - his buttocks, even - fondled by another male, whose erect penis a third male is holding towards the first male’s mouth. The animal being sodomised has its tongue extended towards the buttocks of a fourth male, whose penis is likewise erect. Even the animals’ tongues (especially in the smallest painting) are more suggestive, in shape and aspect, of erect male organs than of tongues. Sexual activity is crudely and vulgarly portrayed for its own sake and not as a consequence of any idea informing the work. Lastly, it should be pointed out that the paintings are large ..., with the result that their crudeness and vulgarity are all the more offensive. The court is likewise unconvinced by the appellants’ contention that the paintings are symbolical. What counts is their face value, their effect on the observer, not some abstraction utterly unconnected with the visible image or which glosses over it. Furthermore, the important thing is not the artist’s meaning or purported meaning but the objective effect of the image on the observer ... . Not much of the argument in the appeal was directed to the issues of intention or of awareness of obscenity, nor indeed could it have been. In particular, an author is aware of a publication’s obscenity when he knows it deals with sexual matters and that any written or pictorial allusion to such matters is likely, in the light of generally accepted views, grossly to offend the average reader’s or observer’s natural sense of decency and propriety. That was plainly so here, as the evidence at the trial confirmed. ... Indeed, several of the defendants admitted that the paintings had shocked them. It should be noted that even someone insensible to obscenity is capable of realising that it may disturb others. As the trial court pointed out, the defendants at the very least acted recklessly. Lastly, it is immaterial that similar works have allegedly been exhibited elsewhere; the three paintings in issue do not on that account cease to be obscene, as the trial court rightly held them to be ..." 17. On 18 June 1982, the applicants lodged an application for a declaration of nullity (Nichtigkeitsbeschwerde) with the Federal Court. They sought to have the judgment of 26 April set aside and the case remitted with a view to their acquittal and the return of the confiscated paintings or, in the alternative, merely the return of the paintings. In their submission, the Fribourg Cantonal Court had wrongly interpreted Article 204 of the Criminal Code; in particular, it had taken no account of the scope of the freedom of artistic expression, guaranteed inter alia in Article 10 (art. 10) of the Convention. Mr. Ammann, one of the most distinguished experts on modern art, had confirmed that these were works of note. Similar pictures by Josef Felix Müller, moreover, had been exhibited in Basle in February 1982 and it had not occurred to anyone to regard them as being obscene. As to the "publication" of obscene items, which was prohibited under Article 204 of the Criminal Code, this was a relative concept. It should be possible to show in an exhibition pictures which, if they were displayed in the market-place, would fall foul of Article 204; people interested in the arts ought to have an opportunity to acquaint themselves with all the trends in contemporary art. Visitors to an exhibition of contemporary art like "Fri-Art 81" should expect to be faced with modern works that might be incomprehensible. If they did not like the paintings in issue, they were free to look away from them and pass them by; there was no need for the protection of the criminal law. It was not for the court to undertake indirect censorship of the arts. On a strict construction of Article 204 - that is, one which, having regard to the fundamental right to freedom of artistic expression, left it to art-lovers to decide for themselves what they wanted to see -, the applicants should be acquitted. Confiscation of the disputed paintings, they submitted, could only be ordered if they represented a danger to public order such that returning them could not be justified - and that was a matter the court of cassation had not considered. Since the pictures had been openly on display for ten days without giving rise to any protests, it was difficult to see how such a danger was made out. Josef Felix Müller would certainly not show his paintings in Fribourg in the near future. On the other hand, they could be shown without any difficulty elsewhere, as was proved by his exhibition in Basle in February 1982. It was consequently out of all proportion to deprive him of them. 18. The Criminal Cassation Division of the Federal Court dismissed the appeal on 26 January 1983 for the following reasons: "The decided cases show that for the purposes of Article 204 of the Criminal Code, any item is obscene which offends, in a manner that is difficult to accept, the sense of sexual propriety; the effect of the obscenity may be to arouse a normal person sexually or to disgust or repel him. ... The test of obscenity to be applied by the court is whether the overall impression of the item or work causes moral offence to a person of ordinary sensitivity ... The paintings in issue show an orgy of unnatural sexual practices (sodomy, bestiality, petting), which is crudely depicted in large format; they are liable grossly to offend the sense of sexual propriety of persons of ordinary sensitivity. The artistic licence relied on by the appellant cannot in any way alter that conclusion in the instant case. The content and scope of constitutional freedoms are determined on the basis of the federal law currently in force. This applies inter alia to freedom of the press, freedom of opinion and artistic freedom; under Article 113 [of the Federal Constitution], the Federal Court is bound by federal enactments ... In the field of artistic creation [it] has held that works of art per se do not enjoy any special status ... A work of art is not obscene, however, if the artist contrives to present subjects of a sexual nature in an artistic form such that their offensiveness is toned down and ceases to predominate ... In reaching its decision, the criminal court does not have to view the work through an art critic’s spectacles (which would often ill become it) but must decide whether the work is liable to offend the unsuspecting visitor. Expert opinion as to the artistic merit of the work in issue is therefore irrelevant at this stage, though it might be relevant to the decision as to what action to take in order to prevent fresh offences (destruction or seizure of the item; Art. 204 § 3 CC ...). The Cantonal Court duly scrutinised the paintings for a predominantly aesthetic element. Having regard in particular to the number of sexual features in each of the three (one of them, for instance, contains eight erect members), it decided that the emphasis was on sexuality in its offensive forms and that this was the predominant, not to say sole, ingredient of the items in dispute. The Cassation Division of the Federal Court agrees. The overall impression created by Müller’s paintings is such as to be morally offensive to a person of normal sensitivity. The Cantonal Court’s finding that they were obscene was accordingly not in breach of federal law. The appellants maintained that the publication element of the offences was lacking. They are wrong. The obscene paintings were on display in an exhibition open to the public which had been advertised on posters and in the press. There was no condition of admission to ‘Fri-Art 81’, such as an age-limit. The paintings in dispute were thus made accessible to an indeterminate number of people, which is the criterion of publicity for the purposes of Article 204 CC ..." Finally, the Criminal Cassation Division of the Federal Court declared the alternative application for return of the paintings to be inadmissible as it had not first been made before the cantonal courts. 19. On 20 January 1988, the Sarine District Criminal Court granted an application made by Josef Felix Müller on 29 June 1987 and ordered the return of the paintings. On the basis that it had been requested in effect to reconsider the confiscation order it had made in 1982, the court held that it had to decide whether the order could stand "almost eight years later". Hence, the reasons for its decision were as follows: "In Swiss law, confiscation is a preventive measure in rem. This is already clear from the legislative text, which classifies Article 58 under the heading ‘other measures’ - the heading in the margin for Articles 57-62 CC - and not under the subsidiary penalties prescribed in Articles 51-56 CC ... The confiscation of items or assets may admittedly constitute a serious interference with property rights. It must be proportionate and a more lenient order may thus be justified where it achieves the desired aim. Confiscation remains however the rule. It should be departed from only where a more lenient order achieves the desired aim ... In this case, when the confiscation order was made in 1982, the statutory provision (Article 204 § 3 CC) would normally have required the destruction of the paintings. Giving a reasoned decision, the court preferred a more lenient measure which achieved the aim of security, whilst complying with the principle of proportionality ... . The measure itself should remain in force only as long as the statutory requirements are satisfied ... . It is true that the Code makes no provision for an order under Article 58 to be subsequently discharged or varied. The legislature probably did not address itself to this question at the time, whereas provision was made whereby other measures, which were admittedly much more serious because they restricted personal liberty, could be re-examined by a court of its own motion (Articles 42-44 CC). It does not follow that discharge or variation is completely illegal. The Federal Court has, moreover, held that a measure should not remain in force where the circumstances justifying it cease to obtain ... . Accordingly, the view must be taken that an order confiscating a work of art may subsequently be discharged or varied, either because the confiscated item is no longer dangerous and a measure is no longer required, or because the necessary degree of security may be achieved by another more lenient measure (judgment of the Basle-Urban Court of Appeal of 19 August 1980, in the Fahrner case). Judgments concerning freedom of expression and its scope often refer to Article 10 §§ 1 and 2 (art. 10-1, art. 10-2) [of the Convention]. In this area, the decisions of the Convention authorities have a direct influence on the Swiss legal system, by way of strengthening individual liberties and judicial safeguards ... In this case, where the applicant has availed himself of the possibility of applying for the return of his paintings, the court must consider whether the grounds on which it made the confiscation order in the first place, which restricted J.F. Müller’s freedom of expression, are still valid. While the restriction was necessary in a democratic society in 1982 and was justified by the need to safeguard and protect morality and the rights of others, the court considers, admittedly with some hesitation, that the order may now be discharged. It should be noted that the confiscation measure was not absolute but merely of indeterminate duration, which left room to apply for a reconsideration. It appears to the court that the preventive measure has now fulfilled its function, namely to ensure that such paintings are not exhibited in public again without any precautions. Those convicted have themselves admitted that the paintings could shock people. Once the order has achieved its aim, there is no reason why it should continue in force. Accordingly, the artist is entitled to have his works returned to him. It is not necessary to attach any obligations to this decision. If J.F. Müller decided to exhibit the three paintings again elsewhere, he knows that he would be running the risk of further action by the courts under Article 204 of the Criminal Code. Finally, it appears that by exhibiting three provocative paintings in a former seminary in 1982, J.F. Müller deliberately intended to draw attention to himself and the organisers. Since then he has become known for more ‘demanding’ works, to use the terms of the art critic who gave evidence in 1982. Having achieved a certain repute, he may find it unnecessary to shock by resorting to vulgarity. In any event, there is no reason to believe that he will use the three paintings in future to offend other people’s moral sensibilities. ..." Josef Felix Müller recovered his paintings in March 1988. 20. Article 204 of the Swiss Criminal Code provides: "1. Anyone who makes or has in his possession any writings, pictures, films or other items which are obscene with a view to trading in them, distributing them or displaying them in public, or who, for the above purposes, imports, transports or exports such items or puts them into circulation in any way, or who openly or secretly deals in them or publicly distributes or displays them or by way of trade supplies them for hire, or who announces or makes known in any way, with a view to facilitating such prohibited circulation or trade, that anyone is engaged in any of the aforesaid punishable activities, or who announces or makes known how or through whom such items may be directly or indirectly procured, shall be imprisoned or fined. 2. Anyone supplying or displaying such items to a person under the age of 18 shall be imprisoned or fined. 3. The court shall order the destruction of the items." The Federal Court has consistently held that any works or items which offend, in a manner that is difficult to accept, the sense of sexual propriety, are obscene; the effect may be to arouse a normal person sexually or to disgust or repel him (Judgments of the Swiss Federal Court (ATF), vol. 83 (1957), part VI, pp. 19-25; vol. 86 (1960), part IV, pp. 19-25; vol. 87 (1961), part IV, pp. 73-85); making such items available to an indeterminate number of people amounts to "publication" of them. 21. The Federal Court held in 1963 that, for the purposes of paragraph 3 of Article 204, if an obscene object was of undoubted cultural interest, it was sufficient to withhold it from the general public in order to "destroy" it. In its judgment of 10 May 1963 in the case of Rey v. Attorney-General of Valais (ATF vol. 89 (1963), part IV, pp. 133-140), it held inter alia "that, in making destruction mandatory, the legislature had in contemplation only the commonest case, publication of entirely pornographic items". As "destruction is a measure as opposed to a punishment", "it must not go beyond what is necessary to achieve the desired aim", that is to say "the protection of public morality". The court went on to state: "In other words, ‘destruction’, as prescribed by Article 204 § 3 of the Criminal Code, must protect public morality but go no further than that requirement warrants. In the commonest case, that of pornographic publications devoid of artistic, literary or scientific merit, the destruction will be physical and irreversible, not just because of the lack of any cultural value, but also because, in general, this is the only adequate way of ultimately protecting the public from the danger of the confiscated items ... . It is quite a different matter when one is dealing, as in the present case, with an irreplaceable or virtually irreplaceable work of art. There is then a clash of two opposing interests, both of them important in terms of the civilisation to which Switzerland belongs: the moral and the cultural interest. In such a case, the legislature and the courts must find a way of reconciling the two. This court has thus held, in applying Article 204, that it must always be borne in mind that artistic creativity is itself subject to certain constraints of public morality, but that there must nonetheless be artistic freedom ... . It is, accordingly, a matter for the courts to consider in each case in view of all the circumstances, whether physical destruction is essential or whether a more lenient measure suffices. The mandatory requirement of Article 204 § 3 will, therefore, be complied with where the courts order that an obscene item devoid of any cultural value is to be physically destroyed, and, in respect of an item of undoubted cultural interest, where effective steps are taken to withhold it from the general public and to make it available only to a limited number of serious specialists ... . If such precautions are taken, Article 204 of the Criminal Code will not be applicable to items which are inherently obscene but of genuine cultural interest. A distinction must also be drawn between such items and pure pornography. The cultural interest of an item admittedly does not prevent it from being obscene. But it does require the courts to determine with particular care what steps must be taken to prevent general access to the item, while making it available to a well-defined number of serious connoisseurs; this will comply with the requirements of Article 204 § 3 of the Criminal Code, which, as has been shown, makes destruction mandatory but only as a measure whose effects must be in proportion to the intended aim ... ." This particular case concerned seven ivory reliefs and thirty prints of antique Japanese art; the court held that the requirement to "destroy" them was met by placing them in a museum. 22. Previous to the Sarine District Criminal Court’s decision of 20 January 1988 (see paragraph 19 above), the Basle-Urban Court of Appeal had already discharged a confiscation order made pursuant to the Criminal Code. In a judgment of 29 August 1980, to which the District Court referred, the Court of Appeal granted an application to restore to the heirs of the painter Kurt Fahrner a painting confiscated in 1960, after he had been convicted of an infringement of freedom of religious belief and worship (Article 261 of the Criminal Code). The Court of Appeal held inter alia that as confiscation "always interferes with the property rights of the person concerned, a degree of restraint is called for and, in accordance with the principle of proportionality, such a measure must go no further than is essential to maintain security". The court added (translation from the German): "This principle applies, in particular, where (on account of its distinctiveness) the item subject to confiscation is hard or impossible to replace. Therefore the principle applies more strictly to a work of art (e.g. a painting) than to a weapon used to commit an offence ... . Finally, having regard to its preventive character, the measure should remain in force only for as long as the legal requirements are satisfied ... ." Accordingly, the view had to be taken that "an order confiscating a work of art may subsequently be discharged or varied, either because the confiscated item is no longer dangerous and the measure no longer required, or because the necessary degree of security may be achieved by another more lenient measure". In that particular case, the reasoning of the Court of Appeal was as follows: "To apply present-day criteria, both parties agree with the court that the public’s ideas of obscenity, immorality, indecency, blasphemy, etc. have changed considerably in the last twenty years and have become distinctly more liberal. Although the confiscated painting is undoubtedly liable to offend a great many people’s religious sensibilities even today, there is no reason to fear that, by exhibiting it in a private or suitable public place, one would be endangering religious harmony, public safety, morals or public order within the meaning of Article 58 of the Criminal Code ... Whether there is a danger thus depends primarily on where the item to be confiscated is liable to end up ... . In this case, the exhibition of the painting in a museum would at present clearly be unobjectionable in the context of Article 58 of the Criminal Code. However, even if the picture were to be returned unconditionally, the likelihood of misuse must be regarded as minimal because Fahrner, who deliberately set out, by means of a provocative exhibition, to draw attention to himself as a painter and to his ideas and works, has since died. There is no reason to believe that the applicants have any intention of using the picture to offend other people’s religious sensibilities. At any rate, the picture would not lend itself to such a purpose (Article 261 of the Criminal Code) sufficiently to permit the 1960 confiscation order to stand ... . Any danger of that kind arising from the picture is no longer serious enough to justify action under Article 58 of the Criminal Code. Nor is there any reason to hand this picture over to a scientific collection, i.e. a museum, in order to protect the public and morality. The confiscation order should be discharged and the picture unconditionally returned to the applicants, whose main application is thus granted." | 0 |
train | 001-94565 | ENG | RUS | CHAMBER | 2,009 | CASE OF KIMLYA AND OTHERS v. RUSSIA | 1 | Violation of Art. 9 read in the light of Art. 11;Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 6. The first applicant, Mr Kimlya, was born in 1977 and lives in Surgut in the Khanty-Mansi Autonomous Region. He is the President of the Church of Scientology of Surgut City. 7. The second applicant, Mr Sultanov, was born in 1965 and lives in Nizhnekamsk in the Republic of Tatarstan. He is a co-founder and member of the third applicant, the Church of Scientology of Nizhnekamsk, a religious group without legal-entity status. 8. In 1994 the first centre for the study of Dianetics (the creed of the Church of Scientology) opened in Surgut and obtained State registration as a social non-governmental organisation under the name of “Surgut Humanitarian Dianetics Centre”. 9. In 1995 a new Russian law on non-governmental associations was enacted. It required all non-governmental associations established before its entry into force to be re-registered before 1 July 1999. The Centre applied for re-registration; however, its application was refused on 23 July 1999 on the ground that the aims of the organisation were religious in nature. On 23 November 1999 the Justice Department of the Khanty-Mansi Region (“the Khanty-Mansi Justice Department”) sought a court decision terminating the Centre’s existence. 10. The Centre applied for registration as a non-commercial partnership regulated by the Civil Code of the Russian Federation. On 4 October 1999 the deputy mayor of Surgut Town Council rejected the application, referring to the religious purposes of the Centre. 11. On 2 January 2000 the first applicant, in community with his fellow believers, resolved to found the “Scientology Group of Surgut City” and to hold regular services on Sundays. At a subsequent meeting on 1 July 2000, the first applicant and other believers passed a resolution to establish a local religious organisation, the Church of Scientology of Surgut City (“the Surgut Church”). 12. On 15 August 2000 the ten founding members, including the first applicant, applied to the Khanty-Mansi Justice Department for registration as a local religious organisation having the status of a legal entity. 13. On 14 September 2000 the Khanty-Mansi Justice Department refused registration in the following terms: “You have failed to produce a document issued by a local authority certifying that the religious group has existed in the given territory for no less than fifteen years, or a document issued by the managing body of a centralised religious organisation certifying that the religious group is a branch of such an organisation, and this does not comply with the requirements of section 11(5) of the Federal Law on freedom of conscience and religious associations. The refusal of registration does not prohibit a subsequent new application for registration provided that the grounds for the refusal have been removed.” 14. On 17 October 2000 the first applicant appealed against that decision to the Khanty-Mansi Town Court. He alleged that his constitutional right to freedom of conscience had been violated and that his religious group had been discriminated against. Lacking the status of a legal entity, his religious group could not print, export or import religious books or articles of worship, own property, carry out charitable activities or found organisations for religious purposes. 15. On 25 December 2000 the Khanty-Mansi Town Court dismissed the complaint. It held that the Khanty-Mansi Justice Department had correctly refused registration because the Surgut Church had failed to provide a document confirming it had been in existence in the region for at least fifteen years. As to the first applicant’s reliance on the Constitution, it held: “this reference ... is far-fetched and cannot be taken into consideration.” No further justification was provided. 16. On 21 February 2001 the Khanty-Mansi Regional Court upheld the judgment of 25 December 2000. The court repeated that the applicant’s references to the decisions of the Constitutional Court and the Russian Constitution were “groundless”. 17. Following a request by the first applicant, on 18 January 2002 the Presidium of the Khanty-Mansi Regional Court instituted supervisory-review proceedings, quashed the contested judgments and remitted the matter to the Khanty-Mansi Town Court for a fresh examination. It noted that the Khanty-Mansi Justice Department should have “left the application unexamined” until all the documents required by law had been produced. 18. On 16 May 2002 the Khanty-Mansi Town Court commissioned an expert study of the religious teachings of the Surgut Church and stayed the proceedings in the case. On 24 July 2002 the Khanty-Mansi Regional Court upheld that decision on appeal. 19. On 22 November 2004 the Khanty-Mansi Town Court resumed the proceedings and delivered a new judgment on the same day. It held that the refusal to register the Surgut Church had been unlawful because in the absence of a certificate showing its fifteen-year presence in the region, the Khanty-Mansi Justice Department should have left the application for registration “unexamined”. It ordered the Khanty-Mansi Justice Department to register the Surgut Church. 20. On 18 January 2005 the Khanty-Mansi Regional Court quashed the judgment in so far as it concerned the order to register the Surgut Church, on the ground that the first applicant had not produced all the documents required by Law no. 125-FZ of 26 September 1997 (“the Religions Act”), a circumstance which the Regional Court considered to be an impediment to the registration of the Surgut Church as a legal entity. 21. On 28 October 1998 the second applicant and fellow believers resolved to found the Church of Scientology of Nizhnekamsk as a local religious group. 22. On 23 December 1999 the applicant church applied to the State Registration Chamber of the Republic of Tatarstan (“the Registration Chamber”) for registration as a local religious organisation. 23. In a letter of 17 April 2000, the Registration Chamber informed the second applicant that the term for registration had been extended for six months from 13 January 2000 in order to allow the State authorities to carry out a religious expert examination. 24. In a letter of 7 September 2001, a deputy chairperson of the Registration Chamber informed the president of the applicant church that the application for registration had been rejected as “there [had] so far been no conclusions from the religious expert examination to which the applicant church’s documents [had] been subjected”. 25. The second applicant appealed to a court against the refusal of registration. 26. On 21 December 2001 the Nizhnekamsk Town Court of the Republic of Tatarstan dismissed the second applicant’s claim, arguing that there was no actual dispute as the authorities had yet to carry out the religious expert examination and the application for registration had yet to be examined on the merits. 27. On 21 January 2002 the Supreme Court of the Republic of Tatarstan (“the Supreme Court”) quashed the judgment of 21 December 2001 and remitted the claim to the Town Court for a fresh examination. 28. On 7 March 2002 the Town Court again dismissed the second applicant’s claim. It found that the refusal had been justified because internal Order no. 254 issued by the Ministry of Health of the Russian Federation on 19 June 1996 prohibited the use of Scientology methods in health services. 29. On 18 April 2002 the Supreme Court quashed the judgment of 7 March 2002 and remitted the matter to the Town Court. It found that the absence of a religious expert examination was not a valid ground for the refusal of registration and that an internal order issued by a ministry was hierarchically subordinate to Russian laws and could not have been relied upon to restrict citizens’ rights. 30. On 28 May 2002 the Town Court granted the second applicant’s claim and found that the refusal to register the applicant church had been unlawful. It noted that the application for registration had been made in December 1999, but that “the religious organisation [had] still not been registered owing to contrived reasons, although the federal law contain[ed] an exhaustive list of grounds on which registration [could] be refused”. It also held that there was no doubt as to “the religious nature of the organisation being registered”, that a religious expert examination was not mandatory and that the absence of such an examination could not be cited as a ground for refusing registration as this would encroach on citizens’ rights. On 4 July 2002 the Supreme Court upheld the judgment. 31. In the meantime, on 1 July 2002 the power to approve the registration of religious organisations was transferred from the Registration Chamber to the Main Department of the Ministry of Justice of the Republic of Tatarstan (“the Tatar Justice Department”). Accordingly, on 25 July 2002 the application for registration of the applicant church and related documents were also transferred to the Tatar Justice Department. 32. On 13 August 2002 the Town Court forwarded a copy of its judgment of 28 May 2002 to the Justice Department for execution. However, the Tatar Justice Department refused to proceed with the registration on the ground that it was not the legal successor to the Registration Chamber. 33. The second applicant asked the Town Court to clarify the judgment of 28 May 2002 specifically as to which authority was to execute the judgment in view of the fact that the power of the Registration Chamber to register religious organisations had been transferred to the Tatar Justice Department with effect from 1 July 2002 further to a change in the law. 34. On 4 September 2002 the applicant church again requested the Tatar Justice Department to grant it legal-entity status, pursuant to the judgment of 28 May 2002. 35. On 10 October 2002 the Town Court held that no clarification of the judgment was required as “no ambiguity could be found in the judgment”. It also noted that, in the event of improper execution of a court judgment or a violation of the second applicant’s rights by other State officials, he could lodge a complaint with a court on “general grounds”. 36. The second applicant appealed against the decision of 10 October 2002 to the Supreme Court. However, it appears that the appeal was never examined as by that time the case file had been forwarded to the President of the Supreme Court of the Republic of Tatarstan in connection with the application for supervisory review lodged by the Tatar Justice Department (see paragraphs 38-39 below). 37. On 14 October 2002 the second applicant sued the Tatar Justice Department for its failure to comply with the final judgment of 28 May 2002 and to register the applicant church. It appears that this action was subsequently stayed in connection with the supervisory-review proceedings described below. 38. On 16 October 2002 the head of the Tatar Justice Department wrote to a vice-president of the Supreme Court of the Republic of Tatarstan, requesting him to exercise his supervisory-review powers in respect of the judgment of 28 May 2002 with a view to quashing it. 39. On 12 November 2002 the President of the Supreme Court lodged an application for supervisory review with the Presidium of the court. On 27 November 2002 the Presidium granted the application, quashed the judgments of 28 May and 4 July 2002 and referred the matter back for a fresh examination. It found that a religious expert examination was a mandatory precondition for State registration of a little-known religious organisation such as the applicant church. 40. On 28 November 2002 the Expert Council on State Religious Evaluation of the Council on Religious Affairs, a body attached to the Cabinet of Ministers of the Republic of Tatarstan, submitted its opinion concerning the applicant church further to a request by the Tatar Justice Department. It concluded that Scientology was a religion. However, it did not recommend registration of the applicant church because it had only recently been established in the Republic of Tatarstan. 41. On 8 January 2003 the Tatar Justice Department ruled that the application for registration should be left “unexamined” in the absence of a document confirming the applicant church’s presence in the Republic of Tatarstan for fifteen years. 42. On 25 February 2003 the Town Court carried out a fresh determination of the second applicant’s claim. It found as follows: “[The second applicant] considers that the refusal of registration was unlawful and that it violated his right to freedom of conscience and religion. The court cannot agree ... Neither [the second applicant] nor anyone else is prohibited or prevented from professing Scientology individually or in community with others. The refusal to grant legal-entity status to an organisation may only violate a citizen’s right to freedom of association ... The court has established that persons professing Scientology appeared in the town of Nizhnekamsk in the late 1990s. In 1999 the group comprising [the second applicant] decided to establish the religious organisation Church of Scientology of Nizhnekamsk and register it as a legal entity ... The Registration Chamber refused registration by reference to the absence of an opinion resulting from a religious expert examination. [The second applicant] complained to a court ... While the case was being examined, the power to approve registration of the religious organisation was transferred to the [Tatar] Justice Department, which ... left the application for registration unexamined, referring to the fact that the religious group had existed in the town of Nizhnekamsk for less than fifteen years ... The ground preventing registration is the fact that the religious group has existed for less than fifteen years. Admittedly, pursuant to section 11 of the Religions Act, this ground can be invoked to leave the application unexamined rather than to refuse registration; however, in either case registration of the organisation is not possible. Hence, given that the outcome of the decision by the Registration Chamber is correct (the organisation may not be registered), the court cannot use a formal pretext to require the [Tatar] Justice Department to breach the Religions Act and register the organisation, especially taking into account that [the Tatar Justice Department] has already corrected the Registration Chamber’s mistake and issued a decision in conformity with the Religions Act.” 43. On 3 April 2003 the Supreme Court upheld that judgment. 44. On 28 May 2003 the Town Court dismissed the second applicant’s action against the Tatar Justice Department for its failure to execute the judgment of 28 May 2002 (see above). The court found that the judgment in the second applicant’s favour had been quashed by way of supervisory-review proceedings and that the Supreme Court’s final judgment of 3 April 2003 had removed any basis for requiring the Tatar Justice Department to register the applicant church. On 3 July 2003 the Supreme Court of the Republic of Tatarstan upheld on appeal the judgment of 28 May 2003. 45. In October 2004, jurisdiction over the registration of religious organisations was transferred to the newly created Federal Registration Service. The second applicant sought registration from the local office of this new body. On 18 February 2005 the Chief Directorate of the Federal Registration Service for Tatarstan declined to consider the matter, referring the applicant church to the Tatar Justice Department’s earlier refusals to register it on the basis of the “fifteen-year rule”. 46. The State guarantees equality of rights and freedoms of men and citizens regardless of their individual characteristics, including religious beliefs. The Constitution prohibits all forms of restrictions on human rights on social, racial, national, linguistic or religious grounds (Article 19). 47. Article 28 guarantees the right to freedom of religion, including the right to profess any religion, either alone or in community with others, or to profess no religion at all, to freely choose, hold and share religious and other beliefs and to manifest them in practice. 48. On 1 October 1997 the Federal Law on freedom of conscience and religious associations (“the Religions Act”) came into force. It replaced the USSR Religions Act of 1 October 1990 and the Russian Soviet Federative Socialist Republic (RSFSR) Religions Act of 25 October 1990. 49. In its preamble the Religions Act acknowledges “the special role of [Eastern] Orthodoxy in the history of Russia and in the establishment and development of its spiritual and cultural life” and respects “Christianity, Islam, Buddhism, Judaism and other religions constituting an integral part of the historical heritage of the peoples of Russia”. Section 2(3) provides that “nothing in the laws on freedom of conscience, freedom of religion and religious associations may be interpreted as impairing or infringing the rights of men and citizens to the freedom of conscience and religion guaranteed by the Constitution of the Russian Federation or enshrined in the international treaties to which the Russian Federation is a party”. 50. At the session of the State Duma of the Russian Federation (the lower chamber of Parliament) on 19 September 1997, Mr V. Zorkaltsev, Chairman of the Duma Committee on Affairs of Public Associations and Religious Organisations and one of the drafters of the Law, stated as follows before the Law was put to the vote: “Nevertheless, I will remind you of the essence of this Law. It is this: the Law will create a barrier on the path to religious expansion in Russia, it will hinder the development of totalitarian sects and restrict the activities of foreign missionaries, while at the same time creating conditions for the activities of our traditional religions and confessions ... We are confident that the application of this Law in practice will help to resolve problems being faced now by society, the State and the [Russian Orthodox] Church ... I would like to refer to the fact that it is noteworthy that all the confessions whose representatives [objected to certain provisions of the Law] have their headquarters overseas. I say that to those who today feel that our Law is unfit and are planning to vote against it. And I want to put this question to you: whose side are you on, dear colleagues?” 51. A “religious association” is a generic term for any voluntary association of Russian nationals and other persons permanently and lawfully residing in the territory of the Russian Federation, formed for the joint profession and dissemination of their creed, which performs services of worship, religious rites and ceremonies, teaches its religion and guides its followers (section 6(1)). “Religious associations” may take the form of either “religious groups” or “religious organisations” (section 6(2)). 52. A “religious group” is a voluntary association of citizens for the profession and dissemination of faith, which carries out its activities without State registration and without obtaining legal personality (section 7(1)). The formation of a religious group, if its subsequent conversion into a religious organisation is envisaged, must be notified to the municipal authority (section 7(2)). Religious groups have the right to perform services of worship, religious rites and ceremonies, to teach religion and to guide their followers (section 7(3)). 53. In contrast to a religious group, a “religious organisation” is a voluntary association of Russian nationals and permanent residents of Russia, formed for the profession and dissemination of faith and duly registered as a legal entity (section 8(1)). 54. The following rights are conferred solely on religious organisations: – the right to obtain tax exemptions and other benefits, and financial and other forms of aid for the restoration, maintenance and protection of historically important buildings and religious items and for teaching in educational institutions (section 4(3)); – the right to establish educational institutions and, with the consent of the parents and children, to teach religion in extracurricular courses (section 5(3) and (4)); – the right to establish and maintain religious buildings and other places for worship or pilgrimage (section 16(1)); – the right to perform religious rites, on invitation, in health centres, hospitals, children’s homes, old people’s homes, facilities for the disabled and prisons (section 16(3)); – the right to manufacture, acquire, export, import and distribute religious literature, printed, audio and video material and other religious articles (section 17(1)); – the right to carry out charitable activities on their own or through charitable foundations established by them (section 18(1)); – the right to create cross-cultural organisations, educational institutions and media outlets (section 18(2)); – the right to establish and maintain international links and contacts for pilgrimages, conferences and so on, including the right to invite foreign nationals to the Russian Federation (section 20(1)); – the right to own buildings, plots of land, other property, financial assets and religious artefacts, including the right to have municipal and State property transferred to them free of charge for religious purposes and the immunity of such property from legal charge (section 21(1) to (5)); – the right to use State and other property for religious purposes, such right to be granted free of charge (section 22); – the right to establish companies and engage in business activities (section 23); – the right to hire employees (section 24). 55. In addition, the following rights are explicitly reserved to religious organisations, to the exclusion of other non-religious legal entities: – the right to found companies publishing religious literature or producing articles for religious services (section 17(2)); – the right to establish licensed educational institutions for the professional training of clergy and auxiliary religious staff (section 19(1)); – the right to invite to the Russian Federation foreign nationals planning to engage in professional religious activities, including preaching (section 20(2)). 56. Section 9(1) provides that a religious organisation may be founded by no fewer than ten Russian nationals united in a religious group that has confirmation from the local administrative authority of its existence in the given territory for no less than fifteen years or confirmation by a centralised religious organisation of the same creed that it forms part of its structure. A religious organisation must seek State registration from the local department of justice (section 11(2)). 57. If the founders of a religious organisation fail to produce any of the documents required by law, including the confirmation referred to in section 9(1), the registration authority may leave their application for registration unexamined and notify them of this (section 11(9)). 58. State registration of a religious organisation may be refused, in particular, if its purposes or activities contradict the Russian Constitution or laws, or if the organisation’s charter or other founding documents do not comply with the requirements of Russian laws. The refusal may be appealed against to a court (section 12). 59. Examining the compatibility with the Russian Constitution of the requirement of the Religions Act that all religious organisations established before its entry into force should confirm that they have existed for at least fifteen years, the Constitutional Court found as follows (decision no. 16-P of 23 November 1999 in the case of Religious Society of Jehovah’s Witnesses in Yaroslavl and Christian Glorification Church): “4. ... Article 28 of the Russian Constitution, read in conjunction with Article 13 § 4, Article 14, Article 19 §§ 1 and 2 and Article 30 § 1, shows that freedom of religion includes the freedom to form religious associations and to carry out their activities on the basis of the principle of equality before the law. By virtue of these provisions the federal legislature ... may regulate the legal status of religious associations, including the conditions for granting the status of a legal entity, and the procedure for their founding, establishment and State registration, and determine the scope of the rights of religious associations. Having regard to Russia’s history of pluriconfessionalism, legislators must respect the provisions of Article 17 § 1 of the Russian Constitution, which guarantees the rights and freedoms of men and citizens in accordance with generally accepted principles and norms of international law and the Russian Constitution. Measures decreed by legislators relating to the founding, establishment and registration of religious organisations must not interfere with the essence of the freedom of religion, the right to freedom of association and the freedom of activity of public associations, and any potential restrictions on those and other constitutional rights must be justified and proportionate to aims considered important by the Constitution. In a democratic society with its characteristic pluralism, as follows from ... Article 9 § 2 of the Convention ... restrictions may be prescribed by law if this is necessary in the interests of public peace and the protection of public order, health and morals or for the protection of the rights and freedoms of others. The State has the right to lay down certain barriers in order not to automatically provide legal status [to religious associations], not to allow the legalisation of associations of citizens that violate human rights and commit illegal and criminal acts, and in order to obstruct missionary activity (including the problem of proselytism) if it is not compatible with respect for the freedom of thought, conscience and religion of others and other constitutional rights and freedoms, as in the case of the recruitment of other members into the church, or unlawful influence on people in need or poverty, through psychological pressure or the threat of violence. In particular, this is emphasised in the Resolution of the European Parliament of 12 February 1996 on sects in Europe and Recommendation 1178 (1992) [of the Parliamentary Assembly] of the Council of Europe on sects and new religious movements, as well as in the judgments of the European Court of 25 May 1993 ([Kokkinakis v. Greece], Series A no. 260-A) and of 26 September 1996 ([Manoussakis and Others v. Greece], Reports of Judgments and Decisions 1996-IV), which clarify the nature and scope of the State’s obligations flowing from Article 9 of the Convention ... ... 8. ... Pursuant to ... the RSFSR Religions Act (as amended on 27 January 1995), all religious associations – both regional and centralised – had, on an equal basis, as legal entities, the rights that were subsequently incorporated in the [1997 Religions Act] ... Under such circumstances legislators could not deprive a certain segment of religious organisations that had been formed and maintained full legal capacity of the rights belonging to them, solely on the basis that they did not have confirmation that they had existed for fifteen years. In relation to religious organisations created earlier, that would be incompatible with the principle of equality enshrined in Article 13 § 4, Article 14 § 2 and Article 19 §§ 1 and 2 of the Constitution of the Russian Federation, and would be an impermissible restriction on freedom of religion (Article 28) and the freedom of [voluntary] associations to form and to carry out their activities (Article 30) ...” 60. The Constitutional Court subsequently confirmed this position in its decision no. 46-O of 13 April 2000 in the case of Independent Russian Region of the Society of Jesus, and decision no. 7-O of 7 February 2002 in the case of Moscow Branch of the Salvation Army. 61. On 9 April 2002 the Constitutional Court delivered decision no. 113O in the case of Zaykova and Others. The applicants in that case belonged to the religious group “Church of Scientology of Izhevsk City”, whose application for legal-entity status was refused in the absence of a document confirming its presence in Izhevsk for fifteen years. The Constitutional Court noted that a religious association was not prevented from being formed and operating without State registration, but in such cases it could not enjoy the rights and privileges secured only to religious organisations in section 5(3) and (4), section 13(5) and sections 15 to 24 (paragraph 2 of the decision). It declined, however, to consider the constitutional issue because the applicants had not challenged the refusal in a court of general jurisdiction. 62. Deciding on appeal on a complaint by a Mr K. against the regional justice department’s refusal to register the local organisation of Jehovah’s Witnesses as a legal entity (civil case no. 4507), the Chelyabinsk Regional Court held as follows: “Article 28 of the Russian Constitution, read in conjunction with Article 13 § 4, Article 14, Article 19 §§ 1 and 2 and Article 30 § 1, shows that freedom of religion includes the freedom to form religious associations and to carry out their activities on the basis of the principle of equality before the law ... Religious groups may carry out their activities without State registration or the legal status of a legal entity. However, if citizens form a religious group for the purpose of making it into a religious organisation later on, then they must notify the local self-government body of its formation and the commencement of its activities ... The above-mentioned provisions show that nothing legally hinders a religious association from being formed and operating without State registration for the purpose of joint profession and dissemination of faith. However, in such circumstances a religious association will not have the status of a legal entity and cannot therefore enjoy the rights and privileges secured to religious organisations in the [Religions Act] (section 5(3) and (4), section 13(5), sections 15-24), that is, those collective rights that citizens exercise in community with others, namely within a religious organisation that has legal-entity status, but not on an individual basis or through a religious group. Therefore, the very fact that the local religious organisation was unlawfully refused registration hinders Mr K. and his fellow believers from exercising their constitutional rights ...” 63. On 22 April 1999 the Ombudsman of the Russian Federation published his opinion of 25 March 1999 on the compatibility of the Religions Act with the international legal obligations of the Russian Federation. The opinion stated, inter alia: “A number of provisions of the Act are inconsistent with principles set forth in international legal instruments, and, accordingly, can be contested by citizens when lodging complaints with the European Court of Human Rights. In essence, these provisions cannot operate in the territory of the Russian Federation, since the rules established by international treaties [must] prevail over domestic legislation, as is envisaged by the Constitution of the Russian Federation (Article 15 § 4) ... The distinction between religious organisations and religious groups provided for in the Act is contrary to both the European Convention and the case-law of the Convention bodies, which are an important source of European law. In accordance with section 7(1) of the Act, religious groups, in contrast to religious [organisations], are not subject to State registration and do not enjoy the rights of a legal entity. Furthermore, the Act discriminates between ‘traditional’ religious organisations and religious organisations that do not possess a document proving their existence in a given territory for at least fifteen years (section 9(1) of the Act). ‘Non-traditional’ religions are deprived of many rights ...” 64. On 20 May 2002 the Ombudsman issued a special report on Russia’s observance of its commitments entered into upon accession to the Council of Europe. The report states, inter alia: “Among the commitments undertaken by Russia upon entry into the Council of Europe was to bring its legislation on freedom of conscience and religion into line with European norms. The [Religions Act], enacted on 26 September 1997 after the Russian Federation had joined the Council of Europe, did not take into consideration the existing rules or universally recognised principles of international law. As a Contracting Party to the European Convention on Human Rights, Russia assumed express obligations in the sphere of freedom of conscience and religion. A number of provisions of the [Religions Act] are contrary to principles established in the European Convention for the Protection of Human Rights and Fundamental Freedoms and, accordingly, may be challenged by citizens when lodging applications with the European Court of Human Rights ... A number of provisions of the Act establish rules that in essence discriminate against certain religions in practice. The distinction between religious organisations and religious groups provided for in the Act is contrary to both the European Convention and the case-law of the Convention bodies, which are an important source of European law. Furthermore, the Act discriminates between ‘traditional’ religious organisations and religious organisations that do not possess a document proving their existence in a given territory for at least fifteen years (section 9(1)). ‘Non-traditional’ religions are deprived of many rights ... In the current situation one cannot exclude [the possibility] of decisions of the European Court of Human Rights against Russia in cases connected with freedom of religion and religious beliefs.” 65. The Information Report of 2 June 1998 by the Committee of the Parliamentary Assembly of the Council of Europe on the Honouring of Obligations and Commitments by member States of the Council of Europe (“the Monitoring Committee” – doc. 8127) on the honouring of obligations and commitments by the Russian Federation states in its relevant parts as follows: “26. Another of the commitments Russia entered into was to adopt a new Law on the freedom of religion. Such a new Law has indeed been adopted, but unfortunately, it seems to fall rather short of Council of Europe standards on the matter. ... 27. The new Law on freedom of conscience and on religious associations entered into force on 1 October 1997, after having been revised following a presidential veto of the first version. While the Law does provide adequate protection for an individual’s right to profess or not to profess the religion of his choice, it contains some other provisions which seem to be inconsistent with international standards and with Russia’s international treaty obligations. In particular, the Law establishes two categories of religious associations: the more privileged ‘religious organisations’ and the less privileged ‘religious groups’. Religious groups, unlike religious organisations, do not have the status of a legal person, and do not enjoy the rights associated with this status, such as owning property, concluding contracts, and hiring employees. In addition, they are explicitly barred from operating schools or inviting foreign guests to Russia. Religious organisations have these rights, but to be recognised as such must be either classified as a ‘traditional’ religion or must have existed as a registered religious group on Russian territory for at least fifteen years, the latter to be certified by the local authorities. In fact, with the entry into force of this Law, a third category of religious associations was created: religious groups registered with the authorities on that day (for less than fifteen years) who already enjoy the status of a legal person may keep this status and the associated rights, provided they re-register every year with the authorities. These provisions may lead to discriminatory treatment especially of non-traditional religions, thus undermining the principle of religious equality before the law. A revision of some of these provisions may be called for to ensure compliance with Council of Europe standards. ...” 66. The Report by the Monitoring Committee of 26 March 2002 (doc. 9396) on the honouring of obligations and commitments by the Russian Federation states in its relevant parts as follows. “95. The Russian Constitution safeguards freedom of conscience and of religion (Article 28); the equality of religious associations before the law and the separation of Church and State (Article 14), and offers protection against discrimination based on religion (Article 19). The Law on freedom of religion of December 1990 has led to a considerable renewal of religious activities in Russia. According to religious organisations met in Moscow, this Law has opened a new era, and led to a revitalisation of churches. It was replaced on 26 September 1997 by a new Federal Law on freedom of conscience and religious associations. This legislation has been criticised both at home and abroad on the grounds that it disregards the principle of equality of religions. 96. On 6 November 1997, Mr Atkinson and others presented a motion for a recommendation (doc. 7957, which was referred to the Legal Affairs Committee by reference 2238) in which they argued that this new legislation on freedom of conscience and religious associations contravened the European Convention on Human Rights, the Russian Constitution as well as the commitments entered into by Russia on accession. In February 2001, the Ombudsman on Human Rights, Oleg Mironov, also acknowledged that many Articles of the 1997 Law on freedom of conscience and religious associations do not meet Russia’s international obligations on human rights. According to him, some of its clauses have led to discrimination against different religious faiths and should therefore be amended. 97. In its preamble the Law recognises ‘the special role of Orthodoxy in the history of Russia and in the establishment and development of its spiritual and cultural life’ and respects ‘Christianity, Islam, Buddhism, Judaism and other religions constituting an integral part of the historical heritage of the peoples of Russia’. The Law then goes on to draw a distinction between ‘religious organisations’, according to whether or not they existed before 1982, and a third category, called ‘religious groups’. Religious organisations that had existed for less than fifteen years, and religious groups have been subject to legal and tax disadvantages and their activities have been restricted.” 67. Resolution 1278 (2002) on Russia’s Law on religion, adopted by the Parliamentary Assembly of the Council of Europe on 23 April 2002, noted, inter alia, the following: “1. The new Russian Law on religion entered into force on 1 October 1997, abrogating and replacing a 1990 Russian Law – generally considered very liberal – on the same subject. The new Law caused some concern, both as regards its content and its implementation. Some of these concerns have been addressed, notably through the judgments of the Constitutional Court of the Russian Federation of 23 November 1999, 13 April 2000 and 7 February 2002, and the religious communities’ re-registration exercise at federal level successfully completed by the Ministry of Justice on 1 January 2001. However, other concerns remain. 2. The Law itself, while posing an acceptable basis of operation for most religious communities, could still be ameliorated. Although the Russian Constitutional Court has already restricted the application of the so-called ‘fifteen-year rule’, which initially severely limited the rights of religious groups that could not prove their existence on Russian territory for at least fifteen years before the new Law entered into force, the total abolition of this rule would be considered as an important improvement of the legislative basis by several of these groups. ...” 68. The report “Freedom of Religion or Belief: Laws Affecting the Structuring of Religious Communities”, prepared under the auspices of the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe (OSCE/ODIHR) for the benefit of participants in the 1999 OSCE Review Conference, states, inter alia: “The most controversial duration requirement in the recent past is that adopted in the 1997 Russian Law on Freedom of Conscience and on Religious Associations. Unless affiliated with a centralised religious organisation, a religious group under this Law cannot acquire full religious entity status unless it has been in the country for fifteen years. What is strikingly unusual about this requirement is that to the best of our knowledge, at the time of its adoption, there were no other OSCE participating States that imposed a waiting requirement (other than document processing periods) with respect to base-level entities ... Russia has taken some steps to mitigate the discriminatory impact on smaller groups by minimising the evidentiary burden required to demonstrate presence in the country for the required period, and by creating a limited entity status for religious groups waiting out their fifteen-year period. But problems remain for smaller groups or for congregations that have split off from the Moscow Patriarchate, and while limited entity status is better than nothing, it imposes significant constraints on a religious group’s ability to expand. Duration requirements of this type are clearly inconsistent with the OSCE commitment to grant religious groups at least base-level entity status. The wording of this commitment in Principle 16.3 of the Vienna Concluding Document recognises that the precise form of legal personality varies from legal system to legal system, but access to some form of legal entity is vital to OSCE compliance. This is clearly violated by the refusal to register religious groups that do not satisfy the fifteen-year rule. The drafters of the Russian legislation apparently attempted to remedy this defect by creating limited entity status, but this also fails to satisfy the OSCE commitment, because the limited status does not confer rights to carry out important religious functions. Failure to grant such status constitutes a limitation on manifestation of religion that violates Article 9 of the [European Convention on Human Rights]. It can hardly be said that denial of entity status, simply due to an organisation’s failure to ‘exist’ under a preceding, anti-religious, communist government, ‘is necessary in a democratic society’ or a proportionate response to a legitimate State interest ...” 69. The Guidelines for Review of Legislation Pertaining to Religion or Belief, prepared by the OSCE/ODIHR Advisory Panel of Experts on Freedom of Religion or Belief in consultation with the European Commission for Democracy through Law (the Venice Commission) and adopted by the Venice Commission at its 59th Plenary Session (18-19 June 2004) and welcomed by the OSCE Parliamentary Assembly at its Annual Session (5-9 July 2004), contain, inter alia, the following recommendations: “Religious association laws that govern acquisition of legal personality through registration, incorporation, and the like are particularly significant for religious organisations. The following are some of the major problem areas that should be addressed: ... – It is not appropriate to require lengthy existence in the State before registration is permitted; – Other excessively burdensome constraints or time delays prior to obtaining legal personality should be questioned; ...” 70. The relevant provisions of the United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, proclaimed by General Assembly Resolution 36/55 of 25 November 1981, read as follows: “In accordance with Article I of the present Declaration, and subject to the provisions of Article 1, paragraph 3, the right to freedom of thought, conscience, religion or belief shall include, inter alia, the following freedoms: (a) To worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes; (b) To establish and maintain appropriate charitable or humanitarian institutions; (c) To make, acquire and use to an adequate extent the necessary articles and materials related to the rites or customs of a religion or belief; (d) To write, issue and disseminate relevant publications in these areas; (e) To teach a religion or belief in places suitable for these purposes; (f) To solicit and receive voluntary financial and other contributions from individuals and institutions; (g) To train, appoint, elect or designate by succession appropriate leaders called for by the requirements and standards of any religion or belief; (h) To observe days of rest and to celebrate holidays and ceremonies in accordance with the precepts of one’s religion or belief; (i) To establish and maintain communications with individuals and communities in matters of religion and belief at the national and international levels.” “The rights and freedoms set forth in the present Declaration shall be accorded in national legislation in such a manner that everyone shall be able to avail himself of such rights and freedoms in practice.” 71. The relevant part of General Comment No. 22: The right to freedom of thought, conscience and religion (Article 18), prepared by the Office of the High Commissioner for Human Rights (30 July 1993, CCPR/C/21/Rev.1/Add.4), reads as follows: “4. The freedom to manifest religion or belief ... in worship, observance, practice and teaching encompasses a broad range of acts. The concept of worship extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including the building of places of worship, the use of ritual formulae and objects, the display of symbols, and the observance of holidays and days of rest. ... [T]he practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications.” | 1 |
train | 001-95861 | ENG | CZE | CHAMBER | 2,009 | CASE OF PEŠKOVÁ v. THE CZECH REPUBLIC | 3 | Remainder inadmissible;Violation of P1-1;Pecuniary damage - award | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 5. In 1979 the applicant purchased a one-third share in certain real estate in Neštěnice which had been donated to the State by the original owners in 1966. The purchase price of 25,326 Czech korunas (CZK) (950 euros (EUR)) for the whole property was fixed by an expert in September 1978. 6. At the time the application was lodged the property was being used by the applicant's daughter and her family. 7. On 25 August 1992, after the entry into force of Act no. 229/1991 (“the Land Ownership Act”), a certain M. instituted restitution proceedings in the Benešov District Court (okresní soud) against five co-owners, including the applicant, seeking recovery of the property in issue by virtue of section 8 (1) of the Land Ownership Act. M. alleged that the acquisition of the property by the applicant and the other co-owners had been vitiated by a breach of the regulations in force at the time, that they had enjoyed an unlawful advantage, and that the price they had been required to pay had been lower than the real value of the property. 8. On 29 September 2000, after the case had been examined by the courts at three levels of jurisdiction between 1995 and 2000, the District Court ruled against the applicant and the other co-owners and transferred the title to the property to P., the daughter of the original plaintiff who had died in the meantime. In the course of the proceedings, several expert reports assessing the value of the disputed property at the time of its acquisition by the applicant had been produced at the request of the District Court: an expert report valuating the property at CZK 31,012 (EUR 1,165), an audit report by a company, S., fixing the price at CZK 29,889 (EUR 1,123) and an amendment to the audit report setting the price at CZK 69,347 (EUR 2,606). It emerged from this amendment that when valuing the property the earlier reports had been based on the correct price regulation but certain interpretative directives (směrnice a pokyny) issued by the Ministry of Finance had been disregarded. The court found on the one hand that the defendants had acquired the property at a lower price than that required by the law in force at the material time. On the other hand, the plaintiff had failed to establish that they had enjoyed an unlawful advantage when acquiring the property, in that the father of one of them was a member of the communist party. 9. On 11 April 2001 the Prague Regional Court (krajský soud) upheld the judgment of the first-instance court. It accepted the conclusions set out in the amendment to the audit report, as the reasons for the difference in prices had been satisfactorily explained. Thus, it considered a new audit, as suggested by the applicant, to be superfluous. The Regional Court's judgment became final on 8 August 2001. 10. On 24 September 2002 the Supreme Court (Nejvyšší soud), without holding a public hearing, dismissed the applicant's appeal on points of law (dovolání) of 20 August 2001, stating, inter alia, as follows: “The court of cassation finds well-founded [the applicant's] arguments challenging the legal conclusions of the audit report. ... There was no reason to apply ... the particular provision of section 12 (2) of the Price Regulations, which only concerned expropriation and was intended to protect persons from whom real estate was taken ... Despite this interpretation ..., the court of cassation could not grant the applicant's request to quash as incorrect the judgment of the appellate court. Even if the wear and tear [to the property] had not been calculated at 70%, as applied by the amendment to the audit report, but at 80%, as applied in the previous expert reports, the price ... fixed under the Price Regulations would have been higher than the purchase price agreed between the parties ... The difference in the prices is thus not based on the subjective valuation of the expert or his interpretation of the Price Regulations, but also on the smaller surface area considered by the original expert ... [as well as] the wrong classification of the construction ... In these circumstances, the finding of the appellate court that the defendants had acquired the disputed property at a price lower than that established by the Price Regulations is correct ...”. 11. On 28 January 2003 the Constitutional Court (Ústavní soud) dismissed a constitutional appeal by the applicant (ústavní stížnost) in which she alleged, in particular, a violation of Articles 11 (right to property) and 36 § 1 (right to judicial protection) of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod). 12. In December 2004 the applicant was reimbursed by the Ministry of Agriculture her share of the purchase price of the property, corresponding to CZK 6,493 (EUR 244). Moreover, the Ministry proposed the applicant and the other co-owners a sum of CZK 554,421 (EUR 20,833) in compensation for the costs reasonably incurred for the upkeep of the property. That sum was fixed by an expert and the applicant was ready to accept it. However, due to an objection by P., the new owner of the property, against whom the Ministry of Agriculture would have had a counterclaim, that sum was not paid out. In a letter of 4 November 2005, the Ministry of Justice advised the applicant to seek that compensation by means of a civil action against the Ministry. The applicant failed to do so however. 13. In an expert report produced for the purposes of inheritance proceedings after the applicant's father (one of the co-owners) had died on 23 November 2000, the disputed property was valued at CZK 1,779,580 (EUR 66,868). According to a resolution of the Prague 4 District Court of 28 August 2001, the one-third share left by the deceased was acquired by the applicant. The resolution became final on 13 October 2001. 14. In a letter of 11 December 2006 the Ministry of Justice informed the applicant that it had found that her right to a determination of her civil claim within a reasonable time had been violated and that she had been awarded CZK 67,500 (EUR 2,536) in non-pecuniary damages for the length of the restitution proceedings. In a letter of 20 February 2007 the applicant informed the Court that she did not wish to pursue her claim before the domestic courts. 15. The relevant domestic law and practice in matter of restitution are set out in the Court's judgment Zvolský and Zvolská v. the Czech Republic (no. 46129/99, § 25, ECHR 2002IX). The relevant domestic law and practice concerning remedies for excessive length of judicial proceedings are set out in the Court's decision in the case of Vokurka v. the Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007). 16. Under section 243a of the Code of Civil Procedure, the court of cassation decides on an appeal on points of law without holding a hearing. The court holds a hearing if it considers it appropriate or if it has to review evidence. | 0 |
train | 001-61758 | ENG | POL | CHAMBER | 2,004 | CASE OF GĘSIARZ v. POLAND | 4 | Violation of Art. 6-1 with regard to the length of the proceedings;Inadmissible under Art. 6-1 with regard to the fairness of the proceedings;Inadmissible under Art. 13;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed | Nicolas Bratza | 4. The applicant was born in 1933 and lives in Częstochowa, Poland. 5. The applicant shared a house and a plot of land with three family members (“the neighbours”). On 6 February 1989 he instituted non-contentious proceedings (postępowanie nieprocesowe) before the Częstochowa District Court (Sąd Rejonowy w Częstochowie) in which he requested that the co-ownership of the property be dissolved. 6. Until November 1991 the court held eight hearings and ordered two expert opinions. 7. On 30 April 1992 the court stayed the proceedings because the applicant had failed to pay an advance fee towards the costs of an expert opinion. 8. On 22 September 1994 the proceedings were resumed as the applicant paid the costs ordered by the court. 9. On 6 and 20 December 1994 the court held hearings. It ordered a supplementary expert opinion. 10. In February and March 1995 the applicant requested the court to appoint another expert. Subsequently, he challenged an expert opinion and the expert who prepared it. The court dismissed his applications on 22 March and 31 May 1995. 11. On 23 June 1995 the court ordered another expert opinion. The opinion was submitted to the court on 5 September 1995. 12. On 17 October 1995, 16 January, 2 April and 15 May 1996 the court held hearings. It ordered three supplementary expert opinions. 13. Between 12 August and 5 December 1996 the proceedings were stayed because the applicant failed to pay an advance fee towards the costs of a supplementary expert opinion. 14. In December 1996 an expert opinion was submitted to the court; subsequently, the court ordered another expert opinion. 15. In February 1997 the applicant challenged the appointment of a new expert. 16. On 17 September 1997 the expert submitted his opinion to the court. 17. On 24 November 1997 the court held a hearing. 18. On 28 November 1997 the Częstochowa District Court gave a decision in which it dissolved the coownership. 19. The neighbours appealed against it. 20. On 26 May 1998 the Częstochowa Regional Court (Sąd Wojewódzki) quashed the impugned decision and remitted the case to the firstinstance court. 21. On 22 October 1998 the court held a hearing at which it decided to hold a view of the property. The applicant requested the court not to schedule any hearing until 16 November 1998. 22. On 21 May 1999 the judge held a view of the property. 23. On 10 June 1999 the court held a hearing. Subsequently, the court ordered another expert opinion and ordered the applicant to pay an advance fee towards the costs of it. 24. On 10 September 1999 the Częstochowa District Court stayed the proceedings because the applicant had failed to pay the advance fee. The applicant’s appeal against this decision was allowed by the Częstochowa Regional Court on 15 November 1999. 25. On 12 April 2000 the court held a hearing. 26. Subsequently, the neighbours challenged a court expert. Their challenge was finally dismissed on 2 June 2000. 27. On 14 July 2000 the applicant challenged another court expert. On 2 August 2000 the Częstochowa District Court dismissed his application. 28. On 18 November 2000 the expert submitted another opinion to the court. 29. On 2 April 2001 the District Court held a hearing. 30. On 11 June 2001 the applicant instituted another set of civil proceedings in which he requested permission to be connected to the public water supply and to carry out construction works on the co-owned property. The proceedings are pending before the Częstochowa District Court. 31. On 12 June 2001 the court again decided to stay the proceedings because administrative proceedings concerning a porch built by one of the neighbours were pending. The applicant appealed against this decision. 32. On 20 August 2001 the Częstochowa District Court resumed the proceedings. 33. At the hearing held on 14 January 2002 the court for the second time decided to stay the proceedings due to the administrative proceedings concerning the porch. The applicant’s appeal was dismissed on 14 March 2002. 34. On 19 April 2002 the applicant applied to resume the proceedings. 35. In December 2002 and January 2003 the court requested certain municipal and central authorities to provide some information necessary for the case. 36. On 4 April 2003 the proceedings were resumed and on 12 June 2002 the court held a hearing. 37. On 7 April 2003 the Częstochowa District Court gave a decision. It dissolved the co-ownership. 38. On 28 April 2003 the applicant lodged an appeal against that decision. 39. On 1 July 2003 the Częstochowa Regional Court dismissed the appeal. | 1 |
train | 001-85519 | ENG | CZE | ADMISSIBILITY | 2,008 | ZDRAHALOVA v. THE CZECH REPUBLIC | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova | The applicant, Mrs Věra Zdráhalová, is a Czech national who was born in 1939 and lives in Kuřim. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. In 1988 a certain C. repaired the applicant’s weekend cottage, for which the applicant paid him CZK 54,800 (EUR 2,113). However, this did not correspond to the real extent of the work C. had carried out. On the applicant’s criminal complaint, the police started to investigate the case. However, they closed it on 3 January 1990, as C. was subject to a presidential amnesty. On 25 January 1990 the applicant brought a civil action for damages against C., seeking payment of CZK 20,000 (EUR 771). In a judgment of 13 March 1998 the District Court ordered C. to pay the applicant CZK 20,397 (EUR 786) with interest and dismissed the remainder of the applicant’s action. On 15 April and 22 May 1998 respectively, the applicant and C. appealed. On 30 January 2002 the Regional Court partly dismissed and partly granted the applicant’s appeal and sent the relevant part of the case back to the District Court. At a hearing held before the District Court on 13 November 2002 the applicant unsuccessfully requested the court to order a new expert opinion. At the end of the hearing the court delivered a judgment by which it rejected the remaining part of the applicant’s action for damages. The applicant was ordered to pay court fees. In a judgment of 23 June 2003 the Regional Court upheld the merits of the District Court’s judgment. On 8 September 2003 the Regional Court’s judgment was served on the applicant who, on 13 October 2003, was informed that the judgments had not yet become enforceable, as it was not possible to deliver the Regional Court’s judgment to C. According to the Government, the judgment became final on 28 October 2003. On 31 July 2006 the applicant applied for compensation pursuant to Act no. 82/1998 as amended. She claimed CZK 558,042 (EUR 21,516) in respect of pecuniary damage, CZK 600,000 (EUR 23,134) in respect of non-pecuniary damage and CZK 26,075 (EUR 967) in respect of court fees. In a letter of 28 December 2006 the Ministry of Justice informed the applicant that her application had been accepted, that it had been found that her right to a determination of their civil claim within a reasonable time had been violated and that she had been awarded a sum of CZK 156,000 (EUR 6,015) in respect of non-pecuniary damage she might have sustained and CZK 15,000 (EUR 578) in respect of court fees. The Ministry refused, however, the applicant’s claim regarding compensation for pecuniary damage. On 12 January 2007 the applicant informed the Registry that she did not intend to turn to a court under section 15(2) of Act no. 82/1998 as amended. The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007). | 0 |
train | 001-109044 | ENG | CZE | CHAMBER | 2,012 | CASE OF KINSKÝ v. THE CZECH REPUBLIC | 3 | Remainder inadmissible (Article 35-1 - Effective domestic remedy);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Impartial tribunal);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger | 5. The applicant was born in 1936 and died on 2 April 2009. On 30 April 2009 the applicant’s son and heir, Mr Carlos Kinský, informed the Court that he wished to pursue the application originally introduced by his father. 6. Through more than one hundred civil actions for determination of ownership lodged with Czech courts against the State, local municipalities and third persons, the applicant sought to recover property seized by Czechoslovakia after the Second World War. At that time, the applicant, an eight-year-old child, had allegedly been the owner of the property. During the confiscation his interests had allegedly not been protected by any representative despite the requirements of the law applicable at the time. 7. According to the Government, the total value of the property claimed by the applicant was estimated by the police at approximately 50-60 billion Czech korunas (approximately 2-2.4 billion euros). 8. On 9 October 2003 the Děčín District Court (okresní soud) dismissed the applicant’s action against the State, represented by the Ministry of the Interior, to determine ownership of certain real estate, finding that the property had been duly confiscated in 1945 pursuant to Presidential Decree No. 12/1945. A large volume of archive documents was taken as evidence during the proceedings. 9. The applicant appealed, asserting, inter alia, that the District Court had omitted to take certain evidence. 10. On 27 January 2005 the Ústí nad Labem Regional Court (krajský soud) upheld the judgment of the court of first instance. 11. On 23 November 2005 Section no. 28 of the Supreme Court (Nejvyšší soud), which is responsible for restitution matters, rent cases and litigations concerning recognition of foreign decisions, dismissed as inadmissible the applicant’s appeal on points of law (dovolání). It found that it had not been conclusively established that the applicant’s property had been duly confiscated, but that in any case the property had been transferred to the State, which had used it since then. Applying its previous case-law, the court held that a property taken by a State before 1990 could not be claimed in civil proceedings but only under the restitution laws. 12. On 18 April 2006 the Constitutional Court (Ústavní soud) dismissed the applicant’s constitutional appeal whereby it was contended that he had not had a fair trial and had been discriminated against. The court relied on its stance, enshrined particularly in its opinion no. Pl. ÚS-st. 21/05, according to which a civil action for determination of ownership could not be used to circumvent the restitution legislation, and consequently found that the detailed arguments challenging the merits of the decisions were irrelevant. 13. On 13 November 2007 the District Court dismissed the applicant’s nullity action (žaloba pro zmatečnost) asserting bias on the part of the District Court judge who had dealt with the civil proceedings. Referring to decision no. II. ÚS 71/06 of the Constitutional Court of 28 February 2006, it held that the activities of certain politicians in creating a negative atmosphere around the applicant’s actions had been unacceptable in a system based on the rule of law. Similarly, it held that the obligation imposed on courts by the Ministry of Justice to report to it on the applicant’s proceedings had been incompatible with the principle of separation of powers between the judicial and executive branches of government. Nevertheless, it did not find that these activities had compromised the impartiality of the particular judge at the Děčín District Court challenged by the applicant. 14. At the relevant time various members of the Government and Parliament made public statements commenting on the proceedings instituted by the applicant. The media reported, inter alia, on the following statements. 15. The daily newspaper Právo published an article on 26 June 2003 entitled “Dostál [the Minister of Culture] wants to convene a meeting regarding restitutions” about the reaction of politicians to a court decision upholding one of the applicant’s claims. The article quoted Mr Nečas, then an M.P. and vice-president of the second largest party in the Parliament, as saying: “I do not know how we as legislators can do anything about the absolutely insane rulings of judges that suggest that they are independent, but in this instance independent of common sense. Questioning the seizure of property of persons who were demonstrably Nazis simply on the basis of completely formal administrative details, such as that a document from 1946 lacks a stamp or that the stamp is square instead of round, gives rise to misgivings about the train of thought of the judge involved.” 16. On 30 June 2003 the weekly newspaper Týden published an interview with the Minister of Culture, Mr Dostál, in which he said, inter alia: “I oppose attempts to return property to active Nazis or their children, as happened in the case of Mr Oldřich Kinský.” 17. On 2 July 2003 the website novinky.cz published comments by several politicians regarding another of the applicant’s cases where a court had ruled in his favour. Mr Nečas opined as follows: “I cannot understand what mental processes members of our judicial system could have gone through to reach such conclusions.” 18. On 3 July 2003 Právo published another interview with the Minister of Culture, in which he disagreed with the courts’ decisions upholding one of the applicant’s claims: “[I]f other judges decide similarly, then they will have to bear full responsibility for the fact that the State will be obliged to surrender property acquired under the [Presidential] Decrees.” The minister also mentioned a meeting of politicians and lawyers regarding protection of the Presidential Decrees. 19. Several politicians, including the President and the Prime Minister, convened a series of meetings between themselves and lawyers on the issue of civil proceedings for the restitution of property acquired before 1948 in civil proceedings, like those brought by the applicant. According to media reports, the meetings resulted in several options for avoiding such decisions by courts, including requesting the Supreme Court to unify the divergent case-law, issuing new and perfect confiscation orders, adding an amendment to the Civil Code to prohibit actions for the determination of ownership of property acquired by the State before 1990, or amending the Constitution to the same effect. 20. On 25 September 2003 Právo reported on a hearing before Děčín District Court in the proceedings that are the subject of the present application. The hearing was also attended by the vice-governor of the Ústí nad Labem Region (místohejtman Ústeckého kraje) and a member of the governing party who said: “I am not here as a politician, but as the son of parents that Nazis deported to a camp. Today a counsel defends a descendant of the Nazis. I will do anything within my power so that these people do not achieve what they want”. 21. On 14 December 2003 the weekly newspaper Respekt published an interview with a Member of Parliament and a member of the Committee on Constitutional and Legal Affairs who said that the applicant had no right to restitution of any property. When asked whether the resolution of these questions should not be left to independent courts she replied that in her view they had not influenced the courts but that some court decisions had been wrong and that the courts were so independent as to be independent of laws. 22. On 12 January 2004 the Ministry of Justice sent letters to the presidents of regional courts asking them to provide it with information on a monthly basis on the developments in the proceedings brought by the applicant. It reasoned that it was requesting the information because of heightened interest of the media in these proceedings. 23. The Ústí nad Labem Regional Court, like the other regional courts, complied with this request and regularly forwarded to the Ministry information on the applicant’s proceedings within its region, including reports from the Děčín District Court drawn up by the judge dealing with the actions brought by the applicant. The reports included information about the proceedings which are the subject matter of this application, in which, at that time, appellate proceedings were pending. 24. The reports from all the regional courts where proceedings brought by the applicant were being conducted included procedural steps taken in the proceedings, the names of the defendants, the subject matter of the proceedings and the name of the judges dealing with the cases. 25. On 8 July 2004 the Ministry informed the Regional Court that it no longer wished to receive the information on a monthly basis, but only once every three months. 26. On 7 November 2006 the Ministry informed the regional courts that it was no longer necessary to provide this information. 27. In 2004, by order of a deputy of the Police President, the police set up a special investigative team code-named “Property” for the purpose of carrying out tasks relating to the examination of a suspicion of unlawful surrender of the Czech Republic’s property to natural or legal persons. The team’s activities consisted of a comprehensive examination of the suspicion that such criminal acts (which in their view could lead to pecuniary loss amounting to tens of billions of Czech crowns) had been committed. 28. On 10 March 2004 the police started investigating the applicant and his counsel on suspicion of fraud. The police contended that the investigation was justified by the applicant’s attempts to fraudulently claim in civil proceedings assets confiscated in 1945 under the Presidential Decrees as enemy property. They suspected that in the course of the civil proceedings the applicant had intentionally withheld relevant facts in order to support his action. 29. On an unspecified date in the course of the investigation, the police sent requests to the Děčín District Court and the competent department of the Ministry of the Interior for the purpose of quantifying the total value of the property claimed by the applicant and obtaining the applicant’s submissions and decisions of the court in his case. Both authorities complied with the requests. 30. On 27 April 2004 the Praha-východ District Court, at the request of the police, ordered the production of the records of two phone lines belonging to the applicant’s counsel from 26 January 2004 to 26 April 2004. According to the Government, only information on the telecommunications activity, namely, the times of calls, the numbers of incoming and outgoing calls, and approximate mobile phone locations was produced; the content of the telephone conversations was neither recorded nor intercepted. 31. In a letter of 26 July 2004 the Deputy Director of the Office for Foreign Relations and Information (Úřad pro zahraniční styky a informace), a Czech intelligence service, in reply to a request for cooperation, informed the police unit in charge of the investigation about the system of administration of church registers in Austria and ways of accessing them in order to locate the applicant’s birth certificate. Having found that access to the registers was restricted, the Deputy Director considered and rejected the possibility of using secret agents to acquire the documents in question and advised the police unit on how the State should proceed in the civil proceedings against the applicant, recommending that they manoeuvre the applicant into a situation where he would himself be obliged to establish his Czech citizenship. 32. On 28 April 2006 the police suspended the investigation, stating that in civil proceedings the applicant was not obliged by the Code of Civil Procedure to disclose all relevant facts, but only those supporting his claims. They also stated that the applicant’s counsel had not breached his duty under Article 101 § 1 of the Code to assert all important facts, because he was not obliged to assert facts favouring the opposing party. Thus, according to that decision, the applicant could not be regarded as having intentionally withheld certain information in a fraudulent attempt to recover the property by misleading the courts. 33. It appears from the decision that during their investigation the police tracked down enquiries the applicant’s counsel had made with a number of archives and state institutions in order to find documents relevant for the civil proceedings. When questioning employees of those institutions, the police also noted the areas of interest of the applicant’s counsel and the documents to which he had had access and had studied. The decision further shows that the investigation enabled the police to make a qualified assessment of the evidence which the applicant might use as the plaintiff in the civil proceedings against the State. 34. On 8 June 2006 the applicant and his counsel found out by chance that they had been under police investigation. Neither of them had ever been questioned during the investigation. 35. On 5 December 2006 the applicant’s counsel lodged a constitutional appeal with the Constitutional Court. Invoking the right to confidentiality of communications with his client, he challenged the production of the records of his telephone communications as contrary to his right to respect for the confidentiality of telephone communications under Article 13 of the Czech Charter of Fundamental Rights and Freedoms. He requested that the order of the Praha-východ District Court of 27 April 2004 be quashed, the police case file disclosed and the records destroyed. 36. On 27 September 2007 the Constitutional Court allowed the appeal and quashed the order as unlawful, ordering the police to destroy all the records of the telephone communications. The court found: “... the State has the standing of defendant in a set of civil proceedings initiated by a client of the complainant [that is, the applicant]. It litigates with the claimant on an equal footing in such proceedings. To defend its interests there, it is equipped with staff and finances from the State budget. If criminal proceedings are brought simultaneously with these [civil] proceedings ... despite the fact that a reasonable suspicion of a crime, which is one of the legal requirements for the initiation of any criminal proceedings, does not exist, there is a logical presumption that the State may at least attempt to improve its legal position in the civil proceedings by acquiring information through the prosecuting authorities and its other security agencies, or even attempt to deter the other litigant. Such conduct by the State is absolutely unacceptable in a democratic society and deserves to be condemned ... Although the criminal proceedings were finally rightfully suspended in the instant case, it remains alarming for the democratic development of the country that the suspension took place only after massive, and probably extremely expensive and entirely superfluous, criminal proceedings which should have never been initiated. ... ... the police decision to suspend the investigation was based on a purely legal conclusion that could have been arrived at without evidence consisting of 4,384 pages ... including materials procured by means of legal assistance provided by third countries and information supplied by the intelligence service ... The police ... and the supervising prosecutor ... could have arrived at the same conclusion at the outset [of the investigation].” 37. The relevant domestic law and practice regarding confiscation of property under the Presidential Decrees and its restitution are set out in the Court’s decision Des Fours Walderode v. the Czech Republic (dec.), no. 40057/98, 4 March 2003. 38. Article 101 § 1 stipulates that in order to achieve the aim of proceedings, parties are obliged, inter alia, to assert all facts relevant to the case. 39. Article 119a provides for the principle of proceedings concentration; it stipulates that parties to proceedings must disclose all material facts and specify evidence prior to the court of first instance pronouncing its decision in the case, because facts and evidence claimed after that time can only constitute a reason for lodging an appeal under the conditions exhaustively listed in Article 205a (for example, in the case of defects in the proceedings, in order to undermine the credibility of evidence forming a ground for the ruling of the court of first instance, or if the facts to be proved occurred only after the first-instance decision). 40. Section 1(2) provides that the Office for the Representation of the State in Property Matters represents the State, inter alia, in proceedings before courts. Section 15(1) provides that the Office is supervised by the Ministry of Finance. 41. In March 2004 Parliament adopted Act no. 120/2004 amending this law. Under the newly added section 13a the Office may represent a municipality responding in civil proceedings to an action that seeks to determine the ownership of real estate, and/or its appurtenances, acquired from the State, or to an action for such real estate to be vacated. Such legal services are provided free of charge. According to section 13d the Office may intervene on behalf of and in the name of the State and alongside a municipality in such civil proceedings if the State has a legal interest in the outcome of the proceedings. 42. The Explanatory report to Act no. 120/2004 stated that it was in the State’s interest that the assets of municipalities were not diminished. It noted that municipalities often faced complicated judicial proceedings, for example under the Presidential Decrees, but that they did not have the necessary expert capacity to conduct such proceedings. Consequently, using the services of the Office would be the only way for many municipalities to defend their property acquired from the State. 43. Article 158 provides that at the stage prior to the initiation of a criminal prosecution the police are obliged, on the basis of their own findings, criminal complaints, or suggestions from other persons and authorities which may lead to the conclusion that there exists suspicion that a criminal offence has been committed, to carry out all the necessary examinations and take the required measures to detect the facts that indicate the commission of a criminal offence and to find the offender; they are also obliged to take the necessary measures to prevent criminal activities. 44. Section 72(1)(a) stipulates that a constitutional appeal may be submitted: a) under Article 87 § l (d) of the Constitution by a natural or legal person if he or she alleges that his or her fundamental rights and basic freedoms guaranteed in the constitutional order have been infringed as the result of a final decision in proceedings to which he or she was a party, or of a measure or some other encroachment by a public authority. 45. Under section 72(3) a constitutional appeal must be lodged within sixty days of the date on which a final decision on a last remedy is served on an applicant. If the law does not provide for any legal remedy, the timelimit is triggered by the date on which the applicant learns about an infringement. In such a case, a constitutional appeal may not be lodged later than one year from the date when the infringement occurred. 46. Section 118 stipulates that the task of the State administration of courts, carried out by the Ministry of Justice, is to create conditions for the proper conduct of justice, especially in terms of personnel, organisational, economic, financial and educational affairs, and to supervise, in the manner and within the limits set by this law, the tasks entrusted to the courts in order to ensure that they are carried out properly. The State administration of courts cannot interfere with the independence of the courts. 47. Under section 123(2) the Ministry of Justice monitors and evaluates the conduct of proceedings by and decisions of high, regional and district courts solely in terms of the principles of the dignity of judicial conduct and ethics and whether the proceedings have suffered from unnecessary delays. 48. The plenary of the Constitutional Court found that the restitution laws could not be circumvented by civil actions for determination of ownership. Nor could the protection of ownership rights extinguished before 25 February 1948 be triggered unless the restitution laws provided for redress in that respect. 49. In this decision the Constitutional Court dismissed the applicant’s constitutional appeal contesting the dismissal of his objection of bias in respect of a judge who had heard one of his civil actions. In his appeal the applicant alleged a violation of the right to a fair trial as a result of political pressure reflected, inter alia, by amendments to legislation, such as Act no. 120/2004, the revisiting of case-law by the domestic courts, public statements by politicians to the applicant’s detriment, and the reporting duties imposed on courts by the Ministry of Justice. “The Constitutional Court has already held in several decisions on constitutional appeals by the same applicant (for example ...) that the activities of some politicians referred to by the applicant, be they verbal expressions to the media or other, aimed at creating a negative atmosphere around the legal actions of the applicant, or constituting direct attempts to interfere in these proceedings, were unacceptable in a system based on the rule of law. This is even more valid for the activities of the Ministry of Justice that the Constitutional Court has had an opportunity to acquaint itself with from documents presented by the applicant ... The documents show that the Ministry of Justice imposed on the ordinary courts an obligation to provide information to such an extent that it was incompatible with the principle of separation of powers between the judicial and executive branches of government (from the documents adduced it does not appear that the Ministry pursued the aim of securing the proper administration of justice, especially in the personal, organisational, economic, financial and educational domains, or that it was motivated by efforts to prevent or eliminate delays in the proceedings or to ensure that these were conducted in a dignified manner and in accordance with judicial ethics – see section 118 in conjunction with section 123 of the Act on Courts and Judges).” 50. Nevertheless, it held that these activities alone could not cast doubts on the impartiality of individual judges. It found that the applicant had failed to substantiate his allegation that the particular judge whose partiality he challenged had not been impartial. 51. The Constitutional Court dismissed as manifestly ill-founded a constitutional appeal by the applicant arising from another set of civil proceedings for determination of ownership, referring only to its Opinion no. Pl. ÚS – st. 21/05. It did not consider in detail the arguments of the applicant, which concerned the criminal investigation against him and his counsel, stating that, in view of the Opinion, that would have been superfluous. | 1 |
train | 001-113754 | ENG | ARM | CHAMBER | 2,012 | CASE OF TUNYAN AND OTHERS v. ARMENIA | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property) | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 4. The applicants were born in 1945, 1940, 1974 and 1976 respectively and live in Yerevan. 5. Ms Emma Tunyan (hereafter, the first applicant) owned a flat which measured 89.25 sq. m. and was situated at 9 Byuzand Street, Yerevan. The flat was in a house situated on a plot of land measuring 240 sq. m. leased by the first applicant. The applicants alleged that Mr Sashik Safyan, Mr Gevorg Safyan and Mr Mihran Safyan (hereafter, the second, third and fourth applicants), the first applicant’s husband and two sons, enjoyed a right of use in respect of this house, while the Government contested this allegation and claimed that they did not enjoy the right of use in respect of the house and simply had the right to live in it. 6. On 1 August 2002 the Government adopted Decree no. 1151-N, approving the expropriation zones of the immovable property (plots of land, buildings and constructions) situated within the administrative boundaries of the Central District of Yerevan to be taken for the needs of the State for the purpose of carrying out construction projects, covering a total area of 345,000 sq. m. Byuzand Street was listed as one of the streets falling within such expropriation zones. 7. On 17 June 2004 the Government adopted Decree no. 909-N, contracting out the construction of one of the sections of Byuzand Street – which was to be renamed as the Main Avenue – to a private company, Glendale Hills CJSC. 8. On 28 July 2004 Glendale Hills CJSC and the Yerevan Mayor’s Office signed an agreement which, inter alia, authorised the former to negotiate directly with the owners of the property subject to expropriation and, should such negotiations fail, to institute court proceedings on behalf of the State, seeking forced expropriation of such property. 9. On 25 August 2004 Glendale Hills CJSC informed the applicants that the flat and the leased plot of land had been valued by a licensed valuation organisation at USD 34,200 and offered the first applicant as the owner an equivalent sum in the national currency as compensation. An additional sum of USD 28,600 was offered to her as a financial incentive, if she agreed to sign an agreement and to hand over the property within the following five days. The other applicants were offered each USD 2,000 as compensation and USD 1,500 as a financial incentive. 10. It appears that the applicants did not accept the offer, not being satisfied with the amount of compensation offered. 11. On 23 September 2004 Glendale Hills CJSC instituted proceedings against the applicants on behalf of the State, seeking to oblige them to sign an agreement on the taking of their property for State needs and to evict them. 12. On 18 October 2004 the first applicant lodged a counter-claim in which she contested the constitutionality of Government Decree no. 1151-N. She submitted, inter alia, that this Decree contradicted Article 28 of the Constitution, according to which property could be expropriated only through the adoption of a law concerning the property in question. She further submitted that the Government was not authorised under the same Article to decide on the expropriation of property. 13. On 26 October 2004 the Kentron and Nork-Marash District Court of Yerevan granted the claim of Glendale Hills CJSC and dismissed the counter-claim of the first applicant, ordering the applicants to sign the agreements offered and that they be evicted. The District Court stated, inter alia, that it was not competent to decide upon the constitutionality of Government Decree no. 1151-N. 14. On 9 November 2004 the applicants lodged an appeal. 15. On 1 March 2005 the Civil Court of Appeal granted the claim of Glendale Hills CJSC. The Court of Appeal further terminated the proceedings on the first applicant’s counter-claim since it was not competent to decide on the constitutionality of government decrees. It also ordered that the applicants pay court fees in the amount of 4,000 and 10,000 Armenian drams (AMD). 16. On 14 March 2005 the applicants lodged an appeal on points of law. On 1 April 2005 they filed additional submissions to their appeal. 17. On 14 April 2005 the Court of Cassation dismissed the applicants’ appeal. 18. On 29 April 2005 the bailiff instituted the enforcement proceedings and ordered the applicants to comply with the judgment. On 12 May 2005 the applicants, who had apparently refused to comply voluntarily with the judgment, were forcibly evicted from their home. 19. For a summary of the relevant domestic provisions see the judgment in the case of Minasyan and Semerjyan v. Armenia (no. 27651/05, §§ 23-43, 23 June 2009). | 1 |
train | 001-69898 | ENG | POL | CHAMBER | 2,005 | CASE OF JEDAMSKI AND JEDAMSKA v. POLAND | 3 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 7. The applicants, Mr Grzegorz Jedamski and Mrs Teresa Jedamska, are a married couple. They are Polish nationals, who were born in 1954 and 1960, respectively. They live in Mikołajki Pomorskie, Poland. 8. The proceedings summarised below have already been examined by the Court under Article 6 § 1 of the Convention from the angle of the “reasonable time” requirement. In its judgment of 26 July 2001 (Jedamski v. Poland appl. no. 29691/96) the Court (former Fourth Section) unanimously held that there had been a violation of Article 6 § 1. 9. On 22 December 1992 the Łódź Bank of Development (Łódzki Bank Rozwoju), submitting a bill of exchange payable to bearer which required the first applicant to pay on demand 19,777,167,300 old Polish zlotys (PLZ), asked the Łódź District Court (Sąd Rejonowy) to issue an order for payment against him. 10. On 14 January 1993 the court granted the plaintiff’s claim and ruled that the first applicant was to pay the sum in question within seven days from the date of service of the order or, alternatively, within the same time-limit, to lodge an appeal against the said order. The first applicant appealed. 11. On 11 February 1993, acting under a provisional writ of execution of 1 February 1993 and on a request by the creditor, i.e. the Łódź Bank of Development, the Bailiff of the Warsaw District Court (Komornik Sądu Rejonowego) made an order attaching the applicants’ shares in the Bank of Development of Export (Bank Rozwoju Eksportu) and an unknown sum of cash deposited in the Central Brokerage Bureau of the Bank PeKaO S.A. (Centralne Biuro Maklerskie Banku Polska Kasa Opieki S.A.), by way of security for the creditor’s claim for payment of PLZ 19,777,167,300 pending in the Łódź Regional Court. 12. On 26 February 1993 the first applicant lodged an unsuccessful complaint against the actions taken by the bailiff (skarga na czynności komornika), relying on Article 767 of the Code of Civil Procedure and arguing that the attached shares constituted the matrimonial property of the applicants, whereas the execution was against the applicant alone. 13. On 12 October 1993 the Łódź Bank of Development was taken over by the BIG Bank SA (Bank Inicjatyw Gospodarczych SA). The BIG Bank SA replaced the former bank as a plaintiff in the civil proceedings and as a creditor in the enforcement proceedings. 14. On 23 February 1999 the Łódź Regional Court quashed the order for payment and awarded the plaintiff bank 1,954,097.49 new Polish zlotys (PLN) [approx. EUR 442,000] together with interests and costs of the proceedings. The plaintiff bank and the first applicant appealed against that judgment. 15. On 9 April 1999 the Łódź Regional Court secured the plaintiff’s already-awarded claim by attaching the applicants’ shares in the Bank of Development of Export (Bank Rozwoju Eksportu), an amount of PLN 984,674.50 in cash deposited in the Central Brokerage Bureau of the Bank PeKaO S.A. (Centralne Biuro Maklerskie Banku Polska Kasa Opieki S.A.) and shares in the former Łódź Bank of Development (Łódzki Bank Rozwoju) (taken over by the BIG Bank SA) deposited in the Łódź District Court by the Bailiff of the Łódź District Court (Komornik Sądu Rejonowego). 16. On 6 October 1999 the Łódź Court of Appeal (Sąd Apelacyjny) dismissed the appeal lodged by the first applicant against the decision of 9 April 1999. 17. On 19 October 1999 the Łódź Court of Appeal upheld the decision of 23 February 1999. 18. On 16 November 2000 the Bailiff of the Warsaw District Court discontinued the enforcement proceedings instituted under the writ of execution of 1 February 1993. Nevertheless, the attachment of the applicants’ property made on 9 April 1999 remained in force. 19. On 26 January 2001 the Supreme Court dismissed the cassation appeal lodged by the first applicant. 20. On 10 May 2001 the Supreme Court rejected the first applicant’s request to reopen the proceedings. 21. On 28 December 2000 the applicants sued the Warsaw BIG Bank SA in the Warsaw Regional Court (Sąd Okręgowy). They sought damages of PLN 340,000,000 claiming that the attachment of their property, in particular the shares, made at the BIG Bank SA request on the basis of the quashed order for payment of 14 January 1993, deprived them of any future profit-making trade in shares at the Warsaw Stock Exchange. 22. On 23 January 2001 the applicants informed the court that, on 5 January 2001, as a result of the banks’ merger, the BIG Bank SA (Bank Inicjatyw Gospodarczych SA) had been taken over by the BIG Bank Gdański SA. From that date onwards, the BIG Bank Gdański SA replaced the former bank as a defendant in the proceedings. On an unknown date the court ordered the applicants to pay a court fee of PLN 100,000 for lodging the claim. 23. On 23 January 2001 the applicants asked the Warsaw Regional Court to exempt them from payment of that fee. They also submitted a declaration of means, pursuant to Article 113 § 1 of the Code of Civil Procedure. Their application read, in so far as relevant: “... The plaintiffs ask for an exemption from the court fee on the ground that they cannot pay that sum as it will entail a substantial reduction in their standard of living. The plaintiffs’ matrimonial property was seized by the Bailiff acting upon the decision of the Łódź Regional Court of 9 April 1999. [in connection with that argument, the applicants produced a copy of that decision] Their income from a farm, which is the second applicant’s personal property, does not suffice for the payment of PLN 3,957.50 the plaintiffs owe in tax arrears. [in connection with this argument, the applicants produced a copy of a certificate issued by the Mikołajki Pomorskie Commune Office (Urząd Gminy) stating the anticipated income and tax arrears] The plaintiffs declare that they are not deriving the anticipated income indicated in the presented certificate due to a shortage of funds for making investment outlays in the production. The plaintiffs further state that, given that their other assets were attached, their only present income is that from the farm. In the circumstances, the plaintiffs are unable to pay the court fees. Finally, the plaintiffs inform [the court] that in other civil proceedings, the Łódź Regional Court, in its decision of 9 June 1999, exempted the first applicant from paying the full amount of fees. [in connection with that argument, the plaintiffs produced a copy of that decision]” The declaration of means made by the first applicant read, in so far as relevant: “The plaintiff asks for an exemption from court fees on the ground that he cannot pay the fee in question [as it will] entail a substantial reduction in his standard of living. He has the following items of property: 1) no personal property; the average anticipated annual income from the agricultural farm is estimated at PLN 66,140.43; 2) 62,500 shares in the BRE Bank SA, 9,950 shares in the BIG Bank SA and PLN 984,674.50 in cash (matrimonial property attached by the Bailiff); 3) 11 shares in the BIG BG SA; 4) audio and television equipment; furniture.” 24. The declaration of means made by the second applicant read, in so far as relevant: “The plaintiff asks for an exemption from court fees on the ground that she cannot pay the fee in question [as it will] entail a substantial reduction in her standard of living. She has the following items of property: 1) agricultural farm, the average anticipated annual income from which is estimated at PLN 66,140.43; 2) car; 3) 62,500 shares in the BRE Bank SA, 9,950 shares in the BIG Bank SA and PLN 984,674.50 in cash (matrimonial property attached by the Bailiff); 4) 11 shares in the BIG BG SA; 5) audio and television equipment; furniture.” 25. On 30 January 2001 the court rejected the applicants’ application. The reasons for that decision read, in so far as relevant: “... As it emerges from the plaintiffs’ declarations of means, the second applicant is a sole owner of the farm of 57.44 ha ... The annual anticipated income from the farm amounts to PLN 66,140.43 and constitutes the only source of the plaintiffs’ income. Moreover, the plaintiffs are the owners of PLN 984,674.50 in cash, 62,500 shares in the BRE Bank SA and 9,950 shares in the BIG Bank SA. It is true that their cash and shares have been attached by the decision of the Łódź Regional Court, but the plaintiffs’ real financial situation does not seem to be as bad as they present it. Taking into consideration their assets and income derived from the farm, the plaintiffs are able to pay the full amount of the court fees without any reduction in their family’s standard of living. When deciding to bring the present claim, the plaintiffs should have taken into account the fact that it would involve the necessity of paying court fees. They should therefore have secured financial means in anticipation of the litigation...” 26. On 13 February 2001 the applicants lodged an interlocutory appeal (zażalenie) against that decision. They alleged a breach of Article 113 § 1 of the Code of Civil Procedure and Article 6 § 1 of the Convention. The applicants maintained that it had clearly emerged from the documents produced by them, in particular the Łódź Regional Court’s decision to secure the plaintiff’s claim for payment by attaching the applicants’ shares and the declaration setting out the average anticipated annual income from the farm, that they were unable to pay the court fee of PLN 100,000 imposed on them. 27. On 9 March 2001 the Warsaw Court of Appeal (Sąd Apelacyjny) dismissed the appeal. The relevant part of that decision read: “... The plaintiffs’ assets are of a considerable value and they several times exceed the average level of means. This conclusion cannot be changed by the fact that part of their property is attached in other civil proceedings. The plaintiffs still remain the owners of their property and, consequently, should be able to take necessary measures to gather sufficient means to pay the court fees. The plaintiffs are involved in a number of proceedings concerning pecuniary and non-pecuniary rights to their shares in commercial companies and, in the past, they made a large number of transactions on the stock exchange market. These facts indicate that the plaintiffs ... cannot be regarded as indigent and that the court fees for lodging their claim should not be borne by the State. Their declaration of means is dubious because it is not complete. The plaintiffs did not indicate precisely whether they had title to their apartment. They did not reveal the real income derived from the farm. Nor did they produce any information concerning the type of activities in which they are engaged on their farm. Moreover, [the first applicant] failed to indicate his place of employment; his being his wife’s dependant seems doubtful.... Lastly, the plaintiffs did not supply any information concerning their house or the farm equipment. That information would have enabled the court to ascertain their real standard of living. Assessing all the circumstances, the following conclusion can be drawn: the plaintiffs, who have failed to show their current financial situation and to reveal their income, cannot successfully challenge the first-instance decision which rejected their application for an exemption from court fees. They cannot therefore complain that they are deprived of access to a court. In addition, it should be pointed out that the amount of the court fee is based on the value of the claim in question and that [that value] depended on the plaintiffs....” 28. On 30 April 2001 the Warsaw Regional Court ordered the applicants to pay PLN 100,000 for lodging their claim. The applicants did not pay that sum. As a consequence, on an unknown date, the Warsaw Regional Court ordered that the applicants’ statement of claim be returned to them (zarządził zwrot pozwu), which meant that their claim was of no legal effect and that the relevant proceedings were, for all legal and practical purposes, regarded as having never been brought before the court. 29. Under Polish law every plaintiff is obliged to pay a court fee at the time of lodging a statement of claim with a court. As the case proceeds, either party is obliged to pay further court fees at the time of lodging any appeal or constitutional complaint, unless granted an exemption from such fees. Court fees are based on a percentage (if a fee is due for lodging a claim or an appeal) or a fraction (if a fee is due for lodging an interlocutory appeal) of the value of the claim in question. The court fees incurred by either party can, depending on the outcome of the litigation, be finally repaid by the losing party (who, in principle, is ordered to pay all the costs of litigation in a final judgment). 30. There are, however, categories of litigants who are exempted from court fees by virtue of statutory provisions. Some of those categories are listed in Article 111 § 1 of the Code of Civil Procedure. That provision, in the version applicable at the relevant time, exempted from court fees a party lodging a paternity action, a party seeking maintenance, a prosecutor, a court-appointed guardian and “any party exempted from court fees by the competent court” (that is to say, a party who had been granted an exemption under Article 113 of the Code, cited below). 31. The other categories of these exempted litigants are listed in, inter alia, sections 8 and 9 of the Law of 13 June 1967 on Court Fees in Civil Cases (Ustawa o kosztach sądowych w sprawach cywilnych). Under section 8 of the Law, the State Treasury, municipalities and other public organs or institutions are not obliged to pay court fees, provided that the claim in question does not relate to their business activity. Section 9 authorises the Minister of Justice to exempt non-governmental organisations from court fees. 32. In case of a successful outcome of litigation initiated by a person exempted from court fees, the fees which would normally have been collected from that person for lodging and proceeding with his claim are awarded to the State Treasury against his opponent. 33. The Law of 13 June 1967 on Court Fees in Civil Cases (as amended) sets out general principles with respect to the collection of fees by courts. Section 5(1) of the Law, in the version applicable at the material time, stipulated: “Unless otherwise provided by the law, a party who has submitted to a court a pleading which is subject to court fees, shall pay such fees.” 34. The relevant part of section 16 of the Law, in the version applicable at the material time, provided as follows: “1. The court shall not take any action if the court fee due for lodging a given pleading is not paid. In such a case the president of the court shall order the party concerned to pay the fee due within a period not exceeding seven days, on pain of having the pleading returned. If the party does not comply with the time-limit, the pleading shall be returned to this party. ... 3. Any appeal, cassation appeal, interlocutory appeal or objection to a judgment by default ... shall be rejected if the court fee due is not paid within the [above] time-limit.” 35. Section 18 provided: “A pleading which has been returned to a party as a result of the fact that the court fee had not been paid, shall be of no legal effect.” 36. The relevant part of paragraph 1 of the Ordinance of the Minister of Justice of 17 December 1996 on Determining Court Fees in Civil Cases (Rozporządzenie Ministra Sprawiedliwości w sprawie określania wysokości wpisów w sprawach cywilnych) (as amended), in the version applicable at the material time, stated: “(4) Where the value of the claim exceeds PLN 100,000 the court fee shall amount to PLN 6,600 for the first PLN 100,000 and 5% of the remaining value of the claim. In any case the court fee due shall not exceed the sum of PLN 100,000.” 37. Exemption from payment of court fees was (and still is) a matter for the discretion of the court competent to deal with the case. Article 113 § 1 of the Code of Civil Procedure, in the version applicable at the material time, stipulated: “An individual may ask the court competent to deal with the case to grant him an exemption from court fees provided that he submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family’s standard of living. Such a declaration shall contain details concerning his family, assets and income. It falls within the court’s discretion to assess whether or not the declaration satisfies the requirements for granting the exemption requested.” The grounds for exempting legal persons, companies and business enterprises from court fees were, however, formulated in a different way from the grounds applying to natural persons. Paragraph 2 of Article 113 of the Code of Civil Procedure in the version applicable at the relevant time read: “A legal person, or an entity not possessing legal personality, which has demonstrated that it does not have sufficient financial means for court fees, may be granted an exemption from those fees.” Article 116 § 1 of the Code of Civil Procedure provides: “In case of doubt ... as to the real financial situation of the party requesting exemption from court fees, the court may order a verification of his declaration.” The relevant part of Article 120 § 1 of the Code, in the version applicable at the material time, stated: “The court shall revoke an exemption from court fees or legal assistance granted if the basis therefor did not exist or has ceased to exist. In either instance the party concerned shall pay all court and/or legal fees due in his case...” 38. Fees collected by courts do not constitute, nor are they equivalent to, security for costs. The court fees are transferred by financial departments of the courts to the State Treasury and are deemed to be part of its income. 39. On 11 January 1995 the Supreme Court (Sąd Najwyższy) gave a decision in which it referred for the first time to the “right to a court” guaranteed under Article 6 § 1 in the context of the requirement to pay court fees for lodging a claim or appeal (decision no. III ARN 75/95, published in OSN Zb. U. 1995, no. 9). That ruling concerned an extraordinary appeal lodged by the First President of the Supreme Court with the Supreme Court. The appeal was directed against a decision of the Supreme Administrative Court, refusing to exempt a claimant in administrative proceedings from payment of court fees. The Supreme Court held as follows: “1. From the date on which Poland became a member of the Council of Europe, the case-law of the European Court of Human Rights in Strasbourg may and should be taken into account in interpreting Polish law. 2. If the subject matter of a case is the party’s application for substantial financial assistance from the public authorities, particular diligence should be displayed in considering [that party’s] parallel application for an exemption from court fees. [Any decision] rejecting such an application should give relevant and particularly cogent reasons so as not to amount to an actual denial of the right to a court (as secured by Article 6 of the European Convention of Human Rights) ...” Although the relevant decision related to court fees for lodging an appeal with the Supreme Administrative Court by a person who had requested financial assistance from the public authorities, it has been applied mutatis mutandis to civil cases. | 1 |
train | 001-100798 | ENG | UKR | CHAMBER | 2,010 | CASE OF BOGATOVA v. UKRAINE | 4 | Violation of Art. 6-1 | Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 5. The applicant was born in 1944 and lives in Dniprodzerzhynsk. 6. In July 2003 the applicant instituted proceedings in the Bagliyskyy District Court of Dniprodzerzhynsk against the State of Ukraine, the President, and the local department of the Pension Fund, seeking recovery of pension arrears and compensation for non-pecuniary damage. In her claim the applicant stated, in particular, that under Article 46 of the Constitution she was entitled to a pension equal to the amount of minimum living standard. However, her pension was lower than that standard effective at the relevant time. 7. On 26 December 2003 the court rejected the applicant's claim as unfounded, stating that the amount of her pension had been determined correctly under the pension legislation. On 5 April 2004 and 8 June 2006 respectively the Dnipropetrovsk Regional Court of Appeal and the Supreme Court upheld the decision of the first-instance court. Neither of the courts considered the applicant's argument under Article 46 of the Constitution in respect of inconsistency of the amount of her pension with the minimum living standard. 8. The relevant domestic law is set out in the judgment case of Pronina v. Ukraine (no. 63566/00, §§ 13-19, 18 July 2006). | 1 |
train | 001-78044 | ENG | RUS | CHAMBER | 2,006 | CASE OF KONDRASHOVA v. RUSSIA | 4 | Violation of Art. 6;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | Christos Rozakis | 5. The applicant was born in 1939 and lives in Petrozavodsk. 6. In March and September 1996 the applicant won two cases in court against her former employer, a State-owned enterprise, and was awarded a sum of money. 7. Consequently, enforcement proceedings were instituted by the bailiff and one of the judgments was partly executed. 8. On 14 April 1997 the bailiff transmitted the materials relating to the enforcement proceedings to the Liquidation Committee as there were bankruptcy proceedings instituted in respect of the enterprise. 9. The enterprise was declared bankrupt in June 1998 and its debts were considered as paid upon termination of the bankruptcy proceedings in March 1999. No money was paid to the applicant due to the lack of funds. 10. On an unspecified date the applicant instituted court proceedings against various public authorities seeking pecuniary and non-pecuniary damages for the non-enforcement of the court judgments. She claimed that the judgments had not been enforced due to the bailiff's failure to take timely measures to facilitate their enforcement. 11. On 13 June 2000 the Petrozavodsk Town Court of the Republic of Karelia (Петрозаводский городской суд Республики Карелия) ruled in the applicant's favour. The Town Court found that during the period when the enforcement proceedings were managed by the bailiff, i.e. before 14 April 1997, the enterprise carried out economic activities and paid taxes. However, within that period the bailiff failed to take all the necessary measures to facilitate the timely enforcement of the court judgments. The applicant was awarded pecuniary damages in the amount of 53,655 Russian roubles to be paid from the Federal Treasury. Her claims for non-pecuniary damages were rejected. 12. On 25 July 2000 the Supreme Court of the Republic of Karelia (Верховный Суд Республики Карелия) upheld the judgment of the Town Court in the final instance. 13. On 10 August 2000 the bailiff instituted enforcement proceedings on the basis of the court judgment of 13 June 2000. The bailiff ordered the Ministry of Finance (Министерство Финансов РФ) voluntarily to comply with the judgment by 16 August 2000. 14. On an unspecified date in 2000, while the enforcement proceedings were still in progress, the President of the Supreme Court of the Republic of Karelia (Председатель Верховного Суда Республики Карелия) lodged an application for supervisory review (протест в порядке надзора) of the judgment of 13 June and the decision of 25 July 2000. 15. On 6 December 2000 the Presidium of the Supreme Court of the Republic of Karelia (Президиум Верховного Суда Республики Карелия) decided to quash the said decisions on the grounds that they conflicted with procedural and substantive laws. The case was remitted for a new examination at first instance. 16. On an unspecified date following the Presidium's decision the bailiff applied to the courts seeking to stay the enforcement proceedings until there was a final decision taken on the merits of the case. 17. On 12 January 2001 the Petrozavodsk Town Court of the Republic of Karelia found that in the present circumstances the enforcement proceedings should be terminated rather than stayed. 18. By decision of 2 March 2001 the Supreme Court of the Republic of Karelia upheld the decision of the Town Court and decided in the final instance to terminate the enforcement proceedings. 19. On 15 March 2001 the Petrozavodsk Town Court of the Republic of Karelia delivered a new judgment on the merits, rejecting the applicant's claims. The Town Court found that the bailiff had not been responsible for the non-enforcement of the court judgments as the enterprise lacked any assets at the relevant time. 20. On 17 April 2001 the Supreme Court of the Republic of Karelia upheld the judgment of the Town Court in the final instance. 21. Section 11 of the Code of Civil Procedure of 1964 (Гражданский процессуальный кодекс РСФСР), as in force at the relevant time, provided that regional and higher courts could conduct supervisory review of the activities of the lower courts. 22. According to Sections 319, 320 and 327 of the Code, certain senior judicial officers could, at any time, at request of the person concerned or on their own motion, lodge with a higher court an application for supervisory review of a final decision of a lower court on points of law and procedure. | 1 |
train | 001-67928 | ENG | FRA | CHAMBER | 2,005 | CASE OF PY v. FRANCE [Extracts] | 1 | No violation of P1-3;Not necessary to examine Art. 14 | null | 8. The applicant was born in 1964 and lives in Nancy. He is a university lecturer and researcher in private law and is a member of the French civil service. 9. On 1 September 1995 he was appointed to a post at the French University of the Pacific in Nouméa, New Caledonia, which at the material time was a French overseas territory. The holder of the post was required to live in the territory. 10. The applicant applied to be registered on the electoral rolls for his place of residence. He was entered on the general electoral roll for the municipality of Nouméa but was refused registration on the special electoral roll for the 1998 ballot on self-determination. On 7 April 1997 the mayor of Nouméa notified him that he had been deemed not to satisfy the residence requirements laid down in section 2 of the Act of 9 November 1988 in that he could not show that he had been permanently resident in New Caledonia since 6 November 1988. The applicant did not appeal against that decision. 11. On 5 May 1998 the Nouméa Accord was signed. It laid down transitional arrangements for the political organisation of New Caledonia and for its move to self-determination. It altered New Caledonia's constitutional status, making it a sui generis territory with its own specially designed institutions. Article 77 of the Constitution was consequently amended to provide that the measures required for the implementation of the Accord were to be laid down in an institutional Act. 12. Institutional Act no. 99-209 of 19 March 1999 brought about the twelfth institutional reform in New Caledonia since 1853, giving it its ninth different status since 1976. It strengthened Congress's powers and introduced a ten-year residence requirement for taking part in the election of members of Congress and the provincial assemblies. 13. On 9 April 1999 the applicant applied to be registered on the special electoral roll for the elections to Congress and the provincial assemblies on 9 May 1999 in the municipality of Nouméa. He was refused registration on the ground that he could not show that he had been permanently resident in New Caledonia in the ten years prior to 9 May 1999. 14. The applicant applied to the Nouméa Court of First Instance for a review of the conformity of the Act with the Convention, and for registration on the special electoral roll for the municipality of Nouméa. On 3 May 1999 the court dismissed his applications. 15. The applicant appealed on points of law to the Court of Cassation, complaining that the Court of First Instance had found against him despite the fact that the refusal to register him contravened various provisions of domestic and international law, in particular Articles 1 and 3 of the Constitution of 4 October 1958, Articles 2, 7, 21-1 and 21-3 of the Universal Declaration of Human Rights of 10 December 1948, Article 14 of the Convention, Articles 2-1, 25 and 26 of the New York Covenant of 19 December 1966, Article 6 of the Declaration of the Rights of Man and the Citizen of 26 August 1789, Articles 225-1 and 432-7 of the new Criminal Code, and the Preamble to the Constitution of 27 October 1946. 16. On 13 July 2000 the Court of Cassation dismissed his appeal on the ground that the conditions for taking part in elections to Congress and the provincial assemblies followed from an institutional Act which ranked as constitutional law in that it reproduced the wording of the Nouméa Accord, which itself had constitutional status by virtue of Article 77 of the Constitution. It dismissed the applicant's arguments concerning the provisions of the Convention, holding in particular that the precedence accorded to international undertakings did not apply in the domestic legal order in relation to provisions ranking as constitutional law. 17. The applicant also produced to the Court a decision of 2 June 2000 in which the Court of Cassation had dismissed, on the same grounds, an appeal which was similar to his but which alleged a violation of Article 3 of Protocol No. 1. ... Chapter I: Distribution of powers among the State, New Caledonia, provinces and municipalities ... Section 1: Powers vested in the State and New Caledonia ... “Congress shall be the deliberative body of New Caledonia. It shall have fifty-four members: seven from the Loyalty Islands provincial assembly, fifteen from the Northern provincial assembly and thirty-two from the Southern provincial assembly. Members of Congress shall be elected for a five-year term in the manner prescribed in Part V. ...” “The power to initiate territorial laws and regulations shall be vested conjointly in the Government and the members of Congress.” Section 2: Powers assigned to Congress “The powers assigned to New Caledonia by Chapter I of Part II shall be exercised by Congress, with the exception of those conferred by this Act on the Government or the President of the Government.” “Congress shall adopt the budget and approve the accounts for New Caledonia. ...” “In criminal matters, Congress may make offences against territorial laws and regulations punishable by fines that are commensurate with the classification of petty and more serious offences [contraventions et délits] and do not exceed the maximum amount applicable for offences of the same nature under national legislation and regulations. It may also make such offences subject to such additional penalties as are provided for in national legislation and regulations for offences of the same nature. Congress may also make provision for administrative penalties for any offence.” ... Chapter II: Territorial laws “Instruments by which Congress enacts provisions on the matters listed in the following paragraph shall be designated as 'territorial laws'. Territorial laws may be enacted in the following areas, being those in which powers are exercised by New Caledonia, or from the date on which they are transferred pursuant to this Act: (1) symbols of identity and name as referred to in Article 5; (2) rules on the assessment and collection of taxes, duties or charges of any kind; (3) basic principles governing labour law, trade-union law and social-security law; (4) rules on aliens' access to employment; (5) customary civil status, rules governing customary land and customary assemblies; boundaries of customary areas; procedure for appointing members of the Customary Senate and the customary councils; (6) rules governing hydrocarbons, nickel, chromium and cobalt; (7) rules governing publicly owned land in New Caledonia and the provinces, subject to the provisions of Article 127, point (13); (8) rules on access to employment, pursuant to Article 24; (9) rules on civil status and capacity, systems of matrimonial property, inheritance and voluntary dispositions; (10) basic principles concerning ownership, rights in rem and civil and commercial obligations; (11) apportionment among the provinces of the operating grant and the equipment grant referred to in paragraphs I and II of Article 181; and (12) powers transferred and the schedule for their transfer, as provided in Section 1 of Chapter I of Part II.” ... Part V: Elections to Congress and the provincial assemblies Chapter II: Electorate and electoral rolls “I. Congress and the provincial assemblies shall be elected by an electorate composed of persons who (a) satisfy the conditions for registration on New Caledonia's electoral rolls for the ballot of 8 November 1998; or (b) are listed in the appended table and have been resident in New Caledonia for ten years on the date of the election to Congress and the provincial assemblies; or (c) have reached the age of majority after 31 October 1998 and can either show that they have been resident in New Caledonia for ten years prior to 1998, or have a parent who was eligible to vote in the ballot of 8 November 1998, or have a parent who is listed in the appended table and has been resident in New Caledonia for ten years on the date of the election. ...” “Examination of the merits 11.2 The Committee has to determine whether the restrictions imposed on the electorate for the purposes of the local referendums of 8 November 1998 and in 2014 or thereafter constitute a violation of articles 25 and 26 of the Covenant, as the authors maintain. ... 13.3 In the present case, the Committee has taken note of the fact that the local ballots were conducted in the context of a process of self-determination of the population of New Caledonia. ... 13.5 In relation to the authors' complaints, the Committee observes, as the State party indeed confirms, that the criteria governing the right to vote in the referendums have the effect of establishing a restricted electorate and hence a differentiation between (a) persons deprived of the right to vote, including the author(s) in the ballot in question, and (b) persons permitted to exercise this right, owing to their sufficiently strong links with the territory whose institutional development is at issue. The question which the Committee must decide, therefore, is whether this differentiation is compatible with article 25 of the Covenant. The Committee recalls that not all differentiation constitutes discrimination if it is based on objective and reasonable criteria and the purpose sought is legitimate under the Covenant. 13.6 The Committee has, first of all, to consider whether the criteria used to determine the restricted electorates are objective. ... 13.8 The Committee considers that the above-mentioned criteria are based on objective elements for differentiating between residents as regards their relationship with New Caledonia, namely the different forms of ties to the territory, whether specific or general – in conformity with the purpose and nature of each ballot. The question of the discriminatory or non-discriminatory effects of these criteria nevertheless arises. ... 13.10 ... the Committee considers that the criterion used for the 1998 referendum establishes a differentiation between residents as regards their relationship to the territory, on the basis of the length of 'residence' requirement (as distinct from the question of cut-off points for length of residence), whatever their ethnic origin or national extraction. ... 13.11 The Committee therefore considers that the criterion used for the 1998 referendum did not have the purpose or effect of establishing different rights for different ethnic groups or groups distinguished by their national extraction. ... 13.13 Finally, the Committee considers that in the present case the criteria for the determination of restricted electorates make it possible to treat differently persons in objectively different situations as regards their ties to New Caledonia. 13.14 The Committee also has to examine whether the differentiation resulting from the above-mentioned criteria is reasonable and whether the purpose sought is lawful vis-à-vis the Covenant. ... 13.16 The Committee recalls that, in the present case, article 25 of the Covenant must be considered in conjunction with article 1. It therefore considers that the criteria established are reasonable to the extent that they are applied strictly and solely to ballots held in the framework of a self-determination process. ... ... 13.18 Consequently, the Committee considers that the criteria for the determination of the electorates for the referendums of 1998 and 2014 or thereafter are not discriminatory, but are based on objective grounds for differentiation that are reasonable and compatible with the provisions of the Covenant. ... 14.2 The Committee considers that it is not in a position to determine the length of residence requirements. It may, however, express its view on whether or not these requirements are excessive. In the present case, the Committee has to decide whether the requirements have the purpose or effect of restricting in a disproportionate manner, given the nature and purpose of the referendums in question, the participation of the 'concerned' population of New Caledonia. ... 14.5 The Committee considers, first, that the cut-off points adopted do not have a disproportionate effect, given the nature and purpose of the referendums in question, on the authors' situation, particularly since their non-participation in the first referendum manifestly has no consequences for nearly all of them as regards the final referendum. 14.6 The Committee further considers that each cut-off point should provide a means of evaluating the strength of the link to the territory, in order that those residents able to prove a sufficiently strong tie are able to participate in each referendum. The Committee considers that, in the present case, the difference in the cut-off points for each ballot is linked to the issue being decided in each vote: the 20-year cut-off point – rather than 10 years as for the first ballot – is justified by the time frame for self-determination, it being made clear that other ties are also taken into account for the final referendum. 14.7 Noting that the length of residence criterion is not discriminatory, the Committee considers that, in the present case, the cut-off points set for the referendum of 1998 and referendums from 2014 onwards are not excessive inasmuch as they are in keeping with the nature and purpose of these ballots, namely a self-determination process involving the participation of persons able to prove sufficiently strong ties to the territory whose future is being decided. This being the case, these cut-off points do not appear to be disproportionate with respect to a decolonization process involving the participation of residents who, over and above their ethnic origin or political affiliation, have helped, and continue to help, build New Caledonia through their sufficiently strong ties to the territory. 15. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it do not disclose a violation of any article of the Covenant.” | 0 |
train | 001-101674 | ENG | UKR | CHAMBER | 2,010 | CASE OF KRIVOVA v. UKRAINE | 3 | Remainder inadmissible;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste | 5. The applicant was born in 1961 and lives in Chervonograd, Lviv region, Ukraine. 6. On 30 November 1998 several schools organised a collective visit by pupils to a local cinema, which was owned by the municipal company E., for a film showing. The applicant's daughter, Ms Galyna Igorivna Krivova, born in 1985, was among the pupils who visited that cinema. While the first group of pupils was still watching the film, another group of pupils for the next showing entered the auditorium. As a result of a lack of control of entry to the auditorium during the film, there was a stampede in which four children were trampled to death and fourteen children, including the applicant's daughter, received varying degrees of injury. The applicant's daughter, in particular, was diagnosed with, inter alia, severe post-traumatic hypoxic damage to the central nervous system (посттравматичне постгіпоксичне ураження центральної нервової системи важкого ступеню), a right sided pneumothorax, and other injuries. According to the applicant, her daughter was in a coma for two months. 7. On 17 January 1999 the applicant's daughter was classified as temporarily Category 1 disabled. Three years later, on 17 January 2002, she was classified as permanently disabled. 8. The applicant's daughter underwent inpatient medical treatment at least until 18 February 1999, after which she periodically had medical treatment and rehabilitation therapy. 9. By a judgment of 13 March 2004 the Chervonograd Town Court (“the Town Court”) declared the applicant's daughter incapacitated. Apparently that judgment became final and on 29 April 2004 the Chervonograd Town Council appointed the applicant as the legal guardian of her disabled daughter. 10. At the present time the applicant's daughter still suffers the consequences of post-traumatic consequences and needs medical assistance and nursing. 11. On 30 November 1998 the Prosecutor's Office instituted criminal proceedings and on an unspecified date indicted S., the head of the E. company (it appears from the submitted documents that criminal proceedings against other persons were also instituted but were subsequently abandoned for various reasons). 12. On 2 December 1998 a medical expert reported on the aforesaid injuries to the applicant's daughter and identified them as serious. 13. Meanwhile, on 1 December 1998 a special administrative committee composed of nine experts was set up to investigate the accident of 30 November 1998. On 10 December 1998 that committee drew up a report which recommended that six persons be dismissed and five others subjected to disciplinary sanctions. 14. According to the applicant, the pre-trial investigation was completed by 22 September 2000 and the case was transferred to the Town Court. 15. On 20 March 2001 the applicant lodged a civil claim against S., seeking compensation for pecuniary and non-pecuniary damage. Five other claims were also lodged with the court by other victims. 16. On 10 October 2003 the Town Court found S. guilty of abuse of authority and forgery and sentenced him to seven years' imprisonment. The court also banned S. from holding managerial positions for one year. As to the civil claims, the court allowed them in part, awarding, in particular, the applicant 15,000 Ukrainian hryvnias (UAH; about 2,464.91 Euros (EUR) at the material time) in respect of non-pecuniary damage, to be paid by S. 17. On 27 April 2004 the Lviv Regional Court of Appeal (“the Court of Appeal”) quashed that judgment because of procedural shortcomings of the trial before the first-instance court. On 1 July 2004, having held a re-trial, it found S. guilty of forgery in office (he had forged the documents stating that he had taken necessary accident prevention measures and instructed his subordinates) and negligence that had had serious consequences, finding that the cinema personnel had not been instructed and lacked relevant expertise, the auditorium had not been properly equipped and the cinema tickets had been sold without indication of time, row and seat. The court thus sentenced S. to five years' imprisonment and banned him from holding managerial positions for three years. However, in view of the Amnesty Act, the court exempted S. from these punishments. Finally, the court awarded the applicant UAH 143,556.69 (about EUR 22,771.80) in respect of pecuniary damage and UAH 12,000 (about EUR 1,903.51) in respect of non-pecuniary damage, to be paid by Chervonograd Town Council, as well as UAH 6,000 (about EUR 951.75) in respect of non-pecuniary damage, to be paid by S. On the last-mentioned day the Court of Appeal issued a special ruling (окрема постанова) informing its head and the head of State Judges' Administration of the delays in the case caused by the first-instance court. 18. On 18 January 2005 the Supreme Court of Ukraine amended the judgment of 1 July 2004, replacing the amnesty with statutory limitation, as the reason for S.'s exemption from the punishment. The court also quashed the judgment in part related to the civil claims, casting doubts on the liability of Chervonograd Town Council. Accordingly, it remitted that matter for fresh consideration. 19. It appears from the documents submitted that, at this stage of the proceedings, the applicant and another civil claimant requested the Court of Appeal to join to the proceedings a number of legal persons (such as the schools which had organised the pupils' collective visit to the cinema, the E. company, the local department of education, etc.). For these reasons, on 31 March 2005 the Court of Appeal decided to remit the case to the Town Court. 20. Subsequently, a clinic which had treated the applicant's daughter brought its claim against the defendants and joined the proceedings; the other claimants (some other victims of the accident) withdrew their claims as being settled extra-judicially. In the course of the proceedings the claimants modified their claims on several occasions. 21. On 31 March 2008 the Town Court found in part for the applicant and other civil claimants. In particular, it ordered the Chervonograd Town Council, the education and culture departments of the Chervonograd Town Executive Committee and S. to pay the applicant, who was acting on her own behalf and on behalf of her daughter, in the specified proportions the total amount of UAH 85,411.97 (about EUR 11,033.40 at the material time) in respect of the care, medical, legal and other expenses she had incurred from the date of the accident to 1 April 2008 and 175% of the statutory minimum salary after 1 April 2008, monthly. Additionally, the court awarded the applicant the total amount of UAH 58,500 (about EUR 7,556.96 at the material time) in respect of non-pecuniary damage to be paid by Chervonograd Town Council and the education and culture departments of the Chervonograd Town Executive Committee. The court also awarded damages to other victims of the accident, as well as to the clinic in reimbursement of medical and other expenses for treating the applicant's daughter. 22. On 4 March 2009 the Court of Appeal allowed the defendants' appeals in part and quashed the judgment in part concerning the reimbursement to the clinic of medical and other expenses for treating the applicant's daughter because it had been claimed by the applicant, not the clinic, and the applicant's legal expenses regarding the publication in a newspaper of details of the court's hearings; consequently, it remitted these parts of the case for fresh examination. It also reduced the awards to other victims of the accident and upheld the remainder of the judgment. 23. On 14 August 2009 the Supreme Court of Ukraine rejected the requests for leave to appeal in cassation lodged by the Chervonograd Town Council and the education and culture departments of the Chervonograd Town Executive Committee. 24. Apparently, the proceedings in the remitted part are still pending before the first-instance court. 25. On 6 July 2009 the State Bailiffs' Service instituted proceedings to enforce the judgment of 31 March 2008, as amended on 4 March 2009. 26. The Chervonograd Town Council and the education and culture departments of the Chervonograd Town Executive Committee requested adjournment of the enforcement for six months, referring to a lack of relevant funds. On 28 September 2009 the Town Court allowed these requests. 27. On 1 December 1998 the victims of the accident were paid ex gratia by the local authorities the total amount of UAH 30,000, out of which the applicant was paid UAH 1,500 (about 394.74 United States Dollars at the material time). She was further paid: on 26 January 1999 – UAH 2,000 (about EUR 438.54); on 5 March 1999 – UAH 12,000 (about EUR 2,789.21); on 23 September 1999 – UAH 238 (about EUR 50.51); on 2 September 2004 – UAH 2,000 (about EUR 300.39). 28. Articles 27, 55, and 56 of the Constitution on the right to life and right to compensation for damage caused by authorities are set out in Kats and Others v. Ukraine (no. 29971/04, § 75, 18 December 2008). 29. Article 366 (forgery in office) of the Code provides as follows: “1. Forgery in office, that is putting any knowingly false information in official documents, any other fabrication of documents, and also making and issuing knowingly false documents, by an official, – shall punishable by a fine of up to 50 tax-free minimum incomes, or restraint of liberty for a term of up to three years, with the deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years. ...” 30. Article 367 (neglect of official duty) of the Code provides as follows: “1. Neglect of official duty, that is the failure of an official to perform, or the improper performance of, his/her official duties due to negligence, where it caused significant damage to the legally protected rights and interests of individual citizens, or state and public interests, or interests of legal entities, – shall be punishable by a fine of 50 to 150 tax-free minimum incomes, or correctional labour for a term of up to two years, or restraint of liberty for a term of up to three years, with the deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years. 2. The same act that caused any grave consequences, – shall be punishable by imprisonment for a term of two to five years with the deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years and with or without a fine of 100 to 250 tax-free minimum incomes.” 31. Under Articles 49 § 1 (3) and 74 § 5 of the Code, a person convicted for an offense of medium gravity can be exempted from the punishment if a period of five years has elapsed from the date of the criminal offense to the effective date of the judgment. An offense of medium gravity is punishable by imprisonment for a term of up to five years (Article 12 of the Code). 32. Articles 4401 (compensation for moral (non-pecuniary) damage) and 441 (liability of an organisation for damage caused through the fault of its employees) of the Code are set out in Lovygina v. Ukraine ((dec.), no. 16074/03, 22 September 2009). | 1 |
train | 001-113435 | ENG | RUS | CHAMBER | 2,012 | CASE OF SERGEY SOLOVYEV v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonable suspicion) | Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen | 5. The applicant was born in 1982 and lives in Volgograd. 6. On 10 March 2003 the applicant was arrested on suspicion of involuntary manslaughter. On an unspecified date he retained private counsel, A.B. 7. On 11 March 2003 the Krasnoarmeyskiy District Court of Volgograd (hereinafter “the District Court”) ordered the applicant’s detention on remand with reference to Articles 97-101 and 108 of the Russian Code of Criminal Procedure (hereinafter “the CCP”). 8. On 19 March 2004 the criminal case against the applicant was sent for trial to the District Court, following which that court extended his detention on several occasions. 9. By a decision of 21 December 2004 the District Court extended the applicant’s detention until 20 March 2005. 10. On an unspecified date in March 2005 the prosecution applied to the District Court seeking a further extension of the applicant’s detention on remand; the related hearing was fixed for 17 March 2005. 11. By a decision of 17 March 2005 the District Court adjourned the hearing on the extension of the applicant’s detention because his lawyer, although duly notified about the hearing, had failed to attend, without providing any reasons. The new hearing was scheduled for 22 March 2005. The applicant was present at the hearing of 17 March 2005. 12. At noon on 21 March 2005 the applicant’s lawyer was notified of the new hearing date, time and venue, against his signature. 13. By a decision of 22 March 2005 the District Court extended the applicant’s detention until 20 June 2005. The decision stated, among other things, that the term of the applicant’s detention authorised by the decision of 21 December 2004 had expired on 20 March 2005. According to the hearing record, the applicant’s lawyer did not attend and had not informed the court of the reasons for his absence. The applicant, when asked by the court whether he objected to the examination of the issue in the absence of his counsel, stated that he had no objections. 14. On an unspecified date the applicant complained to the Volgograd Regional Court (hereinafter “the Regional Court”) that his detention between 20 and 22 March 2005 had been unlawful because it had not been covered by a court decision. He also complained that on 22 March 2005 the District Court had examined the issue of his detention in the absence of his lawyer. There is no indication that the applicant also complained about the District Court’s alleged failure to appoint legal-aid counsel for him or to adjourn the hearing. 15. On 26 April 2005 the Regional Court dismissed the complaint. It held that the applicant’s arguments concerning the gap between the detention orders and the examination of the detention issue in the absence of his lawyer were “insignificant” (“не являются существенными”), and that the District Court had not breached the relevant provisions of the criminal procedure in extending his detention. As regards the lawyer’s absence, the court noted that A.B. had been duly notified of the hearing of 22 March 2005 against his signature and had not requested that it be postponed, and that, accordingly, the District Court had correctly decided to proceed with the examination of the case. 16. On 16 March 2006 the District Court acquitted the applicant of all charges and ordered his release. The judgment stated, among other things, that the applicant had a right to seek compensation for any pecuniary and non-pecuniary damage caused by his criminal prosecution. 17. On an unspecified date in 2007 the applicant brought proceedings seeking compensation for his criminal prosecution and for unlawful detention. He claimed, in particular, 736,000 Russian roubles (RUB) in respect of non-pecuniary damage, and RUB 177,355 in respect of pecuniary damage. 18. By a judgment of 6 March 2007 the District Court partly granted the applicant’s claims, awarding him RUB 137,377 in respect of pecuniary damage and RUB 400,000 in respect of non-pecuniary damage, to be recovered from the Federal Treasury. The court’s judgment, in so far as relevant, reads as follows: “... Bearing in mind that [the applicant] was acquitted, that is, found not guilty of the particularly serious crime of which he had been charged ... the court finds that [the applicant] was unlawfully prosecuted and unlawfully held in detention ... and ... sustained, as a result, pecuniary damage because of loss of salary, and non-pecuniary damage on account of mental suffering in the form of continuing stress because of being held in a detention facility, ... a special institution with a strict regime; [and because of] the restriction of his right to freedom of movement and anxiety about his future ... ... Having regard to the fact that [the applicant’s] criminal prosecution resulted in an acquittal, the court considers it obvious and not requiring any additional proof that the plaintiff sustained non-pecuniary damage because, as a result of unlawful acts by State officials, he was deprived of his right to freedom of movement and his right to choose his place of residence was circumscribed. In assessing the amount of the monetary compensation, the court takes into account the intensity of [the applicant’s] mental suffering related to [the fact of his] detention, including the unavoidable contact with the prison population, the restrictions connected to the particular regime of the detention facility [and] the length of [his] detention on remand (over 24 months)[, which took place] while [the applicant] was of a young age. At the same time, the court takes account of the fact that the [applicant’s] arrest [and] placement in custody and the extension of [his] detention were carried out in accordance with the law of criminal procedure [в рамках, предусмотренных уголовно-процессуальным законом], there being sufficient grounds to suspect and charge [him] of having committed a particularly serious crime entailing the deprivation of life of the victim; during the criminal proceedings [the applicant’s] defence rights were secured; it has not been established that there were faulty unlawful acts on the part of the investigating authorities, the detention facility or the courts.” 19. On an unspecified date in 2007 the respondent appealed against the judgment of 6 March 2007 to the Regional Court. 20. By a judgment of 24 May 2007 the Regional Court granted the appeal in part. In particular, whilst endorsing the trial court’s reasoning, the Regional Court 21. On 27 August 2007 the Presidium of the Volgograd Regional Court examined the case by way of supervisory review, set aside the courts’ findings in respect of the award concerning pecuniary damage, and terminated the proceedings in that part. In that regard, the court held that, pursuant to Article 135 of the CCP, claims for compensation for pecuniary damage arising out of an unlawful prosecution fell within the competence of the criminal courts and were to be examined under the rules of criminal procedure. 22. It appears that the applicant was paid the compensation in respect of non-pecuniary damage without delay. There is no indication that he applied to the criminal courts with a view to obtaining compensation in respect of pecuniary damage, as directed by the Presidium of the Volgograd Regional Court. 23. The Russian Constitution of 12 December 1993 establishes that a judicial decision is required before a defendant can be detained or his detention extended (Article 22). 24. According to the Russian Code of Criminal Procedure (hereinafter “the CCP”), a decision ordering or extending detention on remand in respect of a suspect or an accused is taken by a district or town court on the basis of a reasoned request by a prosecutor, supported by appropriate evidence (Articles 108 §§ 1, 3-6 and 109 § 2). 25. Chapter 18 of the Code regulates the so-called “right to rehabilitation” (право на реабилитацию), which includes, among other things, the right for an individual to obtain from the State full compensation for pecuniary and non-pecuniary damage sustained as a result of criminal prosecution, irrespective of any fault of the investigating authorities, prosecutors or courts (Article 133 § 1). 26. The right to compensation arises in the case of acquittal and also a number of other situations where the criminal prosecution is terminated on so-called “rehabilitation” grounds (реабилитирующие основания), that is, for example, where the prosecution has dropped the charges or where criminal proceedings have been terminated owing to a lack of corpus delicti or because the person was not involved in the criminal act (Article 133 § 2). However, no right to compensation arises where the prosecution is terminated on “non-rehabilitation” grounds, such as in the case of an amnesty or where the prosecution has become time-barred (Article 133 § 4). 27. Article 133 § 3 specifically provides that any person on whom a measure of restraint has been unlawfully imposed in connection with a criminal prosecution has a right to compensation under the rules of Chapter 18. 28. In a judgment acquitting an individual a court has to mention explicitly that he has the right to “rehabilitation” (Article 134). A claim for compensation of pecuniary damage is to be lodged with the same authority which issued the decision to acquit or the decision to terminate the criminal prosecution (Article 135 § 2), whereas any claims for monetary compensation of non-pecuniary damage are to be lodged with civil courts and examined under the relevant provisions of the Code of Civil Procedure (Article 136 § 2). 29. The Civil Code of the Russian Federation provides as follows: “1. Damage caused to a citizen as a result of unlawful conviction, unlawful criminal prosecution, ... [or] unlawful detention on remand ... shall be compensated at the expense of the Treasury of the Russian Federation, and in the instances provided for by law, at the expense of the Treasury of the subject of the Russian Federation ... in full, irrespective of the fault of the officials of the agencies ...” “Compensation for non-pecuniary damage shall be made irrespective of the fault of the person having caused the damage when: ... the damage has been caused to a citizen as a result of his unlawful conviction, unlawful criminal prosecution, [or] unlawful detention on remand ...” 30. In its ruling (определение) no. 242-O of 21 April 2005 the Constitutional Court held, inter alia, as follows: “ ... Article 133 of the [CCP] ... does not limit an individual’s right to obtain compensation in connection with a criminal prosecution only to situations of rehabilitation of a suspect or an accused ... Accordingly, in providing that pecuniary and non-pecuniary damage sustained by a citizen as a result of, among other things, unlawful ... detention, is to be compensated for irrespective of the fault of the relevant officials, Articles 1070 § 1 and 1100 § 3 of the Civil Code of the Russian Federation do not make the issuing of such decisions conditional upon the existence of a judgment acquitting the citizen ... Hence, the legislation in force ... does not exclude that a court can also issue a decision to compensate a citizen for pecuniary and non-pecuniary damage sustained as a result of unlawful prosecution and ... unlawful detention in cases where an investigating authority, a prosecutor or a court did not take a decision on the full rehabilitation [решение о полной реабилитации] of a suspect or an accused...” 31 32. The Constitutional Court specifically noted in its ruling no. 1583OO of 17 November 2011 that, pursuant to Article 133 § 3 of the CCP, any person who was unlawfully held in detention in connection with his criminal prosecution had a right, under the rules of Chapter 18 of the CCP, to compensation for the damage sustained. 33. In its resolution (постановление) no. 17 of 29 November 2011, the Plenary of the Supreme Court of Russia provided clarifications on the application by the courts of the provisions concerning compensation for pecuniary and non-pecuniary damage sustained as a result of unlawful criminal prosecution. It noted, among other things, that in assessing claims for compensation of non-pecuniary damage the domestic courts were to take into account the level and nature of the physical and mental suffering and the individual characteristics of the person who had sustained the damage, and other circumstances, such as the length of the proceedings against him, the length and conditions of his detention on remand, and the type of penitentiary institution where he had served his sentence, as well as considerations of justice and reasonableness. The courts were also directed to set out those circumstances in their decisions awarding damages. 34. On the notion of “unlawfulness” of criminal prosecution and detention, as interpreted by the Russian courts, see Trepashkin v. Russia (no. 36898/03, § 62, 19 July 2007). | 1 |
train | 001-90405 | ENG | TUR | ADMISSIBILITY | 2,006 | KOSE AND 93 OTHERS v. TURKEY | 1 | Inadmissible | null | The applicants, whose names are listed in the appendix, are Turkish nationals and live in Istanbul. Before the Court, they were represented by Mr H. Tuna, a member of the Istanbul Bar. The facts of the case, as submitted by the applicants, may be summarised as follows. The applicants are pupils at the İmam-Hatip Secondary Schools in the Eyüp, Tuzla, Pendik, Ümraniye and Kadıköy districts of Istanbul, and their parents. The İmam-Hatip Secondary Schools are State-funded religious schools. The applicants explained that, with certain exceptions, on enrolling at the İmam-Hatip Secondary Schools the pupils concerned had produced identity photographs that showed them wearing the headscarf. The pupils had always worn the Islamic headscarf to school, in accordance with both their own and their parents' religious beliefs. As a general rule, they had started to wear the Islamic headscarf at the onset of puberty at the age of 12. However, from 26 February 2002 onwards pupils wearing the headscarf had been refused access to the schools. Pupils attending school in the headscarf had been seen by the school educational psychologist, who had attempted to justify the need for the rules. These measures were based on a directive which the Istanbul Regional Governor's Office had issued to the district education officers on 12 February 2002. The relevant sections of the directive provided: “Pupils are enrolled at the İmam-Hatip Secondary Schools only once a document signed by the parents has been lodged confirming that the pupils will comply with the rules on dress. In addition, a letter was sent on 4 October 1999 requesting compliance with this practice. However, we have been informed that a small number of pupils do not comply with the rules on dress. Their persistent failure to comply with the rules shows that they are not acting innocently. Their decision to wear the headscarf at school thus amounts to a rejection of the rules on dress and a protest against the education system. That being so, disciplinary proceedings will be taken against head teachers or members of the teaching staff who fail to ensure rigorous compliance with the rules on dress ... Furthermore, all sporting, cultural and social activities that are liable to cause tension at school and unsettle the pupils must cease and links between the schools and associations, foundations and boarding schools [promoting such practices] must be severed. In the light of this, you are requested to take all necessary measures to reintegrate these pupils into our education system, to refuse pupils who do not obey the rules on dress access to school premises and to institute disciplinary proceedings against them without delay under the Rules for Promoting and Ensuring Discipline in Secondary Schools dependent on the Ministry of Education [Milli Eğitim Bakanlığı Ortaöğretim Kurumları Ödül ve Disiplin Yönetmeliği – 'the disciplinary rules']. [Likewise,] proceedings must be brought against head teachers or members of the teaching staff who fail to apply the disciplinary rules diligently.” On 2 March 2002 a further memorandum issued by the Chief Education Officer at the Istanbul Regional Governor's Office was sent to the district offices. The relevant sections of the memorandum stated: “The İmam-Hatip Secondary Schools are vocational secondary schools that are part of our State education system ... It would appear that some girls in these schools do not comply with the rules on dress. Their acts are concerted and conscious and the girls are supported by certain groups outside the school which are exploiting this issue. [Consequently,] it is clear that these girls are, under the political and ideological influence of groups both inside and outside the school, putting pressure on head teachers, members of the teaching staff and pupils who do not share their views. [It is further established that,] although they attend school, neither they, nor their supporters among the boys, go to classes. On enrolling, all pupils in these schools are informed of the school rules and give a written undertaking to comply with them. However, with the help of their supporters, some pupils have for ideological reasons stated and demonstrated by their conduct a determination to pursue their studies without obeying the rules. Rule 12a. of the Rules on Dress for Staff and Pupils in Schools dependent on the Ministry of Education and Other Ministries (no. 17849 of 25 October 1992) states: 'On school premises, girls shall not wear any head covering and their hair shall be clean and tidy' ... An exception to this rule is made in Rule 12c.(3), which provides '[i]n İmam-Hatip schools, girls may cover their heads only during Koran lessons'. Further, in judgment no. 1994/484 the Supreme Administrative Court dismissed an appeal brought by a parent whose daughter, a pupil at an İmam-Hatip Secondary School, was required to remove her headscarf under the disciplinary rules published in the Official Gazette of 31 January 1985. It found that 'such behaviour at school is the symbol of a vision that is contrary to the fundamental principles of the Republic'. Accordingly, it is necessary to ensure continuity within the education system and to make schools accessible to everyone by establishing a calm environment at school and harmonising practice when applying the rules to pupils who do not obey the rules on dress or wish to pursue their studies ...” The memorandum characterised the failure to comply with the rules on dress as a concerted attack on the fundamental principles of the Republic and gave the head teachers eleven instructions on how to deal with breaches. In the first instance, pupils were to be informed of the relevant rules, which were to be applied strictly. In the event of repeated transgressions, the pupil was to be given an immediate warning and disciplinary proceedings were to be commenced. The head teachers were also requested to prevent those who supported such misconduct for political and ideological ends from meeting within the vicinity of the school. The applicants produced to the Court eleven documents signed by a group of people (pupils, parents and third parties) who had gathered outside the İmam-Hatip Secondary Schools in Kadıköy and Ümraniye attesting that on 28 February, 1, 4, 28 and 29 March 2002, the head teachers, accompanied by members of the security forces, had prevented pupils wearing the headscarf from entering the schools. At 9.30 a.m. on 19 March 2002 a meeting was organised outside the İmam-Hatip Secondary School in Eyüp. According to a report by the security forces, one T. Ün, who claimed to be a member of the ÖNDER Association (an association formed by former pupils of the İmam-Hatip Secondary Schools), was arrested on suspicion of provocation. The report also stated that about a hundred headscarf-wearing pupils had demonstrated outside the school shouting slogans such as “If you are in [the school], come on out”, “Citizens! Do not sleep! Defend your pupils”, “Citizens, do not sleep! Your turn will come”. After warnings by the security forces, thirty-one pupils were taken to the police station at 11 a.m. that same day for identity checks. They were released at 4 p.m. Similarly, at 9 a.m. on 9 April 2002 one of the applicants, Necmi Aköz, the father of Miraç Aköz, a pupil at the İmam-Hatip Secondary School in Kadıköy, was arrested by police officers at a gathering outside the school and taken to Kadıköy police station. He was accused of inciting pupils to disobey the rules on dress. He was released at 1.45 p.m., after the police had taken a statement. On 16 April 2002 one of the applicants, Hayrunnisa Sümeyye Torpil, lodged a request with the Eyüp Police Court for a declaration that the head teachers of the İmam-Hatip Secondary School in Eyüp had prevented her from wearing her headscarf to school as her religious beliefs required. The Police Court decided the same day that it had no jurisdiction to hear the request. A further request to the same end was rejected by the Eyüp Police Court on 20 May 2002. It found that there was no reason to make any declaration since the act complained of was lawful. In the meantime the applicants lodged a criminal complaint against the head teachers of the İmam-Hatip Secondary Schools and the police. They alleged that denying pupils wearing the headscarf access to school violated their fundamental right to education and was therefore a criminal offence. The applicants have produced to the Court a decision dated 3 April 2002 in which the public prosecutor at the Court of Cassation declared a complaint against the Istanbul Regional Governor unfounded after deciding that his actions complied with the rules on dress. The applicants have also produced an opinion issued by the Human Rights Committee attached to the Istanbul Regional Governor's Office on 27 March 2002 after 174 petitions were lodged. Citing the principle of secularism enunciated in the Turkish Constitution and the risk that the principle of neutrality in State education would be undermined, arguments that had already been expounded at length by the Constitutional Court in a judgment of 7 March 1989, the Human Rights Committee concluded that the rules on dress were consistent with the Constitution and human rights. It noted that the State was required by Article 2 of Protocol No. 1 to take measures to uphold fundamental rights such as freedom of religion and the right to education, and stated that the existence of the İmam-Hatip schools showed that the State had taken concrete measures to secure those rights. It further pointed out that, by its very nature, the right to education required State regulation. In that connection, the Human Rights Committee noted that the main reason the rules on pupils' dress had been introduced was to protect the principle of secularism and added that the country's highest courts had on a number of occasions ruled that the rules were consistent with constitutional principles. Furthermore, the pupils who had not complied with the rules on dress had been informed of the reasons for the rules on enrolling at the school and had given a written undertaking to comply with them. However, the pupils concerned and those who supported them for ideological reasons had shown that they did not intend to abide by the rules. The Human Rights Committee concluded that such conduct was not protected in a State committed to the rule of law. At the same time, on 11 April 2002 a parliamentary commission which had been set up to look into the events that had taken place in the İmam-Hatip Secondary Schools in Istanbul in March 2002 adopted its opinion. It noted in particular that the forcible removal of certain pupils by the security forces had caused social unrest. Consequently, it advised against any further use of force. It also noted that the events had occurred as a result of the rules on dress for which the National Assembly and the executive were responsible. Article 24, in its relevant parts, provides as follows: “Everyone shall have the right to freedom of conscience and religious conviction. ... No one shall be compelled to participate in prayers, worship or religious services or to reveal his or her religious beliefs and convictions; no one shall be censured or prosecuted for his religious beliefs or convictions. Education and instruction in religion and ethics shall be provided under the supervision and control of the State. Instruction in religious culture and in morals shall be a compulsory part of the curricula of primary and secondary schools. Other religious education and instruction shall be a matter for individual choice, with the decision in the case of minors being taken by their legal guardians.” Section 12 of the Basic Law on State Education (Law no. 1739, which was published in the Official Gazette of 24 June 1973), provides: “Secularism is the cornerstone of the Turkish State-education system. Religious culture and moral instruction are among the compulsory subjects taught in primary and secondary schools and other schools of the same level.” Rules 11 and 12 of the Rules on Dress for Staff and Pupils in Schools dependent on the Ministry of Education and Other Ministries (22 July 1981) lay down the rules governing pupils' dress. The relevant parts provide: “a. Girls Girls shall wear a black uniform with a white collar. On school premises, they shall not wear any head covering and their hair shall be clean and tidy. Long hair should be worn in plaits and tied ... b. Boys Boys shall wear a jacket, shirt and trousers. They shall wear a tie ...” “a. Girls Girls shall wear a non-revealing knee-length sleeveless uniform without splits. The colour of the uniform shall be decided by the school. Beneath the uniform, a short-sleeved or long-sleeved blouse with closed collar or, depending on the season, a pullover shall be worn that matches the uniform. On school premises, girls shall not wear any head covering and their hair shall be clean and tidy. Long hair should be worn in plaits and tied ... b. Boys Boys shall wear a jacket, shirt and trousers. They shall wear a tie ... c. Girls and boys (1) In workshops, laboratories or other places of work, they shall wear an apron or dungarees. (2) For sports lessons and activities, pupils should wear the dress recommended by the school administration. (3) In İmam-Hatip schools, girls may cover their heads only during Koran lessons ...” Rule 17 of the Rules for Promoting and Ensuring Discipline in Secondary Schools dependent on the Ministry of Education published in the Official Gazette of 31 January 1995 (Milli Eğitim Bakanlığı Ortaöğretim Kurumları Ödül ve Disiplin Yönetmeliği) provides that the penalty for failing to comply with the rules on dress is a reprimand. It also lays down that the penalty for wearing symbols that are liable to result in discrimination or for acting with intent to isolate, rebuke or show contempt for a person or group of persons on account of their language, sex, political ideas or philosophical beliefs, race, religion or branch of a religion is temporary suspension. In a judgment of 7 March 1989 that was published in the Official Gazette of 5 July 1989, the Constitutional Court ruled that a statutory provision permitting the headscarf to be worn in higher-education institutions on religious grounds was unconstitutional, as it contravened the principle of secularism laid down by the Constitution. It stated that the principle of secularism intrinsically encompassed religious neutrality and precluded the grant of privileges to individual religions. It considered the headscarf to have obvious religious connotations. In Turkey, where the majority of the population were Muslims, presenting the wearing of the Islamic headscarf as a mandatory religious duty would result in discrimination between practising Muslims, non-practising Muslims and non-believers on grounds of dress, with anyone who refused to wear the headscarf undoubtedly being regarded as opposed to religion or as non-religious. Accordingly, allowing the headscarf to be worn would be liable to undermine order both inside and outside the university (for a more detailed summary of the Constitutional Court judgment, see Leyla Şahin v. Turkey [GC], no. 44774/98, § 39, ECHR 2005-XI). The İmam-Hatip Secondary Schools were set up in the 1950s under section 4 of the Education Services (Merger) Act (Law no. 430), which was passed on 3 March 1924. They form part of the Turkish State-education system and are dependent on the Ministry of Education. They are not denominational schools. Section 32 of the Basic Law on State Education defines the İmam-Hatip Secondary Schools as follows: “The İmam-Hatip Secondary Schools are secondary-level teaching institutions opened by and dependent on the Ministry of Education. They shall provide vocational teaching for religious functionaries such as imams, hatips [readers of the Koran] and teachers of the Koran. They shall offer a curriculum providing vocational training and preparation for higher education.” Approximately 40% of the subjects taught in these schools are primarily aimed at teaching Islamic theology. The remainder of the curriculum is taken up by general subjects. According to information furnished by the applicants, in 1999 there were 604 İmam-Hatip Secondary Schools in Turkey attended by 134,224 pupils. Once they have completed their secondary-school education, pupils may enrol at the theology faculties after sitting a general examination. Parents send their children to these schools not just to enable them to become future religious functionaries but also to allow them to pursue advanced studies in general subjects while at the same time receiving a sound religious grounding. Many practising families who are dissatisfied with the limited time and facilities devoted to religious studies in the general education system have philosophical affinities with the curriculum offered by the vocational schools for religious functionaries. A section of the population has thus deflected these schools from their original purpose – which was to train modern, professional clerics – and has gradually turned them into general secondary-education schools with a religious vocation (for more detailed information, see “Teaching of religion and morals in the Turkish education system”, Mehmet Zeki Aydın and Ural Manço, Centre for Islam in Europe, www.flwi.ugent.be). Furthermore, a form of religious instruction has been organised in most parts of Turkey in the form of courses on the Koran (Kuran Kursu). These courses are not part of the Ministry of Education's curriculum but are run under the auspices of the Religious Affairs Office, the senior authority responsible for overseeing the management and conduct of Islamic affairs in Turkey. Section 10 of the Assemblies and Processions Act (Law no. 2911), which came into force on 8 October 1983, provides: “In order for a meeting to be held, the regional or provincial governor's office for the area in which the demonstration is to take place must be given at least 72 hours' notice before the start of the meeting. Notice must be given during working hours and be signed by all the members of the executive board ...” Section 22 of the Act prohibits assemblies and processions on the public highway, or in parks, places of worship or buildings occupied by public authorities. Assemblies on the public highway have to comply with the safety regulations and must not impede members of the public or public transport. Lastly, section 24 lays down that assemblies or processions that do not comply with the provisions of the Act shall be broken up by the regional security forces after a warning has been issued to the participants. | 0 |
train | 001-108572 | ENG | UKR | CHAMBER | 2,012 | CASE OF GOROVENKY AND BUGARA v. UKRAINE | 3 | Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Angelika Nußberger;Dean Spielmann;Elisabet Fura;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy | 5. The first applicant was born in 1938 and lives in the town of Novomoskovsk, Ukraine. The second applicant was born in 1941 and died in 2006. The third, fourth and fifth applicants were born in 1960, 1984 and 1992 respectively and live in the town of Pyatykhatky, Ukraine. 6 7. On 22 November 1999, shortly after midnight, D., the then deputy head of the criminal investigation department (заступник начальника відділення карного розшуку) at the Pyatykhatky District Police Office (П’ятихатський районний відділ УМВС України в Дніпропетровській області), was on his way back from a private trip in a car driven by an acquaintance of his, Mr V. Bugara. The third applicant was also in the car. Having quarrelled with Mr V. Bugara, D., who was drunk, deliberately fired on and instantly killed him, using the police gun which he carried on him at all times. D. then attempted to shoot the third applicant but missed. The third applicant managed to run away. 8. After that D. tried to stop passing cars. Mr A. Gorovenko, who happened to be driving by at that time, stopped and spoke to D., who pretended that his car had broken down and asked for help. However, Mr A. Gorovenko suspected that something was wrong and tried to get away. D. shot Mr A. Gorovenko and attempted to shoot R., who was a passenger in Mr A. Gorovenko’s car, and seriously wounded her. 9. Soon D. was apprehended by passers-by and taken to the police station. 10. Shortly after the incident the police launched an internal investigation. The report, signed on 23 November 1999, brought to light a number of “causes and pre-conditions” stemming from poor regulation by the Pyatykhatky District and Dnipropetrovsk Regional Police Offices which had led to the incident in question. It mentioned, among other things, that the superior officers had failed to adequately examine D.’s character when recruiting and promoting him. In particular, several incidents which demonstrated D’s unsuitability for service in the police department were mentioned. When studying at police college D. had been dismissed from the position of section commander for alcohol abuse. In 1994 he had inflicted light bodily injuries on Sh. and had been sanctioned on three occasions for disciplinary offences. It was further mentioned that his superior officers had failed to enforce and maintain discipline over their subordinates. In particular, several incidents involving police officers from the Pyatykhatky District Police Office were referred to. The superior officers had failed to exercise due control when permitting their subordinates to keep and carry police guns at all times. The report stated that the superior officers had not checked the conditions in which D. kept his police gun at home and had not supervised D.’s behaviour when he was off duty. Furthermore, although D. was known to abuse alcohol, his superiors had not withdrawn his police gun in due time. In particular, on 13 November 1999, while the elections of the President of Ukraine were taking place and the police were operating under a special “reinforced” regime, D. had returned home intoxicated. 11. It was decided that two officers (including the head of the Pyatykhatky District Police Office) were to be dismissed and six others subjected to disciplinary sanctions. 12. On 22 November 1999 the local prosecutor’s office instituted criminal proceedings against D. In the course of these proceedings the applicants brought civil claims against both D. and the Dnipropetrovsk Regional Police Office (Управління МВС в Дніпропетровській області), seeking compensation for pecuniary and non-pecuniary damage. 13. By a judgment of 14 November 2000 the Dnipropetrovsk Regional Court (from June 2001 – “the Dnipropetrovsk Regional Court of Appeal”) found D. guilty of multiple murders, among other crimes, and sentenced him to life imprisonment. The court found that in March 1999 a decision had been taken allowing D. to carry a gun at all times. However, D. had systematically contravened the provisions of the Police Act both while on duty and at home and had abused alcohol on numerous occasions. The court awarded the two applicants’ families amounts totalling 57,786.12 and 62,532.26 Ukrainian hryvnias (UAH) respectively in compensation for pecuniary and non-pecuniary damage − the sums to be paid by D. The court further decided that the applicants’ claim against the Dnipropetrovsk Regional Police Office should be examined in separate civil proceedings. 14. On the same date the Dnipropetrovsk Regional Court issued a special ruling (окрема ухвала) informing the head of the Dnipropetrovsk Regional Police Office of “serious deficiencies in the activities of the Pyatykhatky District Police Office”. Referring to the above-mentioned findings, the court stated that D. had shot two persons with his police gun, which he had been using in the course of his duties. It went on to say: “Such deliberate disregard for the [Police Act] by a police officer [...], the serious deficiencies in the maintenance of discipline over subordinate officers, and the lack of proper control over the issuing and keeping of police guns in [the Pyatykhatky District Police Office] were the cause of [the incident in question]” 15. The first and second applicants appealed against the judgment and on 16 January 2001 the Supreme Court of Ukraine dismissed their appeal. The judgment became final. 16. By a letter of 9 September 2005, the Dnipropetrovsk Regional Court of Appeal notified the applicants that in 2004 D. had paid them UAH 5 in total. According to the applicants, the judgment of 14 November 2000 remains unenforced in the part concerning the compensation award. 17. In February 2003 the applicants brought actions against the Dnipropetrovsk Regional Police Office and the local department of the State Treasury of Ukraine before the Babushkinskyy District Court of Dnipropetrovsk, seeking compensation for non-pecuniary damage. In support of their claims they relied on the findings in the judgment, the special ruling of 14 November 2000 and the internal investigation report of 23 November 1999. 18. On 5 March 2003 the court rejected the applicants’ claims. In so doing the court reasoned as follows: “... According to the legislation in force, redress for non-pecuniary damage has to be made by the person who has caused it by his own malicious acts. A finding of guilt and a link of causality between the impugned acts and the damage are the necessary conditions for liability.” “The claimants’ argument that negligent acts and omissions by the administration of the Dnipropetrovsk Regional Police Office brought about the detrimental consequences in issue and caused non-pecuniary damage to the claimants cannot be accepted as no causal link between the acts and omissions of the Dnipropetrovsk Regional Police Office and the consequences in question was established by the internal investigation. According to section 441 of the Civil Code, an organisation has to pay compensation for damage caused by its employees in the course of their employment. It was established in the course of the criminal proceedings that [D.], being the deputy head of the criminal investigation department at the Pyatykhatky District Police Office, had committed the crimes while off duty and for purely violent motives. In the light of the foregoing, the court has reached the conclusion that the claims should be rejected.” 19. On 10 July 2003 and 4 April 2005 the Dnipropetrovsk Regional Court of Appeal and the Supreme Court of Ukraine respectively rejected appeals by the applicants. 20. The Instruction on the Regulations for the Permanent Keeping and Bearing of Police Firearms, Ammunition and Special Equipment by Police Officers was adopted on 25 January 1995 by order no. 60 of the Ministry of the Interior (Інструкція про порядок постійного збереження і носіння табельної зброї, боєприпасів і спеціальних засобів працівниками міліції, затверджена наказом МВС України № 60 від 25 січня 1995 р.). It sets forth the requirements for police officers to be permitted to keep and bear firearms, ammunition and special equipment at all times, the procedure for applying for such permits, and the conditions under which firearms, ammunition and special equipment must be kept and carried by police officers. In particular, according to part 2.3 of the Instruction, it is forbidden to issue guns to those persons who do not have appropriate equipment for its safe keeping at work and at home. The superior officers are ordered “to strengthen their supervisory role” in the implementation of this Instruction. 21. The provisions of the Constitution of Ukraine and the 1963 Civil Code of Ukraine regarding the responsibility of the State for acts or omissions by its agents are set out in Lovygina v. Ukraine (dec.), no. 16074/03, 22 September 2009. 22. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials were adopted on 7 September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, which provides, inter alia: “11. Rules and regulations on the use of firearms by law enforcement officials should include guidelines that: (a) Specify the circumstances under which law enforcement officials are authorised to carry firearms... ... (d) Regulate the control, storage and issuing of firearms, including procedures for ensuring that law enforcement officials are accountable for the firearms and ammunition issued to them. ... 18. Governments and law enforcement agencies shall ensure that all law enforcement officials are selected by proper screening procedures, have appropriate moral, psychological and physical qualities for the effective exercise of their functions and receive continuous and thorough professional training. Their continued fitness to perform these functions should be subject to periodic review. 19. Governments and law enforcement agencies shall ensure that all law enforcement officials are provided with training and are tested in accordance with appropriate proficiency standards in the use of force. Those law enforcement officials who are required to carry firearms should be authorised to do so only upon completion of special training in their use.” 23. The commentary to Article 37 of the European Code on Police Ethics (Explanatory Memorandum of the Recommendation (2001) 10 of the Committee of Ministers of the Council of Europe to member States on the European Code on Police Ethics) reads inter alia as follows: “...The importance of recruitment of suitable personnel to the police, as well as their training cannot be underestimated ... | 1 |
train | 001-80500 | ENG | RUS | CHAMBER | 2,007 | CASE OF BENEDIKTOV v. RUSSIA | 3 | Remainder inadmissible;Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 3;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed | Christos Rozakis | 5. The applicant was born in 1973 and lived until his arrest in Moscow. He is now serving his sentence in a correctional colony in the Mordoviya Republic of the Russian Federation. 6. On 16 December 1999, at approximately 11 a.m., the applicant was arrested on suspicion of robbery. The report of his arrest was drawn up six hours later. He was issued with a copy of the report only in April 2000. 7. An investigator informed the applicant of his statutory defence rights. The applicant countersigned a record indicating that he had voluntarily refused legal assistance and decided to answer the investigator's questions. On the same day he was confronted with the victim, the co-defendant and a witness. 8. On 17 December 1999 a prosecutor authorised the remand of the applicant in custody, without the latter being present. 9. In December 1999 and January 2000 an investigator ordered three expert examinations. According to the applicant, he was notified of these examinations in April 2000. 10. On 24 November 2000 the Zyuzinskiy District Court of Moscow found the applicant guilty of robbery and sentenced him to nine years' imprisonment in a high-security colony. The District Court based its judgment on statements by the victim, several eyewitnesses, expert reports and other material evidence. On 23 May 2001 the Moscow City Court upheld the conviction, but remitted the decision concerning the colony type for re-examination. On 3 July 2001 the Zyuzinskiy District Court ordered that the applicant should serve his sentence in a high-security colony. 11. From 19 December 1999 to November 2001 the applicant was detained in facilities nos. IZ-77/2 and IZ-77/3 in Moscow. 12. According to certificates issued on 19 October 2005 by the acting facility director, and produced by the Government, the applicant was kept in three cells. From 19 to 22 December 1999 he was detained in cell no. 148 which measured 57.4 square metres. From 22 December 1999 to 10 March 2000 he was kept in a 12.7 sq. m cell, no. 85. According to the Government, the information on the number of inmates in cells nos. 85 and 148 was not available as the documents had been destroyed. From 10 March to 28 November 2000 the applicant remained in cell no. 101, which measured 55.2 square metres. Between 22 September and 28 November 2000 that cell housed approximately 58 detainees. The Government, relying on the certificates of 19 October 2005, further submitted that at all times the applicant had had an individual bunk and bedding. However, the facility was not able to produce the applicant's record confirming the latter submission as it had been sent to another detention facility in Moscow. 13. The applicant did not dispute the cell measurements. He, however, alleged that he had shared cell no. 85 with five detainees. That cell had five bunks. Cell no. 101 accommodated 70 to 80 inmates. Given the lack of beds, inmates slept in shifts. 14. The Government, relying on the information provided by the office of the Prosecutor General of the Russian Federation, submitted that all cells were disinfected on a “regular basis”. Inmates were allowed to take a shower once a week. The applicant was provided with bedding. The cells were ventilated naturally through the windows. Each cell also had a ventilating shaft. The Government further argued that the temperature in the cells had been “normal”. Additional window-frames with glass were inserted in winter. The cells were equipped with lamps which functioned day and night. 15. The applicant disagreed with the Government's description and submitted that the sanitary conditions had been unsatisfactory. The cells were infected with bed-bugs and lice but the administration did not provide any insecticides. Windows were not glazed and were covered with thick metal bars that blocked access to natural light and fresh air. It was extremely cold in winter and in summer it was hot, stuffy and excessively damp inside. Inmates had an hour-long walk daily. On admission to the facility the applicant was provided with bedding which was dirty and smelt badly. The bedding was seized when he was transferred to a hospital in the end of December 1999. When he returned, he was not provided with bedding at all. No toiletries were distributed. 16. According to the applicant, from November 2000 to November 2001 he was kept in detention facility no. IZ-77/3 in Moscow. He was detained in six different cells, which were severely overcrowded. At all times the number of detainees was greater than that of the available bunks. The general conditions of his detention in that facility were similar to those in facility no. IZ-77/2, save for one aspect. In summer detainees were afforded a one-hour walk at night because it was extremely hot and many inmates had suffered heart attacks. 17. The Government did not comment on this. 18. According to a certificate of the head of correctional colony no. 1 in the Mordoviya Republic, in January 2000 the applicant was diagnosed with viral hepatitis of type B and on the following day he was admitted to an isolation ward in the facility hospital. The Government submitted that he had undergone treatment until March 2000 and had been transferred back to a cell after his full recovery. The Government gave a detailed description of the treatment the applicant had been provided with, including the type of medicine, dose and frequency. They also furnished a copy of the applicant's medical record and medical certificates. The Government further noted that the applicant had never complained to the facility administration or any other authority that medical assistance was lacking or was of poor quality. 19. The applicant argued that in late December 1999 he had been transferred to the facility hospital because he had contracted hepatitis. He was placed on a drip five or six times during his treatment and provided with medication that did not help. Dietetic food was not provided and he refused to eat the hospital food because it was too greasy. He unsuccessfully complained to the head of the hospital about inadequate medical assistance. The latter encouraged him to ask his relatives to bring the necessary medicines because the hospital did not have them. According to the applicant, he was released from the hospital although he did not fully recover. On a number of occasions he complained to a doctor in facility no. IZ-77/2 about a pain in his liver. The doctor allegedly told him that the facility did not have the necessary medicines and that he should ask relatives to buy them. 20. Section 22 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than 4 square metres of personal space in his or her cell. 21. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the Russian Federation from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in remand establishments and the complaints procedure read as follows: 45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding. When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO No 1 in Vladivostok, which had registered a 30% decrease in the remand prison population over a period of three years. ... The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General's Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee's delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2). ... 125. As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint. At Colony No 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private “because they know that all complaints usually pass through the colony's administration”. In the light of the above, the CPT reiterates its recommendation that the Russian authorities review the application of complaints procedures, with a view to ensuring that they are operating effectively. If necessary, the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis.” | 1 |
train | 001-76601 | ENG | TUR | ADMISSIBILITY | 2,006 | AYYILDIZ AND OTHERS v. TURKEY | 4 | Inadmissible | null | The applicants, Mr Necmettin Ayyıldız, Mr İsmail Yakut and Mr Abdullah Şeker, are Turkish nationals, who were born in 1928, 1927 and 1926 respectively and live in Diyarbakır. They are represented before the Court by Mr M. S. Tanrıkulu, a lawyer practising in Diyarbakır. On 23 May 2000, the applicant Mr Ayyıldız died and on 4 May 2005, his heirs expressed interest in continuing his present applicant. The facts of the case, as submitted by the parties, may be summarised as follows. On 24 July 1999 an armed clash took place between the security forces and PKK militants in the applicants’ village of Narlıca, in district of Kulp, Diyarbakır. During the clash, some of the applicants’ property was destroyed. In particular, Necmettin Ayyıldız’s vineyards of 3 dönüm (2,760 m2) and fruit trees, İsmail Yakut’s home, dairy barn and livestock, Abdullah Şeker’s dairy barn and livestock were damaged as a result of a fire that broke out. The village guards did not allow the applicants to save their livestock during the fire. On 25 July 1999 three gendarme officers drew up a scene of incident report. According to the report, a fire started as a result of the clash which then spread to the barns of İsmail Yakut and Abdullah Şeker. The report further stated that a number of livestock belonging to these applicants were killed because of the fire. On 26 July 1999 officers from the Kulp Gendarme Command took statements from İsmail Yakut and Abdullah Şeker. Their statements confirmed the scene of the incident report of 25 July 1999. Abdullah Şeker and İsmail Yakut lodged petitions with the Kulp County Governor’s Office on 2 August and 3 August 1999 respectively. They requested the authorities to establish their damage but they received no response to their petitions. Abdullah Şeker and İsmail Yakut brought declaratory actions before the Kulp Civil Court on 9 August and 11 August 1999 respectively. They requested the court to assess the damage they had sustained. On 12 August 1999 the Kulp Civil Court decided not to hold an on-site visit in Narlıca as it had been informed by the district gendarme command that the area was not safe and that there was not sufficient staff or equipment to provide security for the visit. On 13 August 1999 Necmettin Ayyıldız brought a declaratory action before the Kulp Magistrates’ Court (Sulh Hukuk Mahkemesi) for an assessment of the damage he had suffered. On 16 August 1999 the court decided not to hold an inspection citing the same reasoning as the Kulp Civil Court. The investigation carried out by the authorities indicated that subsequent to their requests for compensation, Mr Şeker and Mr Yakut had received 350,000,000 Turkish liras (TL) and 400,000,000 TL respectively. The investigation further revealed that Mr Ayyıldız had not suffered any loss or damage upon the incidents. The Government also pointed to the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism that was passed by the Grand National Assembly on 14 July 2004 and entered into force on 27 July 2004 (“Compensation Law”). The Compensation Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who suffered damages resulting from the fight against terrorism in the region. In that connection, “Damage Assessment and Compensation Commissions” were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation. The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained. A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI) | 0 |
train | 001-92752 | ENG | DEU | CHAMBER | 2,009 | CASE OF BRAUER v. GERMANY | 2 | Violation of Art. 14+8;Just satisfaction reserved | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 5. The applicant was born in 1948 in Oberschwöditz, in the former German Democratic Republic (GDR), and lives in Lennestadt. 6. The applicant is the natural daughter of a Mr Schildgen, who recognised her several months after her birth. She lived in the territory of the former GDR until 1989, while her father lived in the FRG. The father and daughter corresponded regularly during this period, and after the reunification of Germany she visited him. He died between 30 June and 3 July 1998 (the precise date has not been specified). The applicant subsequently made several attempts to assert her inheritance rights in the domestic courts. 7. On 10 July 1998 the applicant applied for a certificate of inheritance attesting that she was entitled to at least a 50% share of Mr Schildgen’s estate. 8. In a decision of 8 October 1998 the Neunkirchen District Court (Amtsgericht – Nachlassgericht) refused the applicant’s application, holding that, notwithstanding the reform of the law of succession following the introduction of the Inheritance Rights Equalisation Act of 16 December 1997 (Erbgleichstellungsgesetz), the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act (Gesetz über die rechtliche Stellung nichtehelicher Kinder – Nichtehelichengesetz) of 19 August 1969 remained in force. The provision in question stated that children born outside marriage before 1 July 1949 were not deemed to be statutory heirs (see “Relevant domestic law and practice”, paragraph 18 below). The District Court also referred to a decision given by the Federal Constitutional Court (Bundesverfassungsgericht) on 8 December 1976 (see also “Relevant domestic law and practice”, paragraph 21 below), in which the provision had been found to be in conformity with the Basic Law (Grundgsetz). 9. On 4 November 1998 the applicant appealed to the Saarbrücken Regional Court (Landgericht), arguing in particular that the law of the former GDR, which provided for equal treatment between children born within and outside marriage, should apply in her case. In any event, section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act contravened Article 3 (principle of equality before the law) of the Basic Law as there was no objective justification for the difference in treatment. 10. In a decision of 7 January 1999 the Saarbrücken Regional Court upheld the District Court’s decision on the same grounds. It acknowledged, however, that the exclusion of children born outside marriage before 1 July 1949 from the statutory right of inheritance placed them at a very clear disadvantage in relation to those born after that date and also to those covered by the law of the former GDR. 11. In a decision of 3 September 1999 the Saarland Court of Appeal (Oberlandesgericht) quashed the Regional Court’s decision and remitted the case to it to establish whether the applicant was indeed Mr Schildgen’s natural daughter and whether there were any other heirs. If the applicant were to be entitled to at least a 50% share of the estate, the Regional Court should examine whether the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act was in conformity with the Basic Law. The Court of Appeal confirmed at the outset that by virtue of the rules of private international law and, in particular, the settled case-law concerning section 25(1) of the Introductory Act to the FRG Civil Code (Einführungsgesetz in das Bürgerliche Gesetzbuch), FRG law alone was applicable in the applicant’s case, since the deceased (Erblasser) had not been resident in the territory of the former GDR on 3 October 1990, when German reunification had taken effect. However, it considered that the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act was not in conformity with the Basic Law, for the following reasons. Firstly, the legal and social status of children born outside marriage had evolved considerably since the Federal Constitutional Court’s decision of 8 December 1976 and had in practice become equivalent to that of children born within marriage. The Federal Constitutional Court, moreover, had itself adopted a more restrictive approach to Article 6 § 5 of the Basic Law (principle of equal treatment between children born outside and within marriage) in its decision of 18 November 1986 (see “Relevant domestic law and practice”, paragraph 23 below). Furthermore, a new situation had arisen as a result of the accession of the former GDR to the FRG, since by virtue of section 235(1)(2) of the Introductory Act to the Civil Code, taken together with section 25(1), children born outside marriage before 1 July 1949 had the same rights as children born within marriage if the father had been resident in the territory of the former GDR on 3 October 1990 (see “Relevant domestic law and practice”, paragraphs 19-20 below). However, there were no objective grounds for a difference of treatment between children born outside marriage before or after 1 July 1949, or between children born outside marriage before 1 July 1949 according to whether or not the father had been resident in the territory of the former GDR on 3 October 1990. The Court of Appeal concluded that the arguments put forward by the Federal Constitutional Court in its decision of 8 December 1976 were no longer valid, particularly with regard to the practical and procedural difficulties of establishing the paternity of children born outside marriage before 1 July 1949, and the need to protect the “legitimate expectations” of the deceased (Vertrauensschutz des Erblassers) and his family. 12. In a decision of 25 January 2001 the Saarbrücken Regional Court confirmed its previous decision on the basis of the same arguments. Even if it was established to a 99% degree of certainty that the applicant was indeed Mr Schildgen’s daughter and there were no other known heirs, she was excluded from any statutory entitlement to the estate by the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act. In the Regional Court’s view, that provision did not contravene the Basic Law despite German reunification, as the Federal Constitutional Court had held in its decision of 3 July 1996 (see “Relevant domestic law and practice” below, paragraph 22). 13. In a decision of 7 August 2001 the Saarland Court of Appeal again quashed the Regional Court’s decision and remitted the case to it to establish whether there were any other heirs of the second or third order and to re-examine whether the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act was compatible with the Basic Law where the State was the sole statutory heir. The Court of Appeal held that it was not acceptable to set a cut-off date if the deceased had no other heirs and, as a result, the State became the sole statutory heir. It referred in that connection to the right of inheritance (Erbrechtsgarantie) guaranteed in Article 14 § 1 of the Basic Law, which in its view also protected the rights of a child born outside marriage where there were no private statutory heirs other than the State. 14. In a decision of 10 July 2003 the Saarbrücken Regional Court confirmed its previous decisions on the basis of the same arguments. It added that it was not required in the case before it to examine whether the provision in issue was in conformity with the Basic Law, since it had been established that the deceased had heirs of the third order and that the State was therefore not the statutory heir. 15. In a decision of 29 September 2003 the Saarland Court of Appeal dismissed an appeal by the applicant, on the ground that it was bound by the decisions of the Federal Constitutional Court in which the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act had been found to be in conformity with the Basic Law. It further refused to refer the case back to the Regional Court for a fresh examination, seeing that the State was not the statutory heir in the case before it. 16. In a decision of 20 November 2003 the Federal Constitutional Court, sitting as a panel of three judges, declined to consider the appeal. It observed, in particular, that the aspect of protecting the “legitimate expectation” of the deceased had gained in importance since, following its decision of 8 December 1976, it had considered the inheritance rights of children born outside marriage before 1 July 1949 to have been clarified in relation to the Basic Law. It added that the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act had not lost its objective justification simply because children born outside marriage in an entirely different social context had the same rights as children born within marriage. The difference in treatment in comparison with children born outside marriage who were covered by the law of the former GDR was justified by the inherent purpose of section 235(1)(2), that of avoiding any disadvantage resulting from the former GDR’s accession to the FRG. 17. The Children Born outside Marriage (Legal Status) Act of 19 August 1969, which came into force on 1 July 1970, provided that on the father’s death, children born outside marriage after 1 July 1949 – shortly after the entry into force of the Basic Law – were entitled to compensation from the heirs in an amount equivalent to their share of the estate (Erbersatzanspruch). The sole exception concerned children born outside marriage before 1 July 1949: the first sentence of section 12(10)(2) of the Act excluded them from any statutory entitlement to the estate and from the right to financial compensation. 18. In 1997, in the general context of the reform of family law with regard to custody and parental rights, the legislature also made changes to the law of succession for children born outside marriage through the Inheritance Rights Equalisation Act of 16 December 1997, which came into force on 1 April 1998. Children born outside marriage are in principle now treated as equal to those born within marriage as regards all aspects of the law of succession. However, the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act of 19 August 1969 remains in force as a transitional provision. 19. By section 235(1)(2), taken together with section 25(1), of the Introductory Act to the FRG Civil Code, children born outside marriage in the territory of the former GDR before 3 October 1990 (the date on which German reunification took effect) have the same inheritance rights as children born within marriage in accordance with the FRG Civil Code if the father died after 3 October 1990 and had been resident in the territory of the former GDR on that date. Section 235(1)(2) seeks to protect the rights of children born outside marriage prior to reunification who would have been covered by the law of the former GDR, which afforded equal inheritance rights to children born outside and within marriage. 20. It follows that the inheritance rights of children born outside marriage before 1 July 1949 are dependent on the deceased’s place of residence on 3 October 1990: if the deceased was resident in the territory of the former GDR, the child born outside marriage has the same inheritance rights as a child born within marriage; if, however, the deceased was resident in the territory of the FRG, the child born outside marriage has no statutory entitlement to the estate. 21. In a leading decision of 8 December 1976 the Federal Constitutional Court held that the provision in issue was compatible with the Basic Law. It stated, in particular, that fixing 1 July 1949 as the cut-off date was objectively justified in view of the practical and procedural difficulties of establishing the paternity of children born outside marriage before that date, since the scientific methods used at the time were less developed than present-day methods. Many paternity suits were therefore unlikely to succeed owing to insufficient evidence. Moreover, the new legislation made it possible to contest declarations of paternity drawn up before 1 July 1949. Accordingly, having regard to those factors, the legislature had not overstepped its margin of discretion in this regard. Furthermore, it had to a certain extent been able to take account of existing uncertainties regarding the law of succession and of the opinion of those opposed to reforming the legal status of children born outside marriage. Lastly, the “legitimate expectation” of the deceased and their families that the exception provided for in the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act would be maintained also deserved a certain degree of protection. 22. In a decision of 3 July 1996 the Federal Constitutional Court confirmed its earlier position notwithstanding the reunification of Germany. It held that the legislature had taken into account the social conditions prevailing when the Children Born outside Marriage (Legal Status) Act had been enacted. This objective justification was still present even though children born outside marriage in an entirely different social context had the same rights as children born within marriage. 23. In a decision of 19 November 1986 the Federal Constitutional Court held that section 1934c of the Civil Code, which provided that a child born outside marriage was entitled to a share in the estate only if at the time of the father’s death his paternity of the child had been acknowledged or determined by a court ruling, or judicial proceedings to that effect were pending, was not in conformity with Article 6 § 5 of the Basic Law. 24. During the passage of the Children’s Rights Improvement Act (Kinderrechteverbesserungsgesetz) of 9 April 2002, the legislature again upheld the exception in the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act. It took the view that that provision was compatible with the Basic Law in the light of the Federal Constitutional Court’s decisions of 8 December 1976 and 3 July 1996 (see paragraphs 21-22 above), which had created an even stronger “legitimate expectation” (Vertrauenstatbestand) for the deceased and his family. | 1 |
train | 001-91744 | ENG | UKR | CHAMBER | 2,009 | CASE OF LEBEDINTSEVA v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial | Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Stanislav Shevchuk;Zdravka Kalaydjieva | 4. The applicant was born in 1949 and lives in the city of Kharkiv, Ukraine. 5. On 21 February 2001 the Snizhne Court awarded the applicant 23,536.80 Ukrainian hryvnyas (UAH) against the State-owned Udarnik mine in compensation for her husband’s death as a result of a work-related accident. Subsequently, the mine was reorganised into the Snizhneantratsyt State Company. 6. The judgment was not appealed against, became final, and enforcement proceedings were instituted to collect the debt. 7. Between February 2002 and December 2003 the applicant was paid UAH 11,135. 8. On 18 January 2008 the applicant received the rest of the judgment debt. 9. The applicant attempted to collect compensation from the debtor company for the delay in enforcement, by way of judicial proceedings; however her efforts were to no avail. 10. The relevant domestic law is summarised in the judgments of Romashov v. Ukraine, no. 67534/01, §§ 16-19, 27 July 2004, and Voytenko v. Ukraine, no. 18966/02, §§ 20-25, 29 June 2004. | 1 |
train | 001-109226 | ENG | ROU | GRANDCHAMBER | 2,012 | CASE OF CREANGĂ v. ROMANIA | 2 | Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Alvina Gyulumyan;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabet Fura;Françoise Tulkens;Ganna Yudkivska;Giorgio Malinverni;Guido Raimondi;Ineta Ziemele;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Lech Garlicki;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen | 11. The applicant was born in 1956 and lives in Bucharest. 12. In 1985 the applicant joined the Bucharest police force. In 1995 he became an officer in the criminal investigation department of Bucharest police section no. 5. 13. On his application form, the applicant stated that on 16 July 2003 he was informed by his hierarchical superior that he was required to go to the National Anti-Corruption Prosecution Service headquarters (“the NAP”) for questioning. In his written observations to the Grand Chamber of 10 February 2011 the applicant stated that at about 5 p.m. on 15 July 2003, while he was on leave, a colleague from Bucharest police section no. 5 informed him by telephone that he was required to attend the NAP on the following day; he was not given any additional information. 14. At about 8.45 a.m. on 16 July 2003 the applicant met twenty-five colleagues in the courtyard of the NAP headquarters. They were then asked to enter the building at about 9 a.m. At the entrance, a police officer entered the particulars of the applicant and his colleagues in a logbook. 15. The applicant and his colleagues were taken to a meeting room on the ground floor of the building. Shortly afterwards V.D., a military prosecutor, entered and asked them to make written statements on the circumstances in which they had met three individuals: I.D., S.B. and M.I. The prosecutor then left the room and returned at approximately 9.30 to 9.40 a.m. to collect the statements. After reading them, the prosecutor allegedly began to threaten the applicant and his colleagues with pre-trial detention. The prosecutor left the room again. Four or five masked and armed gendarmes burst in. One of the gendarmes asked the applicant and his colleagues to take out their mobile phones and to put them on a table next to another gendarme. They were also informed that they were allowed to leave the room to go to the toilet or smoke a cigarette only individually and if accompanied by an armed gendarme. 16. At about 3 p.m. the applicant and his colleagues asked for permission to leave the room to purchase water and food. After obtaining the prosecutor’s permission, a gendarme collected money from the police officers and went to buy the requested groceries. 17. Throughout this time, the applicant was not assisted by either a lawyer of his own choosing or an officially appointed lawyer. He was unable to contact anyone outside the building. 18. On the application form, the applicant stated that he had managed to contact a lawyer at around 8 p.m. In his written observations to the Grand Chamber, the applicant alleged that towards 11 p.m., he and one of his colleagues had been taken to the prosecutor’s office on the first floor. The prosecutor, another man and two women were present in the office. The prosecutor allegedly suggested to the applicant that he state that the commanding officers at Bucharest police section no. 5 were guilty of corruption. He added that in exchange, the applicant would not be placed in pre-trial detention and would be able to see his family again soon. The applicant asked for assistance from a lawyer of his choosing. The prosecutor replied that the two women present were officially appointed lawyers and asked him to select one of them to assist him. The applicant refused. He claimed that the prosecutor began to “insult him” and to threaten that if he did not cooperate, he would be placed in detention and would be forbidden family visits. He was taken out of the office by a gendarme, who was instructed to prevent him from speaking to anyone and from going to the toilet without the prosecutor’s permission. At the public hearing on 30 March 2011 the applicant stated that at an unspecified time his family, who knew that he was to go that day to the NAP and who had not seen him come home, had contacted the lawyer C.N., who asked his colleague, Mr Cus, to assist the applicant at the prosecution service premises. Mr Cus arrived at 10 p.m. and was allowed to meet with the applicant. 19. At about 1.15 to 1.30 a.m. on 17 July 2003 the applicant was again taken into the prosecutor’s office. The prosecutor filled in a pre-printed form setting out the charges against the applicant and read it to him. In response, the applicant stated that he did not acknowledge the acts of which he was accused and that he stood by his initial statement. The applicant signed the form in the presence of an officially appointed lawyer, Ms M.S. The prosecutor also served on him a warrant for his pre-trial detention, issued on 16 July 2003, which mentioned that his detention had been ordered for three days, namely from 16 to 18 July 2003. 20. At about 1.40 a.m., in the presence of Mr Cus, the lawyer chosen by the applicant, the prosecutor informed him of the order for his pre-trial detention. He also outlined to the applicant the evidence against him in support of his detention, namely statements by his colleagues. The order was based on Article 148 § 1 (h) of the Code of Criminal Procedure (“the CCP”). Referring to the relevant legal texts, the prosecutor indicated that the acts of which the applicant was accused amounted to the offences of criminal conspiracy, accepting bribes and aiding and abetting aggravated theft. The relevant part of the order was worded as follows: “On an unspecified date in 1999 or 2000, a date that will be determined precisely [at a later stage], [the applicant], along with several colleagues from police section no. 5, caught several persons in the Bucureştii Noi district in the act of transporting in a Dacia van more than two tons of petrol that had been siphoned from pipelines. They then asked for and received the sum of 20,000,000 lei from S.B. and M.I. in exchange for not opening a criminal investigation against them and allowing them to continue their unlawful activity. The fact that the suspect/accused committed these criminal acts is proved by the following evidence: - witness statements; - records of confrontations; - statements by the accused persons; - audio recordings; - photographs; - records of photo-based identification procedures. Given that the conditions laid down in Article 148 § 1 (h) CCP have been met, namely that the offence committed is punishable by between four and eighteen years’ imprisonment and that the accused’s release would pose a threat to public order and to the conduct of the investigation in this case, since the accused is a police officer and could use this fact to influence the persons who are to be questioned; On the basis of Article 136 § 5, Article 146 § 1, Article 148 § 1 (h), Article 1491 and Article 151 CCP [the prosecutor] decides that: The suspect/accused is to be held in temporary pre-trial detention ... for a period of three days; Pursuant to Article 146 § 3 and Article 1491 § 3 CCP, the detention referred to above shall commence at 10 p.m. on 16 July 2003 and end at 10 p.m. on 18 July 2003. A warrant for temporary pre-trial detention will be issued ... from 16 July 2003 ...” 21. At about 2.30 a.m. the applicant was taken to a room in the basement of the building where thirteen other colleagues were present. Shortly afterwards he was transferred to Rahova Prison. 22. During the autumn of 2002 the NAP was informed of thefts of petroleum products from Petrotrans S.A. pipelines on the outskirts of Bucharest, committed in close collaboration with gendarmes and police officers. The questioning of several individuals on 9 and 11 July 2003 and photographic identification revealed the applicant’s involvement in the operation. The prosecutor responsible for the case, V.D., decided to summon around fifty people to give evidence on 16 July 2003. 23. On 15 July 2003 the applicant and sixteen police colleagues were summoned at their workplace (Bucharest police section no. 5) to appear before the NAP in order to make statements for the purpose of a criminal investigation. The head of police of the 1st District of Bucharest was also informed so that he would be aware of the police officers’ absence from work on the following day and in order to ensure their presence at the NAP. 24. At 9 o’clock the following morning the applicant and his colleagues went to the NAP premises. The military prosecutor V.D. greeted them in a room on the ground floor of the building and informed them that they were to be questioned in the context of a preliminary investigation (acte premergătoare) into their suspected involvement in the fraudulent removal of petroleum products from oil pipelines. All of the police officers verbally denied any involvement in such activity, but agreed to make a written statement on the subject. As a result, they received a ten-point questionnaire which they answered on a plain sheet of paper. During this period the prosecutor left the room and went to his office, on the first floor of the building, to continue procedural formalities with regard to other individuals involved in the case. 25. Towards 12 noon, when all of the officers had finished writing their statements, the prosecutor returned to the room and informed them that, by a decision of the same day, a criminal investigation had been opened in the case against ten of the police officers, including the applicant, for accepting bribes, aiding and abetting aggravated theft and criminal conspiracy. The other seven police officers were free to leave the NAP premises. 26. The prosecutor asked the ten police officers concerned to make new statements and to take part in confrontations with other persons. He also informed them that they were entitled to be assisted by counsel of their own choosing. Some of the police officers contacted lawyers, while the prosecution service asked the Bucharest Bar to ensure that lawyers could be officially appointed for the others, including the applicant. 27. The applicant waited voluntarily in the NAP premises in order to have his legal situation clarified. He was not obliged to stay there, and was free to leave the premises at any point in order, for example, to purchase water or cigarettes; indeed, two police officers, A.A. and G.C., left that day and did not return. 28. The applicant was at no time supervised or guarded. Gendarmes were present in the NAP premises on that day purely for the purpose of maintaining order. Furthermore, there was no separate entrance or special room for persons placed in police custody or in pre-trial detention. 29. At about 1 or 2 p.m., after their chosen lawyers (for five of the police officers) or officially appointed lawyers had arrived at the NAP headquarters, the prosecutor began questioning each of the officers in turn. This process lasted three to four hours. 30. At an unspecified time while being questioned, the applicant, assisted by M.S., an officially appointed lawyer, added to his initial statement made on a plain sheet of paper, confirming that he was a colleague of officers C.D. and M.G.M. and that he had a normal relationship with them. On that occasion, the prosecutor noted on the sheet that the initial statement had been made at 10 a.m. 31. At an unspecified time the applicant made a new statement in the presence of the same officially appointed lawyer, this time on a pre-printed form bearing the words “suspect/accused”. The form indicated that the applicant had been informed of the acts of which he was accused and their legal classification, and of his procedural rights. A record was accordingly drawn up and signed by the prosecutor, the applicant and the officially appointed lawyer. 32. The prosecutor subsequently carried out several confrontations between suspects, accused persons and witnesses. 33. At 10 p.m., by an order, the prosecutor decided to charge several police officers, including the applicant, with accepting bribes, aiding and abetting aggravated theft and criminal conspiracy. 34. At the same time, the prosecutor decided, by an order, to place the applicant in temporary pre-trial detention. A warrant for pre-trial detention was issued and served on him at an unspecified time. During the night of 16 to 17 July 2003 the applicant was transferred to Rahova Prison. 35. The Government observed that the logbooks recording persons entering and leaving the NAP premises in 2003 had been destroyed well before the present case had been communicated on 19 February 2009, the retention period being three to five years, in accordance with the legal provisions in force. 36. On 17 July 2003, on the basis of Article 148 § 1 (c), (d) and (h) CCP, the NAP asked the Bucharest Military Court to extend by twentyseven days the pre-trial detention of the applicant and his thirteen co-accused, starting on 19 July 2003. 37. At 10 a.m. on 18 July 2003 the applicant was taken to court. He alleged that his lawyer was given access to the case file only while the prosecution was presenting its request for an extension of the pre-trial detention. The Military Court ordered that the case be referred to the Military Court of Appeal, which, in view of the military rank of one of the co-accused, had jurisdiction. 38. By a judgment delivered in private on the same date, the Military Court of Appeal, sitting as a single judge, granted the prosecution’s request and extended the pre-trial detention of the applicant and the other co-accused by twenty-seven days. 39. The Military Court of Appeal held, having regard to the case file, that there was evidence that the accused had committed the offences of criminal conspiracy, taking bribes, aiding and abetting aggravated theft and inciting others to give false evidence. It held that it was necessary to place the accused in pre-trial detention on grounds of public order, noting that they could influence witnesses and that they had taken steps to evade criminal proceedings and execution of the sentence. Lastly, it noted that the complexity of the case, the large number of accused and the difficulty in obtaining evidence were also to be taken into account. 40. On the same day, a warrant for pre-trial detention identical to that of 16 July 2003 was issued in respect of the applicant. 41. The applicant and his co-accused lodged an appeal against the judgment, arguing that the court which had delivered it had not been legally constituted. The prosecution likewise submitted that the court had been incorrectly constituted. 42. By a final judgment of 21 July 2003 the Supreme Court of Justice upheld the appeal, set aside the judgment and ordered the release of the applicant and his co-accused. It held that, in order to ensure greater transparency in the fight against corruption, Law no. 161 of 21 April 2003 had amended, with immediate effect, the procedural provisions set out in Law no. 78/2000 on the prevention, discovery and punishment of acts of corruption (“Law no. 78/2000”). Thus, Article 29 §§ 1 and 2 of Law no. 78/2000 provided that a court ruling at first instance on the offences set out in that Law had to be composed of two judges. 43. The applicant was not informed of the reasoning of that judgment. 44. The applicant was released on the same day. 45. On an unspecified date, the Procurator General of Romania lodged an application with the Supreme Court of Justice to have the final judgment of 21 July 2003 quashed. He submitted that the Supreme Court had committed serious errors of law in its interpretation of the domestic legislation, resulting in an unsatisfactory solution to the matter. 46. The applicant stated that he had learned only on 24 July 2003, through the media, of the existence of the application to have the judgment quashed, and of the fact that the hearing had been scheduled for 25 July 2003. 47. At 9.30 a.m. on 25 July 2003 the applicant attended the hearing, accompanied by two lawyers who requested that the case be adjourned on the ground that neither the reasoning of the judgment of 21 July 2003 nor the application to have that judgment quashed had been communicated to the applicant. The Supreme Court of Justice granted this request and, referring to the urgent nature of the case, adjourned the hearing until 12.30 p.m. 48. When the proceedings resumed the applicant submitted that the final judgment of 21 July 2003 could only be challenged by means of an appeal in the interests of the law and not by an application to have it quashed, and that there were no plausible reasons to justify his pre-trial detention. 49. By a final judgment of 25 July 2003 the Supreme Court of Justice, sitting as a bench of nine judges, upheld the application, quashed the judgment of 21 July 2003 and, on the merits, dismissed the applicant’s appeal on the ground that the aforementioned judgment had incorrectly interpreted Article 29 §§ 1 and 2 of Law no. 78/2000. It considered that the application of the amendments to Law no. 78/2000 and to the CCP led to the conclusion that the legislature’s intention had been to ensure a single set of rules concerning pre-trial detention, namely that it was to be ordered by a single-judge bench sitting in private, whatever the nature of the offence. 50. Having regard to the case file, which contained sufficient information to suggest that each of the persons under criminal investigation could have committed the offences with which they had been charged, the Supreme Court of Justice also held that their pre-trial detention was justified. 51. On 25 July 2003 the applicant was placed in pre-trial detention. 52. By an interlocutory judgment of 29 June 2004, upheld on 2 July 2004 by the Military Court of Appeal, the territorial Military Court ordered that the applicant be released and replaced his pre-trial detention by an order prohibiting him from leaving the country. 53. By a judgment of 22 July 2010 the Bucharest Court of Appeal sentenced the applicant to three years’ imprisonment, suspended, for taking bribes (Article 254 § 2 of the Criminal Code taken together with Article 7 of Law no. 78/2000) and harbouring a criminal (Article 264 of the Criminal Code). By the same judgment, M.T. and G.S., whose statements had been produced by the applicant, were sentenced to two years’ and five years’ imprisonment respectively for taking bribes and criminal conspiracy, and taking bribes and harbouring a criminal. 54. At the request of the Court, on 8 March 2011 the applicant produced the statements of two of his police colleagues, M.T. and G.S., who had also been present in the NAP premises on 16 July 2003. Their statements had been taken by the applicant’s lawyer on 3 March 2011. 55. M.T.’s statement read as follows: “At around 9.30 p.m. on 15 July 2003 the duty officer of police section no. 5 informed me by telephone that I was to attend the NAP at 9 a.m. on 16 July 2003, but I was given no additional information. At 8.45 a.m. on 16 July 2003, outside the NAP premises, I met several colleagues including Sorin Creangă. Shortly afterwards, we were invited to enter the building. At the entrance, a gendarme asked us for our identity documents so as to note down our particulars in the logbook. I was taken with my colleagues to a room on the ground floor of the building. Shortly afterwards, a person entered the room and introduced himself as V.D., the military prosecutor. He gave us sheets of paper and pens and asked us to state whether and in what circumstances we had met three people: I.D., S.B. and M.I. He left the room, leaving us alone. After approximately forty minutes, V.D., the prosecutor, came back into the room and gathered up the statements. [After having read the statements] and noted that some [of us] had responded negatively, he became angry and very tense and threatened to place us in detention with our colleagues who had already been arrested. He then left the room. Four or five armed gendarmes (masked and armed with machine guns and wearing bulletproof vests) burst into the room. One of the gendarmes, who had the rank of officer, asked us to get out our mobile phones and place them on a table next to another gendarme; we were also told that we were authorised to leave the room only if accompanied by a gendarme. That situation lasted until 5 p.m., when we asked for permission to leave the room to purchase food and water. We were asked to collect the money so that a gendarme could go and buy the groceries we had requested. We were forbidden from contacting our families or anyone on the outside. Until 10 p.m. we were authorised to leave the room to use the toilet only individually and accompanied by an armed gendarme. We were not assisted by lawyers of our own choosing or officially appointed lawyers. At about 10.30 p.m. to 11 p.m., a gendarme took me with Sorin Creangă to an office on the first floor. Present in the office were the prosecutor V.D., the person who had taken us to the NAP premises, another man and two women. The prosecutor suggested to me and to Sorin Creangă that we state that the officers in charge of police section no. 5 were guilty of corruption and were accepting bribes from thieves ... and assured us that if we were to make such a statement no action would be taken against us. Otherwise, we would be arrested. That being so, my colleague Sorin Creangă asked to be assisted by a lawyer of his choosing. The prosecutor replied that the two women present, who were officially appointed lawyers, would assist them. Sorin Creangă refused their assistance and said that he would not make a statement. The prosecutor started to insult him, calling him a peasant, and told him that he would be arrested even if he didn’t make a statement and that he would never see his family again if he didn’t cooperate. Sorin Creangă was then taken from the office. Approximately forty minutes later, when I was taken to a room in the basement of the building, I saw Sorin Creangă in the corridor, near the door of the prosecutor’s office, being guarded by an armed gendarme. At around 2.30 a.m. on 17 July 2003 Sorin Creangă was taken to the basement room. Shortly afterwards, we got into a windowless vehicle and were taken to Rahova Prison in Bucharest, escorted by gendarmes. I would point out that I was not allowed any contact with my family and was not allowed to be assisted by a lawyer of my choosing.” 56. In his statement, S.G. confirmed the truth of M.T.’s statement and described the course of events after 16 July 2003. 57. At the request of the Court, on 7 March 2011 the Government produced the statement of the prosecutor V.D., responsible for the proceedings brought against the applicant. Dated 17 January 2011, the relevant parts read as follows: “After having consulted ‘the records’ of the file on the criminal investigation, I wish to clarify the following: - The following ‘făptuitori’ [‘alleged perpetrators’ or ‘suspects’, at a stage prior to the opening of proceedings against them], officers of police section no. 5, were summoned on the aforementioned date [16 July 2003] by a written request sent to the head of police of the 1st District of Bucharest: G.S., D.M., Sorin Creangă, M.T., C.M., C.O., L.S., S.T., D.A., M.G., S.T., C.B., N.T., C.S., G.R., L.C. and G.D. - The aforementioned persons were informed that they were to be questioned as ‘făptuitori’ (in the context of the preliminary investigation) in connection with their involvement in the fraudulent extraction of petroleum products from oil pipelines. From the outset, all the police officers summoned verbally denied any involvement in this activity but agreed to make a statement in that regard. Consequently, they were given a ten-point questionnaire to which they responded in writing. After having obtained their agreement and in the interests of the efficiency of the investigation, I decided that the statements would be made simultaneously in the NAP meeting room because it would have taken several hours to question them individually. I left the room while the statements were being drawn up because, as I was the only prosecutor working on the case, I had other investigative formalities to complete in my office. - At around 12 noon, when all the officers had finished writing their statements, I re-entered the room and informed them that a criminal investigation had been opened in the case against G.S., D.M., Sorin Creangă, M.T., C.M., C.O., L.S., S.T., D.A. and M.G. I asked those persons to make new statements and to take part in confrontations. I explained to them that they were entitled to be assisted by lawyers of their own choosing and that, for those who did not have lawyers, officially appointed lawyers would be requested from the Bucharest Bar. Accordingly, the persons wishing to be assisted by a lawyer of their own choosing were permitted to contact their lawyers, and officially appointed lawyers were requested from the Bucharest Bar for the others. The first lawyers arrived at the prosecution headquarters one hour after having been contacted and they were allowed to meet with their clients in the corridors of the building before the hearings and confrontations. The police officers in respect of whom no criminal investigation had been opened were free to leave the NAP and return to their place of work. In addition to the above-mentioned ‘făptuitori’, police officers D.M., C.M.E., I.E. and D.C.B were summoned to appear as ‘făptuitori’ at the prosecutor’s office on the same day. The same procedure was followed in respect of those police officers, since they were also the subject of a criminal investigation. - Before the lawyers for the fourteen police officers under investigation arrived (that is, before 1 p.m.), I completed other investigative formalities in my office such as questioning, re-examination or confrontation, in respect of other persons, for example M.I., S.B., D.C., G.M.M. and G.A., some of whom were already in pre-trial detention. - A series of witnesses, including M.P., M.B. and D.A.I., were summoned on the same day in the same case. - At around 1 or 2 p.m. I started questioning the fourteen police officers, as suspects, in the presence of their lawyers. Each suspect made two separate statements (one written on a plain sheet of paper and another on the form designed for suspects), signed by their lawyers. I recall that none of the fourteen suspects admitted any involvement in the criminal activities at issue, even though their involvement had been established on the basis of evidence gathered earlier. The fourteen suspects were questioned for at least three to four hours. - Because several confrontations were needed, the fourteen suspects, assisted by lawyers of their choosing or officially appointed lawyers, participated voluntarily in at least twenty confrontations, during which they were presented with extracts of transcripts of their telephone conversations which had been intercepted and recorded. The confrontations went on for several hours, until 10 p.m., when a prosecution was brought against the fourteen suspects and an order for their detention was made. Note: The special nature of the criminal investigation in this case required that repeated questioning and confrontations be carried out on the day in question, that being the only way in which the truth could be established. Another reason for carrying out all those measures on the same day was the need to ensure the confidentiality of the results of the investigation, given that there was already sound evidence that the suspects and the accused were transmitting information about the investigation with a view to concealing the truth and obstructing the criminal investigation. - ... as far as I recall, in 2003, just as now, the identity cards of people summoned to attend the prosecutor’s office were not retained at the entrance since the prosecutor had to identify each person before every interview. - ... the accused Sorin Creangă completed the formalities described above. ... Thus, until 11 a.m. or 12 noon, alongside his colleagues, he drew up his first statement without the prosecutor being present in the room; the room was on the ground floor of the building. Later, Sorin Creangă waited for his lawyer to arrive; after that, he took part in two sets of questioning and various confrontations (the gendarmes were indeed present, but their purpose was to keep order, and no one was guarded individually; anyone could, without being guarded and without having to advise anyone, leave the prosecution service headquarters because no permission was required at the exit). Personally, as the prosecutor, I do not remember the names of the two police officers who left the prosecution service headquarters during that period without advising anyone but I do remember that they disappeared and could not be found, which is why a general search warrant covering the whole country was issued in respect of them. They were found several days later and brought to the prosecution service, which detained them. They were then brought before the court, which ordered that they be placed in pre-trial detention. - ... there was not in 2003, nor is there now, a separate entrance for persons under investigation or arrest, nor is there any special room in which such persons could wait to be called into the prosecutor’s office in connection with activities forming part of criminal investigations. - ... the accused, Sorin Creangă, was summoned on 16 July 2003 by a letter sent by the NAP to the head of police of the 1st District of Bucharest (a copy is attached to this report), that being a legal form of service of a summons under the Code of Criminal Procedure. Once charged, Sorin Creangă was provided with legal assistance, in accordance with the procedural requirements, given that before a criminal investigation is opened, the law does not require the presence of a lawyer and he did not request the assistance of a lawyer. Furthermore, neither did the other police officers request assistance from a lawyer when drawing up their initial statements. Sorin Creangă did not specifically ask for permission to leave the NAP headquarters as he was under no obligation to do so and there were no checks on anyone wishing to leave the building without informing the investigating prosecutor. Sorin Creangă was therefore never specifically told that he could leave the NAP headquarters but he was asked, along with other police officers, to participate in the activities forming part of the criminal investigation and he agreed to do so. ... Sorin Creangă was provided with information and legal assistance as was his entitlement in law; he agreed to participate in activities forming part of the criminal investigation. Before Sorin Creangă was charged, several other accused, for example S.B., M.I., G.F.P., V.B.D., D.C., G.M.M., G.A.A., F.C., A.G.B., C.U., M.L., M.V., N.B., L.S. and I.D., had admitted committing the offences with which they had been charged and confirmed the offences committed by Sorin Creangă. - ... I worked alone on this case file on 16 July 2003 and was not assisted by other prosecutors or police officers.” 58. The relevant provisions of the CCP, in force at the material time, read as follows: “The person against whom a prosecution is brought is a party to the criminal proceedings and is referred to as the accused.” “Any person who has knowledge of a fact or circumstance that might be useful in establishing the truth in the criminal proceedings may be heard as a witness.” “1. The criminal investigation authorities may conduct any preliminary investigation measures. ... 3. The record of execution of any preliminary investigation measure shall constitute evidence.” “The criminal investigation authority to which an application is made in accordance with any of the arrangements set forth in Article 221 shall order, by decision (rezoluţie), the opening of a criminal investigation where the content of that application or the preliminary investigation do not disclose any of the grounds not to prosecute, as provided for in Article 10, with the exception of the ground set out under letter (b)1.” “The suspect is a person who is the subject of a criminal investigation, until such time as a prosecution is brought.” “1. The prosecutor shall decide to prosecute [on a proposal by the criminal investigation authority] after having examined the case file. 2. If the prosecutor agrees with the proposal, he or she shall bring the prosecution by means of an order (ordonanţă).” “A person who is called upon to testify as a witness must appear at the place, on the date and at the time indicated in the summons. He or she is bound to reveal everything that he or she knows about the facts of the case.” “1. The summons ... contains the following wording: ... (b) the first name and surname of the person summoned, the capacity in which that person is being summoned and the subject matter of the case.” “Any person who, despite having been summoned to appear, has not done so and whose testimony is deemed to be necessary may be brought before the criminal investigation authorities or before a court by virtue of a warrant to appear drawn up in accordance with the provisions of Article 176 CCP. The suspect or accused may be the subject of a warrant to appear even before a summons has been issued if the criminal investigation authority or the court finds, by a reasoned decision, that such a measure is required. [Provision inserted by Law no. 281/2003, which entered into force on 1 January 2004] Any person appearing by virtue of the warrant referred to in paragraphs 1 and 2 of this Article shall be available to the judicial authorities only for such time as is required to question them, save where an order has been made for them to be placed in police custody or pre-trial detention.” “1. In cases concerning offences which are punishable by life imprisonment or an prison sentence, in order to ensure the proper conduct of the criminal proceedings and to prevent the suspect or accused from evading the criminal investigation, trial or execution of the sentence, one of the following preventive measures may be taken: (a) police custody; (b) prohibition on leaving the district; (c) prohibition on leaving the country; (d) detention. ... 3. The measure provided for in paragraph 1 (a) of this Article may be imposed by the criminal investigation authority or by the prosecutor. ... 5. The measure provided for in paragraph 1 (d) of this Article may be imposed by the court or, in the cases provided for by law, as a temporary measure, by the prosecutor within the framework of a criminal investigation. ... 8. In selecting the measure to be imposed, the authorities in question shall take account of its purpose, the danger to society posed by the offence, and of the health, age and previous record of the person involved and any other relevant circumstances.” “The decision by which a preventive measure is adopted must list the facts which gave rise to the charges, their legal basis, the sentence provided for in the legislation governing the offence in question and the specific reasons for adoption of the preventive measure.” “Any person held in police custody or pre-trial detention shall be informed immediately of the reasons justifying such a measure. That person shall be informed at the earliest opportunity, in the presence of a lawyer, of the suspicions against him or her.” “1. The criminal investigation authority may place a person in police custody if there are reasonable indications or evidence that he or she has committed an offence prohibited by the criminal law. 2. Police custody must be ordered in the cases provided for in Article 148, irrespective of the length of the applicable sentence for the alleged offence. 3. Reasonable evidence exists where, having regard to the existing information on a given case, the person under investigation may be suspected of having committed the alleged offence.” “1. Police custody may last for a maximum of twenty-four hours. The period during which the person was deprived of liberty as a result of the administrative measure of being taken to the police premises must be deducted from the duration of the police custody, as provided for by Law no. 218/2002 on the organisation and functioning of the Romanian police. 2. The order for placement in police custody must state the date and time at which police custody began and the order for release must state the date and time at which police custody ended. 3. Where the criminal investigation authority considers pre-trial detention necessary, it shall make a reasoned request to the prosecutor within the first ten hours of police custody ... If the prosecutor considers that the statutory requirements have been met, he or she shall order the pre-trial detention within the time-limit set out in the first paragraph of Article 146. 4. Where the prosecutor has ordered police custody and considers that pre-trial detention is required, he or she must make the relevant order within ten hours of the commencement of the police custody, in accordance with Article 146.” “1. Where the requirements of Article 143 are met, where any of the cases provided for in Article 148 is shown to exist, and where it is considered necessary for the purpose of the criminal investigation, the prosecutor, acting of his or her own motion or at the request of the criminal investigation authority, may, by a reasoned order setting out the grounds for and the duration of the measure and after having questioned the suspect in the presence of his or her lawyer, order that the party concerned be placed in temporary pre-trial detention for a maximum period of three days. 2. The prosecutor shall also draw up a warrant for the temporary pre-trial detention of the suspect. ... 3. If the suspect is already in police custody, the three days shall be calculated from the date of the police custody warrant. 4. Within twenty-four hours of issuing the warrant for temporary pre-trial detention, the prosecutor shall submit the case file to the court ..., with a reasoned proposal as to pre-trial detention ... 11. If the conditions set out in the first paragraph of this Article are met, the court shall make an interlocutory order for the pre-trial detention of the suspect before expiry of the period of detention ordered by the prosecutor, indicating the specific reasons for that measure and its duration, which may not exceed ten days.” “1. Detention of the accused may be ordered where the conditions set out in Article 143 are met and in any of the following cases: ... (d) sufficient evidence exists to conclude that the accused has attempted to impede the discovery of the truth by exerting pressure on a witness or an expert, by destroying or tampering with evidence or by taking other similar action; (e) the accused has committed another offence or there is sufficient evidence to fear that he or she will commit another offence; ... (h) the accused has committed an offence for which the law prescribes a prison sentence of more than four years, where there is clear evidence that his or her continued liberty would constitute a threat to public order.” “The duration of the detention of an accused may not exceed thirty days, except where it is extended in accordance with a procedure prescribed by law ...” “1. Where the requirements of Article 143 are met, where any of the cases provided for in Article 148 is shown to exist, and where it is considered necessary for the purpose of the criminal investigation, the prosecutor, acting of his or her own motion or at the request of the criminal investigation authority, may, by a reasoned order setting out the grounds for and the duration of the measure and after having questioned the accused in the presence of his or her lawyer, order that the party concerned be placed in temporary pre-trial detention for a maximum period of three days.” “The detention of the accused may only be ordered after he or she has been questioned by the prosecutor and by the court, save where the accused has disappeared, is abroad or is evading the investigation or the trial ...” “1. The suspect, the accused and the other parties to the criminal proceedings are guaranteed the rights of the defence. 2. During the criminal proceedings, the judicial authorities shall ensure that the parties are fully able to exercise their procedural rights in the conditions laid down by law, and shall take the evidence necessary for their defence. 3. The judicial authorities shall inform the suspect or accused [at the earliest opportunity and before they are questioned – provision inserted by Law no. 281/2003, which came into force on 1 January 2004] of the charges against them and of their classification in law and shall afford them the opportunity to prepare and conduct their defence. 4. All parties are entitled to be assisted by counsel during the criminal proceedings. 5. The judicial authorities shall inform the suspect or the accused, before they make their initial statement, of their right to be assisted by counsel and shall take due note in the record of the hearing. In the conditions and in the cases provided for by law, the judicial authorities shall take all measures to ensure that the suspect or accused are provided with legal assistance where they have no counsel of their own choosing.” “1. The suspect or accused is entitled to be assisted by defence counsel during the criminal investigation and before the court and the judicial authorities are required to inform him or her of that right. 2. Legal assistance is mandatory where the suspect or accused is a minor, is carrying out military service, is a called-up reservist, is a pupil in a military institution, is held in a rehabilitation centre or a medical and educational institution or is being detained, even in connection with a different case. ... 4. Where legal assistance is mandatory and the suspect or accused has not taken the necessary steps to choose his or her defence counsel, measures shall be taken to designate an officially appointed lawyer.” “2. Where legal assistance is mandatory, the criminal investigation authority shall ensure that defence counsel is present while the accused is being questioned. ... 4. An accused who has been placed in pre-trial detention is entitled to contact his or her lawyer. Exceptionally, and in the interests of the investigation, the prosecutor, of his or her own motion or at the request of the investigation authority may, by a reasoned order, prohibit any contact with his or her lawyer, on a single occasion and for a maximum period of five days. ... 8. The lawyer chosen by the suspect or accused or the officially appointed lawyer is required to provide that person with legal assistance. The criminal investigation authority or the court may bring to the attention of the relevant bar association any failure to fulfil that obligation in order that measures may be taken.” “The Procurator General at the Supreme Court of Justice may, of his own motion or on an application by the Minister of Justice, apply for any final decision to be quashed.” “Final decisions other than those referred to in the first paragraph [the first paragraph concerns decisions to convict, to acquit or to discontinue proceedings] may only be contested by an application to have them quashed if they are inconsistent with the law.” 59. The Articles of the CCP governing applications to have decisions quashed were repealed by Law no. 576 of 14 December 2004, which was published in the Official Gazette of 20 December 2004 and entered into force on 23 December 2004. 60. As regards the preliminary investigation (acte premergătoare), the criminal investigation authority is under no obligation to provide the party concerned, who at that stage has the status of “făptuitor”, with the assistance of a lawyer in respect of the measures taken during that period. That obligation arises only once the criminal proceedings during which the party concerned acquires the status of suspect or accused have been opened (judgments no. 2501 of 14 April 2005 and no. 3637 of 7 June 2006 of the High Court of Cassation and Justice, Criminal Division). At the preliminary investigation stage, the authorities are not authorised to carry out prosecution activities, but merely to take measures that do not require a legal decision strictly speaking (judgment no. 5532 of 26 September 2006 of the High Court of Cassation and Justice, Criminal Division). If evidence is taken at that stage, such as, for example, witness statements, the questioning of the accused, or court-ordered expert reports, the proceedings will be null and void (judgment no. 806/2006 of the High Court of Cassation and Justice, Criminal Division). The Constitutional Court has confirmed on several occasions that the criminal investigation authority is not obliged to provide legal assistance when measures are taken at the preliminary investigation stage, on the ground that no evidence capable of being used during the subsequent criminal proceedings may be taken at this stage (judgments no. 141/1999, 210/2000 and 582/2005). It has refrained, on the other hand, from making any comment on the authorities’ practice of conducting prosecution activities during the preliminary investigation phase, considering that that was an issue concerning the application of the criminal law and not a question of constitutionality (judgment no. 113/2006). | 1 |
train | 001-58278 | ENG | TUR | GRANDCHAMBER | 1,999 | CASE OF SÜREK AND ÖZDEMIR v. TURKEY | 2 | Violation of Art. 10;Not necessary to examine Art. 18 (second applicant);Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);Violation of Art. 6-1;Pecuniary damage - financial award (first applicant);Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | John Freeland;Luzius Wildhaber;Paul Mahoney | 8. At the material time, the first applicant, Mr Kamil Tekin Sürek was the major shareholder in Deniz Basın Yayın Sanayi ve Ticaret Organizasyon, a Turkish company which owns a weekly review entitled Haberde Yorumda Gerçek (The Truth of News and Comments), published in Istanbul. The second applicant, Mr Yücel Özdemir was the editor-in-chief of the review. 9. In the 31 May 1992 and 7 June 1992 issues of the review, an interview with a leader of the Kurdistan Workers’ Party (“the PKK”), an illegal organisation, was published in two parts. In the edition of 31 May 1992 a joint declaration by four socialist organisations was published. 10. The relevant parts of these publications read as follows (translation): “Q: What do you mean when you say [the elections present] dangers? A: The US say: ‘The Kurds are oppressed. Saddam is slaughtering them. We are protecting the Kurds against Saddam’s massacres. Their survival is in our safekeeping.’ But it is quite obvious that this is a big swindle. If they were really protecting the Kurds against massacre as they claim, they ought to be protecting them against the Turkish State, too. Since the massacre which the Turkish State is carrying out against our people in the North is as horrible as that of Saddam. In fact, there are practices which are much more extreme than those of Saddam. So the US ought to be doing the same thing against Turkey. The double standard is clear for all to see. The US take action against Saddam, but support Turkey’s massacres against the Kurdish people in both the North and the South. There have been many signs of this and our people are aware of it. They want to make the Kurds an instrument for gaining their own ends. Their aim in the elections is both to contain the positive developments in the South through the organisations they want to promote and to block the fight for independence and freedom which is developing in Kurdistan in general. They want to bring all the Kurdish movements under the control of those two organisations already controlled by them [the US]. So that is why they all present a danger for the Kurdish people. Q: Laws will be enacted once a parliament has been established in Southern Kurdistan. Treaties will be signed, on the one hand with neighbours, i.e. Turkey and Iraq, and, on the other hand, with the US. Turkey can have only one demand from these countries, that the PKK be excluded. If Kurdish parties take part in such an environment, what would be the PKK’s attitude? A: It is a well-known fact that Turkey and/or imperialism wants to divert our people from its national identity and struggle. But we want to achieve our identity as a nation and have a fatherland. That is what we are fighting for. They want to uproot us and drive us out of our territory; they want to annihilate us or force us to change. But we fight to live in freedom in our own territory. If either the US or Turkey or any other power which claims to be acting in the name of Kurdish identity attempts to force us out of any part of our country, we will fight in order to stay where we are. That is what we are fighting for right now. The Turkish State wants to oust us from our territory. It is driving people out of their villages. It wants Kurdistan to become a totally uninhabited area. But we are resisting. No one can tell us or ask us to get out. We are not on anyone else’s territory; we are on our own territory. No one can tell us to leave our own territory. We make no distinction between the North and the South; we are in Kurdistan. We are amongst our own people. If they want us to leave our territory, they must know that we will never agree to it. We are a people who have lost everything we had and who are fighting to regain what we have lost. That is the purpose of our action. We have nothing to lose. We shrink from nobody and are afraid of no one. All we can lose is our slavery. That is why we act without fear. Q: It is said that broadcasting programmes in Kurdish on Turkish State television would be interpreted as making a concession to the PKK. Could that be true? It is also rumoured that the PKK is going to set up a TV station. Is that right? A: It is not true that the PKK is going to broadcast on television. We have no such facilities. Television broadcasting either by satellite or through any other channel is not an issue for the PKK. It was Turgut Özal who brought up the issue of Kurdish TV in Turkey when he went to the US. That is what is being debated. A very small fraction of people say that Özal was right, but a very large proportion are against it. Those who are suggesting Kurdish TV are doing so deliberately. The aim is supposedly to influence and win over the masses and thus to isolate the PKK. That is what the idea is. But even if Kurdish TV became a reality, it would do them no service. That is why they are against it. The purpose of those who want to create Kurdish TV is to isolate the PKK. For there is no mention of any argument such as ‘Here is a people who have their own language and we must broadcast in their language. There is need for respect for that people. It is wrong to ban a people’s language, that also harms the Turkish people.’ Far from it. The debate has revealed the real intentions: ‘How can we wipe out the influence of the PKK? How can we isolate the PKK? How can we pull the wool over the Kurdish people’s eyes?’ It is a tactical approach. It is a trick. But no matter what steps they take, they will be working to the advantage of the PKK. The Turkish State has now lost Kurdistan. That is a fact. Any move the State makes in Kurdistan after this will turn out to the advantage of the PKK and to the disadvantage of the Turkish State ... .The Turkish press has no principles. We consider that there is no longer any point in communicating with that unethical press. We shall not be satisfied with abstaining from any contact with the press; we shall endeavour to stop the press from entering Kurdistan. Q: A different tactic was applied in the Uludere attack. Previously, attacks were always carried out at night. But this time, the attack was carried out during the day and the clashes continued throughout the day. It is said that this entails more risk for the guerrillas. What was the reason for it? A: What they say is right. Our combat has reached a certain level. Tactics have to be developed which match that level, because it is a mistake to wage war with less developed tactics. Progress can be achieved in the war by using tactics in keeping with the level of warfare which has now been reached. That is why an action of that nature was planned. The idea was to attack in the morning and hold our ground, continuing the clashes throughout the day – and it was successful in the end. It was an experiment. From our point of view there are conclusions to be drawn from it. We are studying the matter. We shall benefit from that in the actions we carry out in the future.” “Q: What do you think about the assassinations by unknown perpetrators in Kurdistan and the actions ascribed to the ‘Hizbi-contra’? A: It is true that there is an organisation known as Hizbullah. But it is a weak organisation. It is not that organisation which is carrying out the massacres, contrary to what is being said. Since the organisation is weak, the Republic of Turkey has captured its members in many places. Many massacres are carried out in the name of that organisation, but it is actually the Turkish State itself which is doing the killings. We say this to the members of Hizbullah: ‘If you are really Muslims, [you should know that] the Islamic faith is against repression and injustice and advocates what is right and just.’ It is a well-known fact that the Turkish State is repressive and carries out massacres and inhuman actions. They [the Hizbullah] must respect those who oppose these acts. If they want to wage war, they must join forces with them. That is what we are asking of them. We warn them as friends that they must throw out the contra-guerrillas who infiltrate their ranks. For unless they do that, they will come to grief. We have not, as yet, reacted more seriously, we have just warned them. We say that that phenomenon has served the Turkish State and we have received a favourable response from certain quarters. They have said that Hizbullah people or Muslims have not in fact been involved in that sort of action and that the acts have not been carried out by Hizbullah people. That is favourable as far as we are concerned. But it [the State] is still carrying out massacres in some places in Hizbullah’s name... Q: On what lines will the struggle be carried out from now on? A: The climate does affect a war, although the effects are not decisive. The 1991-92 winter was very hard and that affected our movements, the capacity for combat and caused several difficulties – both for us and for the Turkish State. But they have the advantage of using technology and they used that advantage to the full. To no avail, however. They intended to deal us murderous blows last winter. They thought they would have overthrown us and ousted us by the spring. But they did not achieve what they wanted. Our capacity for movement was reduced by the hard winter conditions and, as a result, steps could only be taken late as compared to previous years. The season is gradually becoming more suitable, however. There is still snow on the ground in many places, but it is presenting less and less of an obstacle. 1992 will be more different compared to other years, but we never say: ‘Let us improve our armed combat, let us expand it further.’ If we continue the war, we do so because we have to. Because there is no possibility of achieving a different life and developing. All roads have been blocked for us. We are waging war because we are forced to. Any further expansion of the war will depend on the attitude of the Turkish State. The State is intensifying the war. So we have to extend the war to that degree. The war will escalate. Before the PKK, there was a one-sided war being waged in Kurdistan. In the last few years that war has begun to be a two-sided war. In the old days, the Turkish State used to achieve whatever ends it intended to achieve in the war it was waging, and the Kurdish people was being rapidly wiped out as a result. But the Kurdish people have begun to say ‘Stop!’. They began to resist in order to avoid annihilation. It was the State which started the war and the ending of the war will also depend on the Turkish State. We did not start the war. We developed a defensive war against the war of annihilation that was being waged on us. This war will continue as long as the Turkish State refuses to accept the will of the people of Kurdistan: there will be not one single step backwards. The war will go on until there is only one single individual left on our side. … The State colonialist authority has completely disappeared in some places … As the government of war we want the people’s will, which makes itself increasingly known, to be able to express itself officially. We shall make our way towards that objective one step at a time. We shall reach it by destroying or weakening the sovereignty of the State different ways and in various forms, by setting up a popular regime in certain places and favouring a dualistic regime in others. That is what we call the power of the people, the government of war. … The PKK encounters all kinds of problems and resolves them. No questions are put to the Turkish State. No one speaks to it. Everyone speaks to the ERNK Committee or the local ERNK official. The ERNK is considered competent. For the moment, we are in the process of electing the representatives of the people.” “The Central Committees of the Revolutionary Communist Party of Turkey (TDKP), the Communist Labour Party of Turkey (TKEP), the Turkish Organisation for the Liberation of Northern Kurdistan (TKKKÖ) and the Communist Party/Marxist-Leninist Movement of Turkey (TKP/ML Hareketi) have called on all revolutionaries and democrats to unite forces. ‘Let us unite against State terrorism, against the repression and oppression of the Kurdish people, against the massacres, the street killings, the dismissals and unemployment; let us unite and step up our efforts for freedom, democracy and socialism!’ Such is the heading of the appeal in which it is stated that the only means of action for the ruling classes is that of force and violence. And the ‘democratisation’ initiatives of the DYP and SHP government are described as a manoeuvre, purely a means of concealing their attacks.” The appeal goes on to state the following views: “Workers, labourers and young people of the Kurdish and Turkish nation! It is possible and perfectly feasible for us to drive back the attacks levelled on us by imperialism and the collaborating ruling classes and to obtain our economic and political rights and freedoms. To do so we must rally our forces around our common demands and join battle. Aware of its historic revolutionary role, the working class must take action, must lead that action, must call the bluff of the trade union bosses of every camp and smash the barriers they have put up to curb our movement and must develop the fight and action. - The Turkish army must withdraw from Kurdistan. Action must be taken to put an end to the double standards in the legal system and all Kurdish prisoners must be released. - The Turkish parliament must end its authority over Kurdistan. Kurdish people must be free to determine their own destiny, including the establishment of a separate State. - The State terrorism and street executions, carried out by MİT [State Intelligence Organisation] agents, contra-guerrillas and special squads, must stop immediately and they must be called upon to account for the massacres and murders. - The servicing of external debts to imperialists must be stopped, and those resources must be used for the benefit of the proletariat. - Dismissals must be stopped and sacked workers must be given their jobs back. All the obstacles which have been placed in the way of trade union organisation must be removed and the right to organise without restriction must be granted. - Measures must be taken to prevent the State Economic Enterprises, which are the resources of the country and of the people, from being sold for a song to imperialists. Labour sub-contracting, which is a means of eliminating trade union coverage, must be stopped immediately. - The strike bans must be lifted and lockout must be prohibited. The right to hold general strikes, political strikes, strikes to obtain rights and sympathy strikes must be recognised. And all the bans on freedom of assembly, freedom to demonstrate, freedom of opinion and of the press must be ended. - Act no. 657 pertaining to civil servants must be repealed and all working people must be granted the right to join a trade union with the right to strike and to conclude collective agreements. - All working people must have insurance coverage; all workers must be granted unemployment insurance and the facilities must be provided for free health services and health care for everyone. - The discrimination based on sex which prevails in working and social life and the pressure exerted on working women must be ended. - The YÖK [High Council for Education] must be done away with and young people in higher education must be allowed to have a say and to participate in decision-making in university administration. All the obstacles that have been placed on youth organisations must be removed and education and training must be free of charge at every level. - Education boards must be given full autonomy; textbooks must meet contemporary requirements and must be re-written with democratic contents. - All debts owed to the State by the peasantry must be cancelled and the rural population must be allowed to set the minimum prices of products.” 11. On 1 June 1992 the Istanbul National Security Court (Istanbul Devlet Güvenlik Mahkemesi) ordered the seizure of all copies of the 31 May 1992 issue of the review, since it allegedly contained a declaration by terrorist organisations and disseminated separatist propaganda. 12. In an indictment dated 16 June 1992 the Public Prosecutor at the Istanbul National Security Court charged the applicants with having disseminated propaganda against the indivisibility of the State by publishing an interview with a PKK leader and a declaration made by four terrorist organisations. The charges were brought under sections 6 and 8 of the Prevention of Terrorism Act 1991 (hereinafter “the 1991 Act”: see paragraph 23 below). 13. In another indictment dated 30 June 1992, the applicants were further charged on account of having published the second part of the interview in the issue of 7 June 1992 with disseminating propaganda against the indivisibility of the State. The charges were brought under section 8 of 1991 Act. 14. On 4 February 1993 the criminal proceedings were joined in view of the fact that the incriminated articles were considered to constitute a single interview published in two parts. 15. In the proceedings before the Istanbul National Security Court, the applicants denied the charges. They pleaded that the interview had been published with the aim of providing the public with information within the scope of journalism and the freedom of the press. As regards his freedom of expression, the first applicant referred to the Convention and the case-law of the Commission and the Court. He stated that pluralism of opinion was essential in a democratic society including opinions which shock or offend. He argued that the provisions of sections 6 and 8 of the 1991 Act restricted freedom of expression in contravention of the Turkish Constitution and the criteria laid down in the case-law of the Commission and the Court. 16. In a judgment dated 27 May 1993 the Istanbul National Security Court found the applicants guilty of offences under sections 6 and 8 of the 1991 Act. The first applicant was sentenced under section 6 to a fine of 100,000,000 Turkish liras and under section 8 to a further fine of 200,000,000 Turkish liras. The second applicant was sentenced under section 6 to a fine of 50,000,000 Turkish liras and under section 8 to six months’ imprisonment and a further fine of 100,000,000 Turkish liras. 17. In its reasoning, the court held that the interview with the PKK leader was published in the form of a news commentary. It further held that the interviewee had referred to a certain part of Turkish territory as “Kurdistan”, had asserted that certain Turkish citizens who are of Kurdish origin form a separate society and that the Republic of Turkey expels Kurdish people from their villages and massacres them. The court further considered that the interviewee had praised Kurdish terrorist activities and had claimed that the Kurds should form a separate State. On these grounds, the court found that the interview, as a whole, disseminated propaganda against the indivisibility of the State. The court further held that another page of the review contained a declaration by terrorist organisations and its publication constituted a separate offence under section 6 of the 1991 Act. 18. The applicants appealed against their conviction. In addition to the defence which they invoked before the Istanbul National Security Court, their legal representative emphasised that in a democratic society opinions must be freely expressed and debated. Noting that there had been no prosecutions for the publication of other interviews with the leaders of the PKK in other newspapers or magazines, the applicants’ representative asserted that the applicants had not been convicted for having published the incriminated interview, but for publishing a Marxist review. 19. On 4 November 1993 the Court of Cassation dismissed the appeal. It upheld the Istanbul National Security Court’s assessment of the evidence and its reasons for rejecting the applicants’ defence. 20. Following the amendments made by Law no. 4126 of 27 October 1995 to the 1991 Act (see paragraph 24 below) the Istanbul National Security Court ex officio re-examined the applicants’ cases. The court confirmed the sentences imposed on them. 21. The relevant provisions of the Criminal Code read as follows: “Where the legislative provisions in force at the time when a crime is committed are different from those of a later law, the provisions most favourable to the offender shall be applied.” “The term ‘heavy fine’ shall mean payment to the Treasury of from twenty thousand to one hundred million Turkish liras, as the judge shall decide...” “In the event of conviction, the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence…” “Harmful propaganda 1. A person who by any means whatsoever spreads propaganda with a view to establishing the domination of one social class over the others, annihilating a social class, overturning the fundamental social or economic order established in Turkey or the political or legal order of the State shall, on conviction, be liable to a term of imprisonment of from five to ten years. 2. A person who by any means whatsoever spreads propaganda in favour of the State’s being governed by a single person or social group to the detriment of the underlying principles of the Republic and democracy shall, on conviction, be liable to a term of imprisonment of from five to ten years. 3. A person who, prompted by racial considerations, by any means whatsoever spreads propaganda aimed at abolishing in whole or in part public-law rights guaranteed by the Constitution or undermining or destroying patriotic sentiment shall, on conviction, be liable to a term of imprisonment of from five to ten years. …” “Public incitement to commit an offence Where incitement to commit an offence is done by means of mass communication, of whatever type – whether by tape recordings, gramophone records, newspapers, press publications or other published material – by the circulation or distribution of printed papers or by the placing of placards or posters in public places, the terms of imprisonment to which convicted persons are liable shall be doubled…” “Non-public incitement to commit an offence A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall, on conviction, be liable to between six months’ and two years’ imprisonment and a heavy fine of from six thousand to thirty thousand Turkish liras. A person who incites the people to hatred or hostility on the basis of a distinction between social classes, races, religions, denominations or regions, shall, on conviction, be liable to between one and three years’ imprisonment and a fine of from nine thousand to thirty-six thousand liras. If this incitement endangers public safety, the sentence shall be increased by one third to one half. The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in Article 311 § 2.” 22. The relevant provisions of the Press Act 1950 read as follows: “For the purposes of the present Law, the term ‘periodicals’ shall mean newspapers, press agency dispatches and any other printed matter published at regular intervals. ‘Publication’ shall mean the exposure, display, distribution, emission, sale or offer for sale of printed matter on premises to which the public have access where anyone may see it. An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place, except where the material in itself is unlawful.” “Where distribution of the printed matter whose distribution constitutes the offence is prevented … by a court injunction or, in an emergency, by order of the principal public prosecutor … the penalty imposed shall be reduced to one third of that laid down by law for the offence concerned.” 23. The relevant provisions of the Prevention of Terrorism Act 1991 read as follows: “It shall be an offence, punishable by a fine of from five million to ten million Turkish liras, to announce, orally or in the form of a publication, that terrorist organisations will commit an offence against a specific person, whether or not that person’s ... identity is divulged provided that it is done in such a manner that he or she may be identified, or to reveal the identity of civil servants who have participated in anti-terrorist operations or to designate any person as a target. It shall be an offence, punishable by a fine of from five million to ten million Turkish liras, to print or publish declarations or leaflets emanating from terrorist organisations. … Where the offences contemplated in the above paragraphs are committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly, or from the sales of the previous issue if the periodical appears monthly or less frequently, or from the average sales for the previous month of the daily newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched. However, the fine may not be less than fifty million Turkish liras. The editor of the periodical shall be ordered to pay a sum equal to half the fine imposed on the publisher.” “Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited, irrespective of the methods used and the intention. Any person who engages in such an activity shall be sentenced to not less than two and not more than five years’ imprisonment and a fine of from fifty million to one hundred million Turkish liras. Where the crime of propaganda contemplated in the above paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly, or from the average sales for the previous month of the daily newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched2. However the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment.” “Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras. The penalty imposed on a re-offender may not be commuted to a fine. Where the crime of propaganda contemplated in the first paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly. However, the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment. Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph, those responsible and the owners of the means of mass communication shall be sentenced to not less than six months’ and not more than two years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras… …” “The penalties for the offences contemplated in the present law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve.” “The penalties for the offences contemplated in the present Law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve. However, the provisions of this section shall not apply to convictions pursuant to section 8.” “Persons convicted of the offences contemplated in the present law who ... have been punished with a custodial sentence shall be granted automatic parole when they have served three-quarters of their sentence, provided they have been of good conduct. … The first and second paragraphs of section 19 … of the Execution of Sentence Act (Law no. 647) shall not apply to the convicted persons mentioned above.” 24. The following amendments were made to the Prevention of Terrorism Act 1991 following the enactment of Law no. 4126 of 27 October 1995: “In the month following the entry into force of the present Law, the court which has given judgment shall re-examine the case of a person convicted pursuant to section 8 of the Prevention of Terrorism Act (Law no. 3713) and, in accordance with the amendment … to section 8 of Law no. 3713, shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of sections 4 and 6 of Law no. 647 of 13 July 1965.” 25. The following provisions are relevant to sentences in respect of offences under the Press Law: “The execution of sentences passed on those who were convicted under Press Law no. 5680 or other laws as editors for offences committed before 12 July 1997 shall be deferred. The provision in the first paragraph shall also apply to editors who are already serving their sentences. The institution of criminal proceedings or delivery of final judgments shall be deferred where no proceedings against the editor have not yet been brought, or where a preliminary investigation has been commenced but criminal proceedings have not been instituted, or where the final judicial investigation has been commenced but judgment has not yet been delivered, or where the judgment has still not become final.” “If an editor who has benefited under the provisions of the first paragraph of section 1 is convicted as an editor for committing an intentional offence within three years of the date of deferment, he must serve the entirety of the suspended sentence. The part of the postponed conviction which was served by the responsible editor until the date on which this Law enters into force shall be deducted from the sentence to be served as indicated in section 1. The provisions concerning conditional release are reserved. Where there has been a deferment, criminal proceedings shall be instituted or judgment delivered if an editor is convicted as such for committing an intentional offence within three years of the date of deferment. Any conviction as an editor for an offence committed before 12 July 1997 shall be deemed a nullity if the aforesaid period of three years expires without any further conviction for an intentional offence. Similarly, if no criminal proceedings have been instituted, it shall no longer be possible to bring any, and, if any have been instituted, they shall be discontinued.” 26. The Execution of Sentences Act provides inter alia: “The term ‘fine’ shall mean payment to the Treasury of a sum fixed within the statutory limits. … If, after service of the order to pay, the convicted person does not pay the fine within the time-limit, he shall be committed to prison for a term of one day for every ten thousand Turkish liras owed, by a decision of the public prosecutor. … The sentence of imprisonment thus substituted for the fine may not exceed three years…” “… persons who ... have been ordered to serve a custodial sentence shall be granted automatic parole when they have served half of their sentence, provided they have been of good conduct...” 27. The Code of Criminal Procedure contains the following provisions: “An appeal on points of law may not concern any issue other than the lawfulness of the impugned judgment. Non-application or erroneous application of a legal rule shall constitute unlawfulness.” “Unlawfulness is deemed to be manifest in the following cases: 1- where the court is not established in accordance with the law; 2- where one of the judges who have taken the decision was barred by statute from participating; …” 28. The Government supplied copies of several decisions given by the prosecutor attached to the Istanbul National Security Court withdrawing charges against persons suspected of inciting people to hatred or hostility, especially on religious grounds (Article 312 of the Criminal Code), or of disseminating separatist propaganda against the indivisible unity of the State (section 8 of Law no. 3713 – see paragraph 23 above). In the majority of cases where offences had been committed by means of publications the reasons given for the prosecutor’s decision included such considerations as the fact that the proceedings were time-barred, that some of the constituent elements of the offence could not be made out or that there was insufficient evidence. Other grounds included the fact that the publications in issue had not been distributed, that there had been no unlawful intent, that no offence had been committed or that those responsible could not be identified. 29. Furthermore, the Government submitted a number of decisions of the National Security Courts as examples of cases in which defendants accused of the above-mentioned offences had been found not guilty. These were the following judgments: 19 November (no. 1996/428) and 27 December 1996 (no. 1996/519); 6 March (no. 1997/33), 3 June (no. 1997/102), 17 October (no. 1997/527), 24 October (no. 1997/541) and 23 December 1997 (no. 1997/606); 21 January (no. 1998/8), 3 February (no. 1998/14), 19 March (no. 1998/56), 21 April 1998 (no. 1998/87) and 17 June 1998 (no. 1998/133). 30. As regards more particularly proceedings against authors of works dealing with the Kurdish problem, the National Security Courts in these cases have reached their decisions on the basis of the absence of the element of “propaganda”, an element of the offence, or on account of the objective nature of the incriminated parts. 31. The constitutional provisions governing judicial organisation of the National Security Courts are worded as follows: “In the performance of their duties, judges shall be independent; they shall give judgment, according to their personal conviction, in accordance with the Constitution, statute and the law. No organ, authority, ... or ... person may give orders or instructions to courts or judges in the exercise of their judicial powers, or send them circulars or make recommendations or suggestions to them.” “Judges … shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution…” “National Security Courts shall be established to try offences against the Republic, whose constituent qualities are enunciated in the Constitution, against the territorial integrity of the State or the indivisible unity of the nation or against the free democratic system of government, and offences which directly affect the State’s internal or external security. National Security Courts shall be composed of a president, two other regular members, two substitute members, a prosecutor and a sufficient number of assistant prosecutors. The president, one of the regular members, one of the substitutes and the prosecutor, shall be appointed from among judges and public prosecutors of the first rank, according to procedures laid down in special legislation; one regular member and one substitute shall be appointed from among military judges of the first rank and the assistant prosecutors from among public prosecutors and military judges. Presidents, regular members and substitute members ... of National Security Courts shall be appointed for a renewable period of four years. Appeal against decisions of National Security Courts shall lie to the Court of Cassation. ...” “Military legal proceedings The personal rights and obligations of military judges … shall be regulated by law in accordance with the principles of the independence of the courts, the safeguards enjoyed by the judiciary and the requirements of military service. Relations between military judges and the commanders under whom they serve in the performance of their non-judicial duties shall also be regulated by law...” 32. Based on Article 143 of the Constitution, the relevant provisions of Law no. 2845 on the National Security Courts provide as follows: “In the capitals of the provinces of … National Security Courts shall be established to try persons accused of offences against the Republic, whose constituent qualities are enunciated in the Constitution, against the territorial integrity of the State or the indivisible unity of the nation or against the free, democratic system of government and offences directly affecting the State’s internal or external security.” “The National Security Courts shall be composed of a president, two other regular members and two substitute members.” “The president of a National Security Court, one of the [two] regular members and one of the [two] substitutes ... shall be civilian … judges, the other members, whether regular or substitute, military judges of the first rank…” “The appointment of military judges to sit as regular members and substitutes shall be carried out according to the procedure laid down for that purpose in the Military Legal Service Act. Except as provided in the present Law or other legislation, the president and the regular or substitute members of the National Security Courts … may not be appointed to another post or place, without their consent, within four years… … If, after an investigation concerning the president or a regular or substitute member of a National Security Court conducted according to the legislation concerning them, competent committees or authorities decide to change the duty station of the person concerned, the duty station of that judge or the duties themselves … may be changed in accordance with the procedure laid down in that legislation.” “National Security Courts shall have jurisdiction to try persons charged with (a) the offences contemplated in Article 312 § 2 … of the Turkish Criminal Code, … (d) offences having a connection with the events which made it necessary to declare a state of emergency, in regions where a state of emergency has been declared in accordance with Article 120 of the Constitution, (e) offences committed against the Republic, whose constituent qualities are enunciated in the Constitution, against the indivisible unity of the State – meaning both the national territory and its people – or against the free, democratic system of government and offences directly affecting the State’s internal or external security. …” “The Court of Cassation shall hear appeals against the judgments of the National Security Courts.” “The rules governing the rights and obligations of … military judges appointed to the National Security Courts and their supervision …, the institution of disciplinary proceedings against them, the imposition of disciplinary penalties on them and the investigation and prosecution of any offences they may commit in the performance of their duties ... shall be as laid down in the relevant provisions of the laws governing their profession… The observations of the Court of Cassation on military judges, the assessment reports on them drawn up by Ministry of Justice assessors … and the files on any investigations conducted in respect of them … shall be transmitted to the Ministry of Justice.” “A National Security Court may be transformed into a Martial Law Court, under the conditions set forth below, where a state of emergency has been declared in all or part of the territory in respect of which the National Security Court concerned has jurisdiction, provided that within that territory there is more than one National Security Court…” 33. The relevant provisions of the Military Legal Service Act provide as follows: “The aptitude of military judges … appointed as regular or substitute members of the National Security Courts that is required for promotion or advancement in salary step, rank or seniority shall be determined on the basis of assessment reports drawn up according to the procedure laid down below, subject to the provisions of the present Law and the Turkish Armed Forces Personnel Act (Law no. 926). (a) The first superior competent to carry out assessment and draw up assessment reports for military judges, whether regular or substitute members … shall be the Minister of State in the Ministry of Defence, followed by the Minister of Defence. …” “Members … of the National Security Courts belonging to the Military Legal Service … shall be appointed by a committee composed of the personnel director and the legal adviser of the General Staff, the personnel director and the legal adviser attached to the staff of the arm in which the person concerned is serving and the Director of Military Judicial Affairs at the Ministry of Defence…” “Military judges … shall be appointed by a decree issued jointly by the Minister of Defence and the Prime Minister and submitted to the President of the Republic for approval, in accordance with the provisions on the appointment and transfer of members of the armed forces… … The procedure for appointment as a military judge shall take into account the opinion of the Court of Cassation, the reports by Ministry of Justice assessors and the assessment reports drawn up by the superiors…” “The rules governing the salary scales, salary increases and various personal rights of military judges … shall be as laid down in the provisions relating to officers.” “The Minister of Defence may apply to military judges, after considering their defence submissions, the following disciplinary sanctions: A. A warning, which consists in giving the person concerned notice in writing that he must exercise more care in the performance of his duties. … B. A reprimand, which consists in giving the person concerned notice in writing that a particular act or a particular attitude has been found to be blameworthy. … The said sanctions shall be final, mentioned in the assessment record of the person concerned and entered in his personal file…” “When military judges … sit in court they shall wear the special dress of their civilian counterparts…” 34. Article 112 of the Military Code of 22 May 1930 provides: “It shall be an offence, punishable by up to five years’ imprisonment, to abuse one’s authority as a civil servant in order to influence the military courts.” 35. Under section 22, the First Division of the Supreme Military Administrative Court has jurisdiction to hear applications for judicial review and claims for damages based on disputes relating to the personal status of officers, particularly those concerning their professional advancement. | 1 |
train | 001-86437 | ENG | GBR | ADMISSIBILITY | 2,008 | HOWARTH v. THE UNITED KINGDOM | 4 | Inadmissible | Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä | The applicant, Mr John Mcgillen, is a British national who was born in 1949 and lives in Stoke-on-Trent. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 11 October 1989. There were two children of the marriage, born on 13 April 1978 and 2 November 1982. In 1997 the applicant applied for widows’ benefits and was refused. On 23 March 2001 he applied to the Benefits Agency for benefits equivalent to those which would have been received by a widow. He was finally refused such benefits by the Social Security Appeal Tribunal on 2 October 2001. 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 | 001-70455 | ENG | DEU | ADMISSIBILITY | 2,005 | MAASS v. GERMANY | 4 | Inadmissible | David Thór Björgvinsson | The applicant, Ursula Maaß, is a German national, who was born in 1948 and lives in Neckarsulm, Germany. She is represented before the Court by Mr R. Andreß, a lawyer of the law firm Herrmann, Gass & Kollegen practising in Heilbronn. The respondent Government are represented by Mrs A. Wittling-Vogel, Ministerialrätin, of the Federal Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. In a questionnaire dated 17 March 1999 the Neckarsulm Police Station informed the applicant that she was suspected of having damaged Mr W.’s car on 13 or 14 March 1999. The police informed her that she was free to make a statement on this accusation in writing or to remain silent. On 23 March 1999 the Neckarsulm Police Station received the questionnaire completed by the applicant, in which she stated that she did not admit the crime she was suspected of. She wrote that she did not wish to make a statement herself and that she left it to her lawyer to deal with the matter. She went on claiming that she considered the behaviour of Mr W. to be an act of revenge on her. In a letter dated 8 April 1999 the applicant’s lawyer K. notified the Neckarsulm Police Station that he represented the applicant and requested to grant him access to the case file. Although he stated in this letter that a power of attorney was enclosed, the letter did not contain this document. On 20 May 1999 the public prosecutor applied to the Heilbronn District Court to issue a penal order against the applicant. In a letter dated 9 June 1999 addressed to the Neckarsulm Police Station the applicant’s lawyer K. repeated his request to inspect the case file. On 10 June 1999 the Heilbronn District Court issued a penal order (Strafbefehl) against the applicant in a summary procedure. The applicant was convicted of damage to property and sentenced to a fine of 50 Deutschmarks per day for 30 days. On 16 June 1999 counsel K.’s letter recalling his motion to be granted access to the case file reached the Heilbronn District Court. On 23 June 1999 the penal order was served on the applicant by way of a notice in her letter-box to collect a letter deposited at the Neckarsulm Post Office, as the postman had not found anyone at the applicant’s home. The applicant did not collect this letter. The applicant’s counsel was not sent a copy of the penal order. On 8 July 1999 the penal order became final, since no objection had been lodged by the applicant within the two-week time-limit under the relevant provisions of the Code of Criminal Procedure (Strafprozeßordnung – see ‘Relevant domestic law’ below). On 10 August 1999 the Heilbronn Public Prosecutor’s Office issued a payment order (Zahlungsaufforderung) against the applicant in respect of the fine. On 20 September 1999 the Heilbronn Public Prosecutor’s Office ordered the imprisonment of the applicant for default of payment of the fine (Ersatzfreiheitsstrafe). The order was served on the applicant on 22 September 1999, again by way of a notice in her letter-box to collect a letter deposited at the Neckarsulm Post Office. The applicant also did not collect this letter. On 26 October 1999 the Heilbronn Public Prosecutor’s Office issued a warrant to bring the applicant before the competent authority (Vorführungsbefehl). The warrant contained a reference to the date and filenumber of the penal order, to the offence the applicant was convicted of and to the amount of the fine. On 29 October 1999 an officer of the police station which had been instructed to execute this warrant phoned the applicant, informed her of the warrant and requested her to come to the police station. The applicant did so and was informed by a police officer about the warrant and the existence of the underlying penal order. In the following discussion the applicant denied having damaged the car of Mr W., her former partner. She paid the fine in order to prevent the execution of the warrant. In a letter dated 29 October 1999, which reached the Heilbronn Public Prosecutor’s Office on 3 November 1999, the applicant’s new lawyer, who has represented the applicant since then, requested the Heilbronn Public Prosecutor’s Office to grant him access to the case file. He stated that he had been informed by the applicant of the measures taken to enforce a sentence without her having received a penal order or a judgment. On 4 November 1999 the Heilbronn Public Prosecutor’s Office granted the applicant’s new lawyer access to the case file. The file reached the lawyer on 5 November 1999. By a letter dated 10 November 1999, which reached the Heilbronn District Court on 11 November 1999, the applicant’s new lawyer lodged an objection against the penal order after having inspected the case file. At the same time, he submitted an application for reinstatement of the proceedings (Wiedereinsetzung in den vorigen Stand) with respect to the two-week timelimit for lodging the objection. He argued that it was not the applicant’s fault that she did not comply with this time-limit. She had not received the penal order. Since she had instructed a counsel, she was confident that services would be effected on her lawyer, and that she did not have to attend to the observance of any time-limits herself. On 28 December 1999 (decision served on 4 January 2000) the Heilbronn District Court dismissed the applicant’s request for reinstatement as inadmissible. Consequently, it dismissed her objection against the penal order as inadmissible. It found that the request for reinstatement was filed out of time. According to the court, the applicant was informed of the content of the penal order when she came to the police station on 29 October 1999. Neither she nor her new counsel applied for reinstatement of the proceedings within the one-week time-limit running from that date. The court found that, in any event, the application for reinstatement of the proceedings was ill-founded. It was not credible that the applicant had neither received the penal order nor any of the other documents served on her, because the address to which the documents had been sent was correct. Therefore, it was the applicant’s fault that she did not comply with the timelimit to lodge an objection against the penal order. On 10 January 2000 the applicant lodged an appeal (sofortige Beschwerde) against the decision of the Heilbronn District Court. She stated that in 1999 several letters to her or her neighbours did not reach their addressees. She claimed in particular that, even assuming that the notification of the penal order was valid, it was contrary to her right to a fair trial and to be heard that the District Court had neither granted her lawyer access to the case file nor informed him that it had issued a penal order. She therefore had to be granted reinstatement. She disputed that she had been informed of the contents of the penal order by the police on 29 October 1999. In fact, the competent police office was unable to explain to the applicant’s lawyer who had called him on the same day why the applicant had to pay a fine. Therefore, the time-limit of one week to apply for reinstatement of the proceedings did not start running before the applicant’s counsel had inspected the case files and was consequently observed. On 23 February 2000 (decision served on 1 March 2000) the Heilbronn Regional Court, endorsing the reasons given by the Heilbronn District Court, dismissed the applicant’s appeal as ill-founded. On 30 March 2000 the applicant lodged a constitutional complaint with the Federal Constitutional Court. She claimed that her right to be heard had been violated by the Heilbronn District Court by not granting access to the case file to her lawyer, not hearing her via counsel before issuing the penal order, not informing the latter that a penal order had been issued and not granting reinstatement of the proceedings. On 30 October 2000 the Federal Constitutional Court, without giving reasons, refused to admit the applicant’s constitutional complaint. The decision was served on the applicant’s lawyer on 9 November 2000. By a letter dated 27 April 2001, which was posted on 3 May 2001, the applicant sent her first submissions to the Court. In these she set out the object of her application, including the underlying facts and her complaints, and enclosed copies of all relevant court decisions. The completed application form dated 13 June 2001, in which the applicant referred to her first submissions, reached the Court on 25 June 2001. Sections 407 et seq. of the Code of Criminal Procedure (Strafprozeßordnung) provide for the imposition of a penal order, without a trial, in cases concerning minor offences. The Public Prosecutor’s Office may lodge a motion to the District Court to issue a penal order, setting out the offence the accused is charged with and fixing the sentence. The judge must issue the penal order if there are no grounds for refusing it, that is, if he has no objections to deciding without a trial hearing, agrees with the legal assessment of the case and does not wish to impose a different sentence. The written penal order must contain a reference to the fact that the penal order should be final, binding and enforceable if the accused fails to lodge a written objection with the District Court or have such an objection taken down in writing at the court’s registry within two weeks of service. If the objection reaches the court within the prescribed time-limit, normal trial proceedings are instituted, and the District Court conducts a hearing. If the accused was prevented from complying with the time-limit through no fault of his own, a motion to have the proceedings reinstated may be brought. According to Sections 44 and 45 of the Code of Criminal Procedure this motion must reach the District Court within one week from the cessation of the impediment due to which the objection could not be lodged in time. The facts justifying the motion shall be substantiated at the time the motion is filed or during the proceedings concerning the motion. Pursuant to Section 37 of the Code of Criminal Procedure the service of documents is governed by Sections 181 and 182 of the Code of Civil Procedure (Zivilprozeßordnung). If a document cannot be served personally, it may be deposited, inter alia, at the local post office. In that case a written notice of deposit must be left at the recipient’s address in the manner customary for ordinary letters. Section 145a of the Code of Criminal Procedure provides that if a decision is served on the accused, the defence counsel must be informed thereof at the same time and must be provided with a copy of this decision, even if there is no written power of attorney in the case file. The defence counsel’s right of access to the case file is governed by Section 147 of the Code of Criminal Procedure. A defence counsel is entitled to consult the case file as a whole as soon as the preliminary investigation has been terminated and, in principle, also during the preliminary investigation, if the purpose of the investigation is not endangered thereby. During the preliminary investigation, it is for the Public Prosecutor’s Office to decide whether or not to grant access to the file; thereafter it is for the president of the trial court. | 0 |
train | 001-103508 | ENG | DEU | ADMISSIBILITY | 2,011 | LIPKOWSKY AND MC CORMACK v. GERMANY | 4 | Inadmissible | Angelika Nußberger;Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva | The first applicant, Ms Daniela Lipkowsky, is a German national who was born in 1972. The second applicant is the first applicant’s daughter, Miss India Dawn McCormack, a German and Australian national who was born out of wedlock on 16 April 2005 in Germany. They both live in Konstanz and are represented before the Court by Mr R. Romeyko, a lawyer practising in Donaueschingen. s, may be summarised as follows. In 2003, in Thailand, the first applicant met the father of the second applicant, their daughter. From 2004 until June 2008 the first applicant lived some of the time in Germany and some of the time with the father in Australia. After the birth of the second applicant in April 2005 in Germany, she returned with the child to Australia in February 2006. From June to September 2006 and from January to June 2007 she lived with the child in Germany again. After the parents’ separation in September 2007, the applicants lived in a women’s refuge in Australia. The father deposited the applicants’ passports with an Australian court and introduced custody proceedings with the Federal Magistrates Court of Australia. On 8 May 2008 the Federal Magistrates Court of Australia provisionally ordered joint legal custody and allowed the first applicant to leave Australia with her daughter for a journey to Germany on or about 25 June 2008 but ordered them to return not later than 15 October 2008. On 15 June 2008 the applicants left to Germany and did not return to Australia. At first, the first applicant submitted sickness certificates, the last of which was valid until 24 November 2008. The custody proceedings in Australia are still pending. On 5 August 2009 the father made an application to Karlsruhe District Court for the return of the second applicant under the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“the Hague Convention”). The father argued in particular that according to Australian law and the provisional order of 8 May 2008 of the Federal Magistrates Court of Australia they had joint legal custody rights and that he had agreed to the applicants’ leaving Australia only until 15 October 2008. The second applicant had been habitually resident in Australia since February 2006, when the applicants had come to Australia to live there and there had always been merely temporary reasons for the first applicant to return to Germany with their daughter. After their separation and according to the decision of 8 May 2008 the second applicant had lived three days a week with him and the rest of the week with her mother. He claimed that the first applicant’s allegations that he had violence and drug problems were wrong. They had only had frequent relationship problems and had therefore started couple therapy. His relationship with the second applicant was good and no psychological harm for the child was to be expected in the event of a relocation to Australia. The first applicant opposed the father’s application and claimed that she had sole custody of the second applicant and that German law was applicable. She argued in particular that she and her daughter had never been habitually resident in Australia in the sense of the Hague Convention. From the child’s birth until 9 October 2008 the child had lived 654 days in Germany and only 612 days in Australia. She had in fact only returned three times to Australia, to give them another chance as a family and due to empty promises by the father. In the end this had not worked out, inter alia due to his serious drug problems. He had also massively threatened her in front of their daughter. After their separation she had only remained in Australia because she was forced to, as the father had taken away their passports. The father had also never exercised any custody rights, nor had he bonded with the child. The child refused to return and was afraid of her father. An obligation to return would thus be detrimental to the child’s wellbeing and would destroy her emotionally. Finally, she put forward that the child’s therapist was also opposed to contact between the father and the child as long as the child refused such contact. The District Court heard the parents, the Youth Office and the child’s curator ad litem (Verfahrenspfleger). The Youth Office and the curator ad litem both reported that the child had fears in connection with the father and a possible relocation to Australia. The curator ad litem held that a relocation of the second applicant to Australia without the mother would endanger the child’s well-being. On 21 September 2009 the District Court ordered the first applicant to immediately return her daughter to Australia. In the event of noncompliance by 10 November 2009, the first applicant or any other person with responsibility for the child would be obliged to hand over the child to the father or to a person named by him for the return of the child. Moreover, it allowed direct enforcement (unmittelbarer Zwang), access to and search of the house in which the child would remain and the support of the police for the enforcement of the decision. It also threatened the first applicant with the payment of a coercive fine of up to 20,000 euros (EUR) or with coercive detention of up to six months. In application of Articles 3 and 12 of the Hague Convention, the District Court found that a) even if the applicants had spent a bit more time in Germany up to the summer 2008, the child had been “habitually resident” in Australia at that time, that b) under Australian law the parents had joint custody, which followed from the Family Law Act 1975 and from the decision of the Cairns Federal Magistrate Court of Australia of 8 May 2008, and that c) the first applicant had breached the father’s custody rights in October 2008 by retaining their daughter in Germany and that therefore the first applicant was to be ordered to return the child to Australia. It also held that the first applicant had not established that there was a grave risk that her daughter’s return would “expose the child to physical or psychological harm or otherwise place the child in an intolerable situation” in the sense of Article 13 of the Hague Convention. Firstly, the first applicant’s allegation that the father had been violent and aggressive and that the daughter was afraid of him would not collide with the obligation to return the child as she could be expected to accompany her daughter, take care of her in Australia and await the outcome of the pending custody proceedings there. Secondly, the fact that in the meantime the child had settled very well in Germany could not be decisive, as taking such factors into account would render the Hague Convention futile. Thirdly, the fact that the first applicant could not make a living in Australia and would be dependent on social welfare would not conflict with the obligation to return either, as she was on social welfare in Germany as well. The first applicant appealed against the decision of the District Court. She argued in particular that the Hague Convention was not applicable, as she and her daughter had never been habitually resident in Australia in the sense of that Convention, and submitted further details regarding the conditions and the reasons for their stays in Australia and Germany during the relevant time. Moreover, she argued that as she had left Australia in June 2008 with the intention of never coming back, more than one year had elapsed before the father made his application for the return of the child pursuant to the Hague Convention. Therefore, Article 12 § 2 and not § 1 of the Hague Convention was applicable. She also requested the Court of Appeal to obtain an expert opinion on the question whether it would harm the child’s well-being if the child was forced to relocate to Australia. Furthermore, the applicant stressed that the father was still addicted to drugs and that he had already spent two and a half years in jail for drug trafficking. After she had pressed charges against him in October 2007 for taking away her passports, drugs were found in his house again and he received a further conviction. Finally, the first applicant argued that in the meantime she had been diagnosed with multiple sclerosis (MS) and that it was therefore impossible for her to live in tropical countries. The father argued, inter alia, that the time-limit of one year according to Article 12 § 1 of the Hague Convention only started to run on 15 October 2008, the date the first applicant did not return to Australia as stipulated. He claimed that the first applicant’s allegations that he had drug problems were false. It was true that he had been convicted for using drugs in 1991, but he had been rehabilitated in 2003. Voluntary drug use screenings in December 2007 and April 2008 had been negative. The second applicant’s curator ad litem pointed out that the child was well integrated in Konstanz. The curator ad litem also referred to an expert opinion that had been obtained by the Australian court in 2008, which reported social isolation, the lack of a stable framework and lack of support from the father as regards integration. In this expert opinion it had been found that as early as April 2008 the development of the second applicant was at risk. In addition to these aspects it was the clear wish of the second applicant to remain in Germany. The father and the possible relocation to Australia caused anxiety to the second applicant. However, the curator ad litem was not sure if these aspects were sufficient to speak of a grave risk of harm in the sense of Article 13 of the Hague Convention. Having regard to the warm relationship between the second applicant and the father, as described in the expert opinion, it would be in the interests of the child to re-establish contact. On 18 March 2010 the Karlsruhe Court of Appeal, after hearing the parents, the curator ad litem and the second applicant on 26 November 2009 and having obtained an expert opinion on the applicant’s ability to return to Australia with regard to her illness, rejected the applicant’s appeal and confirmed the District Court’s decision. The Court of Appeal firstly held that the second applicant had had “habitual residence” in Australia when the applicants left for Germany in June 2008. It pointed out that it was decisive where a person actually lived the central part of their life, and that habitual residence was in general established after a stay of six months. It found that it could not be said that the second applicant had been habitually resident in Australia before the applicants came back to Australia in June 2007. However, after the separation in September 2007, when the first applicant realised that she was unable to leave Australia because the father was in possession of the passports, she abandoned her apartment and domicile in Germany on 30 September 2007 and registered in Australia. Thereafter, regular contact took place between the father and the second applicant and the child was socially integrated through the father. Although the applicants had initially planned to stay in Australia only temporarily, they established a habitual residence there after a period of six months in April 2008. The fact that the applicant only remained in Australia because she was forced to do so was not decisive, because after abandoning her residence in Germany she no longer had any other home and she was also free to move and choose her residence within Australia. The Court of Appeal secondly found that the first applicant had breached the father’s custody rights by not returning to Australia with their daughter on 15 October 2008. It referred to Article 21 of the Introductory Act to the German Civil Code (see relevant domestic law) and to the Federal Magistrates Court decision of 8 May 2008 provisionally ordering joint custody upon approval by both parties. The Court of Appeal thirdly held that Article 12 § 2 of the Hague Convention was not applicable as the applicants’ leaving Australia on 15 June 2008 was still covered by the Federal Magistrates Court’s permission to leave “on or about 25 June 2008”. The wrongful retention thus only began in October 2008 when the applicants did not return to Australia as stipulated. The Court of Appeal fourthly found that the requirements for an exception according to Article 13 of the Hague Convention had not been met in the instant case. Contrary to the first applicant’s allegations, the father had not tacitly agreed to the second applicant’s staying in Germany. The mere fact that he initially kept up contact with the second applicant until he requested them to return to Australia for the first time explicitly in August 2009 could not be interpreted as approval. As regards Article 13 § 1 b) of the Hague Convention and the alleged existence of a “grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”, the Court of Appeal held that with regard to the purpose of that Convention this provision required a narrow interpretation. Referring to the expert opinion the Court of Appeal held that even if a rapid deterioration of the first applicant’s state of health did happen, there were no grounds which made a return impossible. There was also no indication that it was not possible to adequately treat her condition in Australia. Hence, she was able to accompany her daughter and could thus not claim that the return of the second applicant to Australia would be harmful to the child’s well-being. Finally, with regard to the fact that one of the judges who had taken part in the oral hearing of 26 November 2009 had been replaced by a new judge, the Court of Appeal referred to Article 309 of the German Code of Civil Procedure (Zivilprozessordnung) and in particular to the relevant case-law. It underlined that its decision had to be taken by those judges who were competent to do so at the time of the decision and not at the time of the oral hearing. On 8 April 2010 the Federal Constitutional Court refused to admit the applicants’ constitutional complaint for adjudication, in which they had complained about their obligation to relocate to Australia, the first applicant’s possible coercive detention and the Court of Appeal judge’s non-attendance at the oral hearing. It also rejected their request for an interim injunction. It held that there was no appearance of a violation of the applicants’ fundamental rights. These courts’ decisions were based on an arguable interpretation of Article 12 § 1 of the Hague Convention, in so far as they found that the provision allowed the person who has wrongfully removed or retained the child to be obliged to return the child personally. The hardships of such an interpretation for the parent being ordered to return the child had to be accepted as the consequence of the illegal abduction or retention. On 19 July 2010 the Karlsruhe Court of Appeal after hearing the parents, the child’s curator ad litem and the Youth Office, again pointed out to the first applicant the possible consequences of non-compliance, namely the imposition of a coercive fine or coercive detention or the direct enforcement of the obligation. Referring to Article 90 of the German Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction (see Relevant domestic law), the Court of Appeal underlined that direct enforcement could be ordered in an explicit court decision, but that direct enforcement in respect of a child would be admissible only where this was justifiable with a view to the child’s well-being and where no less restrictive measures were available to enforce the obligation. According to Article 21 of the Introductory Act to the German Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuche) “the legal relationship between a child and its parents is governed by the law of the country in which the child has his or her habitual residence”. According to Article 309 of the German Code of Civil Procedure (Zivilprozessordnung) “a judgment may be delivered only by those judges who were present at the proceedings upon which the judgment is based”. According to Article 90 § 1 of the German Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction (Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit) the court may order direct enforcement in an explicit court decision, if 1) compulsory measures remained unsuccessful; 2) compulsory measures have no prospects of success; 3) the immediate enforcement of a decision is imperatively necessary. Under Article 90 § 2 direct enforcement in respect of a child shall not be allowed, where the order is aimed at delivery of the child for the purpose of contact. Moreover, direct enforcement in respect of a child shall be admissible only where this is justifiable in due consideration of the child’s well-being and where less restrictive measures are not available to enforce the obligation. The relevant parts of Article 33 of the Act on Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit) are set out in the case of Paradis v. Germany (dec.) (no. 4065/04, 4 September 2007). As regards the Hague Convention the relevant provisions are described in the Court’s judgment in the case of Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 57, 6 July 2010. | 0 |
train | 001-67627 | ENG | SVK | ADMISSIBILITY | 2,004 | DUBJAKOVA v. SLOVAKIA | 4 | Inadmissible | Nicolas Bratza | The applicant, Mrs Helena Dubjaková, is a Slovakian national, who was born in 1954 and lives in Trebišov. She is represented before the Court by Mr Juraj Füzer, a lawyer practising in Trebišov. In 1989 the Humenné District Court (Okresný súd) pronounced the dissolution of the applicant's marriage. On 31 May 1990 the applicant petitioned to the District Court for a division of the matrimonial property. On 10 October 1994, in reply to the applicant's complaint, the President of the District Court acknowledged that there had been unjustified delays in the proceedings. On 12 October 1994 the District Court sought evaluation by two sworn experts of the movable and immovable property in dispute. The reports were submitted on 26 January and 13 April 1995 respectively. A hearing scheduled for 1 April 1996 had to be adjourned as, due to health problems, the defendant (the applicant's former husband) could not appear. The District Court held hearings on 25 November 1996, 17 October 1997 and 7 April 1998. On 15 April 1998, following a hearing held on the same day, the District Court divided the property. On 26 June 1998 it corrected clerical errors in its judgment. On 26 August 1998 the defendant filed an appeal. On 10 September 1998 the District Court sent a copy of the appeal to the applicant. On 13 October 1998 the applicant filed her observations in reply. On 16 October 1998 the District Court submitted the casefile to the Prešov Regional Court (Krajský súd) for a decision on the appeal. On 8 February 1999 the Regional Court quashed the District Court's judgment. It found that the District Court had failed to establish the facts of the case adequately and that there had been several formal errors in its judgment. It remitted the case to the District Court for reexamination and instructed it to establish carefully the subjectmatter of the proceedings. On 24 February 2000 the District Court held a hearing. On 20 February 2002 the applicant demanded that the District Court determine the matter speedily. On 21 March 2002 the case was assigned to another judge. On 15 October 2002 the applicant again demanded that the District Court deal with her case promptly. On 18 November 2002 the District Court held a hearing at which it heard the parties. On 22 November 2002 it again divided the property. The judgment became final and binding on 16 December 2002. On 28 February 2000 the applicant lodged a petition (podnet) with the Constitutional Court (Ústavný súd) objecting to undue delays in the above proceedings. On 5 April 2000 the petition was declared admissible. On 1 June 2000 the Constitutional Court found that the District Court had violated the applicant's right under Article 48 (2) of the Constitution to a hearing without unjustified delay. The Constitutional Court observed that it had jurisdiction ratione temporis to consider only the period after 15 February 1993 when it had been established. However it took into account the state of the proceedings at that time. The case was neither legally nor factually complex. The applicant's conduct did not contribute substantially to the length of the proceedings. The District Court failed to deal with the case with the requisite efficiency having regard to, in particular, the fact that the applicant was divorced, had the sole custody over two minor children and was principally claiming ownership of the house where she had once lived with her family. Upon service of the Constitutional Court's finding (nález) on the applicant and the District Court, it became final and binding on 8 June 2000. On 10 October 2002 the applicant lodged a complaint (sťažnosť) with the Constitutional Court pursuant to Article 127 of the Constitution as in force since 1 January 2002. She objected that, despite the Constitutional Court's finding of 1 June 2000, there had been no progress in her case. She invited the Constitutional Court to find a recurring violation of her right under Article 48 (2) of the Constitutional Court to a hearing without unjustified delay, to order the District Court to proceed with her case without delay, to award her 422,431 Slovakian korunas (SKK) in just satisfaction and to order the District Court to reimburse her legal costs. On 23 October 2002 her complaint was declared admissible. On 11 December 2002 the Constitutional Court found a violation of the applicant's constitutional right. This finding formally concerned only the period after 8 June 2000 when its first finding of 1 June 2000 had become final and binding. The Constitutional Court observed that in the period between 8 June 2000 and 15 October 2002 (2 years, 4 months and 7 days) the District Court had been completely inactive. It also took notice of the fact that the total length of the proceedings was more than 12 years and that there had already been one finding of a violation of the applicant's right to a hearing without unjustified delay in the case. The Constitutional Court found no reasons to justify the length of the proceedings by the complexity of the case or by the applicant's conduct. It awarded the applicant SKK 50,000 by way of just satisfaction in respect of nonpecuniary damage and dismissed her remaining claims. Article 48 (2) provides, inter alia, that every person has the right to have his or her case tried without unjustified delay. Pursuant to Article 130 (3), as in force until 30 June 2001, the Constitutional Court could commence proceedings upon a petition lodged by a natural or legal person claiming that their rights had been violated. According to its caselaw under the former Article 130 (3) of the Constitution, the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner's rights under Article 48 (2) of the Constitution. It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found. As from 1 January 2002, the Constitution has been amended in that, inter alia, natural and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to Article 127. Under this provision, the Constitutional Court has the power, in the event that it finds a violation of Article 48 (2) of the Constitution, to order the authority concerned to proceed with the case without delay. It may also grant adequate financial satisfaction to the person whose constitutional rights have been violated as a result of excessive length of proceedings (for further details see, e.g., Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, 22 October 2002). | 0 |
train | 001-58204 | ENG | FRA | GRANDCHAMBER | 1,998 | CASE OF GUÉRIN v. FRANCE | 3 | Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | John Freeland;N. Valticos | 8. Mr Yves Guérin, a French national who was born in 1942, lives in Brest. At the material time, he was a deputy police sergeant. 9. On 28 November 1990 an airport and border police squad based in Menton stopped a vehicle on the motorway between Ventimiglia and Menton. There were six people inside, of whom five did not have valid papers for entry into French territory. 10. The driver, Mr Sérigné Fall, admitted that he had assisted these five to cross the border illegally. 11. He implicated the applicant, who was at that time serving at the Ventimiglia frontier post, alleging that he had allowed him to enter France in exchange for a payment of five hundred French francs (FRF) and the promise of an imitation Rolex watch. 12. On 29 November 1990 the applicant was charged with accepting a bribe and remanded in custody. 13. In a judgment of 6 June 1991 the Nice Criminal Court acquitted Mr Guérin, rescinded the order for his detention and ordered his immediate release. 14. On 11 June 1991 the prosecution appealed. 15. In a judgment of 14 October 1991 the Aix-en-Provence Court of Appeal, giving judgment in the applicant’s absence, set aside the judgment at first instance and sentenced the applicant to two years’ imprisonment. 16. On 28 June 1992 the applicant requested a retrial. 17. The case was heard on 12 October 1992 at a public hearing attended by Mr Guérin. 18. In a judgment of 23 November 1992 the Aix-en-Provence Court of Appeal found the applicant guilty of accepting a bribe, sentenced him to two years’ imprisonment, six months of which were suspended, and issued a warrant for his arrest. Although the applicant had been duly informed of the date of delivery of the judgment, he was not present. 19. On 24 November 1992 Mr Guérin was admitted to a psychiatric institution, where he stayed until 16 December 1992, when the police enforced the warrant for his arrest. 20. On 26 November 1992, acting through a lawyer with the right of audience in the Aix-en-Provence Court of Appeal, the applicant lodged an appeal on points of law within the time-limit of five clear days laid down by Article 568 of the Code of Criminal Procedure (see paragraph 24 below). In his statement of the grounds of appeal the applicant’s lawyer put forward two arguments, one procedural and one substantive, concerning the elements of the offence. He also explained that “as soon as he knew [the Court of Appeal’s decision], the appellant tried to commit suicide”. On the first point, he referred to the report adopted by the Commission on 3 September 1992 in the case of Poitrimol v. France and pointed out that the Commission had referred to the Court the question whether the relevant case-law of the Criminal Division was contrary to Article 6 § 1 of the Convention. On the second point, the lawyer stated that as the applicant lived in Brest he had not attended the hearing at which the judgment convicting him was delivered on account of the distance he would have had to travel and because he was very perturbed by the proceedings against him. It would also have been materially impossible for him to comply with the warrant for his arrest in the three days between the reading of the judgment and the lodging of the notice of intention to appeal. Moreover, on learning that he had just been convicted, and immediately after instructing his lawyer to lodge an appeal on points of law, he had tried to commit suicide, and for that reason had been treated in a psychiatric institution from 24 November 1992 to 16 December 1992. Having stayed in that institution throughout the period allowed for an appeal on points of law, it had been absolutely impossible for him to comply with the warrant voluntarily before lodging the appeal. Lastly, the arrest warrant had been executed on 16 December 1992 at the clinic where the applicant remained at the disposal of the courts. The lawyer concluded in the following terms: “There is no doubt that in such conditions applying the case-law established in 1846 in order to declare the appeal inadmissible would mean unjustly depriving Mr Guérin of the right to determination of his appeal.” 21. In a judgment of 19 January 1994 the Court of Cassation declared the appeal inadmissible on the following grounds: “It is apparent from the notice of intention to appeal that the applicant lodged his appeal through an attorney at a time when he was liable to arrest under a warrant issued at the hearing on 23 November 1992, which was not executed until 16 December 1992. It follows from the general principles of criminal procedure that a convicted person who has not complied with a court order is not entitled to act through a representative in order to lodge an appeal on points of law. It could not be otherwise unless he supplied evidence of circumstances making it absolutely impossible for him to surrender to custody at the appropriate time. In the present case the appellant has not supplied evidence of any such circumstances.” 22. In French law an appeal on points of law, which is an exceptional remedy, may be lodged by any person who has an interest in doing so and gives notice within the time-limit, against any judicial decision given at last instance. 23. Article 576 of the Code of Criminal Procedure, which lays down the formalities to be observed in connection with appeals on points of law, provides: “Notice of an appeal on points of law must be given to the registrar of the court which has delivered the decision being challenged. It must be signed by the registrar and by the appellant himself or by an attorney (avoué) of the court which has given judgment or by a specially authorised agent. In the last-mentioned case, the authority to act shall be annexed to the document drawn up by the registrar… …” 24. Article 568 of the Code of Criminal Procedure provides: “The prosecution and all parties shall have five clear days after the date on which the impugned decision was given in which to lodge an appeal on points of law.” 25. Article 569 of the Code of Criminal Procedure provides: “During the time allowed for an appeal on points of law and, where such an appeal has been lodged, until the Court of Cassation delivers judgment, execution of the judgment of the Court of Appeal shall be stayed, except in respect of orders concerning civil matters, and unless the Court of Appeal upholds the warrant issued by the trial court pursuant to Article 464-1 or Article 465, first sub-paragraph, or unless it issues a warrant itself under the same conditions and according to the same rules.” 26. The suspensive effect of an appeal on points of law is derived from statute and may therefore likewise be restricted by statute, particularly in the interests of speedier and more effective punishment. That is the case where an arrest warrant has been issued by the trial court (see, to that effect, B. Bouloc, Précis de procédure pénale, Dalloz, 16th edition, 1996, § 739). 27. Article 583 of the Code of Criminal Procedure provides: “If a person sentenced to a term of imprisonment of more than six months has not surrendered to custody and has not obtained from the court which convicted him exemption, on or without payment of a surety, from the obligation to surrender to custody, his right to appeal on points of law shall be forfeit. The memorandum of imprisonment or the judgment granting exemption shall be produced before the Court of Cassation not later than the time when the case is called for hearing. For his appeal to be admissible, it is sufficient for the appellant to establish that he has surrendered to custody at a prison, either in the place where the Court of Cassation sits or in the place where sentence was passed. The governor of that prison shall admit him there on the order of the Principal Public Prosecutor at the Court of Cassation or of the head of the public prosecutor’s office at the court of trial or appeal.” 28. The Court of Cassation has ruled on a number of occasions that an appeal lodged by the representative of a convicted person who has not complied with a warrant for his arrest is inadmissible (Cass. crim. 10 December 1986, Dalloz 1987, p. 165). But the convicted person may give notice himself of his intention to appeal (Cass. crim. 7 November 1989, Bull. crim no. 397), subject to the provisions of Article 583, reproduced above. 29. The Criminal Division of the Court of Cassation considers that an appeal is admissible in the following two situations: (a) where, instead of acting through a representative, the appellant signs the notice of intention to appeal in person (Cass. crim. 28 June 1978, Bull. crim. no. 57) by reporting to the registry before the warrant has been executed (Cass. crim. 7 November 1989, Bull. crim. no. 397) and accepting the risk of being arrested by mentioning his exact address in the notice (Cass. crim. 13 May 1985, Bull. crim. no. 180; Cass. Crim. 7 September 1993, Bull. crim., p. 263, confirmed by a decision of 15 February 1994 published in the Recueil Dalloz, 1994, Somm., p. 187); (b) where, when acting through a representative, in accordance with Article 576 of the Code of Criminal Procedure, he can prove that there were “circumstances that made it absolutely impossible for him to surrender to custody at the appropriate time” (Cass. crim. 21 May 1981, Bull. crim. no. 168; Cass. crim. 19 January 1984, Bull. crim. no. 27; Cass. crim. 8 March 1985; Cass. crim. 8 March 1996, Bull. crim. no. 94). | 1 |
train | 001-96116 | ENG | UKR | CHAMBER | 2,009 | CASE OF KREYDICH v. UKRAINE | 4 | Violation of Article 5 - Right to liberty and security | Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger | 5. The applicant was born in 1961 and lives in Kyiv, Ukraine. 6. In the middle of 2006 the applicant left Belarus as he had been invited to work as a coach for the national free-style wrestling team of Ukraine. 7. On 15 June 2007 the General Prosecutor's Office of Belarus instituted criminal proceedings against the applicant for aiding and abetting bribery (maximum sentence of six years' imprisonment). Since his whereabouts were unknown, a warrant for his arrest was issued. 8. On 2 July 2007 the Kyiv Organised Crime Department received a request from the Main Organised Crime Department of Belarus to assist in arresting the applicant. 9. On 18 July 2007 the General Prosecutor's Office of Belarus charged the applicant with participation in organised crime, abuse of authority, aiding and abetting bribery and other offences (maximum penalty of fifteen years' imprisonment). 10. On the same day the applicant was arrested in Kyiv, Ukraine. 11. On 20 July 2007 the Pecherskyy District Court of Kyiv authorised the applicant's detention pending a decision on his extradition. 12. On 25 July 2007 the General Prosecutor's Office of Belarus requested the applicant's extradition to Belarus. 13. On 31 July 2007 the Kyiv City Court of Appeal changed the decision of 20 July 2007 further to an appeal by the applicant and authorised his detention for a maximum of forty days pending receipt of the request for his extradition. 14. On 20 August 2007 the Pecherskyy District Court of Kyiv authorised the applicant's continued detention. This decision was upheld on 30 August 2007 by the Kyiv City Court of Appeal. 15. By letter of 25 October 2007 the General Prosecutor's Office of Belarus stated that, if extradited, the applicant would not be subjected to the death penalty or to any treatment contrary to Article 3 of the Convention; that he would be provided with the necessary medical treatment; that he would be given a fair trial; and that he would not be persecuted for his political beliefs. 16. On 5 November 2007 the General Prosecutor's Office of Ukraine (“the GPO”) authorised the applicant's extradition to Belarus. On the same date the decision was sent to the applicant. The applicant was also informed that this decision could be contested by him in court within ten days of its receipt. 17. On 13 November 2007, under Rule 39 of the Rules of Court, the President of the Fifth Section of the Court invited the Government of Ukraine not to extradite the applicant to Belarus. 18. The applicant received the decision of 5 November 2007 on 16 November 2007, but did not challenge before in the Kyiv Regional Administrative Court until 19 February 2008. 19. On 7 April 2008 the applicant was granted refugee status in Ukraine by the State Migration Committee. 20. On 21 April 2008 the Pecherskyy District Court rejected an appeal by the applicant's lawyer against the court decisions of 20 July and 20 August 2007 since they had already been appealed against under the ordinary appeal procedure and the first-instance court was not competent to quash them. This decision was upheld on 5 May 2008 by the Kyiv City Court of Appeal. 21. On 25 April 2008 the GPO filed an objection with the State Migration Committee against the decision granting the applicant refugee status. According to the applicant, execution of the relevant decision was suspended pending the Committee's reply. 22. On 7 May 2008 the Kyiv Regional Administrative Court rejected a complaint by the applicant against the decision to extradite him. In particular, the court indicated that the applicant had not yet been granted refugee status when the contested decision had been taken on 5 November 2007. The applicant did not appeal. 23. By letter of 14 May 2008 the State Migration Committee informed the GPO that its objection to the decision of 7 April 2008 had been rejected. 24. On 23 May 2008 the GPO challenged the decision of 7 April 2008 in court. 25. On 21 July 2008 the Kyiv Regional Administrative Court rejected the GPO's request to quash the decision of 7 April 2008. 26. On 25 November 2008 the Kyiv Administrative Court of Appeal upheld the decision of 21 July 2008. 27. On 28 November 2008 the GPO refused to extradite the applicant to Belarus. On the same day the applicant was released. 28. The relevant international and domestic law and practice are summarised in the judgments Soldatenko v. Ukraine (no. 2440/07, §§ 21-29 and 31, 23 October 2008) and Svetlorusov v. Ukraine (no. 2929/05, §§ 32-34, 12 March 2009). | 1 |
train | 001-77036 | ENG | HUN | CHAMBER | 2,006 | CASE OF GAJCSI v. HUNGARY | 4 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-e - Persons of unsound mind);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | null | 4. The applicant was born in 1955 and lives in the Lad-Gyöngyöspuszta Social Home, Hungary. 5. On 4 November 1999 the applicant was taken by ambulance to the Psychiatric Department of Nagyatád Hospital. Pursuant to section 199 § 2 of the Health Care Act (“the Act”), the Hospital notified the Nagyatád District Court of this fact the next day. 6. In the opinion of an expert psychiatrist, dated 8 November 1999, it was observed that the applicant had been committed to hospital because of his erratic, pyromaniac behaviour, and was in a deranged state of mind which warranted his compulsory psychiatric treatment in a closed institution. On the same day the court heard the applicant and ordered his treatment under section 199 § 5 of the Act. 7. Between 21 January 2000 and 22 November 2002 the applicant’s compulsory treatment was reviewed by the court at the statutory intervals. 8. On 21 January 2003 the District Court again reviewed the applicant’s psychiatric detention. At the hearing he was represented by an ad hoc guardian (eseti gondnok). The judge in charge appointed an expert psychiatrist, specifying that his task was “to give an opinion as to whether or not the patient’s (eljárás alá vont személy) admittance to, and prolonged treatment at, the psychiatric department was justified because of his pathological mental status (kóros elmeállapot)”. The expert confirmed the need to continue the applicant’s treatment. 9. Based on that opinion, the court ordered the prolongation of the applicant’s compulsory psychiatric treatment for an indefinite period, the necessity of which was to be reviewed within 60 days. It reasoned as follows: “The patient (eljárás alá vont személy) was admitted to the psychiatric department. Relying on the evidence taken and the expert opinion, the court has established that the patient’s prolonged psychiatric treatment was justified and lawful. The patient is in need of further therapy; the court has therefore given its decision according to section 198(1) of Act no. 154 [on Health Care].” 10. The applicant’s lawyer appealed to the Somogy County Regional Court, arguing that the first-instance decision was unlawful in that its reasoning was substantially deficient. He pointed out that section 198(1) did not provide any substantive ground for prolonging his compulsory treatment, which could only be authorised under sections 200(1) and 188(b) of the Act. 11. On 28 February 2003 the Regional Court upheld the District Court’s decision, finding that it was in compliance with the relevant provisions of the Code of Civil Procedure. It noted that, according to the expert psychiatrist’s opinion, no change had occurred in the applicant’s condition as to warrant his release, and that his prolonged therapy was justified and necessary. It was satisfied that the first-instance proceedings were in compliance with section 201 of the Act. This decision was received at the District Court for despatch on 11 March, and was served on 17 March 2003. 12. On 15 May 2003 the applicant’s lawyer filed a petition for review by the Supreme Court. He reiterated that the reasoning of the first-instance decision was insufficient, and argued that the lower courts’ decision infringed the applicant’s constitutional right to a fair hearing. He pointed out that the Act provided no ground for compulsory psychiatric treatment because of a patient’s “pathological mental status” – a criminal-law notion which had mistakenly been referred to when the expert psychiatrist had been appointed. The potential grounds for the applicant’s psychiatric confinement were enumerated in section 200(1) of the Act. In his view, this element deprived the expert’s opinion of any relevance. He stressed that the fairness of any proceedings which might result in coercive measures required detailed reasoning in the relevant decisions. Referring to the Court’s conclusions in the case of Van der Leer v. the Netherlands (judgment of 21 February 1990, Series A no. 170A), he also argued that the failure to inform a patient of the reasons for his involuntary psychiatric treatment might amount to a violation of his Convention rights. 13. On 27 October 2004 the Supreme Court rejected the petition for review as inadmissible. It held that it was incompatible ratione materiae with the relevant provisions of the Code of Civil Procedure. 14. Meanwhile, on 24 April 2003 the applicant was released from hospital. 15. The relevant provisions of Act no. 154 of 1997 on Health Care read as follows: “... b) Dangerous conduct is constituted by a condition in which a patient, due to his disturbed state of mind, may represent a serious danger to his or others’ life and limb or health, but, given the nature of the illness, ‘urgent hospitalisation’ [within the meaning of section 199] is not warranted (a sürgős intézeti gyógykezelésbe vétel nem indokolt).” “(1) The treatment may be considered voluntary if, prior to admission to the psychiatric institution, the [mentally] competent patient has consented to it in writing. (2) A partly or fully incompetent patient may be subjected to treatment in a psychiatric institution at the request of the person referred to in sections 16(1) and 16(2).” “(1) In cases under sections 197(1) and 197(2), the court shall regularly review the necessity of hospitalisation. Such review shall take place every 30 days in psychiatric hospitals and every 60 days in psychiatric rehabilitation institutions.” “(1) The doctor in charge shall directly make arrangements to commit a patient to an appropriate psychiatric institution, if the patient’s conduct is imminently dangerous because of his psychiatric or addictive disease and can only be controlled by urgent treatment in a psychiatric institution. ... (2) The head of the psychiatric institution shall, within 24 hours of the patient’s admission, notify the court thereof and shall thereby initiate steps to establish the necessity of the patient’s admission and the order of compulsory psychiatric treatment. ... (5) The court shall order the compulsory treatment of a patient subjected to urgent hospitalisation if the patient’s conduct is dangerous and his treatment in an institution necessary. (6) Before deciding, the court shall hear the patient and obtain the opinion of an independent expert psychiatrist. ... (8) The court shall review the necessity of the treatment every 30 days. (9) The patient must be released from the psychiatric institution if his treatment in an institution is no longer necessary.” “(1) The court shall order the compulsory institutional treatment of a patient whose conduct is dangerous because of his psychiatric or addictive disease but whose urgent treatment is not warranted. ... (4) Before giving its decision, the court shall hear the patient and an independent ... forensic expert psychiatrist ... as well as the psychiatrist who has initiated the proceedings. ... (7) The court shall review the necessity of compulsory institutional treatment at the intervals specified in section 198. ... (8) A patient subjected to compulsory institutional treatment must be released once his treatment is no longer warranted. ...” “(1) In the proceedings outlined in this chapter, the court shall proceed by way of non-contentious proceedings. Unless required otherwise by this Act or the non-contentious nature of the proceedings, the court shall apply the provisions of Act no. 3 of 1952 on Civil Procedure as appropriate. ... (4) In the court proceedings, appropriate representation must be secured for the patient. ... .” | 1 |
train | 001-5545 | ENG | FIN | ADMISSIBILITY | 2,000 | J.L. v. FINLAND | 4 | Inadmissible | Georg Ress | The applicant is a Finnish citizen, born in 1954. He is detained in a mental hospital in Kuopio. A. Circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. I. In 1981 the applicant was charged with murder (committed in 1981), sexual intercourse with a minor (committed in 1979) and assault, and reckless driving and driving while intoxicated (committed in 1980). The examination concluded that the applicant had not been in possession of his senses at the time of the crimes of which he was accused. As long as he remained ill he had to be considered very dangerous to others. Agreeing with this finding, the National Medical Board (lääkintöhallitus, medicinalstyrelsen) in 1982 ordered the applicant to undergo compulsory psychiatric treatment in pursuance of Section 16a, subsection 1, and Section 34 of the 1952 Act on the Mentally Ill (mielisairaslaki, sinnessjuklag 187/1952). In 1983 the applicant was found guilty of the aforementioned offences but was not sentenced, given his mental state at the time of committing them. In 1984 he was placed under guardianship. Following the entry into force of the 1990 Mental Health Act (mielenterveyslaki, mentalvårdslag 1116/1990) in 1991, compulsory care shall be reviewed at maximum interval of six months. Any prolongation order must be confirmed by the competent county administrative court (lääninoikeus, länsrätt). In so far as this is immediately relevant to the present application, the applicant’s care has been extended as follows. On 4 April 1996 the Senior Physician responsible for the applicant’s treatment considered that he was still in need of compulsory psychiatric care and ordered its prolongation. The Deputy to the Senior Physician had found that the applicant continued to suffer from a psychosis (schizo-affectiva) and a personality disturbance. In 1974 and 1978 he had been convicted of deprivation of liberty and rape. In 1977 he had been convicted of a continued offence comprising deprivation of liberty, rape and assault. In addition, he had, in 1979, raped his then 14-year-old sister-in-law who had become pregnant. On 11 May 1981 he had murdered his wife by stabbing her 40 times while she had been holding their four-year-old son in her arms. The applicant objected to the prolongation order and requested, inter alia, that his mental state be examined “impartially” in a “civil hospital”. On 21 May 1996 the County Administrative Court of Kuopio dismissed the applicant’s request for a further examination of his mental state and confirmed the prolongation order, having regard to the reasons stated by the Senior Physician and his deputy. The applicant appealed further, considering that his compulsory care was not justified and seeking damages from the State. On 21 October 1996 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) declined to examine the applicant’s claims for damages and upheld the County Administrative Court’s decision. No oral hearing was held at either court level. On 4 October 1996 the applicant’s compulsory care was again prolonged by the Senior Physician. His order was confirmed by the County Administrative Court on 19 November 1996. The applicant did not appeal. On 2 April 1997 the Senior Physician prolonged the applicant’s compulsory care in the light of the Deputy’s opinion of 1 April 1997 which was very similar to the one issued in April 1996. On 6 May 1997 the County Administrative Court confirmed this prolongation order. It noted, inter alia, the opinion of the Senior Physician, the terms of his decision, the information in the applicant’s patient records regarding his state of health. The court concluded that the applicant remained mentally ill. His discharge would significantly aggravate that illness and seriously jeopardise the health and safety of himself and others. The other means of treating his illness had remained inapplicable or insufficient. The applicant appealed and also requested that he be transferred to another mental hospital. The Supreme Administrative Court obtained opinions from the Chief Physician of the hospital and the Senior Physician responsible for the applicant’s treatment. In his rejoinder to those opinions the applicant requested a new and complete examination of his mental state. On 25 September 1997 the Supreme Administrative Court declined to examine the applicant’s requests and dismissed his appeal, thus confirming the County Administrative Court’s decision. No oral hearing was held at either court level. On 19 September 1997 the Senior Physician again prolonged the applicant’s compulsory care. In her opinion the Deputy to the Senior Physician had found that the applicant continued to suffer from the aforementioned psychosis and personality disturbance. Should he be discharged, there would exist a very high risk that he would commit heinous violent offences. The Deputy again made reference to various crimes which the applicant had committed. On 21 October 1997 the County Administrative Court confirmed the above prolongation order. Similar prolongation orders were issued on 18 March and 11 September 1998 as well as on 9 March 1999, and subsequently confirmed by the County Administrative Court. During a certain period starting in January 1997 the applicant was apparently placed in a closed ward. According to an official extract from the National Criminal Record (rikosrekisteri, straffregistret), the applicant has been found guilty of the crimes mentioned below. Judgment of 1974: Deliberate refusal to perform military service, committed in 1974. (The applicant was sentenced to conditional imprisonment.) Judgment of 1978 (upheld on appeal in 1978): 1. Deprivation of liberty and rape, committed in 1977 2. Deprivation of liberty and rape, committed in 1977 3. Deprivation of liberty and rape, committed in 1978 4. Deprivation of liberty and rape, committed in 1978 5. Assault committed in 1978 (The applicant was sentenced to various prison terms.) Judgment of 1982 (upheld on appeal in 1983): 1. Sexual intercourse with a minor, committed in 1979 2. Assault and reckless driving, committed in 1980 3. Murder and possession of edged weapon, committed on 11 May 1981 (The applicant was not sentenced for the above-mentioned offences after being deemed to have lacked criminal responsibility in view of his mental state.) II. In 1993 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal against a decision of the Insurance Court (vakuutusoikeus, försäkringsdomstolen) whereby his request for compensation for an occupational injury had been dismissed. B. Relevant domestic law and practice Under section 8 of the Mental Health Act a person can be ordered to undergo compulsory care in a psychiatric hospital if he or she is diagnosed as mentally ill; if he or she needs treatment for a mental illness which, if not treated, would become considerably aggravated or severely endanger his or her health or safety or the health or safety of others; and if all other mental health services are inapplicable or inadequate. According to section 28, subsection 1, a patient’s right to self-determination may be limited and coercive means may be used only to the extent necessary for the treatment of his or her illness, for his or her safety or for the safety of others. In a decision of 3 May 1996 the Deputy Chancellor of Justice (valtioneuvoston apulaisoikeuskansleri, statsrådets justitiekanslersadjoint) ad interim found that the restriction of telephone calls to a patient in a mental hospital could not be held to have been in clear violation of section 28, subsection 1. The Deputy Chancellor nevertheless drew the competent Ministry’s attention to the requirement that restrictions of fundamental rights should be sufficiently detailed. On this point the legislation should therefore be amended. An application lodged under the Convention in respect of the restriction in question was eventually settled (no. 30271/96; see “The Law” below). According to the 1992 Act on the Status and Rights of Patients (laki potilaan asemasta ja oikeuksista, lag om patientens ställning och rättigheter 785/1992), patient records shall be kept confidential. They may only be released to courts and other authorities entitled to such access and, on certain conditions, to institutions providing treatment to the patient, to a close relative or to researchers (section 13). In her decision of 4 January 1994 the Deputy Parliamentary Ombudsman (eduskunnan apulaisoikeusasiamies, riksdagens biträdande justitieombudsman) considered that the Niuvanniemi hospital’s practice of photographing all patients was in violation of section 3 and section 5, subsection 2, of the 1987 Personal Files Act (henkilörekisterilaki, personregisterlag 471/1987). The Deputy Ombudsman noted that the hospital had not abolished this practice despite her earlier decision of 5 March 1992 in which she had reached the same conclusion. Prior to that decision she had heard the Data Protection Ombudsman (tietosuojavaltuutettu, dataombudsmannen), who had reached the same conclusion. Section 3 of the Personal Files Act stipulates, inter alia, that the keeper of personal data files shall ensure that the personal integrity, interests and rights of anyone registered in such a file are not unduly encroached upon. Section 5, subsection 2, requires that only information of relevance to the purpose of the file shall be included. In her two decisions the Deputy Ombudsman underlined that an assessment should be made in respect of each patient as to the necessity of including and retaining photographs. Photographs should only appear in his or her records if the specific care needs of the patient so warranted. The Personal Files Act did not allow for the inclusion of photographs in patient records in the interests of the security of other patients, staff or society as a whole. The keeper of a personal file shall speedily correct, delete or supplement information on file which is incorrect, unnecessary, incomplete or outdated and provided such information evidently jeopardises the protection of the integrity or the interests or rights of the person in question. If the file-keeper refuses a request to the above effect it shall provide a reasoned certificate thereof (section 15). At the request of the registered person the Data Ombudsman may order the file-keeper to take the requested action (section 35). If this order is not complied with or if the Data Ombudsman decides not to take action, the registered person may bring the matter before the Data Protection Board (tietosuojalautakunta, datasekretessnämnden), whose decision may be appealed to the Supreme Administrative Court (sections 35 and 38). According to the Constitution of 1919 (Suomen hallitusmuoto, Regeringsform för Finland 94/1919), as in force up to 1 March 2000, anyone who has suffered an infringement of his rights, or damage, through an illegal act or negligence on the part of a civil servant, is entitled to demand that the civil servant be convicted and held liable for damages, or to report him for the purpose of having charges brought against him (section 93, subsection 2). A similar provision appears in section 118, subsection 3, of the Constitution of 2000 (Suomen perustuslaki, Finlands grundlag 731/1999). Chapter 2 (“Basic rights and liberties”) of the 1919 Constitution was amended by Act no. 969/1995 which entered into force on 1 August 1995. The new chapter 2 includes, inter alia, the right to privacy (section 8; as from 1 March 2000 section 10) and has been incorporated as such into the Constitution of 2000. Under the 1974 Tort Liability Act (vahingonkorvauslaki, skadeståndslag 412/1974) proceedings for damages may be initiated against the State in view of its vicarious liability for actions taken by civil servants (chapters 3 and 4). In its decision no. 1992:144 the Supreme Court found a health centre physician guilty of negligent misconduct as he had failed to ensure that a patient was transported to the centre in accordance with the Act on the Mentally Ill. In the private prosecution proceedings in question the patient had been granted cost-free proceedings. According to the 1992 Act on Social Welfare and Health Care Fees (laki sosiaali- ja terveydenhuollon asiakasmaksuista, lag om klientavgifter inom social- och hälsovården 734/1992) and the related Decree (912/1992), the fee collected from a psychiatric patient in long-term hospital treatment shall be based on his or her solvency and not exceed 80 per cent of the monthly income (section 15 of the Decree). | 0 |
train | 001-93638 | ENG | LTU | ADMISSIBILITY | 2,009 | SHUB v. LITHUANIA | 4 | Inadmissible | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky | The applicant, Mr Boruch Shub, is a Lithuanian national who was born in 1924 and lives in Tel Aviv, Israel. He is represented before the Court by Ms F. Kukliansky, a lawyer practising in Vilnius. The facts of the case, as submitted by the applicant, may be summarised as follows. After Lithuania regained independence in 1990, the Restitution of Property Act, concerning the restitution of property rights to property nationalised by the Soviet authorities, was enacted. The applicant, an Israeli citizen at that time, requested the authorities to restore to him the property rights to a building owned by the applicant’s late relatives prior to nationalisation. By letters of 16 March 1992 and 21 September 1994, the Vilnius City Board informed the applicant that his request could not be granted because he did not meet the criteria set out in the Restitution of Property Act, namely, he did not have Lithuanian citizenship and did not reside in the country. On 8 August 1994 the Government’s office also informed the applicant about the citizenship and residence requirements. On 15 November 2002 the applicant started an exceptional Presidential procedure to obtain Lithuanian citizenship. On 11 April 2003 the applicant gained Lithuanian citizenship by a decree of the State’s President. In 2005 the applicant requested the domestic courts to extend the statutory time-limit for his application for restitution, which had lapsed on 31 December 2001. The applicant submitted that he could not have applied for the restitution of his claimed property rights within the statutory time-limit because he had not had Lithuanian citizenship earlier. He also noted that he did not know the Lithuanian language and did not reside in Lithuania, which made it difficult for him to claim his rights within the time-limit. Before the courts the applicant was represented by counsel, who was present at all the hearings. On 24 August 2005 the Vilnius Regional Administrative Court granted the request. The court held that the applicant had actively sought to have his property rights restored and noted that his requests for restitution had been admitted and examined. Furthermore, the applicant had sought Lithuanian citizenship in order to fulfil all the requirements of the Restitution of Property Act. The court observed that in 2004 the law was amended to include a possibility to extend the time-limit for applications for restitution and found no reason to deprive the applicant of that possibilty. On 22 December 2005 the Supreme Administrative Court overturned the decision and dismissed the request by the applicant. The court stated that the applicant, not being a Lithuanian citizen before 2003, did not meet the criteria set out in the law and thus could not claim restitution of property rights. The applicant had only become a Lithuanian citizen on 11 April 2003, after the time-limit for restitution applications had already expired. The examination of the provisions regulating the matter allowed the conclusion that the time-limit for submitting a restitution request could only be extended in respect of those persons who had acquired the right within the prescribed time-limit, but who had not been able to make use of it properly within the deadline for good reasons. The submission of the request for restitution, its time-limit and the extension of that deadline were interconnected. The applicant did not have the right to the restitution of property within the statutory time-limit until 31 December 2001 because he had not been a Lithuanian citizen. Thus, the legal provision regarding the extension of the time-limit was not applicable to his situation. Furthermore, the court observed that the applicant had only applied for citizenship under the exceptional Presidential procedure in 2002, whereas there had been nothing to stop him taking action earlier. The Restitution of Property Act 1991 (Nuosavybės teisių ... atkūrimo įstatymas) (amended on numerous occasions) provides that the right to property nationalised by the Soviet authorities can only be restored to persons who are citizens of Lithuania. Under Article 10 of the Act, applications for the restitution of property rights could be submitted up until 31 December 2001. The time-limit of 31 December 2003 was set for the production of any additional supporting documents which could not have been submitted earlier in respect of applications made before 31 December 2001. Article 10 of the Act, as amended on 12 October 2004, provides that the time-limit for both an application for the restitution of property rights and the submission of supporting documents could be extended if substantial reasons for missing the deadline existed. Whether those reasons are sufficiently important is to be established by the courts on a case-by-case basis. | 0 |
train | 001-22050 | ENG | MKD | ADMISSIBILITY | 2,001 | OSMANI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 1 | Inadmissible | Christos Rozakis | The applicant, Osmani Rufi, was born in 1960. He lives in Gostivar, the Former Yugoslav Republic of Macedonia. He is represented before the Court by Mr Yves Leonard, a lawyer practising in Brussels, Belgium. At the 1996 local elections the applicant was elected mayor of Gostivar. On 14 February 1997 the Gostivar Local Council took a decision implementing section 140 of the Statute of the municipality of Gostivar on the use of flags. It provided that the Albanian and Turkish flags should be placed along with the Macedonian flag in front of the Town Hall. Other public institutions were also informed to display the Albanian and Turkish flags during public holidays. On 14 March 1997 the Government and a political party requested the Constitutional Court to examine the constitutionality and legality of the Gostivar Local Council’s decision on the ground that neither the Constitution nor the respective law granted power to the municipalities to regulate the display of flags. On 21 May 1997 the Constitutional Court declared the request for examination of the constitutionality and legality of section 140 of the Statute of the municipality of Gostivar admissible and, by way of an interim order, suspended the validity of all ensuing decisions. The Gostivar Local Council was served with the decision on 22 May 1997. On 24 May 1997 the applicant organised a meeting at which the Macedonian flag was not flown but the flag of the Republic of Albania was displayed and the Albanian national anthem was played. At the meeting he, inter alia, stated: “Dear citizens of Gostivar and all Albanians from where ever you come. Your gathering demonstrates once again that we started slowly but surely to fulfil what we have promised in the electoral campaign in the field of politics, culture and economy. ... Each Albanian, wherever he or she lives has one thought, one idea, one stance concerning the national issue, the issue of the Albanian language, the flag or the University... This should be a clear message for all, for [the President] Gligorov, [the Prime Minister] Crvenkovski, the Constitutional Court that nobody should touch the Albanian flag. You are right [the citizens shout: “we will sacrifice our lives but not the flag”] we will sacrifice our lives but not the flag. We shall not accept any decision by the Constitutional Court which is entirely a political one, this institution which should protect the constitutionality and the legality but in fact violates the Constitution, the Constitution that they have adopted and laws which they have adopted without asking us, it is for us to decide on our own rights. It is not for them to decide. Many troops flew the Albanian flag, i.e., Partisans’, Balists’ [Albanian movement which occupied the western part of the Former Yugoslav Republic of Macedonia during the Second World War] and other Albanian troops which were always fighting for the liberation of our territories. Our territories in [the Former Yugoslav Republic of] Macedonia are our territories, this should be acknowledged once for all and on these territories our flag shall always be flown. ... We were not given our mandates to execute the policy of the Government [of the Former Yugoslav Republic] of Macedonia, but to do what you have wished to be done and that is certainly what we are going to do, because we were not elected by the Government [of the Former Yugoslav Republic] of Macedonia, the Parliament or the President... The [Government’s] black hand covered with blood the University of Tetovo yesterday, their black hand wishes to cover with blood our national flag today, but they have first to think thoroughly as we are going to reply to a slap with a slap. I gave them a clear message that as long as I am in the Gostivar Town Hall nobody shall ever touch the Albanian flag - they may go ahead, they may suspend me and the councillors of the Town Hall, but they shall never touch the flag, since we were not elected to remain quiet in our offices, today we are ready to give up our duties and offices, shall we do so? During the election campaign I promised you that Gostivar will become an Albanian town and so it will be. It shall [become an Albanian town] by an official display of the flag, the official use of the Albanian language and by putting up the signs of the stores in Albanian language, and [by establishing] many other institutions with other Albanian municipalities. We shall do it within the framework of the project of the regionalisation. It should be clear that the Albanian flag is the eternal symbol of the Albanians. Finally, I wish to thank you all and I promise you once more that we shall hold to the issue of the flag, the language, the University and to many other Albanian projects until the end, that we will soon turn them into reality notwithstanding the will of whomever, we shall abide by your political will and the only court that we shall obey eventually is the Albanian nation and nobody else. Long live the Albanian flag”. On 26 May 1997 the Gostivar Local Council informed the Constitutional Court of its decision not to implement the Constitutional Court’s interim order of 21 May 1997 emphasising that the removal of the flags would lead to an inter-ethnic conflict. On 26 May 1997 a group of citizens tried to remove the Albanian flag from the front of the Gostivar Town Hall which led to a fight between the citizens. Following this, the applicant outside his competence as a mayor, organised armed shifts for the protection of the Albanian flag. Furthermore, he also acting outside of his competence as a mayor and out of law, set up central crisis headquarters with several regional branches. A list of civilians of Albanian ethnic origin with special responsibilities was drawn up and money was allocated for different activities, such as propaganda and communication, shelters for injured people, etc. On 6 June 1997 the applicant warned the Constitutional Court that the interim order of 21 May 1997 would lead to an inter-ethnic conflict. On 11 June 1997 the Constitutional Court abrogated section 140 of the Gostivar Statute on the ground that the Local Council had exceeded its power when it had regulated the display of the flags by its statute as it had not been empowered to do so by the Constitution or by law. On 9 July 1997, at around 2 a.m., the police removed the flags from the front of the Gostivar Town Hall. The Ministry of Foreign Affairs on 15 July 1997 gave, inter alia, the following account: “... During the searches carried out in Gostivar ... Town Hall firearms were found, for which their holders did not have a licence...” In footnote no. 2 it was stated: “Three armed persons, ... two in Gostivar [who were watching over the Albanian flags] were detained and the following firearms were confiscated - semi-automatic guns “Walter” without a number, calibre 7.65; Unik, model no. 51, without a number, calibre 7.65; and “TT” -33, calibre 7.62 which were found in the kitchen, the toilet and the corridor of the private office of the chairman of the Town Hall” - end of the footnote. The report goes on: “At around 7.30 a.m. ..., without any reason a group of 200 citizens, by use of physical violence, projectiles [rocks and stones], metal sticks and “chemical substances” [Molotovs’ cocktails and teargas] attacked the police [apparently positioned nearby the Gostivar Town Hall] and ... breached the public order and peace in the town. The police used “chemical substances” AF-1 and AG-1 [teargas], truncheons and physical force. The public order was quickly restored, but other people from the nearby villages [who arrived] in an organised manner joined the crowed which became larger. According to our estimations, at around 3 p.m. a crowed of 7-8,000 people gathered in front of the Town Hall. ... ...at around 2.30 p.m. five persons were detained, three of whom were citizens of the Republic of Albania and all 39 bottles with Molotovs’ cocktails were found. Since [the leaders] could no longer use Molotovs’ cocktails to heat-up the crowed they started shouting: “Bosnia, Bosnia”. At around 3.18 p.m. the first smoke bomb was thrown nearby the positions of the police, and after a while the second smoke bomb was thrown [at the police]. The visibility reduced by the smoke bombs provoked the extremists to open fire with automatic guns. ...one of the policeman was seriously injured and urgently taken to hospital. After one hour of intensive firing from both sides, the Ministry had not received any information that anybody from the extremists or from the crowed had been killed or injured in the interim. No deaths or injuries were reported until then and later [as a result of] the request of the parents of two victims an autopsy was not ordered by the investigating judge, therefore, the possibility to clarify the circumstances (time, place, manner, etc.) surrounding their deaths was excluded. Around 5 p.m. the firing had stopped and the police restored the peace in the town. ...the police searched the private offices of the chairmen of the Town Hall ... in Gostivar and the houses of the two “guards” of the flag in front of the Town Hall of Gostivar (two automatic guns and a big quantity of ammunition were found). In the private office of the chairman of the Gostivar Town Hall the police, inter alia, found documents concerning the “crises headquarters and its regional branches” which were set up in case of an attempt to remove the Albanian flag. The way the headquarters were structured justifies the fear that [the people involved were ready] to put up armed resistance. In footnote no. 9 of the report it was said: “In one of the buildings from where it was fired on the police, large quantities of medicines and other medical equipment for an intravenous drip, analgesic drugs, antibiotics, [medicines] against dehydration, ampoules against excessive bleeding, etc, were found...” - end of the footnote. The report further continues: “In the Gostivar hospital 196 patients seriously or slightly injured were registered between 9 and 11 July 1997... On 9 July 1997 seven injured persons requested medical assistance at the Surgery of the Skopje Medical Centre... On the same day nine other persons requested medical assistance at the Skopje Military Hospital ... ...” On 9 July 1997 the police searched the applicant’s home and seized three guns and some documents, including minutes of 31 May 1997 on the set up of the central crises headquarters and its regional branches; a list of persons from different municipalities who were responsible for different tasks, i.e., communication and propaganda, shelters for injured, finances, transport and security of the flag; and a copy of the applicant’s speech delivered on 24 May 1997. The police had requested the applicant several times to address the citizens, but the applicant had allegedly agreed to do so only after the Macedonian flag was removed from the front of the Gostivar Town Hall, the police forces withdrawn and detained persons released. At that occasion the applicant also allegedly stated that one day the Albanian flag would be flown as the official one and not only as the flag of a minority. Around 4.30 p.m. he addressed the people via a local TV station following which the riots stopped. On 10 July 1997 the applicant was detained pending trial and on 8 August 1997 he was charged with stirring up national, racial and religious hatred, disagreement and intolerance by a public official and with a serious case of organised resistance and the non-execution of a decision or an order of a State institution. He was released on 7 October 1997. The Gostivar Municipal Court held hearings on 11, 12 and 15 September 1997. In addition to hearing several witnesses, the court examined, inter alia, typed and hand-written originals as well as a translation of the applicant’s speech, a video-tape of the aforementioned meeting, the minutes and other documents on the setting up of central crisis headquarters with regional branches, shelters for the injured and a list of persons who took part in those activities. On 16 September 1997 the Municipal Court found the applicant guilty of: (a) stirring up, as a public official, national, racial and religious hatred, disagreement and intolerance for which he was sentenced to eight years’ term of imprisonment; (b) organising resistance against a lawful decision or activity of a State institution for which he was sentenced to four years’ term of imprisonment; and (c) non-execution, as a public official, of a Constitutional Court’s decision for which he was sentenced to three years’ term of imprisonment. The overall sentence was thirteen years and eight months’ term of imprisonment. The offence of stirring up, as a public official, national, racial and religious hatred, disagreement and intolerance had been made out by the failure of the applicant, who had been an elected mayor, to inform the Local Council and the central Government that the decision to display the flags of Albania and Turkey in front of the Town Hall had been unconstitutional. He had implemented such an unlawful decision and had instructed all other public institutions to display the respective flags during the public holidays. He had refused to implement the Constitutional Court’s interim order and decision and had organised a public meeting under the motto “to defend the official use of the national flag” at which the anthem of the Republic of Albania had been played and the flag of the Republic of Albania displayed. Moreover, at the meeting he, inter alia, had stated: “ we shall give our lives but not our flag”, “we do not recognise the decisions of the Constitutional Court”;” “The Albanian flag was flown in front of many troops, i.e., partisans’, balists’ [Albanian movement which occupied western part of the Former Yugoslav Republic of Macedonia during the Second World War] and in front of other Albanian troops which were always fighting for the liberation of our territories. Our territories in [the Former Yugoslav Republic of] Macedonia are our territories, this should be acknowledged once and for all and on these territories our flag will always be flown”. The court held that the applicant had called and organised the citizens of Albanian origin to protect the respective flag with their lives, thereby, he had encouraged the violent events of 9 July 1997 in which three lives had been lost, many citizens injured and considerable damage caused. He had caused a feeling of insecurity and fear among the citizens of Macedonian origin. He had been aware in advance of the serious consequences which his speech might have and had actually provoked. There had been a connection between the meeting of 24 May 1997 and the events of 9 July 1997 as it was clear from the evidence that the set up of the central crisis headquarters, shelters for the injured, night shifts and different strategies how to defend the flag had been planned and undertaken by the applicant. Furthermore, the two villagers who had been “on duty” to protect the flag on the night of 9 July 1997 gave evidence that a person who had identified himself as being a messenger of the applicant had asked one of them, Mr F., to be on the night shift of 8/9 July 1997 for the protection of the flag of the Republic of Albania. For this purpose he had received a proxy with the stamp and signature of the applicant. The name of the second witness Mr B. had also been put on the proxy. In the Town Hall Mr F. and Mr B. had been instructed by Mr K. from the village of Lakavica to watch over the flag until 6 a.m. and to inform the applicant in case they noticed something suspicious. Mr F. had been in a possession of a gun - “Walter”, calibre 7.65 with no licence. The court concluded that the applicant was determined to protect the flag of the Republic of Albania despite the Constitutional Court’s decision. As an elected mayor of a town with mixed population instead of promoting an inter-ethnic co-operation and tolerance he had called the citizens of Albanian ethnic origin to resist a lawful police action and had organised armed resistance against the implementation of the Constitutional Court’s decision. The applicant appealed to the Skopje Appellate Court. He argued that his rights to freedom of expression and freedom of assembly guaranteed by Articles 16 and 21 of the Constitution had been violated. The main reason to organise the meeting of 24 May 1997 had been to express his discontent with the Constitutional Court’s interim order of 21 May 1997. The violent events of 9 July 1997 had not been provoked by his speech and actions but by the police action. The “civil night shifts” had been organised to watch over and report if somebody or the police attempted to remove the flags. On 5 February 1998 the Appellate Court upheld the lower court’s judgment. The sentence for having stirred up, as a public official, national, racial and religious hatred, disagreement and intolerance was reduced to four years’ imprisonment; the sentence for having organised resistance against a lawful decision or activity of a State institution was reduced to three years’ imprisonment; and the sentence for not having executed, as a public official, the Constitutional Court’s decision was reduced to two years’ imprisonment on the ground that the applicant had no previous criminal record. The applicant’s overall sentence was reduced to seven years’ imprisonment. The court held that the applicant was not punished because he had expressed his opinion or organised an assembly, but because he, as a public official, had stirred up national, racial and religious hatred, disagreement and intolerance by his speech of 24 May 1997 addressed to the citizens of Albanian origin by which he encouraged a group of citizens to criminal activities. As a result there were public riots and disorder on 26 May and 9 July 1997. Furthermore, he, as a public official, had refused to execute the Constitutional Court’s decision and had organised resistance against a lawful decision and activity of a State institution. In particular, he had planned and set up central and regional branches of the crisis headquarters and armed shifts for the protection of the flag of the Republic of Albania. On 12 May 1998 the Supreme Court dismissed the applicant’s appeal on points of law, holding that the lower courts’ judgments were precise, consistent and reasoned. On 2 March 1998 the applicant availed himself of his right to submit constitutional complaint concerning the alleged violation of his right to freedom of expression. On 8 April 1998 the Constitutional Court dismissed his complaint. The court found, inter alia, that: a) the applicant had not informed the Local Council and the Government about the unconstitutionality of the decision to display the flags of the Republics of Albania and Turkey and had implemented it; b) had not implemented the interim order of the Constitutional Court of 21 May 1997; c) at the public meeting which had been organised by him and where he delivered his speech, the Albanian anthem had been played, the flag of the Republic of Albania flown, but the Macedonian flag had not been flown; d) from the content of his speech it was clear that he had conveyed a message that the Albanian population was endangered, that it should fight to defend the flag and promised that Gostivar would become an Albanian town; e) organised armed shifts and central and regional headquarters for the protection of the flag of the Republic of Albania and planned resistance in case of an attempt for its removal; and f) prompted by the applicant’s speech and actions the citizens of Albanian origin offered armed resistance on 9 July 1997 which resulted in three lives being lost, many people injured and substantial material damage being caused. The court, inter alia, stated: “... [The limits of the right to respect for freedom of expression as provided by the Constitution read as a whole, as well as, the Convention are based on] the enforcement of the principle of legality set out in Article 14 § 1 of the Constitution of the Republic of Macedonia (“No person may be punished for an action which was not considered as an offence by law, or other legislation prior to being committed, and for which no sanction has been foreseen”) together with the proscription of actions that impinge upon the rights and freedoms of others and other values guaranteed by the Constitution [that should be] proportionate to the need in a democratic society. ...this is foreseen in Article 2 of the Penal Code of the Republic of Macedonia, which sets out the basis and limits of the criminal punishment, [and] under which “The protection of freedoms and rights of peoples and of other fundamental values, and the enforcement of sanctions [that should be] proportionate to the need to prevent crime provide for the basis and definition of the legal characterisation of criminal offences and sanctions. ... In particular, the way the applicant made a presentation in public and expressed his opinion, the words he used, the place of his appearance, his position, the aim he wished to achieve and the consequences ..., as well as, the actions he undertook before and after the protest [examined] as a whole represent an action which is directed against legal order as basis for the enjoyment of all freedoms and rights, and it matches the legal characterisation of the criminal offences of which he had been found guilty and sentenced. The circumstance that the criminal offences had been made out by way of action which at its surface appeared to be an enjoyment of the right of freedom of expression does not represent a ground to justify the applicant’s guilt concerning the criminal offences committed, as it transpires from the facts of the case that his action had resulted in loss of the very content of the public expression as guaranteed and protected by the Constitution. The reason for that, as transpires from the facts of the case, is that the applicant with his publicly expressed opinion had not given his intellectual or political stance, nor had [his action] represented a way of intellectual or political persuasion of the persons attending the assembly, but had directly called the citizens of Albanian ethnic origin to disobey or, evenmore, fight against public order, thus causing intolerance, friction and hatred among the citizens of Gostivar in the situation of already existing sensitive inter-ethnic tension, and the feeling of insecurity among the citizens of Albanian ethnic origin, as well as, among the citizens of Macedonian ethnic origin, which all together had the event of 9 July 1997 as its tragic epilogue...” On 4 February 1999 the Parliament adopted the Amnesty Act following which the applicant was granted amnesty and dispensed from having to serve his prison sentence. He was released on 5 February 1999 after having served one year and three months. Article 16 of the Constitution of the Republic of Macedonia guarantees the freedom of belief, conscience, opinion and public expression. Article 21 guarantees the right to peaceful assembly. Article 110 §§ 1 and 2 provide that the Constitutional Court is competent to decide on the conformity of the Government regulations and decisions with the Constitution and the laws, whereas § 3 of the same Article sets out the Constitutional Court’s competence to deal with complaints from individuals concerning violation of their rights and freedoms to communication, conscience, opinion and public expression, political association and activities, as well as prohibition of discrimination on the grounds of gender, race, religion or national, political or social affiliation. Article 115 provides, inter alia, that the citizens directly and through representatives participate in the decision-making in respect of the issues of local relevance. This concerns in particular: the urban planning, communal activities, culture, sport, social security and child care, nursery, primary education, basic health care and other fields determined by the respective law in the units of local self-government. Article 319 on stirring up national, racial and religious hatred, disagreement and intolerance, as far as relevant, provides as follows: “1. Any person who stirs up national, racial and religious hatred, disagreement and intolerance by coercion, ill-treatment, duress, who insults national, ethnic and religious symbols, or damages monuments and cemeteries, or in any other way stirs up national, racial and religious hatred, disagreement and intolerance shall be punished with one to five years’ imprisonment. 2. A person who commits the offence set out in § 1 of this section by abusing his official position or power and thereby causes riots and violence against people or huge material damage shall be punished with one to ten years’ imprisonment.” Article 377 on the non-execution of a judicial decision, as far as relevant, provides as follows: “... 3. Any official or person who is under a duty to execute a decision of the Constitutional Court of the Republic of Macedonia and who refuses to do so shall either be fined or punished with up to three years’ imprisonment. 4. A person who commits the offence set out in Article 377 § 3 shall be punished with one to five years’ imprisonment when the committed offence seriously impinges upon the rights of others or causes a considerable damage.” Article 387 on organising resistance, as far as relevant, provides as follows: “1. A person who organises other people to offer resistance or encourages them to disobey a lawful decision or an order of a State body shall be fined or punished with up to three years’ imprisonment. 2. A person shall be sentenced to from one to five years’ imprisonment if he does not execute a lawful decision or an order of a State body or ... when the offence has been committed by a leader of a group.” Article 526 provides, inter alia, that a person sentenced to a term of imprisonment or found guilty but dispensed from having to serve a prison sentence shall have the right to be compensated for being unlawfully convicted provided that on the re-opening of the criminal proceedings against him the court decides to terminate them or the person is being acquitted. Article 530 provides, inter alia, that a person shall have the right to be compensated for being unlawfully detained if: a) he has been detained pending trial, but the criminal proceedings against him are terminated or he is being acquitted; and b) he has already served his prison sentence but on the re-opening of the criminal proceedings against him he was sentenced to a shorter term of imprisonment, or not sentenced to a term of imprisonment. The law provides, inter alia, that the State flag may only be displayed during the bank holidays, public celebrations, sport and cultural events and private celebrations of the citizens. Section 44 of the Law on Local Self-Government provides that when a local council adopts a decision or regulation which contravenes the Constitution or the laws the mayor is under a duty to report this to the Government within fifteen days from the day the impugned decision or regulation is adopted. Section 1 of the Amnesty Act of 4 February 1999 grants amnesty to all persons convicted under Articles 319, 377 and 387 of the Penal Code for having stirred up national, racial and religious hatred, disagreement and intolerance, and/or for not having executed a judicial decision, and/or for having organised other people to resistance and disobedience of lawful decisions, or orders of a State body. Section 2 provides that the prison authorities where the convict, referred to in section 1 of this Act, is serving a prison sentence shall, ex officio, start the proceedings for his liberation. Article 113 provides that a person who has been granted amnesty shall no longer be criminally prosecuted for that offence, or shall have his or her sentence reduced accordingly, or shall be dispensed from having to serve a sentence. In addition, the judgement against him or her might be deleted from the police record. | 0 |
train | 001-58913 | ENG | GBR | GRANDCHAMBER | 1,999 | CASE OF HOOD v. THE UNITED KINGDOM | 1 | Violation of Art. 5-3;No violation of Art. 5-4;Violation of Art. 5-5;Not necessary to examine Art. 13;Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | John Freeland;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney | 7. The applicant, David Hood, is a British national born in 1970. He resides in the United Kingdom. At the relevant time, he was a soldier with the regular forces of the British army. 8. Prior to the events in question, the applicant went absent without leave from his unit in Germany three times. Prior to his third absence, he had been remanded for trial by court martial on an assault charge (later abandoned), he remained absent for almost two and a half years and he gave himself up to the civilian police in December 1993. 9. On 11 May 1994 the applicant did not return after two weeks’ leave (his fourth absence without leave). On 27 November 1994 he was arrested at his home by the civilian police and on 28 November 1994 he was taken by army escort to Brompton Barracks. Before the Court, the parties disputed whether the applicant was then brought before his commanding officer on 29 November 1994 pursuant to Rule 4 of the Rules of Procedure (Army) 1972 (see paragraph 29 below). 10. The applicant remained in close arrest until his court martial. He was detained in a cell in a guardroom under the supervision of a guard apart from certain occasions when he was taken to hospital for psychiatric care. 11. In or about December 1994 the applicant was informed that he would have to appear before the unit adjutant after Christmas. He retained a solicitor prior to Christmas, who advised him until 17 January 1995. On 4 January 1995 the applicant appeared before the unit adjutant and was given the abstract of evidence. He was told that he should read the abstract and check that it was accurate. The applicant was cautioned pursuant to Rule 10 of the Rules of Procedure (Army) 1972 (see paragraph 32 below). 12. Acting on his original solicitor’s advice, the applicant prepared his own statement and obtained a statement from his girlfriend, which statements were completed on 4 and 19 January 1995 respectively. The applicant submitted both statements to the adjutant on 20 January 1995, which statements were then attached to the abstract of evidence. The applicant was then remanded for trial by court martial by his commanding officer and he applied for legal aid from the military authorities. The charge sheet, dated 25 January 1995 and signed by his commanding officer and on behalf of the convening officer, recorded two charges of absence without leave and two of desertion contrary to the Army Act 1955. 13. Although the applicant instructed his present solicitor in early February, the latter did not commence work for the applicant until legal aid was granted by the Ministry of Defence by letter dated 14 February 1995. 14. By notice dated 17 March 1995 a district court martial was convened to try the applicant on the charges. The court martial took place on 3 and 4 April 1995. The assistant prosecuting officer was the unit adjutant. The applicant, who was legally represented, pleaded not guilty. 15. During the court-martial hearing, the applicant’s solicitor challenged (under section 78 of the Police and Criminal Evidence Act 1984) the admission into evidence of the statements of the applicant and his girlfriend. The judge advocate (having heard evidence from the unit adjutant and the applicant’s representative) found that Rule 10 of the Rules of Procedure (Army) 1972 had been followed. Given the applicant’s legal representation at the relevant time and the procedures followed, the judge advocate could not see “how a fairer situation could have arisen” and, accordingly, he rejected the applicant’s challenge. The judge advocate also clarified during the court martial that “we can take it as an agreed fact that the adjutant or the assistant adjutant will either be the prosecuting or assistant prosecuting officer in any court martial”. The applicant was convicted on the two charges of absence without leave and on one of the charges of desertion, and the remaining charge of desertion was reduced to one of “absent without leave”. He was sentenced to be imprisoned for eight months and to be dismissed from the service, the sentence expressly taking account of the period of close arrest immediately preceding the court martial. 16. After confirmation and promulgation of the conviction and sentence, the applicant petitioned the Army. By letter dated 13 July 1995 the applicant was informed that his petition to the Army Board had been rejected. His leave application to the single judge of the Courts-Martial Appeal Court was rejected on 13 September 1995 and his further appeal to the full Courts-Martial Appeal Court was also refused on 18 March 1996. 17. The seventy-second day of the applicant’s detention fell on or around 7 February 1995. Accordingly, and pursuant to Rule 6 of the Rules of Procedure (Army) 1972 and paragraph 6.045(c) of the Queen’s Regulations (see paragraphs 31 and 38 below), a direction from the convening officer was completed on 3 February 1995 attaching an authorisation from the Commander in Chief, the latter of whom directed the applicant’s continued detention “to prevent him absconding” before trial (“the delay report”). 18. Having requested a copy of the delay report and informed the authorities of his intention to apply for a writ of habeas corpus, the applicant’s solicitor issued those proceedings on 17 February 1995 challenging mainly the regularity of the delay report. That report was received by the applicant’s solicitor on 20 February 1995, following which further submissions were made to the High Court. 19. On 21 February 1995 the High Court rejected the application. The court found, inter alia, that the delay report had been properly completed in a timely fashion. It noted that the expressed reason for the applicant’s continued detention was to prevent his absconding and found that “perfectly understandable” given the charges against him. 20. At the relevant time the provisions governing the detention and trial of members of the army were contained in the Army Act 1955 (“the 1955 Act”), in the Rules of Procedure (Army) 1972 (“the 1972 Rules”) and in the Queen’s Regulations for the Army 1975 (“the Queen’s Regulations”). 21. Since the applicant’s court martial, the law has been amended by, inter alia, the Armed Forces Act 1996 (see the Findlay v. the United Kingdom judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, p. 276, §§ 52-57) and by the Investigation and Summary Dealing (Army) Regulations 1997 (“the 1997 Regulations”). The provisions detailed below are those applicable at the time of the applicant’s arrest, detention and court martial. 22. A warrant for the arrest of a person subject to military law and considered to have deserted or to be absent without leave may be issued by the commanding officer and any such warrant must be addressed to the civilian police. A person arrested pursuant to that warrant must be handed over as soon as is practicable to the military (section 190A of the 1955 Act). 23. The relevant rules vary depending on whether the accused is a non-commissioned officer or soldier or, on the other hand, an officer or warrant officer. In the former case (described below), the commanding officer’s powers are generally broader as regards the investigation and pursuit of charges against an accused. 24. Desertion and absence without leave constitute offences under the 1955 Act. The punishment for the offence of desertion is imprisonment for an unlimited term (subject to the sentencing power of the court martial in question) and that for absence without leave is imprisonment for a maximum of two years. 25. Section 75 of the 1955 Act provides that the allegations against a person subject to military law who is under arrest shall be duly investigated without unnecessary delay and that as soon as may be, either proceedings shall be taken for punishing the offence or he shall be released from arrest. In addition, should that detention last longer than eight days without a court martial being convened, a report (a “delay report”) on the necessity for further delay shall be made by the person’s commanding officer to the prescribed authority in the prescribed manner and a similar report shall be made to the same authority and in the same manner every eight days until a court martial is assembled or the offence is dealt with summarily or the accused is released from detention. 26. Any allegation that the person subject to military law has committed an offence under the 1955 Act must be reported in the form of a charge to that person’s commanding officer and, before any action is taken, the commanding officer must investigate the charge (section 76). 27. After investigation, a charge (which cannot be dealt with summarily) may be dismissed by a commanding officer if he is of the opinion that it ought not to be proceeded with. Moreover, if it appears to the commanding officer that proceedings in respect of the matters to which the charge relates could be, and in the interests of the better administration of justice ought to be, taken against the accused otherwise than under the 1955 Act, the commanding officer may stay further proceedings (sections 77 and 77A). 28. If the commanding officer has not stayed the charge and if the charge is not one which can be dealt with summarily and it has not been dismissed or if it is a charge which can be dealt with summarily but the commanding officer is of the opinion that it should not be so dealt with, he shall take the “prescribed steps” with a view to the charge being tried by court martial (section 78(1) and (2)). Dealing summarily with a charge includes taking evidence, reducing it to writing, deciding as to the guilt or innocence of the accused and rendering sentence (section 78(3)). However, where the commanding officer has taken steps to have the charge tried by court martial, any higher authority to whom the case is forwarded may refer the charge back to the commanding officer to be tried summarily if the charge is one that can be dealt with summarily (section 78(6)) or with a direction to dismiss the charge or to stay all further proceedings therein. 29. Rule 4 of the 1972 Rules provides that when a person is detained by a military authority, his commanding officer shall, unless it is impracticable, within forty-eight hours of becoming aware that he is so detained have such person brought before him, inform him of the charge against him and begin to investigate it. If the investigation has not begun within the forty-eight hours, the commanding officer must report the case to a higher authority together with the reasons for the delay in commencing the investigation (Rule 4(2)). 30. The report to which section 75 of the 1955 Act refers shall be signed by the commanding officer of the person detained and shall be sent to the person who would be responsible for convening the court martial (Rule 5). According to Schedule 1 to the 1972 Rules the report must, inter alia, specify whether the accused is in close or open arrest, the reasons for his detention, certain details about the progress of the investigations and of the preparation for trial together with the reasons for the delay since the last report. 31. The accused shall not be held in arrest for more than seventy-two consecutive days without a court martial having been convened unless the convening officer directs in writing, citing reasons, that the accused shall not be released from detention (Rule 6). 32. Rule 10(1) provides that an abstract of evidence shall be made by the commanding officer or by another officer on the direction of the commanding officer. The accused shall not be present while the abstract of evidence is being made and it shall consist of a signed statement by, or a précis of the evidence of, each witness whose evidence is necessary to prove the charge. Once compiled, the accused is given (normally by the officer who compiled the abstract) a copy and the accused is cautioned as follows: “This is a copy of the abstract of evidence in your case; you are not obliged to say anything with regard to it unless you wish to do so, but you should read it and, when you have read it, if you wish to say anything, what you say will be taken down in writing and may be given in evidence.” (Rule 10(2) of the 1972 Rules) 33. Statements submitted by the accused (including those of witnesses which he wishes to be included in the abstract) shall be attached to the abstract of evidence and shall thereafter form part of it (Rule 10(4)). The pamphlet entitled “Rights of a Soldier” (which is given to accused persons and which is available in the cells in the guardroom) describes the purpose of the extract of evidence as, inter alia, to “provide a brief for the prosecutor at trial” and to inform the accused of the evidence which will be given at trial. 34. The prescribed steps to be taken by a commanding officer for sending a case for trial by court martial include, in accordance with Rule 13, sending to higher authority a draft charge sheet (signed by the commanding officer), the abstract of evidence, a statement of character together with the service record of the accused and a recommendation as to how the charge should be proceeded with (for example, by district or general court martial). It is the convening officer who finally decides on the charges to be retained against an accused and he generally does so by countersigning the draft charge sheet submitted by the commanding officer. 35. Paragraph 6.005 of the Queen's Regulations states that the mere allegation that a person subject to military law has committed an offence does not, of itself, necessarily warrant placing that person under arrest of any description. If the offence is trivial, the offender is to be informed of the charge and required to report to the unit orderly room at a specific date and time. If arrest is necessary, the category of arrest is to be determined in the interests of the service and by the nature of the alleged offence. Generally, a person is to be placed under close arrest only when confinement is necessary to ensure his safe custody or to maintain discipline. 36. The circumstances which would warrant placing an accused under close arrest include those where the accused is deliberately trying to undermine discipline, is likely to injure himself or others or is likely to suborn witnesses; where he has not surrendered but has been apprehended as an illegal absentee or has habitually absented himself; and where, having regard to the nature or prevalence of the alleged offence which is under investigation, it is undesirable in the interests of discipline that he should be at large or allowed to consort with his comrades (also paragraph 6.005). 37. Paragraph 6.007 provides that (subject to, inter alia, the general principle that the accused is not to be unnecessarily held under arrest) commanding officers are responsible for ensuring that in each case the need to keep an accused under arrest, together with the form of that arrest, is kept under constant review. As necessary, the form of arrest may be changed or the accused released. 38. Paragraph 6.045(c) provides that the person into whose custody the accused is committed is to inform the accused of the rank, name and unit of the person by whom he is alleged to have committed the offence and the nature of the allegation. Paragraph 6.047 provides that a charge preferred against an officer or soldier is to be dealt with at the earliest opportunity. Accordingly, it is provided, inter alia, that on the receipt of every delay report the convening officer is to satisfy himself (if the accused is in detention) as to the necessity of the ongoing detention (subsections (a) and (b)). On receipt of the fourth delay report, or, in any event, after forty days’ detention, the convening officer is to make a special report to his/her superior officer outlining the reasons for the delay, when it is expected the accused will be brought to trial and the reasons for the continued detention (subsection (c)). If an accused is not brought to trial by the seventy-second day, the latter superior officer must, in turn, make a special report to the Commander in Chief by that day (subsection (d)). On receipt of such special reports, the superior officer and Commander in Chief mentioned are to take all practical steps to expedite the trial of the accused (subsection (e)). 39. Where an accused has been in detention for seventy-two consecutive days without a court martial being convened, a direction in accordance with Rule 6 of the 1972 Rules not to release the accused can only be given with the prior approval of the Commander in Chief. This report is to contain the reasons for the delay, when it is expected the accused will be brought to trial and the reasons for the continued detention (paragraph 6.047(f)). Delay reports are not, as a rule, copied to the accused or his representative. 40. Habeas corpus is a procedure whereby a detained person may make an urgent application for release from custody on the basis that his detention is unlawful. Jurisdiction is normally exercised by the Divisional Court of the Queen’s Bench Division of the High Court and habeas corpus is available to persons in military custody (R. v. Royal Army Service Corp. Colchester, ex parte Elliott [1949] 1 All England Law Reports at p. 373). 41. The scope of this review will depend on the context of the particular case and, where appropriate, the terms of the relevant statute under which the power of detention is exercised. However, the court will examine the legal validity of an accused’s detention and whether there is sufficient evidence to detain him, and, if the power to detain depends on the prior establishment of an objective fact, the court will decide whether that fact exists (Khawaja v. Secretary of State for the Home Department [1984] Appeal Cases at p. 74). 42. Legal aid is not available from the military authorities for applications to the civilian courts, including applications for writs of habeas corpus. However, legal aid from the civilian authorities is available for such proceedings. A person will not be granted representation for the purposes of any such proceedings unless it is considered that there are reasonable grounds for taking, defending or being a party to proceedings (section 15(2) of the Legal Aid Act 1988). Such an application for legal aid will only be approved after all the questions of fact or law arising in the action, cause or matter to which the application relates, and all the circumstances in which the application was made, have been considered (Civil Legal Aid (General) Regulations 1989). 43. An application for an emergency legal aid certificate can be made pursuant to the Civil Legal Aid (General) Regulations 1989. The information furnished must be such as to allow the area director to decide the nature of the relevant proceedings, the circumstances in which it is required, whether the application is likely to fulfil the conditions under which legal aid may be granted and whether it is in the interests of justice that the applicant should as a matter of urgency be granted legal aid. 44. The relevant provisions of the 1955 Act relating to general courts martial are set out in the above-mentioned Findlay judgment (at pp. 272-75, §§ 32-51). These provisions (summarised at paragraph 45 below) apply equally to a district court martial with certain relevant differences. A district court martial comprises a president and a minimum of two other officers and the minimum rank of those members is lower than for a general court martial. 45. Central to the court-martial system under the 1955 Act was the role of the “convening officer”. This officer (who had to be of a specified rank and in command of a body of the regular forces or of the command within which the person to be tried was serving) assumed responsibility for every case to be tried by court martial. That officer had the final decision on the nature and detail of the charges to be brought and the type of court martial required, and was responsible for convening the court martial. The convening officer would draw up a convening order, which would specify, inter alia, the date, place and time of the trial, the name of the president and the details of the other members, all of whom he could appoint. Failing the appointment of a judge advocate by the Judge Advocate General’s Office, the convening officer could appoint one. He also appointed, or directed a commanding officer to appoint, the prosecuting officer. Prior to the hearing, the convening officer was responsible for sending an abstract of the evidence to the prosecuting officer and to the judge advocate, and could indicate the passages which might be inadmissible. He procured the attendance at trial of all witnesses to be called for the prosecution. When charges were withdrawn, the convening officer’s consent was normally obtained, although it was not necessary in all cases, and a plea to a lesser charge could not be accepted from the accused without it. He had also to ensure that the accused had a proper opportunity to prepare his defence, legal representation if required and the opportunity to contact the defence witnesses, and was responsible for ordering the attendance at the hearing of all witnesses “reasonably requested” by the defence. The convening officer could dissolve the court martial either before or during the trial, when required in the interests of the administration of justice. In addition, he could comment on the proceedings of a court martial. Those remarks would not form part of the record of the proceedings and would normally be communicated in a separate minute to the members of the court, although in an exceptional case, where a more public instruction was required in the interests of discipline, they could be made known in the orders of the command. The convening officer usually acted as confirming officer also. The findings of a court martial were not effective until confirmed by the confirming officer, who was empowered to withhold confirmation or substitute, postpone or remit in whole or in part any sentence. | 1 |
train | 001-121610 | ENG | LVA | CHAMBER | 2,013 | CASE OF GRIMAILOVS v. LATVIA | 3 | Preliminary objections joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies;Six month period);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Non-pecuniary damage - award | David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva | 5. The applicant was born in 1957 and lives in Jelgava. 6. It appears that in an unrelated incident on 23 June 2000 the applicant broke his spine. He underwent surgery to have a metal implant inserted into his back for support. It appears that following the operation he could move unaided. He was certified as being Category 2 disabled. 7. On 17 December 2002 a note was made for the first time in the applicant’s medical records that he could not move without a wheelchair. 8. On 23 January 2003 the applicant was certified as being Category 1 disabled (the most severe level of disability). His disability was reassessed on two further occasions, 13 February 2004 and 22 February 2006. 9. On 10 September 2001 at approximately 3 p.m., two traffic police officers, E.Š. and O.Ž., attempted to stop the applicant, who had exceeded the speed limit in Rīga and appeared to be driving under the influence of alcohol. He failed to stop on their instructions and continued driving. The police officers set out to follow him out of the city onto the Rīga-Jelgava motorway. They eventually overtook the applicant’s car and pulled it over to the side of the road until it came to a halt. Both vehicles were by then next to an apartment building on a residential street in Jaunolaine. 10. According to the Government, both police officers then saw a firearm in the applicant’s inner left jacket pocket, and proceeded to push him to the ground using unspecified restraint techniques (speciālie cīņas paņēmieni) and handcuffed him. They then called the local police to the scene to collect evidence. The applicant was breathalysed on the spot and then taken to a police station in Olaine. 11. The applicant did not agree with the Government’s version of events concerning his possession of a firearm. He submitted that the police officers had kicked him in the back several times, hurting him badly, before finding out that he was disabled. He alleged that when he had invited them to verify his documents, which were in his wallet in his car, the officers had planted a firearm on him in an attempt to evade criminal liability for having assaulted a disabled person. The applicant denied having had the firearm. He maintained that if he had been keeping a firearm, he would have disposed of it during the car chase. 12. On 11 September 2001 the applicant was taken to a public hospital in Rīga (Rīgas 1. slimnīca), where an X-ray of his spine was carried out. His state of health was described as being “post-spinal fixation”. The fixing screws that held the metal implant supporting his spine in place had been broken. He also suffered from a spinal contusion and lower back pain. Lastly, it was noted that a consultation with a specialist was necessary. 13. On 11 September 2001 at 5.40 p.m., the applicant was transferred to a specialist traumatology and orthopaedics hospital in Rīga (Traumatoloğijas un ortopēdijas slimnīca). He told a specialist that the day before he had been fleeing from the police. Some officers had stopped him, had pulled him out of the car and had pushed him to the ground, which had led to his back making a hyperextensive movement, in other words, it had bent too far backwards. The applicant complained of lower back pain on his right side and said that he was unable to move his right leg because of the pain. Following an examination by a specialist, the applicant was diagnosed with the following: i) a hyperextension injury and contusion to the lower back; ii) a transverse process fracture (resulting from rotation or extreme lateral bending) to the L3 vertebra, iii) a compression fracture (flexion fracture pattern) to the L1 vertebra, previously fused by transperpendicular fixation surgery, the metal implant having become dislodged and screws in the Th12 and L3 vertebrae having been broken, and iv) intoxication. An Xray revealed that the fracture to the applicant’s L1 vertebra had been fused and fixated with rods and eight screws. Four screws in the applicant’s Th12 and L3 vertebrae had been broken. The metal implant had become dislodged. While at the hospital, the applicant received various types of medication. 14. On 12 September 2001 the applicant was discharged from the hospital for outpatient treatment with recommendations to continue taking medication and to wear a fixating belt. 15. On 12 September 2001 at 7.15 p.m., the applicant was transferred to Rīga Central Prison. Upon admission, he was examined by a doctor, who noted the diagnosis of the specialist hospital and placed the applicant in the surgical ward of the Prison Hospital located within the grounds of the prison. The applicant’s overall state of heath was described as satisfactory. 16. On 14 September 2001 the applicant complained of severe lower back pain and said that he could not lift his right leg or walk. His state of health was described as moderately severe. A procaine blockade (an anaesthetic which affects the peripheral nervous system) was administered to him. 17. On 19 September 2001 a further procaine blockade was administered to the applicant. 18. On 21 September 2001 his pain lessened and he could stand up and walk. On the same day an X-ray was carried out and no injuries other than those noted by the specialist hospital (see paragraph 13 above) were found. An X-ray of his lungs was also carried out, the results of which were clear. 19. On 25 September 2001 the applicant had cold-like symptoms and complained of lower back pain. He also said that he could not feel his right thigh. Treatment was prescribed to him for an acute respiratory illness. 20. On 26 September 2001 an infiltration in the applicant’s right hip was detected. His fever had been caused by the post-injection infiltration. Over the following two days, the applicant was consulted by a neurologist and a psychiatrist. 21. On 28 September 2001 a surgical procedure was carried out to relieve the applicant’s pain, which continued to persist after that date and until 9 October 2001. On the latter date the applicant’s overall state of health was described as satisfactory and he could walk again. 22. On 10 October 2001 the applicant was discharged from the Prison Hospital, but remained in custody. 23. On 10 September 2001, after the applicant was taken to the police station in Olaine, both traffic officers were questioned by an inspector of the Olaine police within the criminal proceedings concerning the firearm charge (see paragraph 33 below). 24. E.Š. was the first to make a statement, on 10 September 2001 between 10 and 10.30 p.m. His version of events was as follows. In a residential area in Jaunolaine, he had taken the applicant by the hand and had made him step out of the car. Both he and his colleague had seen a firearm in the applicant’s inner left jacket pocket. They had both proceeded to push him to the ground and to handcuff him. His colleague, O.Ž., had taken the firearm out of the jacket pocket. They had then called the local Olaine police, who had arrived and had confiscated the firearm. The local police had also found a bullet in the car the applicant had been driving. Lastly, the police officers breathalysed the applicant and found that he had been under the influence of alcohol. 25. In addition, in a report to his superior, which was drafted on the same day, E.Š. noted that restraint techniques had been used on the applicant because a firearm and bullets had been found in his inner left jacket pocket. 26. O.Ž. made his statement on 10 September 2001, between 10.40 and 11.15 p.m. His evidence was very similar to that of his colleague. He also stated that they had both seen the firearm in the applicant’s jacket and had pushed the applicant to the ground and had handcuffed him. O.Ž. had then taken the firearm and the local police had confiscated it. He also noted that the applicant had been under the influence of alcohol. He had found out later that the local police had also found a bullet in the car. 27. In addition, in a report to his superior, which was drafted on the same day, O.Ž. noted that when he had seen the firearm, he had taken it out of the applicant’s jacket. He added that the applicant had been handcuffed for around forty minutes as he had been behaving aggressively. Lastly, he mentioned that the applicant had agreed to be breathalysed on the spot. 28. The applicant was first questioned by the inspector of the Olaine police on 11 September 2001 at 9.50 a.m. He submitted that he had been illtreated upon his arrest and said that he was not in a position to make a statement because he felt severe back pain. He mentioned the fact that he had previously undergone spinal surgery. At 10.15 a.m. the interview was terminated and the applicant was then taken to hospital (see paragraphs 12 et seq.). 29. During his subsequent questioning by prosecutor J.D., on 21 September 2001 (see paragraph 37 below), the applicant maintained his allegation that he had been ill-treated upon arrest. 30. On 9 November 2001 an expert commenced the forensic medical examination, which had been ordered on 10 October 2001 by prosecutor J.D. It appears that it was completed on 15 November 2001, when report no. 46-4528 was issued. The examination was based on the applicant’s medical records from the public and specialist hospitals, as well as his records from the Prison Hospital (see paragraphs 12 to 22 above). It appears that the applicant was not examined in person. The expert concluded that the applicant had not sustained any injuries. In reaching that conclusion, the expert noted that she had not taken into account the first diagnosis made by the specialist hospital that the applicant had “a hyperextension injury and contusion to the lower back” (see paragraph 13 above) because: “[I]t [was] not confirmed by objective clinical symptoms or by visible bodily injuries, but rather was based on the applicant’s complaints relating to the dislodging of the metal implant following osteosynthesis surgery and [the dislodging] cannot be regarded as bodily injuries on the grounds of instructions concerning the forensic medical examination.” 31. She had also not taken into account the second diagnosis made by the specialist hospital that the applicant had “a fracture to the L3 vertebra” (see paragraph 13 above) as it had been an old fracture and had not been connected to the events of 10 September 2001, a fact confirmed by a specialist’s opinion of 15 November 2001. It appears that the results of the opinion were not made available to the applicant. 32. On 27 November 2001 prosecutor J.D. decided to refuse the institution of criminal proceedings. Her decision was worded as follows: “The materials regarding [the applicant’s] complaint that officers O.Ž. and E.Š. had assaulted him during his arrest on 10 September 2001 have been separated from the criminal case file. In their witness statements, O.Ž. and E.Š. categorically denied that they had assaulted the applicant. None of the officers had assaulted him. Furthermore, according to forensic report no. 4528, dated 9 November 2001, no injuries were found on the applicant’s body. The fracture to the applicant’s L3 vertebra was not taken into account for the purposes of the forensic report, because it was old and was not connected to the injuries of 10 September 2001. In the circumstances, the actions of E.Š. and O.Ž. do not contain the elements of a criminal offence and there is no basis on which to institute criminal proceedings. Considering the above, and in accordance with section 5 and section 212 of the Code of Criminal Procedure, it is decided: 1. to refuse to institute criminal proceedings into the applicant’s allegations of assault on 10 September 2001; 2. to notify the applicant of this decision.” 33. On 10 September 2001 the Olaine police instituted criminal proceedings against the applicant in connection with the illegal acquisition and storage of a firearm. It appears that while at the police station, the applicant was breathalysed for a second time. 34. On the same date an initial forensic examination of the firearm took place, which had been ordered by the Olaine police. Three further forensic examinations followed in the same month. The examination reports included a note stating that the firearm and a bullet had been confiscated from the car the applicant had been driving. The examinations revealed that there had been no fingerprints on the firearm and that the applicant’s jacket had not contained any traces of firearm oil, which had been found on the firearm. 35. On 12 September 2001 the Rīga Regional Court (Rīgas apgabaltiesa) remanded the applicant in custody. He appealed against the order to no avail. 36. On 18 September 2001 the case file was sent to the relevant prosecutor’s office in Rīga (Rīgas rajona prokuratūra). 37. On 21 September 2001 prosecutor J.D. charged the applicant with the illegal acquisition and storage of a firearm. He denied the charge, saying that the police officers had ill-treated him and had then planted the firearm on him. 38. On 8 October 2001 a confrontation took place in which prosecutor J.D. cross-examined the applicant and both traffic police officers; the applicant’s counsel was present. O.Ž maintained statements he had previously made on 10 September 2001 (see paragraph 26 above). The applicant submitted that during his arrest, O.Ž. had pulled him out of the car by his hand, had pulled his hands behind his back and had pushed him to the ground. When he had tried to turn around, an officer had started kicking him in his shoulders and arms. One of the officers had put his feet on his back. He alleged that he had been kicked some five or six times. He had told the officers about his disability and had invited them to verify his documents, which had been in his car. One of the officers had gone to his car and had found his disability certificate. The other officer, who had remained with his feet on his back, had then kicked him again. Afterwards, he had been ordered to stand up and put on his jacket, which had prior to that been in his car. He had been ordered to empty his pockets and had then felt an object similar to a firearm in his inner left pocket, which he had taken out and immediately dropped on the ground. The officers had then asked him if he had found everything, and he had noticed another object of a rectangular shape in the same pocket, which he had also dropped on the ground, which had turned out to be an ammunition clip (aptvere). He had then been handcuffed, breathalysed and handed over to the Olaine police. 39. On 8 October 2001 prosecutor J.D. cross-examined the applicant and E.Š, who maintained statements he had made on 10 September 2001 (see paragraph 24 above); the applicant’s counsel was present. The applicant submitted that during his arrest, he had been kicked some five or six times in his back and arms, and that one of the officers had been standing or kneeling on his back while the other officer had handcuffed him. While in this position, he had made them aware of his disability and one of the officers had proceeded to verify his documents. After some time, they had made him stand up and put on his jacket, which had prior to that been in his car. The officers had searched him and he had felt an object similar to a firearm in his inner left pocket, which he had taken out and immediately dropped on the ground. The officers had then asked him if he had found everything and he had noticed another object of a rectangular shape in the same pocket, which he had also dropped on the ground. 40. On 10 October 2001 prosecutor J.D. decided to order a forensic medical examination to determine the injuries sustained by the applicant. In her decision, she noted that the applicant’s statements suggested that the police officers had pulled him out of the car, had pushed him to the ground and had kicked him no less than five times in the back, shoulders and arms. In addition, she noted that the applicant had submitted that one of the officers had been standing on the exact spot where he had had his injury. She also noted that the applicant had been Category 2 disabled and at the time of the arrest had been under the influence of alcohol. The decision to order the forensic examination was received by the competent forensic authority on 8 November 2001. 41. On 22 October 2001 the applicant was released pending trial in connection with the firearm charge, but was remanded in custody in relation to other charges (see paragraph 48 below). 42. On 5 November 2001 prosecutor J.D. decided to separate the applicant’s allegations of ill-treatment from his criminal case file (see, as concerns the investigation, paragraphs 23 et seq. above). In her decision, she noted that the applicant had been arrested on 10 September 2001 for a traffic offence, and that the police officers had found a firearm in his jacket pocket. She also noted the applicant’s submissions about his alleged illtreatment and the fact that the traffic officers had denied the allegations. Lastly, she noted that although a forensic medical examination had been ordered, it had not yet been carried out. As it was her view that the results of the examination would not affect the qualification of the applicant’s offence, she separated the materials concerning the alleged ill-treatment from the case file and sent them to the Olaine police for additional review. 43. There is no information available as to whether any review was carried out by the Olaine police. 44. On 8 November 2001 prosecutor J.D. sought the advice of an expert to answer the question “Would the driver of a BMW 535 driven on wet tarmac at a speed of 200 to 230 km/h lose control, if a window is opened, either manually or electronically, to throw something out?” The expert concluded that it was possible in both situations, but that it would be more difficult if the window was opened manually, which was less likely to be the case for the model of car mentioned. 45. On 20 November 2001 prosecutor J.D. issued the final bill of indictment concerning the firearm charge against the applicant. 46. On 22 November 2001 and 8 January 2002 prosecutor J.D. examined the applicant’s request for the criminal proceedings against him to be terminated on the grounds that he was innocent, his guilt not having been proven, and because the firearm did not belong to him. She rejected the request on the basis that the applicant’s guilt had been proven by the case materials in their entirety. There were therefore no grounds to terminate the criminal proceedings. 47. Meanwhile, on 17 September 2001, the Jelgava police instituted criminal proceedings against the applicant in connection with the bodily injury and rape of a minor girl that had taken place on 9 September 2001. 48. It appears that on 22 October 2001 the applicant was remanded in custody in connection with those charges. 49. On an unspecified date the case was sent to the relevant prosecutor’s office in Jelgava (Jelgavas pilsētas prokuratūra). 50. On 28 November 2001 the final bill of indictment was issued concerning the bodily injury and rape charge against the applicant. 51. A trial took place from 24 May to 4 June 2002, and on the latter date the Jelgava Court (Jelgavas tiesa) found the applicant guilty of both (the firearm and the bodily injury and rape) charges and, taking into account his state of his health, sentenced him to five years and six months’ imprisonment, into which a previous suspended prison sentence was also incorporated. 52. As concerns his arrest on 10 September 2001, the applicant told the court that he had been fleeing from the police. He submitted that two police officers had pulled him out of the car in Jaunolaine, had pushed him to the ground and had handcuffed him. While lying down on the ground, he had been kicked hard several times in his back. He then had felt a sharp pain in his back, had told the officers about his disability and had invited them to verify his documents, which they had done. The officers had then made him stand up and put on his jacket, which until then had been lying on the passenger seat. Afterwards, one of the officers had ordered him to empty his pockets. He had felt a gun in his pocket and had immediately dropped it on the ground. The officers had then requested all the contents of his pockets to be emptied. When he had felt another object in his pocket, which had turned out to be an ammunition clip, he had dropped that on the ground as well. 53. As concerns the firearm, the applicant submitted that it had not been his. It had either been planted on him by the police officers in an attempt to evade criminal liability for having assaulted a disabled person, or by someone who had put it in his pocket the day before (during the events surrounding the bodily injury and rape charge). 54. The trial court did not give credence to the applicant’s allegations of ill-treatment by the police officers on the grounds that the forensic examination had concluded that the applicant had not sustained any bodily injuries (see paragraph 30 above). 55. O.Ž. was the only traffic police officer to give evidence before the trial court and relied on his cross-examination with the applicant (see paragraph 38 above). O.Ž. testified that on pulling the applicant out of the car in Jaunolaine, his jacket had opened and O.Ž. had seen an object similar to a firearm in the applicant’s inner pocket. For that reason he had been pushed to the ground using force and handcuffs had been put on him. O.Ž. had then taken the firearm out of the applicant’s inner pocket and had put it on the bonnet of the car. The local police had then been called. 56. In examining the officer’s evidence, the trial court found it consistent and unvaried throughout the preliminary investigation and the trial. They further relied on evidence given by an officer of the Olaine police during the pre-trial investigation, who stated that when he had arrived at the scene the firearm had been on the bonnet of the car and a bullet had been found inside. 57. On 21 October 2002, following an appeal by the applicant, the Zemgale Regional Court (Zemgales apgabaltiesa) upheld the judgment of the trial court. 58. The applicant subsequently lodged an appeal on points of law, but on 2 December 2002 this was dismissed by the Senate of the Supreme Court (Augstākās tiesas Senāts) in a preparatory meeting. 59. From 12 September to 10 October 2001 the applicant was held in the Prison Hospital located within the grounds of Rīga Central Prison. His medical care during that period is described above (see paragraphs 15 to 22 above). 60. In addition, he was also held in the Prison Hospital during the following periods: from 15 November to 3 December 2001; from 19 to 27 December 2001; from 17 to 25 January 2002; from 22 December 2002 to 13 January 2003; from 17 January to 7 February 2004; and from 17 to 24 January 2006. 61. It appears that between the periods of hospitalisation prior to his conviction, he was detained in the prison itself. 62. In the meantime, on 10 October 2001 the applicant’s lawyer applied to a prosecutor seeking permission for the applicant to be transported from the prison to the Commission for Health and Working Capacity Examination (Veselības un darbaspēju ekspertīzes komisija). On 13 November 2001 that prosecutor informed the lawyer that under Regulation of the Cabinet of Ministers no. 358 (1995), transport to the Commission was only permitted for convicted prisoners. Its doctors were not permitted to visit detainees awaiting trial in Rīga Central Prison. 63. On 19 August 2002 the applicant was transferred to Liepāja Prison to serve his sentence, where he remained until 13 December 2002. Upon admission, he requested that he be provided with mobility assistance. He immediately received crutches. By the end of August, with the help of a donation by the local Red Cross, he received a wheelchair. 64. On 13 December 2002 the applicant was transferred to Pārlielupe Prison to continue serving his sentence. He was held in that prison until 27 October 2003, save for a period of twenty-two days when he was in the Prison Hospital (see paragraph 60 above). 65. On 9 April 2003 the local social services in Jelgava (Jelgavas sociālo lietu pārvalde) informed the applicant that a wheelchair had been ordered for him and would be delivered accordingly. 66. On 27 October 2003 the applicant was transferred to Valmiera Prison to continue serving his sentence. He was held in that prison until 21 April 2006, save for two periods of twenty-one and seven days respectively when he was in the Prison Hospital (see paragraph 60 above). 67. In the prison the applicant was placed in “the open living area” (atklātā dzīvojamā zona) in a unit for convicted prisoners with health problems. The applicant shared his cell with another inmate. 68. The facilities in Valmiera Prison were adapted for the applicant’s needs to the following extent: he was allowed to have his meals delivered to his cell instead of having to go to the canteen; he was allowed to attend sauna once a week at special times; every day from 6 a.m. to 10 p.m. he could stay in the open area in his unit and have access to fresh air; a ramp was installed so that he could access the outdoor yard; toilets were adapted for his needs; he was exempted from social work and from every day checkups; the staff of the medical unit visited him in his cell so that he did not need to go to the unit himself. 69. On 29 January 2004 a computerised tomography (CT) scan of the applicant’s spine was carried out at a specialist clinic in Rīga. On two further occasions the applicant was examined at a public hospital in Valmiera. 70. On 2 August 2005 the applicant complained to the National Human Rights Office (Valsts cilvēktiesību birojs) about the conditions of his detention in Valmiera Prison and the adequacy of his medical support. As he had become paraplegic, he could not access the sanitation facilities (including the toilets and shower), library, shop or meeting and telephone rooms. He was also unable to go outside for walks. The applicant complained that he needed two operations, one so that he could walk again and the other to remove the metal implant supporting his spine. On 12 August 2005 his complaint was forwarded to the Prisons Administration (Ieslodzījuma vietu pārvalde). 71. On 2 September 2005 the Prisons Administration replied to the applicant and the National Human Rights Office that his complaints concerning the medical unit of Valmiera Prison were unsubstantiated. The Category 1 disability certificate had been granted to the applicant from 13 February 2005 to 28 February 2006. He had correctly noted himself in his complaint that such surgery could not be performed in Latvia. Furthermore, the medication necessary for acute conditions was available in the medical unit of Valmiera Prison. 72. On 7 September 2005 the National Human Rights Office sent the Prisons Administration a repeated request seeking a comprehensive review of the applicant’s complaints as it had not been done. In particular, answers were required concerning the applicant’s medical and social care and social integration in the prison. 73. On 21 September 2005 the Prisons Administration replied, adding to its previous letter that the applicant had failed to approach the medical staff in Valmiera Prison as concerns the surgery he allegedly needed. It stated that only doctors could ascertain if, where and when the applicant needed surgery and under which circumstances. According to the information in its possession, at that time no real possibility had existed for such surgery to be performed in Latvia. At the same time, it had been aware that the operations requested had not been urgent. The applicant had also been advised to actively engage in therapeutic/remedial gymnastics (ārstnieciskā fizkultūra). As concerns his social care, under domestic law there was no such care in prisons for the disabled and, accordingly, the administration of Valmiera Prison could not appoint someone to assist the applicant. The prison staff did not include social workers. Lastly, it was noted that as far as possible the administration of Valmiera Prison had facilitated the applicant’s life in prison, for example, by exempting him from participating in daily checkups. 74. On 12 October and 7 December 2005 the National Human Rights Office requested further information from the Prisons Administration and the Ministry of Justice concerning social care for disabled prisoners. 75. On 27 January 2006 the National Human Rights Office informed the applicant that, according to the information provided by the Ministry of Justice, domestic law did not contain any provisions for social care for prisoners with disabilities. However, new regulations concerning the issue were in the process of being drafted. 76. On 21 April 2006 the Valmiera District Court (Valmieras rajona tiesa) conditionally released the applicant prior to completion of his sentence (atbrīvot nosacīti pirms termiņa) ten months and seventeen days early, on the grounds that he had served three-quarters of his sentence, had not breached the prison regime (his disciplinary punishments had been removed), had a Category 1 disability and had received a satisfactory reference from the administration of the prison. 77. It appears that the applicant’s medical records contain information received from the State Probation Service in Jelgava suggesting that after his release, the applicant had been seen walking around the city of Jelgava on his own legs and drinking. 78. The Convention entered into force on 3 May 2008, was signed by Latvia on 18 July 2009 and ratified on 1 March 2010. The relevant parts provide: “For the purposes of the present Convention: ... ‘Reasonable accommodation’ means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms; ...” “2. 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 this Convention, including by provision of reasonable accommodation.” 79. In Interim Report of 28 July 2008 (A/63/175), the then UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Mr Manfred Nowak, noted as follows: “50. ... 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 ... ... 53. States have the further obligation to ensure that treatment or conditions in detention do not directly or indirectly discriminate against persons with disabilities. If such discriminatory treatment inflicts severe pain or suffering, it may constitute torture or other form of ill-treatment. ... 54. The Special Rapporteur notes that under article 14, paragraph 2, of the CRPD, 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.” 80. The relevant extracts from the 3rd General Report (CPT/Inf (93) 12; 4 June 1993) by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows: e. Humanitarian assistance “64. Certain specific categories of particularly vulnerable prisoners can be identified. Prison health care services should pay especial attention to their needs.” ... iv) 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.” g. Professional competence “76. To ensure the presence of an adequate number of staff, nurses are frequently assisted by medical orderlies, some of whom are recruited from among the prison officers. At the various levels, the necessary experience should be passed on by the qualified staff and periodically updated. Sometimes prisoners themselves are allowed to act as medical orderlies. No doubt, such an approach can have the advantage of providing a certain number of prisoners with a useful job. Nevertheless, it should be seen as a last resort. Further, prisoners should never be involved in the distribution of medicines. 77. Finally, the CPT would suggest that the specific features of the provision of health care in a prison environment may justify the introduction of a recognised professional speciality, both for doctors and for nurses, on the basis of postgraduate training and regular in-service training.” 81. Recommendation no. R (98) 7 of the Committee of Ministers of 8 April 1998 concerning the ethical and organisational aspects of health care in prison, provides, in so far as relevant: 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. ...” 82. Recommendation CM/Rec (2012) 5 of the Committee of Ministers of 12 April 2012 on the European Code of Ethics for Prison Staff, provides, in particular: D. Care and assistance “19. Prison staff shall be sensitive to the special needs of individuals, such as juveniles, women, minorities, foreign nationals, elderly and disabled prisoners, and any prisoner who might be vulnerable for other reasons, and make every effort to provide for their needs. 20. Prison staff shall ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required. 21. Prison staff shall provide for the safety, hygiene and appropriate nourishment of persons in the course of their custody. They shall make every effort to ensure that conditions in prison comply with the requirements of relevant international standards, in particular the European Prison Rules. 22. Prison staff shall work towards facilitating the social reintegration of prisoners through a programme of constructive activities, individual interaction and assistance.” 83. The European Prison Rules, adopted on 11 January 2006, are recommendations of the Committee of Ministers to member States of the Council of Europe as to the minimum standards to be applied in prisons. States are encouraged to be guided in legislation and policies by those rules and to ensure wide dissemination of the Rules to their judicial authorities as well as to prison staff and inmates. The relevant parts read as follows: Hygiene “19.1 All parts of every prison shall be properly maintained and kept clean at all times. 19.2 When prisoners are admitted to prison the cells or other accommodation to which they are allocated shall be clean. 19.3 Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy. 19.4 Adequate facilities shall be provided so that every prisoner may have a bath or shower, at a temperature suitable to the climate, if possible daily but at least twice a week (or more frequently if necessary) in the interest of general hygiene. 19.5 Prisoners shall keep their persons, clothing and sleeping accommodation clean and tidy. 19.6 The prison authorities shall provide them with the means for doing so, including toiletries and general cleaning implements and materials.” 84. The relevant provisions of the former Code of Criminal Procedure (Kriminālprocesa kodekss), in force until 1 October 2005, read as follows: “A court, prosecutor or investigating authority, in so far as it is within its powers, shall institute criminal proceedings whenever signs of a criminal offence (noziedzīga nodarījuma pazīmes) are discovered, using all means laid down in law with a view to discovering any incidence of a criminal offence and the persons responsible for the criminal offence in order to punish them.” “Criminal proceedings may not be instituted, but instituted proceedings shall be terminated: ... 2) if there are no elements of a criminal offence. ...” “An investigating authority, prosecutor, judge or court shall accept material, applications and declarations concerning a criminal offence that has been committed or planned, including in cases which do not fall under its jurisdiction. In response to the material, applications or declarations received, one of the following decisions shall be adopted: 1) to institute criminal proceedings, 2) to refuse to institute criminal proceedings, 3) to forward the application or declaration to the competent authority. ... Applications and declarations concerning crimes shall be examined immediately, but at the latest within ten days of their receipt. If an expert or audit report or specialist’s consultation is necessary for such examination, applications and declarations shall be examined at the latest within 30 days. ” “A copy of the decision to refuse to institute criminal proceedings ... shall be sent to the applicant and those concerned with an explanation of their right to complain about the decision: a decision adopted by an investigating authority to a corresponding prosecutor, by a prosecutor to a higher-ranking prosecutor, by a prosecutor of the Office of the Prosecutor General to the Prosecutor General, and by a judge to a higher-instance court.” “An individual, the criminal proceedings against whom have been terminated, a victim and his or her representative, as well as an applicant or an institution upon which application the criminal proceedings had been instituted, shall immediately be informed of the termination of the criminal proceedings by a prosecutor or an investigating authority (izziņas izdarītājs), with an explanation of their rights to be acquainted with the decision and with the case materials. ... Those concerned may lodge an appeal to a higher-ranking prosecutor or, if a decision has been taken by a prosecutor of the Office of the Prosecutor General, to the Prosecutor General, within five days of being notified.” “A suspected or an accused individual and their counsel or legal representatives, witnesses, experts, translators, guarantors, as well as a victim, a civil party, a civil respondent, their representatives and other individuals may lodge complaints with a prosecutor about the actions of an investigating authority. The complaints shall be submitted to a prosecutor directly or through the intermediary of the authority against whom the complaint was brought. Complaints may be made either in writing or verbally. In the latter case, the prosecutor or the investigating authority shall write the complaints down in the minutes to be signed by the complainant. The complaint submitted to the investigating authority shall be forwarded, together with written explanations by the latter to the prosecutor. ...” “The prosecutor supervising the investigation shall review a complaint within ten days of receipt. A higher-ranking prosecutor shall review a complaint within ten days of receipt, or if further investigation is necessary or additional information has to be requested, within thirty days. The complainant shall be informed of the outcome. If the complaint is rejected as unsubstantiated, the prosecutor shall provide reasons and explain the procedure for appeal. An appeal against the decision made by the prosecutor in reviewing the complaint, may be made by the complainant or the investigating authority to a higher-ranking prosecutor.” “Complaints about the actions of a prosecutor shall be submitted to a higher-ranking prosecutor and reviewed in accordance with the procedure laid down in sections 220 and 221 of this Code.” 85. Regulation of the Cabinet of Ministers no. 358 (1999), in force at the material time and effective until 28 March 2007, provided as follows: “2. Convicted persons shall receive the minimum standard of health care free of charge up to the amount established by the Cabinet of Ministers. In addition, the Prisons Administration, within its budgetary means, shall provide the convicted persons with: 2.1. primary, secondary and tertiary (in part) medical care; 2.2. emergency dental care; 2.3. examination of health conditions; 2.4. preventive and anti-epidemic measures; 2.5. medication and injections prescribed by a doctor of the institution; 2.6. medical accessories. 3. Detained persons shall receive medical care in accordance with Article 2 of these regulations, excluding planned inpatient treatment ... Detained persons shall be sent to receive inpatient treatment only in acute circumstances.” | 1 |
train | 001-57631 | ENG | AUT | CHAMBER | 1,990 | CASE OF OBERMEIER v. AUSTRIA | 3 | Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;Not necessary to examine Art. 13 and 14;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | N. Valticos | 8. Mr Karl Obermeier, who resides at Linz, was formerly employed by a private insurance company ("the company") as the director of their regional branch office for Upper Austria. 9. In 1974 a dispute arose between the applicant and the company concerning various paid activities which it proposed to withdraw from him. Mr Obermeier instituted proceedings in the Vienna Labour Court (Arbeitsgericht). On 10 March 1978, the day following the first hearing, he was suspended from his duties by his employer; the company considered that it was entitled to take such a decision at any time without giving reasons. 10. After having unsuccessfully sought the opening of disciplinary proceedings, the applicant decided to challenge his suspension in the courts. Accordingly, on 9 March 1981, he brought, in the Linz Labour Court, an action for a declaratory judgment (Feststellungsklage) and, in the alternative, an action for performance (Leistungsklage). The first action was intended to establish the invalidity of the contested measure, while the second sought its revocation. He alleged in particular that the measure in question was designed to penalise him for having instituted legal proceedings against the company and was therefore unjustified. 11. On 23 April 1981 the Linz Labour Court dismissed the applicant’s claims. On 25 November 1981 the Linz Regional Court (Landesgericht) allowed Mr Obermeier’s appeal as regards the part of the judgment concerning the revocation of the suspension. It considered that by virtue of clause 32 of the collective agreement for insurance employees (see paragraph 45 below), which was applicable, suspension of an employee was subject to certain conditions and that the first-instance court should have ascertained whether they were satisfied. The fact that Mr Obermeier had instituted legal proceedings against his employer could not in itself justify the impugned measure. The court dismissed the remainder of the appeal, finding that, under Article 228 of the Code of Civil Procedure (Zivilprozessordnung), a declaratory judgment may bear only on the existence of a legal relationship (Rechtsverhältnis) and not on the validity of a legal measure (Rechtshandlung) such as the suspension of an employee. 12. The company appealed on points of law to the Supreme Court (Oberster Gerichtshof) which, on 30 March 1982, upheld the Regional Court’s judgment. The case was therefore remitted to the Labour Court. 13. In the meantime the company had decided to terminate Mr Obermeier’s employment, his dismissal taking the form of "administrative retirement" (administrative Pensionierung). This decision, taken pursuant to clause 33 § 9 of the collective agreement (see paragraph 44 below), was notified to him on 14 July 1981 and was due to become operative on 31 March 1982. 14. Previously, on 8 May 1981, the company had, as it was required to do under section 8 § 2 of the Disabled Persons (Employment) Act (Invalideneinstellungsgesetz, see paragraph 47 below), sought the authorisation of the Disabled Persons Board (Invalidenausschuss, "the Board") for the applicant’s dismissal. On 21 May 1980 Mr Obermeier had been declared disabled for the purposes of that Act. 15. The Board took the view that section 8 § 2 left the decision concerning the authorisation in question to its discretion but that it had to exercise that discretion in accordance with the spirit of the Act, in other words taking account of the legitimate interest of the employer in the dismissal and the employee’s special need for social protection. Following a hearing, the Board gave its consent to the dismissal on 8 July 1981, finding that the relationship of trust between the parties had been irremediably undermined. 16. Mr Obermeier appealed against this decision, alleging inter alia that the Board had failed to hold an inquiry into the case and had obtained only the company’s observations. The Provincial Governor (Landeshauptmann) for Upper Austria confirmed the Board’s decision on 16 October 1981, after proceedings in which no argument was taken. 17. The applicant then appealed to the Administrative Court (Verwaltungsgerichtshof) which dismissed his appeal on 9 March 1983. It considered that the authorisation for his dismissal given by the Board and confirmed on appeal was not unlawful since it was not vitiated by errors of law; the contested decision had not exceeded the discretionary power which the law conferred on the administrative authorities in this field (see paragraph 53 below). It added that the procedural requirements had been complied with in the administrative proceedings, in particular as regards Mr Obermeier’s access to the file. 18. The applicant sought relief from the Administrative Court’s judgment by an application (no. 10247/83) to the European Commission of Human Rights, which was declared inadmissible on 12 March 1986 (Decisions and Reports no. 46, pp. 77-80). 19. Simultaneously with the administrative proceedings relating to the authorisation for the applicant’s dismissal, the Linz Labour Court resumed consideration of his suspension, following the Supreme Court’s decision remitting the case to it (see paragraph 12 above). 20. The company pleaded Mr Obermeier’s lack of a legal interest (Rechtsschutzbedürfnis) in the revocation of his suspension, since in the meantime he had been dismissed. The applicant, for his part, challenged the lawfulness of his dismissal. He stressed in particular that it had been pronounced before the authorisation from the Disabled Persons Board had become final, as the case was still pending before the Administrative Court. 21. On 9 December 1982 the court rejected the applicant’s claim. The dismissal had been pronounced with the authorisation of the competent administrative authority and the proceedings in the Administrative Court did not have suspensive effect. On 11 May 1983 the Linz Regional Court upheld this judgment, observing that, in the intervening period, the Administrative Court had dismissed Mr Obermeier’s appeal. 22. The applicant appealed on points of law to the Supreme Court which, on 23 October 1984, quashed the decisions of the labour courts. Overruling its previous case-law, it found that the company should have waited until the Disabled Persons Board’s authorisation had become final (rechtskräftig). Since the applicant’s dismissal was therefore invalid, he had an interest in challenging his suspension; accordingly, the Supreme Court remitted the case to the Labour Court. 23. Following this judgment, the company sent to the applicant, on 21 December 1984, a further notification of dismissal, which was to take effect on 30 June 1985. On 9 January 1985 it requested the Disabled Persons Board for a retroactive authorisation for the dismissal pronounced on 14 July 1981. It alleged that the Supreme Court’s overruling of its own case-law had not been foreseeable and therefore constituted an exceptional case for the purposes of section 8 § 2 of the Disabled Persons (Employment) Act. 24. On 14 March 1985 the Board rejected the company’s request on the ground that its decision of 8 July 1981 (see paragraph 15 above) had final effect (Rechtskraft). On appeal by both parties, the Provincial Governor set aside this decision on 17 June 1985 and gave his retroactive consent to the applicant’s first dismissal. 25. On 23 July 1985 the applicant appealed on points of law to the Constitutional Court (Verfassungsgerichtshof) which, on 25 November 1985, referred the case to the Administrative Court. The latter court allowed the appeal on 21 May 1986, finding that the company had committed an error of law by dismissing Mr Obermeier before the authorisation had become final. Consequently, on 1 June 1986, the Provincial Governor confirmed the Board’s decision of 14 March 1985. 26. Mr Obermeier then asked the Board to declare, pursuant to sections 8 to 12 of the Disabled Persons (Employment) Act, that his employment contract subsisted. The Board and the Provincial Governor found, on 10 February 1986 and 12 January 1987 respectively, that they lacked jurisdiction to make such a declaration, the matter being one for the ordinary courts. 27. Following the Supreme Court’s order of 23 October 1984 remitting the applicant’s case to it (see paragraph 22 above), the Linz Labour Court allowed the applicant’s claim on 30 January 1985. In its view, the legal proceedings instituted against the company by Mr Obermeier were in no way vexatious and therefore did not justify a measure of suspension, by which the employer had prejudged the outcome of the proceedings pending. 28. On 31 July 1985, on an appeal by the company, the Linz Regional Court set aside this decision, notwithstanding the applicant’s request for a stay pending the decisions of the Constitutional Court and the Administrative Court (see paragraph 25 above). The Regional Court considered itself bound by the Provincial Governor’s decision of 17 June 1985 authorising Mr Obermeier’s dismissal as from 31 March 1982 (see paragraph 24 above). It concluded therefrom that the applicant no longer had any legal interest in obtaining the revocation of his suspension. 29. On 15 July 1986 the Supreme Court dismissed the applicant’s appeal on points of law lodged on 7 October 1985. It found that the Regional Court had been correct in regarding the Provincial Governor’s authorisation as binding; since only the administrative authorities were competent to apply the Disabled Persons (Employment) Act, those authorities were not bound by the opinion expressed by the Supreme Court in its judgment of 23 October 1984 (see paragraph 22 above) that the conditions laid down in section 8 § 2 of the Act in question for the granting of retroactive authorisation were not satisfied. The Supreme Court stated that it was not for the civil courts to review the decisions of the administrative authorities. On the contrary, they were required to base their own judgments on such decisions, without any further examination. In its judgment, the Supreme Court did not take into account the applicant’s appeal to the Constitutional Court and the Administrative Court. Indeed it seems to have been unaware of the Administrative Court’s judgment of 21 May 1986 (see paragraph 25 above). 30. Simultaneously with the administrative proceedings instituted by him, Mr Obermeier also challenged his dismissal in the labour courts. On 16 August 1982 he brought an action in the Linz Labour Court for a declaration that his dismissal was invalid. He argued that the company had not waited until the authorisation given by the Disabled Persons Board had become final in law and had in addition failed to inform the works council, as it was required to do under section 105 § 1 of the Industrial Relations Act (Arbeitsverfassungsgesetz, see paragraph 46 below). 31. After having stayed these proceedings on 9 December 1982, the court dismissed Mr Obermeier’s action on 14 August 1985 on the ground that, in the meantime, the Provincial Governor had given his retroactive consent to the applicant’s dismissal from employment (see paragraph 24 above). The parties did not appeal from this decision. 32. Following the Administrative Court’s judgment of 21 May 1986 (see paragraph 25 above), the applicant filed an application on 22 July 1986 for the proceedings to be reopened (Wiederaufnahmsklage) and requested that such proceedings also deal with the second dismissal from employment. The Linz Labour Court’s judgment of 24 September 1986, which allowed this application, was upheld on 3 February 1987 by the Linz Court of Appeal (Oberlandesgericht) and, on 15 July 1987, by the Supreme Court. 33. Ruling on the merits on 15 September 1987, the Labour Court found that Mr Obermeier had never been validly dismissed. It took the view that the effects of the prior authorisation given by the Board were not permanent and that such authorisation could provide the legal basis only for a dismissal which was closely linked to it both in terms of the period of time which had elapsed and as regards the substance; this was not the case in respect of the second dismissal. 34. On an appeal by the company, the Linz Court of Appeal set aside this decision on 15 March 1988 on the ground that the situation was a continuous one so that there was a sufficient connection between the consent given by the administrative authority and the dismissal from employment pronounced on 21 December 1984. 35. The applicant claimed that he had cited at the hearing, as an additional ground for the invalidity of his dismissal, disregard of clause 33 § 9 of the collective agreement (see paragraph 44 below), which requires the valid consent of the works council. The transcript of the hearing, notified to the applicant on 31 March 1988, did not refer to his statements in this respect; he therefore lodged an objection to it on 5 April 1988, which the Court of Appeal dismissed on 12 April as out of time. 36. In the meantime, the applicant had appealed on a point of law against the Court of Appeal’s judgment of 15 March 1988 (see paragraph 34 above). On 23 June 1988 in a supplementary memorial he stressed that for his second dismissal no valid prior consent had been obtained from the works council as was required under clause 33 § 9 of the collective agreement. 37. The Supreme Court dismissed the appeal on 29 June, holding that section 105 of the Industrial Relations Act, by virtue of which any dismissal from employment without prior consultation of the works council is invalid, did not apply to a disabled person. In such cases the consultation of the works council had already been effected by the interposition of the Board, acting in pursuance of section 8 § 2 of the Disabled Persons (Employment) Act. The Supreme Court declared the memorial of 23 June inadmissible under the rule that only one appeal may be lodged (Grundsatz der Einmaligkeit des Rechtsmittels, see paragraph 60 below). 38. On 30 June 1988, even before a copy of the Supreme Court’s judgment had been served on him, the applicant instituted new proceedings in the Linz Regional Court, sitting as a social and labour court. He sought a declaration that the second dismissal was void on the ground that the company had not obtained the prior consent of the works council, as it was required to do under clause 33 § 9 of the collective agreement. The court dismissed the action on 23 September 1988, finding that the agreement given by the works council in 1981 was also valid in relation to the 1984 dismissal. The Court of Appeal, and subsequently the Supreme Court, dismissed Mr Obermeier’s appeals on 28 February and 14 June 1989 respectively. 39. On 21 March 1989 the applicant applied again to the Linz Regional Court for a declaration that the dismissal of 21 December 1984 and the authorisation given by the administrative bodies were void as being contrary to honest practices (Sittenwidrigkeit). On 12 May 1989 the court rejected the claim. It took the view that the administrative organs in question had, by implication, expressed their opinion on the matter by giving their agreement pursuant to section 8 § 2 of the Disabled Persons (Employment) Act, because an authorisation accorded for a dismissal contrary to honest practices would have been inconsistent with the criteria which the Administrative Court had laid down for the validity of such decisions. On 10 October 1989 the Linz Court of Appeal upheld this judgment. On appeal on points of law by Mr Obermeier, the Supreme Court quashed these two decisions but dismissed his application on 14 March 1990, on the ground that the judicial decisions which had closed the proceedings in which the applicant had already contested the validity of his dismissal in the labour courts (see paragraphs 30-38 above) were final. 40. In the intervening period, Mr Obermeier had, on 22 July 1986, applied to the labour courts for the reopening of the proceedings concerning his suspension, proceedings which had been terminated by the Supreme Court on 15 July 1986 (see paragraph 29 above). He relied on the judgment delivered by the Administrative Court on 21 May 1986 (see paragraph 25 above). 41. On 15 October 1986 the Regional Court dismissed the application for the proceedings to be reopened, on procedural grounds. However, on 15 July 1987 the Supreme Court allowed the applicant’s appeal on points of law and remitted the case to the Linz Court of Appeal which had acquired jurisdiction by virtue of a new Act on the social and labour courts. 42. On 19 November 1987 the Linz Court of Appeal ordered the proceedings to be reopened but allowed the company’s application for a stay pending the conclusion of the proceedings concerning the dismissal of 21 December 1984. It did so despite the protracted nature of the proceedings, because the decision on the dismissal was clearly crucial to the suspension proceedings. The proceedings remain stayed. 43. Employment contracts are governed by the general law of contract (Articles 859 et seq. of the Civil Code, Allgemeines Bürgerliches Gesetzbuch) and in particular by the provisions on contracts for services (Dienstvertrag, Articles 1151 et seq. of the Code), supplemented by the Private Employees Act (Angestelltengesetz, Bundesgesetzblatt no. 292/1921 as amended). Section 27 of that Act provides that a person may be dismissed only on certain specific grounds, which it lists. 44. As a general rule, employment contracts are concluded on the basis of collective agreements (Kollektivverträge), whose terms form part of the conditions of employment, unless otherwise stipulated in the individual contract. The Collective Agreement for Administrative Employees of Insurance Undertakings (Kollektivvertrag für Angestellte der Versicherungsunternehmen - Innendienst), which was applicable in this instance, lays down the principle that, with very few exceptions, a permanent employee may be dismissed only after disciplinary proceedings (clause 33 § 4). One of the exceptions is "administrative retirement" (administrative Pensionierung), provided for in clause 33 § 9. Among the conditions to which such a measure is subject is the prior consent of the works council. 45. Clause 32 of the agreement concerns "suspension" (Suspendierung), and is worded as follows: "(1) Suspension does not constitute a penalty, but is a preventive administrative measure which may be imposed by management in the following cases: (a) where a criminal or disciplinary investigation is being conducted against an employee; (b) where there has been a gross failure to show due respect and proper deference to hierarchical superiors; (c) where it appears necessary on grounds of safety at work and in the interests of the undertaking. (2) During the period of his suspension, the employee shall continue to be paid his salary. In addition he shall continue to be entitled to promotion on grounds of seniority." 46. The dismissal of employees is governed in principle by section 105 of the Industrial Relations Act (Arbeitsverfassungsgesetz, Bundesgesetzblatt no. 22/1974). The version applicable at the material time provided as follows: "Appeal against dismissal (1) Before dismissing an employee, an employer shall notify the works council, which may comment within five working days. (2) If so requested by it, the employer shall discuss the dismissal with the works council within the five days allowed for comment. Any dismissal prior to expiry of this period shall be invalid, unless the works council has already stated its position. (3) If the works council has not expressly authorised the proposed dismissal within the period specified in paragraph (1), application may be made to the conciliation board to set it aside, if 1. ... 2. the dismissal is not justified from a social point of view and the dismissed employee has already been in the employ of the undertaking for six months. Dismissal is unjustified from a social point of view when it damages the employee’s vital interests, unless the employer can show that it is due to (a) circumstances relating to the employee personally and which are detrimental to the interests of the undertaking or (b) business requirements which militate against his continued employment. ... In the examination as to whether a dismissal is unjustified from a social point of view, special attention shall be given in the case of older employees to the fact that they have been employed without a break for many years in the undertaking or the company of which the undertaking is part, and to the difficulties that they may be expected to encounter in finding new employment because of their age. (4) The employer is required to give the works council notice of the dismissal. If it has expressly objected to the proposed dismissal, the works council may, within one week of being notified, contest it before the conciliation board at the dismissed employee’s request. If the works council does not act on the employee’s request and contest the dismissal, he may himself do so before the conciliation board within the week following expiry of the time-limit laid down for the works council. (5) ... (6) If the conciliation board grants the application, the dismissal shall be invalid. The conciliation board’s decision shall be final." The conciliation board operates as a labour court. 47. Article 8 of the Disabled Persons (Employment) Act (Invalideneinstellungsgesetz, Bundesgesetzblatt no. 22/1970, as amended), provides as follows: "Dismissal (1) Except in cases where a longer period of notice is required, a disabled person who enjoys special status and is dismissed by his employer shall be entitled to four weeks notice. ... (2) A ... person [in this category] may only be dismissed by his employer if the Disabled Persons Board, ..., after having consulted the works council ..., has given its consent; the employee shall have the status of a party in these proceedings. Without prejudice to legal provisions imposing additional conditions on termination of employment, any dismissal pronounced without the prior authorisation of the Disabled Persons Board shall be invalid unless the Board gives its consent retroactively in exceptional circumstances. Section 105 §§ 2 to 6 of the Industrial Relations Act (Bundesgesetzblatt no. 22/1974) shall not apply to the dismissal of disabled persons enjoying special status." 48. Unless otherwise provided for in the Disabled Persons (Employment) Act, the procedure before the Disabled Persons Board and, on appeal, before the second-instance authority is governed by the Code of General Administrative Procedure (Allgemeines Verwaltungsverfahrensgesetz, Bundesgesetzblatt no. 172/1950, as amended). 49. Under section 19a of the Act, appeals from the Board’s decisions are heard by the Provincial Governor (Landeshauptmann), acting as a delegated authority of the federal administration (mittelbare Bundesverwaltung) within the meaning of Article 103 of the Federal Constitution (Bundesverfassungsgesetz). In this capacity, he is subject to instructions (Weisungen) from the Federal Minister for Social Affairs (Bundesminister für Soziale Verwaltung - Article 103 § 1 in conjunction with Article 20 § 1 of the Federal Constitution). 50. An appeal to the Provincial Governor has suspensive effect by virtue of Article 64 of the Code of General Administrative Procedure. 51. The resulting decision is deemed to be final (formell rechtskräftig) although it may be challenged in the Administrative Court (Verwaltungsgerichtshof) and in the Constitutional Court (Verfassungsgerichtshof) pursuant, respectively, to Articles 131 and 144 of the Federal Constitution. Such appeals do not have suspensive effect, unless the relevant courts decide otherwise (section 30 of the Administrative Court Act (Verwaltungsgerichtshofgesetz), Bundesgesetzblatt no. 10/1985, and section 85 of the Constitutional Court Act (Verfassungsgerichtshofgesetz), Bundesgesetzblatt no. 85/1953). 52. The Administrative Court declares the decision void if it does not dismiss the appeal as unfounded; it rules on the merits only if the competent authority has failed in its duty to render a decision (section 42 § 1 of the Administrative Court Act). Where it has to review the lawfulness of an administrative measure, the Administrative Court bases its decision on the facts established by the relevant authority, with reference solely to the complaints submitted, except where the authority in question lacked jurisdiction or where procedural rules have been infringed (section 41 of the above-mentioned Act). In this connection the Act specifies that the Administrative Court is to declare void the impugned measure for infringement of such a rule where the facts found by the authorities are not borne out, on an important point, by the evidence, where the facts thus determined have to be supplemented on such a point and where there is a failure to comply with rules which, if they had been correctly applied, could have resulted in a different decision (section 42 § 2 (3) of the Act). If in the course of such an examination grounds emerge which were hitherto unknown to the parties, the Administrative Court has to hear the parties and, if necessary, stay the proceedings (section 41 § 1). The procedure involves essentially an exchange of memorials (section 36), followed, except in certain cases listed in the Act, by a hearing conducted under the adversarial principle in the presence of the parties concerned and, as a rule, held in public (sections 39 and 40). 53. Article 94 of the Constitution stipulates in addition that at all levels of jurisdiction the administrative authorities must be separate from the courts. Article 130 § 2 of the Constitution applies where the Administrative Court has to review the lawfulness of an administrative measure taken in the exercise of a discretionary power which the law confers on the competent authority; it provides as follows: "There is no ground for a finding of unlawfulness (Rechtswidrigkeit) where the legislature has refrained from laying down binding rules for the conduct of the administrative authority and leaves it to that body to determine its own conduct and the authority in question has used this discretionary power in accordance with the law." 54. Until the entry into force of the Labour and Social Courts Act (Arbeits- und Sozialgerichtsgesetz, Bundesgesetzblatt no. 104/1985) on 1 January 1987, the proceedings in the present case were governed by the Labour Courts Act (Arbeitsgerichtsgesetz, Bundesgesetzblatt no. 170/1946, as amended). This Act provided for first-instance labour courts, sitting for the same areas as district courts (Bezirksgerichte; section 6). Appeal lay to the ordinary civil courts in other words the Regional Courts and the Supreme Court, which courts, set up special chambers for this purpose (sections 25 § 2 and 26). The new legislation conferred jurisdiction in labour disputes on special chambers of the Regional Courts - except in Vienna - the Courts of Appeal and, for appeals on points of law, to the Supreme Court (section 2). 55. Under the former legislation, on appeal a case was reheard and the parties could adduce new facts and new evidence (section 25 § 1). In line with the principles governing appeal procedures in general, under the legislation in force since 1 January 1987 this is only possible subject to certain conditions (section 63 of the Social and Labour Courts Act). In addition, proceedings concerning labour and social disputes are to be conducted with particular diligence according to the new Act (section 39 § 1). Except as otherwise provided, such proceedings are governed by the rules of the Code of Civil Procedure (Zivilprozessordnung). 56. By virtue of Article 228 of this Code, an action for a declaratory judgment (Feststellungsklage) may be brought to establish the existence or non-existence of a legal relationship or a right (Bestehen oder Nichtbestehen eines Rechtsverhältnisses oder Rechtes) if the applicant has a legal interest (rechtliches Interesse) in this issue. The law does not expressly require such interest for actions brought to secure performance (Leistungsklagen), but it is generally considered to be a necessary condition for any court action. 57. As regards preliminary issues giving rise to separate proceedings still pending, Article 190 of the Code provides as follows: "Stay of proceedings pending the decision on preliminary issues (1) Where the determination of a dispute depends wholly or in part on the existence or non-existence of a legal relationship which is the subject of other legal proceedings pending or which is to be established in administrative proceedings pending, the Chamber may stay the main proceedings until such time as a final decision concerning the legal relationship in question has been given. (2) ... (3) When a final decision has been reached in the judicial or administrative proceedings in question, the main proceedings shall be resumed on application by the parties or of the court’s own motion." It follows that the court must decide the preliminary issue itself if that issue has not given rise to separate proceedings which are pending. It has a discretionary power to do so even if such proceedings are pending. Once the decision on the preliminary issue has been rendered by the relevant judicial or administrative authority and has become final, it is generally considered to be binding on the court. Article 38 of the Code of General Administrative Procedure contains an identical provision regarding the administrative authorities. 58. Article 530 of the Code of Civil Procedure provides for the possibility of reopening civil proceedings (Wiederaufnahmsklage) under certain conditions: "Application for proceedings to be reopened (1) Proceedings which have been terminated by a decision on the merits may be reopened on an application by a party: 1.-4. ... 5. where a criminal judgment on which the decision is based has subsequently been quashed by another judgment which has become final; 6. where the party concerned finds himself, or becomes, able to use a previous judgment which has become final and which concerns the same claim or the same legal relationship and determines with final effect the dispute between the parties in the proceedings which are to be reopened; 7. where the party concerned either learns of new facts, or where he finds himself, or becomes, able to adduce evidence which, if it had been submitted and used in the earlier proceedings, would have resulted in a more favourable decision for him; (2) The application for proceedings to be reopened on the grounds referred to in paragraphs 6 and 7 shall be admissible only in so far as the party who makes the application was not in a position, without there being any fault on his part, to rely on the judgment which has become final or the new facts or evidence before the conclusion of the oral proceedings resulting in the first-instance decision." 59. In the present case (see paragraphs 32 and 41 above), the Supreme Court made it clear that in the event of the quashing or subsequent variation of an administrative decision which had become final, and which was regarded as binding by the courts, an application for the proceedings to be reopened was admissible by analogous application of Article 530 § 1, no. 5. 60. In general, the Supreme Court hears appeals on points of law in private session (Article 509 of the Code of Civil Procedure) on the basis of the file (Article 508). It takes account of new facts or evidence only and strictly in so far as they are admissible and in addition have been cited in the appeal memorial or the reply (Articles 504 § 2 and 507 § 3 - Neuerungsverbot). Moreover, Austrian law applies the principle of "a single appeal" (Grundsatz der Einmaligkeit der Rechtsmittels) which precludes the submission of supplementary memorials. The Supreme Court normally determines the merits of the case. It may remit the case to the lower courts only subject to certain conditions (Article 510), for example where the proceedings appealed against were flawed in such a way as to prevent a full discussion or thorough examination of the dispute (Article 503 no. 2). | 1 |
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